{"document_id": "1969_2_896_901_EN", "year": 1969, "text": "K. M. VISWANATHA PILLAI\n\nK. M. SBANMUGHAM PILLAI\n\nNovember 25, 1969\n\n[S. M. SJKRI AND K. S. HEGDE, JJ.J Motor Vehicles Act (4 of 1939), ss. 49(1) and 60(1) (c)-Persons owning bwes benami-Whether bar for obtaining permit.\n\nThe appellant was the owner of 5 buses. The vehicles stood in the name of the respondent, appellant's benamidar, and tbe stage carriage permits were also obtained in the respondent's name. The appellant, who was running the buses, filed a suit claiming the buses along with their permits. It was decreed by the trial court, and the lower appellate court confirmed the decree in respect of 4 buses. The Higb Court, in further appeal, held that the appellant and the respondent together practised fraud in contravention of ss. 41(1) and 60(1)(c) of the Motor Vehicles Act, 1939 in as much as the respondent representing himself to be the owner falsely obtained the permits in his own name, and allowed the true owner, who had no permit to conduct the actual business and dismissed the suit in 1010.\n\nIn appeal this Court,\n\nHELD : There is nothing in the Motor Vehicles Act, which expressly or by implication bars benami t'ransactions or persons owning buses benami and applying for pennits on that basis.\n\nSection 42( 1) does not require that the owner himself should obtain the permit; it only requires the owner to see that the transport vehicles shall not be used except in accordance with the conditions of the permit.\n\nThe definition of 'permit' itself shows that all permits need not be in the name of the owner because the latter part of the definition shows that it is only in the case of a private carrier or a public carrier that a permit has to be in the owner's name. The same inference follows from the definitions of 'private carrier' and 'public carrier'.\n\n[899 HJ The amerided s. 60(1) (c) provides for one of the contingencies in which permit can be cancelled. According to it, it is permissible for the Transport Authority to cancel a permit if the holder of it ceases to own the vehicle covered by the permit. It is only a permissive clause and the Transport Authority has only been given a discretion to cancel the permit in that contingency. It may or may not cancel it, even if the holder of the permit ceased to own the vehicles eovered by it.\n\nBut it is by no means necessary that cl. (c) should be applicable to the case of every permit holder. There may be permit holders who own the vehicle covered by the permit and there may be permit holders who do not own the vehicle. This clause appears to apply only to the former case and not to the latter.\n\n[900 B-H] Veerappa Pillai v. Raman & Raman, [1952] S.C.R. 583, followed.\n\nKhal/i/,.ul-Rahman Khan v. State Transport Appellate Tribunal, A.LR. 1963 All. 383, Gur Narayan v. Sheolal Singh.\n\n(1919) 46 Cal. 566 (P.C.) and C.I.T. Gujarat v. Abdul Rahim & Co., 55\n\n1.T.R. 651,\n\napproved.\n\nH Varadarcjulu Naidu v. Thavasi Nadar, (1963) 2 M.L.J. 20 and Chavali Venkataswami v. Chavali Kotayya, ( 1959) 2 and W.R. 4-07, disapproved.\n\n' I\n\n• ..\n\n. '\n\n+.\n\nA CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1453 of\n\n1966.\n\nAppeal from the judgment and decree dated September 14, 1965 of the Madras High Court in Second Appe&l No. 1394 of 1963.\n\nA. K. Sen, R. M. Mehta and J. B. Dadachan; i, for the appellant.\n\nR. Gopalakrishnan, for the respondent.\n\nThe Judgment of the Court was delivered by Sikri, J. This appeal by certificate granted by the High Court of Madras is directed against its judgment and decree modifying the decree passed by the District Judge.\n\nThe relevant facts for the determination of the points raised before us are as follows : The plaintiff, K. M. Viswanatha Pillai,\n\nappellant before us and hereinafter referred to as the plaintiff, and K. M. Shanmµgham Pillai, respondent before us and hereinafter referred to as the defendant, were originally members of a Joint Hindu Family. On June 29, 1953, the six brothers who constituted the Joint Hindu Family entered into a partition of the properties belonging to the Joint Family, evidenced by a registered document Ex. A-35. A motor bus MDH 662 fell to the share of the plaintiff.\n\nAt the time of partition the permit was not in the name of the defendant and some proceedings for the transfer of the permit to his name were pending. Accordingly it was provided in the partition deed as follows :\n\n\"As soon as its route permit and registration etc. are transferred in the name of Shanmugam Pillai, he shall have the same transferred in the name of the 4th individual of us, Viswanatha Pillai.\" In September 1953, the permit was transferred in the name of the defendant.\n\nIn April 1954, the plaintiff purchased two more vehicles, namely, MDO 1106 and MDH 730, but the permits were obtained in the name of the defendant in whose name the vehicles were also actually acquired. As the defendant was going to Kuala Lumpur on business he executed a general power of attorney, Ex. A-55, in favour of the plaintiff. In this power of attorney the defendant admitted that the three buses above mentioned belonged to the plaintiff and were plying in his name as requested by the plaintiff. Two more buses seem to have been acquired since then.\n\nThe plaintiff's case in brief was that the defendant was carrying on business on his behalf as a benamidar. He accordingly prayed for a declaration that the five buses alongwith the stage\n\ncarriage permits belonged to him and that he .was ent!tled to run the same in terms of the power of attorney which was rrrevocable.\n\nThe defendant had joined with the plaintiff earlier in filg a joint application for transfer of permits before e Region~ Transport Authority.\n\nThe defendant, however, withdrew his consent and the application was rejected. The plaintiff, accordingly, seeks a mandatory injunction directing the defendant to execute necessary documents required to effectuate the transfer of the permits.\n\nThe suit was decreecl entirely by the Trial Court, but the District Judge confirmed the decree only with reference to four of the buses. With reference to Bus No. MDU 4069 the decree was set aside.\n\nThe High Court held that \"the plaintiff and the defendant practised a fraud upon the authorities, conjointly, in contravention of the express provision of the Motor Vehicles Act. The benamidar of the vehicles, representing himself to be the owner, falsely obtained the permits in his name, and allowed the true owner, who had no permit, to conduct the actual business; there cannot be a more flagrant violation of the basic requirements of the Act, or of its scheme.\" The High Court, accordingly, felt that they could not possibly grant mandatory injunction compelling the defendant to co-operate in any further application for transfer, since that would, in effect, give recogIIition to the fraudulent contrivance and effectuate rights on the very basis of that contrivance. The High Court also agreed with the District Judge that the plaintiff could not get a declaration as far as bus No.\n\nMDU 4069 was concerned.\n\nThe learned counsel for the appellant, Mr. A. K. Sen urges before us that no provision of the Motor Vehicles Act, 1939 (IV of 1939) hereinafter referred to as the Act has been contravened and that it is not necessary under the Act that a permit should be obtained only by the real owner of the bus.\n\nThe relevant statutory provisions may now be noticed, and they are as follows:\n\n\"The Motor Vehicles Act, 1939 Section 2.\n\n(3) \"contract carriage\" means a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum and from one point to another without stopping to pick up or set down along the line of route passengers not included in the contract; and includes a motor cab\n\n., c\n\nD •\n\nF - G\n\nnotwithstanding that the passengers may pay separate fares.\"\n\n(19) \"owner\" means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, the person in possession of the vehicle under that agreement.\"\n\n(20) \"permit\" means the document issued by the commission or a State or Regional Transport Authority authorising the use of a transport vehicle as a contract carriage, or stage carriage, or authorising the owner as a private carrier or public carrier to use such vehicle.\"\n\n(22) \"private carrier\" means an owner of a transport vehicle other than a public carrier who uses that vehicle solely for the carriage of goods which are his property or the carriage of which is necessary for the purposes of his business not being a business of providing transport, or who uses the vehicle for any of the purposes specified in sub-section (2) of section 42.\n\n(23) \"public carrier\" means an owner of a transport vehicle who transports or undertakes to transport goods, or any class of goods, for another person at any time and in any public place for hire or reward, whether in pursuance of the terms of a contract or agreement or otherwise, and includes any person, body, association or company engaged in the business of carrying the g'oods of persons associated with that person, body, association or company for the purpose of having their goods transported.\"\n\nSection 42(1) on which the High Court has relied reads thus:\n\n\"42(1) No owner of a transport vehicle shall use or permit the use of the vehicle in any public place, save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or the Commission authorising the use of the vehicle in that place in the manner in which the vehicle is being used; . . . \"\n\nThis section does not, in our view, on the language require that the owner himself should obtain the permit; it only requires the owner that the transport vehicle shall not be used except in accordance with the conditions of the permit.\n\nThe High Court would add the words \"to .him\" after the words \"permit granted\",\n\nbut in our view, there is no justification for inserting those wo; ds. The definition of the \"permit\" itself shows that all pennits need not be in .the name of the owner because the latter part of the definition shows that it is only in the case of a private carrier or a public carrier that a permit has to be in the owner's name.\n\nThe same inference follows from the definitions of \"private carrier\" and \"public carrier\".\n\nThis Court came to the same conclusion in Veerappa Pillai v. Raman & Raman(').\n\nSome reliance was placed on the amendments made ins. 60(1) (c). The section as amended reads:\n\n\"60 (1) The transport authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit-\n\n(c) if the holder of the permit ceases to (own)( 2 ) the vehicle or vehicles covered by the permit, .... \" There has been a conflict of opinion between the different High Courts as to the inference following that amendment. It seems to us that the High Court of Allahabad in Khalil-ul-Rahman Khan v. State Transport Appellate Tribunal(\") rightly gives the effect of the amendment. Srivastava, J., observed :\n\n\"A reference was, however, made to cl. (c) of sub-section (1) of Section 60 of the Act and on the basis of that clause it was urged that it assumed that the permit holder should be the owner of the vehicle.\n\nThat clause provides for one of the contingencies in which a permit can be cancelled. According to it, it is permissible for the Transport Authority to cancel a permit if the holder of it ceases to own the vehicle covered by the permit. It is only a permissive clause and the Transport Authority has only been given a discretion to cancel the permit in that contingency. It may or may not cancel it, even if the holder of the permit ceases to own the vehicle covered by it. But it is by no means necessary that cl. (c) should be applicable to the case of every permit holder. There may be pennit holders who own the vehicle covered by the permit and there may be permit holders who do not own the vehicle. This clause appears to apply only to the former case and not to the latter.\n\nOn its basis, therefore, it cannot be held to be a requirement of the\n\n(1) [1952] S.C.R. 583.,\n\n(2) Substituted by s. 54 of the Motor Vehicles (Amendment) Act, 1956 (100 of\n\n1956) for \"possess\" (w.e.f. 16-2-1957).\n\n(3) A.I.R. 1963 All. 383, 388.\n\n• '\n\nI '\n\n. ---..\n\nAct that in each case the person in whose favour a permit has been issued should necessarily be the owner of the vehicle covered by it.\"\n\nWe agree with these observations. The contrary view held in Varadarajulu Naidu v. Thavasi Nadar(') thats. 42(1) contemplates that only an owner will have a permit is erroneous.\n\nThe decision of the Andhra High Court in Chavali V enkataswami v. Chavali Kotayya( 2 ) thats. 60(1) (c) of the Act envisages the grant of a permit to the owner alone must also be dissented from .\n\nThe learned counsel for the respondent says that at any rate the Act does not contemplate persons applying for permits benami.\n\nIn India benami transactions are recognised and not frowned upon. (see Gur Narayan v. Sheolal Singh) (3 ). In C.l.T.\n\nGujarat v. Abdul Rahim & Co. (') it was held by this Court that the registration of the partnership deed under s. 26A of the Indian Income Tax Act, 1922, could not be refused on the ground that K was the benamidar of V.\n\nWe see nothing in the Act which expressly or by implication bars benami transactions or persons owning buses benami and applying for permits on that basis.\n\nIn the result the appeal is allowed, the decree of the High Court set aside and the decree passed by the District Judge restored.\n\nWe may mention that Mr. Sen did not press the claim regarding the fifth bus, MDU 4069.\n\nThe appellant will have half costs in this Court. The parties will bear their own costs in the High Court.\n\nY.P .\n\n(I) (1963) 2 M.L.J. 20.\n\n(2) (1959) 2 Andh. W. R. 407.\n\n(3) (1919) 46 Cal.566 (PC).\n\n(4) 55 I.T.R. 651.\n\nAppeal allowed.", "total_entities": 38, "entities": [{"text": "K. M. VISWANATHA PILLAI", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "K. M. VISWANATHA PILLAI", "offset_not_found": false}}, {"text": "K. M. SBANMUGHAM PILLAI", "label": "RESPONDENT", "start_char": 25, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "K. M. SBANMUGHAM PILLAI", "offset_not_found": false}}, {"text": "November 25, 1969", "label": "DATE", "start_char": 50, "end_char": 67, "source": "ner", "metadata": {"in_sentence": "K. M. VISWANATHA PILLAI\n\nK. M. SBANMUGHAM PILLAI\n\nNovember 25, 1969\n\n[S. M. SJKRI AND K. S. HEGDE, JJ.J Motor Vehicles Act (4 of 1939), ss."}}, {"text": "K. S. HEGDE, JJ", "label": "JUDGE", "start_char": 86, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 104, "end_char": 122, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 49(1) and 60(1)", "label": "PROVISION", "start_char": 136, "end_char": 155, "source": "regex", "metadata": {"linked_statute_text": "Motor Vehicles Act", "statute": "Motor Vehicles Act"}}, {"text": "ss. 41(1) and 60(1)(c)", "label": "PROVISION", "start_char": 743, "end_char": 765, "source": "regex", "metadata": {"linked_statute_text": "Motor Vehicles Act", "statute": "Motor Vehicles Act"}}, {"text": "Motor Vehicles Act, 1939", "label": "STATUTE", "start_char": 773, "end_char": 797, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "is nothing in the Motor Vehicles Act", "label": "STATUTE", "start_char": 1056, "end_char": 1092, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 42( 1)", "label": "PROVISION", "start_char": 1226, "end_char": 1240, "source": "regex", "metadata": {"linked_statute_text": "There is nothing in the Motor Vehicles Act", "statute": "There is nothing in the Motor Vehicles Act"}}, {"text": "s. 60(1)", "label": "PROVISION", "start_char": 1813, "end_char": 1821, "source": "regex", "metadata": {"linked_statute_text": "There is nothing in the Motor Vehicles Act", "statute": "There is nothing in the Motor Vehicles Act"}}, {"text": "A. K. Sen", "label": "OTHER_PERSON", "start_char": 3231, "end_char": 3240, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, R. M. Mehta and J. B. Dadachan; i, for the appellant."}}, {"text": "R. M. Mehta", "label": "JUDGE", "start_char": 3242, "end_char": 3253, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, R. M. Mehta and J. B. Dadachan; i, for the appellant."}}, {"text": "J. B. Dadachan", "label": "LAWYER", "start_char": 3258, "end_char": 3272, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, R. M. Mehta and J. B. Dadachan; i, for the appellant."}}, {"text": "R. Gopalakrishnan", "label": "LAWYER", "start_char": 3297, "end_char": 3314, "source": "ner", "metadata": {"in_sentence": "R. Gopalakrishnan, for the respondent."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 3380, "end_char": 3385, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sikri, J. This appeal by certificate granted by the High Court of Madras is directed against its judgment and decree modifying the decree passed by the District Judge."}}, {"text": "K. M. Viswanatha Pillai", "label": "PETITIONER", "start_char": 3653, "end_char": 3676, "source": "ner", "metadata": {"in_sentence": "The relevant facts for the determination of the points raised before us are as follows : The plaintiff, K. M. Viswanatha Pillai,\n\nappellant before us and hereinafter referred to as the plaintiff, and K. M. Shanmµgham Pillai, respondent before us and hereinafter referred to as the defendant, were originally members of a Joint Hindu Family.", "canonical_name": "K. M. VISWANATHA PILLAI"}}, {"text": "K. M. Shanmµgham Pillai", "label": "RESPONDENT", "start_char": 3749, "end_char": 3772, "source": "ner", "metadata": {"in_sentence": "The relevant facts for the determination of the points raised before us are as follows : The plaintiff, K. M. Viswanatha Pillai,\n\nappellant before us and hereinafter referred to as the plaintiff, and K. M. Shanmµgham Pillai, respondent before us and hereinafter referred to as the defendant, were originally members of a Joint Hindu Family.", "canonical_name": "K. M. SBANMUGHAM PILLAI"}}, {"text": "June 29, 1953", "label": "DATE", "start_char": 3893, "end_char": 3906, "source": "ner", "metadata": {"in_sentence": "On June 29, 1953, the six brothers who constituted the Joint Hindu Family entered into a partition of the properties belonging to the Joint Family, evidenced by a registered document Ex."}}, {"text": "Shanmugam Pillai", "label": "OTHER_PERSON", "start_char": 4437, "end_char": 4453, "source": "ner", "metadata": {"in_sentence": "are transferred in the name of Shanmugam Pillai, he shall have the same transferred in the name of the 4th individual of us, Viswanatha Pillai.\""}}, {"text": "Viswanatha Pillai", "label": "OTHER_PERSON", "start_char": 4531, "end_char": 4548, "source": "ner", "metadata": {"in_sentence": "are transferred in the name of Shanmugam Pillai, he shall have the same transferred in the name of the 4th individual of us, Viswanatha Pillai.\""}}, {"text": "Kuala", "label": "GPE", "start_char": 4861, "end_char": 4866, "source": "ner", "metadata": {"in_sentence": "As the defendant was going to Kuala Lumpur on business he executed a general power of attorney, Ex."}}, {"text": "Lumpur", "label": "GPE", "start_char": 4867, "end_char": 4873, "source": "ner", "metadata": {"in_sentence": "As the defendant was going to Kuala Lumpur on business he executed a general power of attorney, Ex."}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 6258, "end_char": 6276, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sen urges before us that no provision of the Motor Vehicles Act, 1939", "label": "STATUTE", "start_char": 7066, "end_char": 7135, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Motor Vehicles Act, 1939", "label": "STATUTE", "start_char": 7402, "end_char": 7426, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 2", "label": "PROVISION", "start_char": 7427, "end_char": 7436, "source": "regex", "metadata": {"linked_statute_text": "The Motor Vehicles Act, 1939", "statute": "The Motor Vehicles Act, 1939"}}, {"text": "section 42", "label": "PROVISION", "start_char": 8798, "end_char": 8808, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 42(1)", "label": "PROVISION", "start_char": 9316, "end_char": 9329, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Allahabad", "label": "COURT", "start_char": 11022, "end_char": 11045, "source": "ner", "metadata": {"in_sentence": "It seems to us that the High Court of Allahabad in Khalil-ul-Rahman Khan v. State Transport Appellate Tribunal(\") rightly gives the effect of the amendment."}}, {"text": "Srivastava", "label": "JUDGE", "start_char": 11155, "end_char": 11165, "source": "ner", "metadata": {"in_sentence": "Srivastava, J., observed :\n\n\"A reference was, however, made to cl. ("}}, {"text": "Section 60", "label": "PROVISION", "start_char": 11248, "end_char": 11258, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 54", "label": "PROVISION", "start_char": 12289, "end_char": 12294, "source": "regex", "metadata": {"statute": null}}, {"text": "Andhra High Court", "label": "COURT", "start_char": 12776, "end_char": 12793, "source": "ner", "metadata": {"in_sentence": "The decision of the Andhra High Court in Chavali V enkataswami v. Chavali Kotayya( 2 ) thats. 60(1) (c) of the Act envisages the grant of a permit to the owner alone must also be dissented from ."}}, {"text": "India", "label": "GPE", "start_char": 13084, "end_char": 13089, "source": "ner", "metadata": {"in_sentence": "In India benami transactions are recognised and not frowned upon. ("}}, {"text": "s. 26A", "label": "PROVISION", "start_char": 13310, "end_char": 13316, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income Tax Act, 1922", "label": "STATUTE", "start_char": 13324, "end_char": 13351, "source": "regex", "metadata": {}}, {"text": "Sen", "label": "OTHER_PERSON", "start_char": 13732, "end_char": 13735, "source": "ner", "metadata": {"in_sentence": "We may mention that Mr. Sen did not press the claim regarding the fifth bus, MDU 4069."}}]}
{"document_id": "1969_3_1002_1005_EN", "year": 1969, "text": "AMRfl'SAGAR GUPTA & ORS.\n\nSUDESH BEHAR! LAL & ORS.\n\nMarch 13, 1969\n\n[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.] B\n\nCode of Civil Procedure (Act 5 of 1908), s. 11-Res Judicata-Suit agrnnst mana11er of Joint Hindu family-No •flegation that he was being 10 sued--Coparceners not. parties-Decree if operates as res judicata \"Qzainst coparceners.\n\nA suit between J the father of appellants and B the father of respon dents, each claiming possession of the suit properties on the strength of an alleged gift deed in his favour, was decreed in favo•1r of J and the decree was confirmed by\"\" this Court.\n\nAfter various attempts by B and aftet his death by his sons, to defeat J's rights, one of B's sons filed a suit for partition of the suit properties on the allegation that they were gifted to the joint family of whjclt B was the karta.\n\nOn the queition whether the decree in the earlier suit operated as res iudicatc.\n\nHELD : It is not necessary in order that a decree against a manager may operate as res judicata against coparceners who were not parties to the earlier suit, that the plaint or written statement should state in express terms that he was suing or was being sued as a manager.\n\nIt is sufficient if the manager was in fact suing or was being sued as representing the whole family.\n\nA suit by or against the manager will be deemed to be one brought by or against him a~ representing the family if the circumM\n\nstances show that be was the manager and the property involved in the suit was family property. (1004 H; 1005 AB]\n\nIn the present case, B must be deemed to have been sued in the pre vious suit as the karta of his famil}, because : (a) the alleged gift in favour of the joint family was at a time when all the sons of B were minors and if true the gift could have been accepted by B only as the karta; (b) there was no conflict of interest between B and hls sons and there was no allegation that B did not safeguard the family's interest while cimtesting the previous suit; and ( c) B did not claim in the earlier suit that the gift was to him in his individual capacity. [1004 A.C; 1005 CJ\n\nLalchand v. Sheogovind,\n\n(1929) I.L.R. 8 Pat. 788, Ram Kishan v.\n\nGanga Ram, (1931) I.L.R. 12 Lah. 428, Prithipal v. Ramesh war, ( 1927) I.L.R. 2 Luck. 288, Surendranath v. Sambhunath, (1928) I.L.R. 55 Cal. 210, Mulgaurrd Co-operative Credit Sociny v. Shidlingappa Ishwarappa, I.L.R. (1941) Born. 682, Venkatanaraycna v. Somaraju, A.I.R. 1937 Mad.\n\n610 (F.B) and Mani Sahoo v. Lokanath, A.I.R. 1950 Or. 140, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No 349 of 1966.\n\nAppeal by special leave from the judgment and order dated December 17, 1963 of the Punjab High Court, Circuit Bench at Delhi in R.F.A. No. 164-C of 1963.\n\nAMRITSAGAR v. SUDESH BEHAR! (Hegde, J.) 1003\n\nS. Y. Gupte and A. N. Goyal. for the appellants.\n\nC. B . .Agarwala, H. K. Puri and B. N. Kirpal, for respondent No. 1. -\n\nThe Judgment of the Court was delivered by\n\nHegde, J. The only question that arises for decision in this appeal by special leave is whether the suit from which this appeal has arisen is barred by res judicata in view of the decision in Civil Suit No. 15 of 1943.\n\nThe trial court answered that question in the affirmative but the High Court has taken a contrary view.\n\nHence this appeal.\n\nThe facts of the case leading up to this appeal, briefly stated, are as follows :\n\nQne Krishen Gopal had lease-hold rights in the suit properties. After the death of the aforesaid Krishen Gopal dispute arose between Jawala Prashad, the father of the appellants and Banwari Lal Verma, the father of the respondents as to the title of the suit properties.\n\nEach one of them claimed that those properties had been gifted to him by Krishen Gopal.\n\nAs a re suit of this dispute Jawala Prashad instituted on January 20, 1943, Civil Suit No. 15 of 1943 against Banwari Lal Verma claiming possession of the suit properties on the strength of the alleged gift in his favour.\n\nIn defence Banwari Lal Verma pleaded that those properties had been gifted to him by Krishen Gopal.\n\nThe principal issue that arose for decision in that suit was whether the suit properties had been gifted to Jawala Prashad or Banwari Lal Verma.\n\nThe trial court dismissed the suit but in appeal the decree of the trial court was reversed and ' the suit was decreed as prayed for.\n\nThat decision was confirm-· ed by the High Court and thereafter by this Court in Civil Appeal No. 164 of 1953.\n\nAfter the decision of this Court Banwari Lal Verma made various applications to this Court asking for reliefs which if they had been granted, would have practically nullified the effect of the decree but those applications were rejected by this Court.\n\nThereafter efforts appear to have been made to obstruct the execution of the decree in diverse ways.\n\nWhen everyone ol. those-efforts failed Rangi Lal Verma, the eldest son of Banwari Lal Verma filed a suit praying for a declaration that the suit properties belonged to his joint family consisting of Banwari Lal Verma and his sons.\n\nThis suit was dismissed for non-prosecution. It is only thereafter the present suit has been filed by one of the sons of Banwari Lal Verma claiming partition in the smt properties on the allegation that the same had been gifted by Krishcn Gopal to his joint family.\n\nSUPREME COURT .REPORTS [1969] 3 S.C.ll.\n\nThe gift put torward by the plaintiff is said to have been made in 1928.\n\nAdmittedly at that time all the sons of Banwari Lal Verma were minors (see the affidavit filed in this Court by Rangi Lal on behalf of the plaintiff, on February 26, 1969 Therefore, naturally the gift, if true could have been accepted only by Banwari Lal Verma who was the Karta of the family at that time.\n\nIt was not even urged that Banwari Lal Verma did not safeguard the interest of his family while contesting the previous suit.\n\nFurther it is not the case of the respondents that there was any confiict of interest between Banwari Lal Verma and his sons.\n\nThe facts disclosed make it obvious that Banwari Lal Verma and after his death his sons are availing themselves of every possible loophole in our judicial system to delay, if not defeat the course of justice. The effon is one and continuous.\n\nThe suit from which this appeal has arisen is a clear abuse of judicial process. It is in this setting that we have to see whether the decision in Civil Suit No. 15 of 1943 operates as res iiulicata in the present case.\n\nIn the Civil Suit No. 15 of 1943, there was no room for controversy as to whether the alleged gift was in favour of Banwari Lal Verma in his individual capacity or in his favour as the Karta of his family.\n\nTherein the controversy was whether the suit properties had been gifted to J awala Prashad or Banwari Lal Verma.\n\nAs seen earlier Banwari Lal Yerma pleaded that they had been gifted in his favour.\n\nHe did not make it clear nor was it necessary for him to do so in that suit as to whether they were gifted to hiµi as the Karta of the family or in his individual capacity.\n\nThe properties that were in dispute in the former suit as well as in the present suit are identical properties.\n\nIt cannot be disputed that Banwari Lal Verma by himself could have represented his family in that suit. That suit must be deemed to have been instituted against Banwari Lal Verma in that capacity in which he claimed title to it. If his claim in that suit is understood to have been made on behalf of his' family then he must be deemed to have been sued therein as the Karta of his family.\n\nIt was for Banwari Lal Verma to make clear the capacity in which he was defending the suit.\n\nThat being so we fail to appreciate the conclusion of the High Coun that the decision in the previous suit does not operate as res judicata in the present suit.\n\nIt is not necessary, in order that a decree against the manager may operate as res-judicata against coparceners who were not parties to the suit that the plaint or written statement should stllte in express terms that he is suing as manager or is being sued as a manager. It is sufficient if the manager was in fact suing or being sued .as representing the whole family, sec La/chand v.\n\nAMRITSAGAR v. SUDESH BEHAR! (Heide, /.) 1005\n\nSheogovind('); Ram Kishan v.\n\nGanga Ram('); Prithipal v.\n\nRameshwar('); Surendranath v. Sambhunath(').\n\nThe suit by or against the manager will deemed to be one brought by him or against him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property, see Mulgaund Co-operative Credit Society v. Shidlingappa lshwarappa('). See also Ven; kakanarayana v. Somaraju('). It is not not necessary, where the manager is the plaintiff, that the plaint should state in distinct terms that he is suing as manager or where he is the defendant that he is being sued as manager.\n\nA Karta can represent the family effectively in proceeding though he is not named as such, see Mani Sahoo v. Lokanath(1 ).\n\nFor the reasons mentioned above this appeal is allowed and the judgment and decree of the High Court is set aside and that of the trial court restored.\n\nThe respondent shall pay the costs of the appellants in all the courts.\n\nV.P.S.\n\nAppeal allowtd.\n\n(1) (1929)1.L.R.8, Pat. 788. (2)(1931)1.L.R.12. Loh .• 28.\n\n(3) (1927) l.L.R. 2, LQck. 288.\n\n(4) (1928) I.LR. 55, Cal. 210.\n\n(5) [1941] I.L.R. Born. 682,\n\n(6) A.I.R, \\937 Mad. 610 (F.B.),\n\n(7) A.I.R, 19500r.140.", "total_entities": 27, "entities": [{"text": "SUDESH BEHAR! LAL & ORS.", "label": "RESPONDENT", "start_char": 26, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "SUDESH BEHARI LAL & ORS", "offset_not_found": false}}, {"text": "March 13, 1969", "label": "DATE", "start_char": 52, "end_char": 66, "source": "ner", "metadata": {"in_sentence": "March 13, 1969\n\n[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.]"}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 69, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 82, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "K. S. HEGDE, JJ.", "label": "JUDGE", "start_char": 101, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 122, "end_char": 145, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 11", "label": "PROVISION", "start_char": 163, "end_char": 168, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 2542, "end_char": 2570, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No 349 of 1966."}}, {"text": "S. Y. Gupte", "label": "LAWYER", "start_char": 2804, "end_char": 2815, "source": "ner", "metadata": {"in_sentence": "Hegde, J.) 1003\n\nS. Y. Gupte and A. N. Goyal."}}, {"text": "A. N. Goyal", "label": "LAWYER", "start_char": 2820, "end_char": 2831, "source": "ner", "metadata": {"in_sentence": "Hegde, J.) 1003\n\nS. Y. Gupte and A. N. Goyal."}}, {"text": "C. B . .Agarwala", "label": "LAWYER", "start_char": 2854, "end_char": 2870, "source": "ner", "metadata": {"in_sentence": "C. B ."}}, {"text": "H. K. Puri", "label": "LAWYER", "start_char": 2872, "end_char": 2882, "source": "ner", "metadata": {"in_sentence": ".Agarwala, H. K. Puri and B. N. Kirpal, for respondent No."}}, {"text": "B. N. Kirpal", "label": "LAWYER", "start_char": 2887, "end_char": 2899, "source": "ner", "metadata": {"in_sentence": ".Agarwala, H. K. Puri and B. N. Kirpal, for respondent No."}}, {"text": "Hegde", "label": "JUDGE", "start_char": 2970, "end_char": 2975, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHegde, J. The only question that arises for decision in this appeal by special leave is whether the suit from which this appeal has arisen is barred by res judicata in view of the decision in Civil Suit No."}}, {"text": "Qne Krishen Gopal", "label": "PETITIONER", "start_char": 3398, "end_char": 3415, "source": "ner", "metadata": {"in_sentence": "The facts of the case leading up to this appeal, briefly stated, are as follows :\n\nQne Krishen Gopal had lease-hold rights in the suit properties."}}, {"text": "Krishen Gopal", "label": "OTHER_PERSON", "start_char": 3495, "end_char": 3508, "source": "ner", "metadata": {"in_sentence": "After the death of the aforesaid Krishen Gopal dispute arose between Jawala Prashad, the father of the appellants and Banwari Lal Verma, the father of the respondents as to the title of the suit properties.", "canonical_name": "Krishen Gopal"}}, {"text": "Jawala Prashad", "label": "OTHER_PERSON", "start_char": 3531, "end_char": 3545, "source": "ner", "metadata": {"in_sentence": "After the death of the aforesaid Krishen Gopal dispute arose between Jawala Prashad, the father of the appellants and Banwari Lal Verma, the father of the respondents as to the title of the suit properties.", "canonical_name": "J awala Prashad"}}, {"text": "Banwari Lal Verma", "label": "OTHER_PERSON", "start_char": 3580, "end_char": 3597, "source": "ner", "metadata": {"in_sentence": "After the death of the aforesaid Krishen Gopal dispute arose between Jawala Prashad, the father of the appellants and Banwari Lal Verma, the father of the respondents as to the title of the suit properties.", "canonical_name": "Banwari Lal Verma"}}, {"text": "January 20, 1943", "label": "DATE", "start_char": 3817, "end_char": 3833, "source": "ner", "metadata": {"in_sentence": "As a re suit of this dispute Jawala Prashad instituted on January 20, 1943, Civil Suit No."}}, {"text": "Rangi Lal Verma", "label": "OTHER_PERSON", "start_char": 4870, "end_char": 4885, "source": "ner", "metadata": {"in_sentence": "those-efforts failed Rangi Lal Verma, the eldest son of Banwari Lal Verma filed a suit praying for a declaration that the suit properties belonged to his joint family consisting of Banwari Lal Verma and his sons.", "canonical_name": "Rangi Lal Verma"}}, {"text": "Krishcn Gopal", "label": "OTHER_PERSON", "start_char": 5294, "end_char": 5307, "source": "ner", "metadata": {"in_sentence": "It is only thereafter the present suit has been filed by one of the sons of Banwari Lal Verma claiming partition in the smt properties on the allegation that the same had been gifted by Krishcn Gopal to his joint family.", "canonical_name": "Krishen Gopal"}}, {"text": "SUPREME COURT .REPORTS [1969] 3 S.C.ll", "label": "COURT", "start_char": 5330, "end_char": 5368, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT .REPORTS [1969] 3 S.C.ll."}}, {"text": "Rangi Lal", "label": "OTHER_PERSON", "start_char": 5557, "end_char": 5566, "source": "ner", "metadata": {"in_sentence": "Admittedly at that time all the sons of Banwari Lal Verma were minors (see the affidavit filed in this Court by Rangi Lal on behalf of the plaintiff, on February 26, 1969 Therefore, naturally the gift, if true could have been accepted only by Banwari Lal Verma who was the Karta of the family at that time.", "canonical_name": "Rangi Lal Verma"}}, {"text": "February 26, 1969", "label": "DATE", "start_char": 5598, "end_char": 5615, "source": "ner", "metadata": {"in_sentence": "Admittedly at that time all the sons of Banwari Lal Verma were minors (see the affidavit filed in this Court by Rangi Lal on behalf of the plaintiff, on February 26, 1969 Therefore, naturally the gift, if true could have been accepted only by Banwari Lal Verma who was the Karta of the family at that time."}}, {"text": "J awala Prashad", "label": "OTHER_PERSON", "start_char": 6753, "end_char": 6768, "source": "ner", "metadata": {"in_sentence": "Therein the controversy was whether the suit properties had been gifted to J awala Prashad or Banwari Lal Verma.", "canonical_name": "J awala Prashad"}}, {"text": "Banwari Lal Yerma", "label": "OTHER_PERSON", "start_char": 6808, "end_char": 6825, "source": "ner", "metadata": {"in_sentence": "As seen earlier Banwari Lal Yerma pleaded that they had been gifted in his favour.", "canonical_name": "Banwari Lal Verma"}}, {"text": "Sheogovind", "label": "RESPONDENT", "start_char": 8242, "end_char": 8252, "source": "ner", "metadata": {"in_sentence": "Heide, /.) 1005\n\nSheogovind('); Ram Kishan v.\n\nGanga Ram('); Prithipal v.\n\nRameshwar('); Surendranath v. Sambhunath(')."}}]}
{"document_id": "1969_3_1006_1013_EN", "year": 1969, "text": "STATE OF UTIAR PRADESH & ORS.\n\nSHAH MOHAMMAD & ANR.\n\nMarch 13, 1969\n\n[J. C. SHAH AND A. N. GROVBR, JJ.J\n\nIndian Citizenship Act 57 of )955, s. 9 and Citizenship Rules, 1956, r. 30--ApplioabUity of provisions to suit pending when Act cc; me into fotce.\n\nRespondent No. I was born in undivided India on July 3, 1934.\n\nHe went to Pakistan in October 1950.\n\nIn 1953 he obtained a visa from the Indian High Commission in Pakistan and came to India on July 22, 1953.\n\nAfter the expiry of his pe'riod of stay he sought permanent settlement in India. On May 6. J 955 he filed a suit claiming that he was a minor when he went on a trip to Pakistan and had not ceased to be an Indian citizen.\n\nHe sought a permanent injunction restraining the Union of India and other authorities from deporting him.\n\nThe Munsif who tried the suit held that respondent No. I had ceased to _he an Indian citizen, and dismissed the suit.\n\nThe Distric~ Judge in first appeal held that being a minor whose fathe'.r was in Jndia respondent no. 1 could not by leaving for Pakistan. lose his Indian nationality. In second appeal the High Court of Allahabad remanded the case to the. first appellate court to determine the question whether by having spent one year in Pakistan after attainin&\n\nmajority respondent no. I had acquired the citizenship of Pakistan. The High Court rejected the contention on behalf of the State that in view of s. 9(2) of the Indian Citizenship Act 1955 which came into force on December 30, 1955 and Rule 30 of the Citizenship Rules made under the Act. the question whether respondent no. 1 was a citizen of India or not could only be decided by the Central Government.\n\nIn taking this view the High Court relied on the decision in Abida Khatoon's dase in which a single Judge of that court had held that s. 9 of the Citizenship Act 1955 was not retrospective and could not take away the vested right of a citizen who had already filed a suit to have his claim for citizenship decided by a court. The first appellate court gave afte'r remand n finding favourable to respondent no. 1 and on receipt of this finding the High Court dismissed the State's appeal.\n\nThe State then appealed to this Court. The questions that tell for consideration were: (i) whether s. 9 of the Act would apply to a suit pending on the date when the Act came into force:\n\n(ii) whether in view of the fact that the procedure established bv law before the dommencement of the Act allowed the question as to the acquisition of the citizenshio of anothe'r cOuntry to be determined by courts, there was hv giving retrospective operation to s. 9, a violation of the guarantee of personal liberty under Art. 21.\n\nHELD: (i) The language of sub-s. (!) of s. 9 is clear and unequivoczi.I and leaves no room for doubt that it would cover all cases where an Indian citizen has acquired foreign nationality between. Janary 26. 19~0 and its commencement or where he acquires such nationahtv after tts commencement. The \\Vords \"or has at anv time btween te 26th Ja.nary 1950 and the commencement of the Aqt. voluntarily acqu1.red the citizenship of a.Dotber country\" would become almost redndant if <?nly prespective operation is given to s. 9 (I ) of the Act.\n\nTh18 accol'dmg to the settled rules of interpretation cannot be done, [1010 F-Gl\n\nU.P. STATE v. SHAH MOHAMMAD 1007\n\n(ii l. The Act has been enacted under the powers of the Parliament preserved by Art. 11 in express terms and a law made by Parliament cannot, as held in Jzhar Ahmed's case be impeached on the ground that it is inconsistent with the provisions contained in other Articles in Part II of the Constitution.\n\nThe Parliament had also legislative competenoe under Entry 17. List I of Seventh Schedule. It could thus make a provision about the forum where the question as to whether a person had acquired citizenship of another country could be determined and this is what has been done by r. 30. [1011 B-DJ\n\nThe cases that would ordinarily arise about loss of Indian citizemhip by acquisition of forei'!ll citizenship would be of three kinds : (I) Indian citizem who voluntarily acquired citizenshio of a foreign State prior to the commencement of the Constitution; (2) Indian citizens who voluntarily acquired the ditizemhip of another State or ountry between January 26, 1950 and December 30, 1955 i.e. the date of commencement of the Act, and (3) Indian Citizens who voluntai'ily acauired forei!!II citizeiuhip after the date of commencement of the Act i.e. December 30, 1955. Id regards the first categorv they were dealt with by Art. 9 of the Constitution. The second and third categories would be covered by the provisions of s. 9 of the Act. Therefore, if' a question arises as to whether when and how an Indian citizen has acquired citizenship of another country that has to be determined bv the Central Government by virtue of the provisions of sub-s. (2) of s. 9 read with r. 30 of the Citizenshio Rules. In view of the amplitude of the language employed in s. 9 which takes in persons mentioned in category (2) mentioned above, the entire argument which prevailed with the Allahabad Hi•h Court in Abida Khatoon's case can have no substance. [1011 D-H. 1012 CJ\n\nJzhar Ahmad Khan v. Union of India, [1962) Su!Jp. 3 S.C.R. 235. 244 245,, Akbm- Khv~ Alam Khan & Anr. v. Union of India, [1962) I S.C.R 779 and The Government of Andhra Pradesh v. Syed Mohd. Khan, [1962) Supp. 3 S.C.R. 788, referred to.\n\nAbida Khatoon & Anr. v. State of U.l'. & Ors. A.I.R. !963 All 260, disapproved.\n\n(iii) The contention that retrospective operation of s. 9 would contravene Art. 21 of the Constitution could not be accepted. If the Parliament was competent under Art .. t 1 which is a constitutional orovision read with the relevant entry in List I to legislate about cases of persons\n\nbelonniz to categories 2 and 3 re'ferred to earlier it could certainly enact a legislation in exercise of its sovcreii; m power which laid down a procedure different from the one which obtained before. The new o'rocedure would itself become thl'!: \"procedure establi'\\hed by law'' within the mean~\n\ning of Art. 21 of the Constitution. [1012 E-GJ\n\nThe Hieb Court was therefore wronJ?; in the ore'\\ent case in ca1ting for a decision of the lower appellate court on the issue of the plaintiff having acquired or not the citizenshin of Pakistan between July 3. 1952 and the date of his return to India. [Hieb Court accordinglv directed to have Question deterrninetl hy CP.ntral Government and thereafter dispose of appeal finally).\n\n[1013 B-C]\n\nCrviL APPELLATE JURISDICTION: Civil Appeal No. 347 of 1966.\n\nApoeal bv soeciol leave from the iud!'Tllent and order datecl December 11. 1963 of the Allahabad High C'ourt in Second Appeal No. 3809 of 1958. -\n\n1008 SUPRl!ME COURT RllPORTS\n\n(1969] 3 S.C.R.\n\nC. B. Agarwala, 0. P. Rana and Ravindra Rana, for the appellants.\n\nDenial Latifi and M. l. Khowaja, for respondent No. 1.\n\nThe Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment of the Allahabad High Court in which the principal question for determination is whether s. 9 of the Indian Citizenship Act, 1955, hereinafter called the \"Act\", which came into force on December 30, 1955, would be applicable to a suit which was pending on that date. -\n\n. Respondent No. 1 was born on July 3, 1934.\n\nHe went to Pakistan in October 1950.\n\nIn March 1953 he obtained a visa from the Indian High Commission in Pakistan for coming to India. He came to India on July 22. 1953. On July 20, 1954 the period of authorised stay expired and respondent No. 1 applied for permanent settlement in India.\n\nHe, however. filed a writ petition in the High Court on July 15, 1954 but the same was dismissed on Februarv 10, 1955 and respondent No. 1 was directed to file a suit.\n\nHe instituted a suit on May 6, 1955.\n\nHe claimed that he was born in India of parents who were residing here and that he was a minor when he was persuaded by two muslim youths to accompany them on a trip to Pakistan.\n\nHe went there without any intention to settle there permanently.\n\nLater on he made efforts to return but due to certain restrictions he was unsuccessful.\n\nHe had no alternative but to obtain a passoort from the Pakistan authorities in order to come to India.\n\nHe had thus never changed his nationality and continued to remain a citizen of India.\n\nHe sought a nermanent injunction restraining the Union of India, the State of U.P., District Magistrate, Kanpur and the Suoerintendent of Police. Kanpur. who were impleaded as defendants from deporting him.\n\nThe suit was contested and on the oleadings of the parties the appropriate issues were framed.\n\nThe learned Mumif held that respondent No. 1 had gone to Pakistan for settling there permanently and had ceased to be an Indian citizen.\n\nThe suit was dismissed.\n\nResoondent No. l appealed to the First Addi- G tional Civil Judge, Kanpur.\n\nThe learned Judge was of the view that respondent No. 1 had gone to Pakistan when he was a minor and when his father. who was his guardian. was in India.\n\nBy his departure to Pakistan, respondent No. 1 could not chan!!\"e his nationalitv.\n\nEven on a consideration of the evidence it could not be held that he had shifted to Pakistan with the in- H tention of settling there oermanently. His apneal was allowed and a permanent iniunction as prayed was issued.\n\nThe Un!on of India and other appellants preferred an appeal to the High\n\n...\n\nCourt. Before the High Court a preliminary objection was taken that the civil court had no jurisdiction to try the question 1J1hether respondent No. 1 had acquired the citizenship of Pakistan which matter had to be referred to the Central Government under Rule 30 of the Citizenship Rules framed under the Act.\n\nThis objection was repelled in view of another decision of the Hlgh Court according to which s. 9 of the Act and Rule 30 could not operate retrospectively and affect pending litigation.\n\nBefore the High Court the finding that respondent No. 1 did not go to Pakistan with the intention of settling there permanently was not challenged by the appellants.\n\nThe High Court was inclined to agree with the lower appellate court that so Jong as respondent No. 'l was a minor he could not change his Indian domicile because his parents were domiciled in this country.\n\nThe High Court proceeded to say that since resp0ndent No. 1 had spent one year in Pakistan after he had obtained majority it was necessary to investi2ate whether he had acquired, during that period, the citizenship of Pakistan. An appropriate issue was frameq and remitted to the lower appellate D court for its determination.\n\nThe appellate eourt held that respondent No. 1 had not acquired the citizenship of Pakistan . since it was not legally possible for him to do so for the reason that according to laws of Pakistan' he could become a major Only on attaining the age of twenty one.\n\nOn, December 11, 1963 the High Court disposed of the appeal of the present ap- E -pellants by dismissing it in view of the findings which were in favour of respondent No. 1.\n\nLearned counsel for the appellants had contended before us that the civil court had no jurisdiction to decide the question of citizenship after the enforcement of the Act towards the end of F .the year 1955 in view of the provisions of Rule 30 of the Citizenship Rµles 1956 promulgated in exercise of the oower conferred bys. 18(2)(h) of the Act. Section 9 is in the following terms:\n\n\"S: 9 ( 1 ) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between the 26th January 1950 and the commC11cement of this Act, voluntarily acquired the citizenship of another country, shall upon such acquisition or, as the case max. be, such commencement, cease to be a citizen of India :\n\nProvided that nothing in this sub-section shall apply to a citizen of India who during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government othse directs.\n\n1010 SWPR!!ME CO'UllT RBPOR~S [I 969] 3 s.c.R.\n\n(2) If any quC11tion ariies as to whether, when or A how any person has acquired the citizenship of another country, it shall be determined by such authority in such manner and having regard to such rules of evidence, as may be prescribed in this behalf.\" Rule 30 provides :\n\n\"Authority to determine acquisition of citizenship B of another country.-(1) If any question arises as to whether, when or how any person has acquired the citizenship of another country, the authority to determine such question shall, for the purpose of s. 9(2) by the Central Government.\n\n(2) The Central Government shal! jn determining C any such auestion have due regard to the rules of evidence specified in Schedule ID.\" The validity of the provisions of the Act and the Rules is no longer open to challenge.\n\nIt has not been disputed by learned counsel for respondent No. I that after the enforcement of the Act and promulgation of Rule 30 the only authoritv which is D competent to determine whether citizenship of Pakistan has been acquired by him is the Central Government.\n\nBut it has been strenuously urged that the suit in the present case had been instituted prior to the date of enforcement of the Act and therefore respondent No. 1 was entitled to get this question determined bv the courts and not by the Central Government.\n\nIn other Ji! words s. 9 of the Act cannot be j!iven retrospective ooeration so as to be made applicable to pendin!! proceedinj!S.\n\nThus the first point which has to he decided is whether s. 9 either expressly or bv necessarv implication has been made aPP!icable to cir would govern pendin!! proceedingS.\n\nThe lani?Ua!!e of sub-s. (1) is clear and .uneauivocal and leaves no room for doubt that it would cover all cases where an Indian citi1.en has acauired F foreiP, n nationalitv between Jan11arv 26. 1950 and its commencement or where he acauires such nationalitv after its commencement.\n\nThe words \"or has at anv time 'between the 26th January 1950 and thP ommencement of this Act. voluntarilv acauired the cifr, enshin of another countrv\" would become almo\" redundant if onlv nrmnectiv\" operatio'l is <!iven tn s. 9 (]) of G the Act.\n\nThis according to the settled mles of internretation\n\ncnnot be done.\n\nIt must be remembered that Article 9 of the Constitution provides that no person shall be a citizen of India by virtue of Art. 5 or be deemed to be a citizen of India bv virtue of Art. 6 or Art. 8 if he has voh!ntarily acquired the citizenshin of any foreign StRte.\n\nThis means that if prior to the commencement H of the Constitution a P<'rson had voluntarilv acauired the citizenship of any foreign State he was not entitled to claim the citizcnship of India by virtue of Arts. 5 and 6 or 8.\n\nTlllS article thus deals with cases Where the citizenship of a foreign State had been acquired by an Indian citizen prior to the commencement of the Constitution (vide lzhar Ahmed Khan v. Union of India)('). Article 11, however, makes it clear that Parliament has the power to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.\n\nThe Parliament could thus regulate the right of citizenship by law.\n\nAs pointed out in the above decision of this Court it would be open to the Parliament to affect the rights of citizens and the provisions made by the Parliamentary statute cannot be impeached on the ground that they are inconsisten_t with the provisions contained in other Articles in Part II of the Constitution. The Act has been enacted under the powers of the Parliament preserved by Art. 11 in express terms.\n\nThe Parliament had also legislative competence under Entry 17, List I of Seventh Schedule. It could thus make a provision about the forum where the question as to whether a person had acquired citizenship of another country could be determined and this is what has been done by Rule 30.\n\nThe cases that would ordinarily arise about loss of Indian citizenship by acquisition of foreign citizenship would be of . three kinds : (1) Indian citizens who voluntarily acquired citizenship of a foreign State prior to the commencement of the Constitution;\n\n(2) Indian citizens who voluntarily acquired the citizenship of another State or country between January 26, 1950 and Decembr 30, 1955 i.e. the date of commencement of the Act and (3) Indian citizens who voluntarily acquired foreign citizenship after the date of commencement of the Act i.e. December 30, 1955.\n\nAs regards the first category they were dealt with by Art. 9 of the Constitution.\n\nThe second and the third categories would be covered by the provisions of s. 9 of the Act.\n\nIf a question arises as to whether, when or how an Indian citizen has acquired the citizenship of al)Other country that has to be determined by the Central Government by virtue of the provisions of sub-s. (2) of s. 9 read with Rule 30 of the Citizenship Rules.\n\nCounsel for respondent No. 1 has relied on a decision of a learned Single Judge of the Allahabad High Court in Abida Khatoon & Another v. State of U.P. & Ors.(') which was followed in the present case.\n\nThere it was observed that a litigant, after filing a suit, acquired a vested right to have all questions determined by the court in which the suit was filed and that the institution of the suit carried with it all the rights of appeal then in force.\n\nReferring to the normal principle that an Act is ordinarily not retrospective, that vested rights are not disturb-\n\n(I) (1962] Supp 3 S.C.R. 235, 241, 245.\n\n(2) A.LR. 1963 AJl.260.\n\nSUPREME COURT REPORTS [1969] 3 s.c.!.. ·\n\ned and that the jurisdiction of the civil courts in pending cases is not taken away by the creation of a new tribunal for the determination of a particular question, the learned judge held that there was nothing in the language or the scheme of the Act to suggest that Parliament wanted to depart from these principles.\n\nWe are unable to agree.\n\nIn our judgment from the amplitude of the language employed in s. 9 which takes in persons in category (2) mentioned above, the intention has been made clear that all cases which come up for determination where an Indian citizen has voluntarily acquired the citizenship of a foreign country after the commencement of the Constitution have to be dealt with and decided in accordance with its provisions.\n\nIn this view of the matter the entire argument which previliled with the Allahabad court can have no substance.\n\nIt has next been contended that retrospective operation should not be given to s. 9 of the Act because I~ of citizenship is a serious and grave matter and it involves loss of personal liberty.\n\nUnder Art. 21 no: person can be deprived of his life or personal liberty except according to procedure established by law.\n\nThe procedure established by law before the commencement of the Act was the ordinary procedure of determination by civil courts whenever a question arOSe about loss of Indian citizenship by acquisition of citizenship of a foreign country or State. It is suggested by learned counsel for respondent No. 1 that by giving retrospective operation to s. 9 so as to make it applicable to pending proceedings the provisions of Art. 21 will be contravened or violated.\n\nThis would render s. 9 of the Act unconstitutional.\n\nIt is somewhat difficult to appreciate the argument, much less to accede to it. If the Parliament was competent under Art. 11, which is a constitutional provision read with the relevant Entry in List I, to legislate about cases of persons belonging to categories 2 and 3 referred to at a previous stage it could certainly enact a legislation in exercise of its sovereign power which laid down procedure different from the one which obtained before.\n\nThe new procedure would itself become the \"procedure established by law\" within the meaning of Art. 21 of the Constitufion.\n\nTherefore even on the assumption that loss of Indian citizenship with consequent deportation may involve loss of personal liberty within the meaning of Art. 21, it is not possible to hold that by applying s. 9 of the Act and Rule 30 of the Rules to a case in which a suit had been instituted prior to the c.ommencement of the Act there would be any contravention or violation of that Article.\n\nIn conclusion it may be mentioned that this could, in several cases, has consistently held that questions falling within s. 9(2) have to be determined to the extent indicated therein by the\n\nA Central Government and not by the courts.\n\nSuch matters 111 are not covered by that provision have, however, to be deter-. mined by the courts; (sec Akbar Khan Alam Khan & AM. v.\n\nThe Union of India & Ors.(l) andlzhar Ahmed Khan v:Union of India)(') and The Government of Andhra Pradesh v. Syed Mohd.\n\nKhan)(') B In the pre6Cllt case the High Coiirt ought not to have called for a decision of the lower appellate court Oil the issue of the plaintiff having acquired. or not acquired the Qit, izenship . of Pakistan between Jly 3, 1952 and the date of his return to India. The appeal . is, consequently, allowed and the order of the High Court is hereby set aside. It will be for the High C Court now to make appropriate orders for determinatioo of the aforesaid question by the Central Government after which alone the High Court will be in a Jl!lSitiOll to dispose of the appeal finally.\n\nCosts will abide the result\n\nG.C.\n\n, (I) [1962] I S, C.R. 779.\n\n(2) [1962] Supp; 3 S.C.R. 235.\n\n(3) (1962) Supp. 3 S.C.R. 288.\n\nAppeal allowed.", "total_entities": 88, "entities": [{"text": "STATE OF UTIAR PRADESH & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "STATE OF UTIAR PRADESH & ORS", "offset_not_found": false}}, {"text": "SHAH MOHAMMAD & ANR", "label": "RESPONDENT", "start_char": 31, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "SHAH MOHAMMAD & ANR", "offset_not_found": false}}, {"text": "March 13, 1969", "label": "DATE", "start_char": 53, "end_char": 67, "source": "ner", "metadata": {"in_sentence": "March 13, 1969\n\n[J. C. SHAH AND A. N. GROVBR, JJ.J\n\nIndian Citizenship Act 57 of )955, s. 9 and Citizenship Rules, 1956, r. 30--ApplioabUity of provisions to suit pending when Act cc; me into fotce."}}, {"text": "Indian Citizenship Act", "label": "STATUTE", "start_char": 105, "end_char": 127, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 9", "label": "PROVISION", "start_char": 140, "end_char": 144, "source": "regex", "metadata": {"linked_statute_text": "Indian Citizenship Act", "statute": "Indian Citizenship Act"}}, {"text": "Citizenship Rules, 1956", "label": "STATUTE", "start_char": 149, "end_char": 172, "source": "regex", "metadata": {}}, {"text": "Indian High Commission", "label": "ORG", "start_char": 390, "end_char": 412, "source": "ner", "metadata": {"in_sentence": "In 1953 he obtained a visa from the Indian High Commission in Pakistan and came to India on July 22, 1953."}}, {"text": "Pakistan", "label": "GPE", "start_char": 416, "end_char": 424, "source": "ner", "metadata": {"in_sentence": "In 1953 he obtained a visa from the Indian High Commission in Pakistan and came to India on July 22, 1953."}}, {"text": "India", "label": "GPE", "start_char": 437, "end_char": 442, "source": "ner", "metadata": {"in_sentence": "In 1953 he obtained a visa from the Indian High Commission in Pakistan and came to India on July 22, 1953."}}, {"text": "May 6. J 955", "label": "DATE", "start_char": 546, "end_char": 558, "source": "ner", "metadata": {"in_sentence": "On May 6."}}, {"text": "Union of India", "label": "ORG", "start_char": 733, "end_char": 747, "source": "ner", "metadata": {"in_sentence": "He sought a permanent injunction restraining the Union of India and other authorities from deporting him."}}, {"text": "High Court of Allahabad", "label": "COURT", "start_char": 1099, "end_char": 1122, "source": "ner", "metadata": {"in_sentence": "In second appeal the High Court of Allahabad remanded the case to the."}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 1405, "end_char": 1412, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Citizenship Act 1955", "label": "STATUTE", "start_char": 1420, "end_char": 1447, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "December 30, 1955", "label": "DATE", "start_char": 1473, "end_char": 1490, "source": "ner", "metadata": {"in_sentence": "The High Court rejected the contention on behalf of the State that in view of s. 9(2) of the Indian Citizenship Act 1955 which came into force on December 30, 1955 and Rule 30 of the Citizenship Rules made under the Act."}}, {"text": "Central Government", "label": "ORG", "start_char": 1645, "end_char": 1663, "source": "ner", "metadata": {"in_sentence": "1 was a citizen of India or not could only be decided by the Central Government."}}, {"text": "Abida Khatoon", "label": "OTHER_PERSON", "start_char": 1727, "end_char": 1740, "source": "ner", "metadata": {"in_sentence": "In taking this view the High Court relied on the decision in Abida Khatoon's dase in which a single Judge of that court had held that s. 9 of the Citizenship Act 1955 was not retrospective and could not take away the vested right of a citizen who had already filed a suit to have his claim for citizenship decided by a court."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 1800, "end_char": 1804, "source": "regex", "metadata": {"linked_statute_text": "the Indian Citizenship Act 1955", "statute": "the Indian Citizenship Act 1955"}}, {"text": "Citizenship Act 1955", "label": "STATUTE", "start_char": 1812, "end_char": 1832, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 9", "label": "PROVISION", "start_char": 2254, "end_char": 2258, "source": "regex", "metadata": {"linked_statute_text": "the Citizenship Act 1955", "statute": "the Citizenship Act 1955"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 2606, "end_char": 2610, "source": "regex", "metadata": {"linked_statute_text": "the Citizenship Act 1955", "statute": "the Citizenship Act 1955"}}, {"text": "Art. 21", "label": "PROVISION", "start_char": 2667, "end_char": 2674, "source": "regex", "metadata": {"linked_statute_text": "the Citizenship Act 1955", "statute": "the Citizenship Act 1955"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 2717, "end_char": 2721, "source": "regex", "metadata": {"linked_statute_text": "the Citizenship Act 1955", "statute": "the Citizenship Act 1955"}}, {"text": "Janary 26. 19~0", "label": "DATE", "start_char": 2874, "end_char": 2889, "source": "ner", "metadata": {"in_sentence": "Janary 26."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 3195, "end_char": 3199, "source": "regex", "metadata": {"statute": null}}, {"text": "Parliament", "label": "ORG", "start_char": 3390, "end_char": 3400, "source": "ner", "metadata": {"in_sentence": "Th18 accol'dmg to the settled rules of interpretation cannot be done, [1010 F-Gl\n\nU.P. STATE v. SHAH MOHAMMAD 1007\n\n(ii l. The Act has been enacted under the powers of the Parliament preserved by Art."}}, {"text": "Art. 11", "label": "PROVISION", "start_char": 3414, "end_char": 3421, "source": "regex", "metadata": {"statute": null}}, {"text": "Jzhar Ahmed", "label": "OTHER_PERSON", "start_char": 3487, "end_char": 3498, "source": "ner", "metadata": {"in_sentence": "11 in express terms and a law made by Parliament cannot, as held in Jzhar Ahmed's case be impeached on the ground that it is inconsistent with the provisions contained in other Articles in Part II of the Constitution."}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 3711, "end_char": 3727, "source": "regex", "metadata": {"statute": null}}, {"text": "January 26, 1950", "label": "DATE", "start_char": 4288, "end_char": 4304, "source": "ner", "metadata": {"in_sentence": "1011 B-DJ\n\nThe cases that would ordinarily arise about loss of Indian citizemhip by acquisition of forei'!ll citizenship would be of three kinds : (I) Indian citizem who voluntarily acquired citizenshio of a foreign State prior to the commencement of the Constitution; (2) Indian citizens who voluntarily acquired the ditizemhip of another State or ountry between January 26, 1950 and December 30, 1955 i.e. the date of commencement of the Act, and (3) Indian Citizens who voluntai'ily acauired forei!!II citizeiuhip after the date of commencement of the Act i.e. December 30, 1955."}}, {"text": "Art. 9", "label": "PROVISION", "start_char": 4561, "end_char": 4567, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 4659, "end_char": 4663, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 4895, "end_char": 4899, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 4995, "end_char": 4999, "source": "regex", "metadata": {"statute": null}}, {"text": "Allahabad Hi•h Court", "label": "COURT", "start_char": 5111, "end_char": 5131, "source": "ner", "metadata": {"in_sentence": "In view of the amplitude of the language employed in s. 9 which takes in persons mentioned in category (2) mentioned above, the entire argument which prevailed with the Allahabad Hi•h Court in Abida Khatoon's case can have no substance. ["}}, {"text": "s. 9", "label": "PROVISION", "start_char": 5571, "end_char": 5575, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 21", "label": "PROVISION", "start_char": 5593, "end_char": 5600, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 21", "label": "PROVISION", "start_char": 6111, "end_char": 6118, "source": "regex", "metadata": {"statute": null}}, {"text": "C. B. Agarwala", "label": "LAWYER", "start_char": 6801, "end_char": 6815, "source": "ner", "metadata": {"in_sentence": "1008 SUPRl!ME COURT RllPORTS\n\n(1969] 3 S.C.R.\n\nC. B. Agarwala, 0."}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 6820, "end_char": 6827, "source": "ner", "metadata": {"in_sentence": "P. Rana and Ravindra Rana, for the appellants."}}, {"text": "Ravindra Rana", "label": "LAWYER", "start_char": 6832, "end_char": 6845, "source": "ner", "metadata": {"in_sentence": "P. Rana and Ravindra Rana, for the appellants."}}, {"text": "Denial Latifi", "label": "LAWYER", "start_char": 6868, "end_char": 6881, "source": "ner", "metadata": {"in_sentence": "Denial Latifi and M. l. Khowaja, for respondent No."}}, {"text": "M. l. Khowaja", "label": "LAWYER", "start_char": 6886, "end_char": 6899, "source": "ner", "metadata": {"in_sentence": "Denial Latifi and M. l. Khowaja, for respondent No."}}, {"text": "Grover", "label": "JUDGE", "start_char": 6967, "end_char": 6973, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment of the Allahabad High Court in which the principal question for determination is whether s. 9 of the Indian Citizenship Act, 1955, hereinafter called the \"Act\", which came into force on December 30, 1955, would be applicable to a suit which was pending on that date. -"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 7118, "end_char": 7122, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Citizenship Act, 1955", "label": "STATUTE", "start_char": 7130, "end_char": 7158, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "July 22. 1953", "label": "DATE", "start_char": 7501, "end_char": 7514, "source": "ner", "metadata": {"in_sentence": "He came to India on July 22."}}, {"text": "July 20, 1954", "label": "DATE", "start_char": 7519, "end_char": 7532, "source": "ner", "metadata": {"in_sentence": "On July 20, 1954 the period of authorised stay expired and respondent No."}}, {"text": "July 15, 1954", "label": "DATE", "start_char": 7692, "end_char": 7705, "source": "ner", "metadata": {"in_sentence": "filed a writ petition in the High Court on July 15, 1954 but the same was dismissed on Februarv 10, 1955 and respondent No."}}, {"text": "Februarv 10, 1955", "label": "DATE", "start_char": 7736, "end_char": 7753, "source": "ner", "metadata": {"in_sentence": "filed a writ petition in the High Court on July 15, 1954 but the same was dismissed on Februarv 10, 1955 and respondent No."}}, {"text": "May 6, 1955", "label": "DATE", "start_char": 7829, "end_char": 7840, "source": "ner", "metadata": {"in_sentence": "He instituted a suit on May 6, 1955."}}, {"text": "District Magistrate, Kanpur", "label": "COURT", "start_char": 8454, "end_char": 8481, "source": "ner", "metadata": {"in_sentence": "He sought a nermanent injunction restraining the Union of India, the State of U.P., District Magistrate, Kanpur and the Suoerintendent of Police."}}, {"text": "Mumif", "label": "OTHER_PERSON", "start_char": 8686, "end_char": 8691, "source": "ner", "metadata": {"in_sentence": "The learned Mumif held that respondent No."}}, {"text": "First Addi- G tional Civil Judge, Kanpur", "label": "COURT", "start_char": 8870, "end_char": 8910, "source": "ner", "metadata": {"in_sentence": "l appealed to the First Addi- G tional Civil Judge, Kanpur."}}, {"text": "Pakistan which matter had to be referred to the Central Government under Rule", "label": "STATUTE", "start_char": 9633, "end_char": 9710, "source": "regex", "metadata": {}}, {"text": "s. 9", "label": "PROVISION", "start_char": 9855, "end_char": 9859, "source": "regex", "metadata": {"linked_statute_text": "Pakistan which matter had to be referred to the Central Government under Rule", "statute": "Pakistan which matter had to be referred to the Central Government under Rule"}}, {"text": "December 11, 1963", "label": "DATE", "start_char": 10917, "end_char": 10934, "source": "ner", "metadata": {"in_sentence": "On, December 11, 1963 the High Court disposed of the appeal of the present ap- E -pellants by dismissing it in view of the findings which were in favour of respondent No."}}, {"text": "Section 9", "label": "PROVISION", "start_char": 11435, "end_char": 11444, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 12630, "end_char": 12637, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule ID", "label": "PROVISION", "start_char": 12788, "end_char": 12799, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 13437, "end_char": 13441, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 13605, "end_char": 13609, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 14233, "end_char": 14237, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 9", "label": "PROVISION", "start_char": 14354, "end_char": 14363, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 14449, "end_char": 14455, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 14507, "end_char": 14513, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 8", "label": "PROVISION", "start_char": 14517, "end_char": 14523, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 5 and 6", "label": "PROVISION", "start_char": 14800, "end_char": 14813, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 11", "label": "PROVISION", "start_char": 15029, "end_char": 15039, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 11", "label": "PROVISION", "start_char": 15684, "end_char": 15691, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 15784, "end_char": 15800, "source": "regex", "metadata": {"statute": null}}, {"text": "Decembr 30, 1955", "label": "DATE", "start_char": 16378, "end_char": 16394, "source": "ner", "metadata": {"in_sentence": "three kinds : (1) Indian citizens who voluntarily acquired citizenship of a foreign State prior to the commencement of the Constitution;\n\n(2) Indian citizens who voluntarily acquired the citizenship of another State or country between January 26, 1950 and Decembr 30, 1955 i.e. the date of commencement of the Act and (3) Indian citizens who voluntarily acquired foreign citizenship after the date of commencement of the Act i.e. December 30, 1955."}}, {"text": "Art. 9", "label": "PROVISION", "start_char": 16626, "end_char": 16632, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 16729, "end_char": 16733, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 16959, "end_char": 16963, "source": "regex", "metadata": {"statute": null}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 17096, "end_char": 17116, "source": "ner", "metadata": {"in_sentence": "1 has relied on a decision of a learned Single Judge of the Allahabad High Court in Abida Khatoon & Another v. 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{"document_id": "1969_3_217_227_EN", "year": 1969, "text": "A MANUBllAI NANDLAL AMERSEY v.\n\nPOPATLAL MANILAL JOSW & ORS.\n\nJanuary 7, 1969 B [S. M. Soou, R. s. BACHAWAT AND K. s. HEGDE, JJ.]\n\nRepresentation of the People Act (43 of 1951), ss. 86(5)\n\n116A. 123(2), proviso (a)(ii)-Amendment of election petition-When should be al/owed-Jurisdiction of Supreme Court under s. 116A-Interference\n\nirith discretion of High Court-Undue influence-Threat of divine 'displeasure.\n\nThe appellant, the Swatantra party candidate, was declared elected to the Lok Sabha as against the Congress party candidate. On April 10,\n\n1967, the first respondent, an elector , in the constituency filed an election petition.\n\nIn the petition be charged fhe appellant with corrupt practice under s. 123(2) proviso (a) (ii) of the Representation of the People Act, 1951. The allegation was that one S.M., with the consent of the appellant or his election agents, told the electors in speeches that if they voted for the Congress candidate they would commit the sin of cow slaughter and would become objects of divine displeasure.\n\nOn September 25, 1967 the first respondent obtained an 01der giving him leave to amend the petition by adding a charge with regard to the sin of Brahma hatya and Sadhu hatya.\n\nOn February 29, 1968 the trial commenced and one of the witnesses said that he heard S.~1. giving a 'peech on February 8, 1967, where S.M. told the electors that Sri Shankaracharya had commanded them not to vote for the Congress and that a contraventio.n of the mandate \":ould be visited with spiritual censure.\n\nOn an objection being raised by the appellant's counsel, the first respondent agreed that the statement of the witness should not be treated as part of the evidence.\n\nThe trial proceeded, 11 witnesses were examined and the appellant agreed to the marking of the full reports of the speeches of S.M. as exhibits and adopted a definite line of crossexamination on the footing that the first respondent would not rely on the charge with regard to the command of Sri Shankaracharya.\n\nHowever on March 5, 1968, the first respondent applied for an amendment of his petition to include a charge of corrupt practice based on the command of Sri Shankaracharya and the High Coun allowed the amendment.\n\nThe High Court set aside the appellant's election on its finding that the corrupt practice in 'relation to the command of Sri Shankaracharya was proved.\n\nIn appeal to this Court on the questions (I) Whether the High Court should have allowed the amendment; and (2) Whether the appellant was guilty of any corrupt practice,\n\nHELD : The appellant's election was rightly set aside.\n\n(Per Bachawat, J.) : (I) The High Court erred in allowing the amendment.\n\nWhen a corrupt practice is charged against the returned candidate the election petition must setforth full particulars of the corrupt practice so as to give the charge a definite character and to enable the Court to understand what the charge is.\n\nIt must be substantially proved as laid and evidence cannot be allowed to be given in respect of a charge not dis- 7Sup CJ/69-15\n\nclosed in . the particulars. Section 86(5) of the Act, however, allom amendment of particulars, but the Court shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition, and normally, an application for amendment should be made within a reasonable time.\n\nThough the Court has power to allow an amendment even after commencement of the trial, leave. to amend would not be granted if the petitioner was not acting in good faith or had kept back facts known to him.\n\n1221 B--0, G-H; 222 A-BJ In the present case, the. first respondent knew of both items of corrupt practice from his witnesses who were present at the speeches made\n\nby S.M. lf S.M. had told the electors about the mandate of Sri Shankaracharya, the witnesses must have given information to the first respondent, and no explanation was given by the first respondent as to why he withheld the information at the time of filing the petition or \\\\hen he first amended his petition. He was aware of the difference between the two ch<ir!, ies of telling the electors about the sin of gohctya and thal of telling the electors about the sin of disobeying the command of their religious leader. But the first respondent deliberately refrained from taking 1he new charge earlier and moved the application for amendment in ba<l faith at a very late stage of the trial.\n\nOrdinarily, in an appeal under s. l 16A of the Act, this Court would not interfere with the discretion of the High Court in granting amendments, but since the order of the High Court has resulted in manifest injustice, this Court has the power and Juty to correct the error . .[222 B--0, F-H; 223 A-El\n\n(Per Hegde. J.) The High Court has given good reasons in support of itll order allowing the amendment and no case was made out to inter. fcre 'vith it. ( '227 DJ\n\n(2) (Per Bachawat, l.) There is no absolute \\an on cow slaughter in several states in India and the Swatantra party was agitating for such a total ban. Public criticism of the Congress party for not abolishing cow slaughter \\Vas permissible, but the criticism ceases to be legitimate if the speaker cOmmits the corrupt practice of undue influence under s. 123(2) of the Act.\n\nUnder s, 123(2), proviso (a) cl. (ii), there is such undue influence if any person, with the consent of the. candidat~ or his election agent, attempts to induce an elector to believe that he will be rendered un object of divine displeasure or spiritual censure\n\n1224 D-FJ In the present case, S.M. spoke at the meetng on February 8, 1967 , i,.-ith the consent of the election agent of the appellant.\n\nS.M. v.'as a Kiriankar of rePute. and well known and respected for his lectures on Hindu religion. while his audience consisted mostly of illitrate and orthodox Hindus of rural areas who are filled with horror at the slaughter of a cow.\n\nThe dominant theme of the speech was that those who commit the sin of gohat)'a would be visited with divine displeasure. Therefore. even apart from the charge relating to the command of Sri Shankaracharya, the o;; peech was calculated to interfere with the free exercise of c\\ccfi-oral right.\n\nThe cocrupt practice was thus committed at the meeting on. February 8. 1967. with the consent of 1he election agent of the appellant. (224 G-H: 225 G-H; 226 F-G; 227 B-C]\n\nNarbada Prasad v. C/i/10gan Lal, [1969] 1 S.C.R. 499, followed.\n\n(Per Hegde, J.) Everyone of the speeches made by S. M., read as a \\\\'hole _are fanatical outpourings and a direct challenge to the .concept of asecUJar democracv. and fell within the vice of the proviso (a) (ii) of s. 123(2) of the Aci. [227 E]\n\nA CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1438 of\n\n1,68.\n\nAppeal under s. 116-A of the Representation of the People Act, 1951 fJom the judgment and order dated April 22, 23, 1968 of the Gujarat High Court in Election Petition No. 22 of 1967.\n\nI. M. Nanavati, P. M. Raval, D. N. Mishra and /. B. Dadachanji, for the appellant.\n\nH. R. Gokha/e, K. G. Vakharia, K. L. Hath/ and Atiqur Rshman, for respondents Nos. 1 and 2.\n\nThe Judgment of S1KR1 and BAcHAWAT, JJ. was delivered by\n\nBACHAWAT, J.\n\nHEGDE, J. delivered a separate opinion.\n\nBachawat, J. This appeal is directed against a judgment of a. single judge of the Gujarat High Court setg aside the electon\n\nof the appellant from the Banaskantha Parliamentary constituency.\n\nAt the last general election to the Lok Sabha from the Banaskantha constituency in Gujarat there were three contesting candidates.\n\nThe appellant, the Swatantra party candidate, secured 110,028 votes.\n\nRespondent No. 2, the Congress party candidate secured 1,05,621 votes. Respondent No .. 3, an independent candidate secured 14,265 votes. The appellant was declared elected,\n\nThe election petition was filed by respondent No. 1, an elector in the constituency.\n\nRespon®nt No. 1 alleged a number of corrupt practices on the part of the appellant or his election agents, but at the trial, he pressed only the charge of corrupt practice under s. 123(2) proviso (a) (ii) of the Representation <>f the People Act, 1951. In the petition the charge was that several persons with the consent of the appellant or his election agents induced or attempted to induce the electors to believe that if they voted for the congress party candidate they would become the objects of divine displeasure and spiritual censure.\n\nI:n: the particulars of this charge it was alleged that in the public mettings held at Amirgadh, Ikbalgadh, Wav, Laxmipura, Tharad, Bhabhar and other places one Shambhu Ma!Iaraj told the electors that if they voted for the congress candidate they wuuld commit the sin of cow slaughter and urged them in the name of mother. cow to take a vow not to vote for the congress candidate with the result that several members of the audience publicly took the vow.\n\nAt a late stage of the trial on March 7, 1968, the High Court gave leave. to respondent No. 1 to amend the petition by adding fresh particulars of the corrupt practice. The substance of the new charge was that at those meetings Shambhu Maharaj\n\ninduced or attempted to. induce the electors to believe that their religious head Jagadguru Shankracharya had commanded them not to vote for the congress and that contravention of his command would be a sin and would be visited with spiritual censure and divine displeasure.\n\nThe High Court found that the aforesaid practice was committed by Shambhu Maharaj with the consent of one Punambhai, the election agent of the appellant, and declared the appellant's election to be void.\n\nThe appellant challenges the legality of the order passed by the High Court on March 7, 1968 allowing the amendment.\n\nThe election petition was filed on April 10, 1967. The appellant filed his written statement on June 1; on September 9, the High Court gave leave to respondent No. 1 to amend the petition, by adding the charge that certain persons were threatened that they would commit the sins of go-hatya, Brahma'hatya and Sadhuhatya, if they worked for the congress candidate.\n\nThe order disallowed amendments seeking to introduce charges of appeal to voters in the name of religion under s. 123 ( 3). The appellant filed his additi< .al written statement on October 19. Issues were framed on November 30. Respondent No. 1 filed his list of witnesses on January 11, 1968. On February 21, the trial started and P.W. 1, P.W. 2, P.W. 3 and P.W. 4 were examined.\n\nP.W. 4, Ram Swarup was a witness With regard to the meeting at Amirgadh.\n\nThe issues were amended on March 1, so as to make it clear that there was no charge of any corrupt practice under s. 123 ( 3).\n\nOn the same date, respondent No. 1 was examined as P.W. 5.\n\nOn March 2, P.W. 6, P.W. 7, P.W. 8 and P.W. 9 were examined.\n\nP.W. 7 and P.W. 8 spoke about the meetings at Palanpur and Bhabhar. P.W. 9 Bhogi!al spoke about the meeting at Ikbalgadh.\n\nOn March 4, P.W. 10 and P.W. 11 were examined and spoke about the meetings at Wav and Laxmipura.\n\nOn the same day, P.W. 12 S. P. Pandya, a sub-inspector of police at Palanpur, and P.W. 13, C.B. Barot, a short-hand writer were examined. The examination of Barot was concluded 01; March 6.\n\nBarot proved that he took shorthand notes of the speeches of Shambhu Maharaj at Ikbalgadh, Amirgadh, Bhab:rnr, Laxmipura, Wav and Tharad and sent reports of the seches to S. P. Pandya.\n\nOn March 6, P.W. 14 and P.W. 15 were examined.\n\nOn March 5, respondent No. 1 filed an application for leave to amend the petition by adding portions of the speeches which referred to the command of Shankracharya not to vote for the congress and the consequences of not obeying the command. The application was allowed on March 7, 1968. The trial was then adioumed and started again on April 8. Between April 8 and April 15, P.W. 17, P.W. 18, D.W. 1 and D.W. 2 were examined. The judgment was delivered on April 22 and 23.\n\nThe first question is whether the trial judge should have allowed the amendment.\n\nSection .83 ( l )(b) provides that \"An election petition shall setforth full particulars of. any corrupt practice that the petitioner alleges, .including as full a stat~ t\n\nas possible of the names of thp parlies alleged to have comnu• such corrupt practice and the date and place of the commis!; ion of each such practice\".\n\nThe section is mandatory.\n\nWhere a corrupt practice is charged against the returned candidate lihe\n\nelection petition must selforth full particulars of the corrupt practice so as to give the charge a definite character and to enable the court to understand what the charge is.\n\nThe charge must be substantially proved as laid and e'vidence cannot be allowed to be given in respect of a charge not disclosed in the particulars.\n\nOn a charge of telling the electors that by giving their vote to the Congress candidate, they would commit the sin of go-hatya, evidence cannot be led to prove the charge of telling them that they would commit a sin of Brahma-hatya or the sin of disobeying the command of their religious leader.\n\nSection 86(5) allows amendment of the particulars. It provides that \"the High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars. of a corrupt practice not previously alleged in the petition.\" In Harish Chandra Bajpai v. Trlloki Singh(') the Court held that though under the English Jaw the petitioner was not obliged to give the particulars of the corrupt practice in his petition the difference was a matter of form and not of substance and that under s. 83 (3) as it stood before 1955 the Court could allow an amendmC111t introducing fresh instances of the corrupt practice alleged in the petition.\n\nReferring to the English practice the C?urt observed at page 382 : \"it is sufficient if the particulars are ordeted to be furnished within a reasonable time before the\n\ncomencement of the trial\".\n\nSectio1_1 83 (3) has been repealed '.111d is i:ow replced by s. 86 ( 5) which forbids any amendment mtroducmg particulars of a corrupt practice not previously alleged in the petition. Assuming that the amendment of March 7, 19~7 was peni; lissible under s. 86(5), the question is whether the High Court nghtly allowed it.\n\nNormally an application for amendment under s. 86(5) should be made within a reasonable time before the commencement of the trial.\n\nThe Court has power to allow an amendment even after the commencement of the trial, but as a rule leave to amend a.t a late stage should be given in exceptional cases where the petitioner could not with\n\n~I) 1957]' S.C.R. 371.\n\nreasonable diligence have discovered the new facts earlier. Leave A to amend will not be given if the petitioner is not acting in good faith or has kept back the facts known to .him before the trial\n\ntarted.\n\nAccording to respondent No. 1 Shambhu Maharaj committed corrupt practice at election meetings held at Ikbalgadh where P.W. 9 was present, Amirgadh where P.W. 4 was present and at Wav where one Chotaii Bhattji was present and that he came to know of the corrupt practices from those persons.\n\nAll the meetings are referred to in the election petition.\n\nIf Shambhu • Maharaj had told the electors that Sri ShankrachlU')'a had commanded them not to vote for the congress candidate and that disobedience of his command would be sinful,\n\nP.W. 4 and Chotaji Ilhattji must have informed respondent No. 1 of this corrupt practice before April 10, 1967 when the election petition was filed.\n\nNo explanation is given as to why respondent No. 1 withheld this information in the petition.\n\nRespondent No. 1 now says that on April 17, 1967 he applied for certified copies of the reports of C. B. Barot to the Deputy Inspector-General of Police, C.I.D., Ahmedabad but the application was rejected on May 14, 1967.\n\nAssuming that he could not get certified copies o4' the reports, he could setforth in the petition the substance of the charge with regard to the command of Sri Shankracharya from the information supplied by his 'informants.\n\nHe knew of the reports of C. B. Bi.rot before April 17, 1967.\n\nImmediately after filing; the election petition he eould subpoena the reports and under orders of the Court he could inspect them long before the trial started. He was aware that the charge of telling the electors that they would commit the sin of go-hatya was quite different from the charge of telling them that they would commit the sin of Brahma-hatya or the sin of disobeying the command of their religious leader Sri Shankracharya.\n\nOn September 25, 1967, he obtainea an order giving him leave to amend the petition by adding the charge with regard to the sins of Brahma-hatya and Sadhu-hatya, but he deliberately refrained from adding the charge with regard to the sin of disobeying the command of Sri Shankracharya.\n\nThe trial commenced on February 29, 1968. On that date P.W. 4 said that at the Amirgadh meeting Shambhu Maharaj told the electors that he had brought a mandate from Jagadguru Shankracharya. On\n\n~.n objection being raised by the appellant's counsel Mr. Mehta, counsel for respondent No. 1, agreed that the statement of P.W. 4 would not b.e treated as part of the evidence on the record.\n\nThereafter the trial proceeded and 11 more witnesses were examined on the fopting that respondent No. 1 would not rely on the charge with regard to the command of Jagadguru Shankracharya.\n\nOn that footing the appellant's counsel adopted a definite .\n\nJin~ of cross-ex:amination.\n\nOn March 4, he CQllSented to the marking of the full reports of the speeches of Shambhu Maharaj as exhibits and on Marc:1 5, he extracted an admission\n\nfrom Barot that the witness had taken verbatim notes of the speeches of Shambhu Maharaj.\n\nCounsel adopted this line of cross-examination because he took the stand that the speeches did not prove the corrupt practice alleged in the petition.\n\nThe application for amendment was filed on March 5 and was allowed on March 7.\n\nThe order allowing the amendment has resulted in manifest injustice to the appellant. His counsel could not thereafter take the stand that the reports had been fabricated at the instance of the congress party.\n\nRespondent No. 1 moved the application for amendment in bad faith at a very late stage of the trial. He deliberately refrained from taking the Ile\\\\ charge earlier.\n\nUnder s. ll 6A an appeal lies to this Court on any question whether of law or fact from the order of the High Court. Tne procedure in appeal is regulated by s. 116C. All the provisions of the Code of Civil Procedure including s. 105 apply to the appeal, and any error in an order of the trial court affecting the decisiQll of the case may be taken as a ground of objection in the appeal. In an appeal under s. ll 6A the whole case is within the jurisdiction of this Court. Normally the Court does not interfere with the Judge's discretion in granting amendnl.cnts except on grounds of Jaw but where, as in this case, the order has resulted in manifest injustice, the Court has the power and the duty to correct the error. In Evans v. Bart/am(') Lord Atkin observed:\n\n\"Appellate jurisdiction is always statutory : there is in the statute no restriction upon the jurisdiction of the court of appeal: arnt while the appellate coun in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the judge's discretion except on grounds of law, yet if it sees that on other ground' the decision will result in injustice being done it ha> both the power and the duty to remedy it.''\n\nWe, therefore, hold that the order of the trial judge allowin: the amendment was erroneous and must be set aside.\n\nRespondent. No. 1 proved six speeches of Shambhu Maharaj He did not rely in the trial court on the speeches at Laxmipura Bhabhar and Tharad. Mr. Gokhale stated that he did not rel)\n\non these speeches for any purpose whatsoever.\n\nAccordingly those speeches were not read in this Court. There is no charg1\n\n(I) [1937] A.C. 473, 480-481.\n\nagainst the appellant on the ground of appeal to the electors on the ground of religion. The only charge against him is that in his speeches at lkbalgadh, Amirgadh and Wav, Shambhu Maharaj with the consent of /his election agent Punambhai told the electors that \"if they voted for the congrei; s party candidates the voters would commit the sin of cow slaughter (gaumata vadh).\" Respondent No. 1 has not proved the charge that the electors were urged in the name of mother cow to take a vow not to vote for the congress party candidates, with the result that several members of the audience publicly took the vow. The Ikbalgadh speech (Ex. Bl) and the Amirgadh speech (Ex. B3) were delivered on February 8, 1967. The Wav speech (Ex. B4) was delivered on February 9, 1967. There was then an acute political controversy with regard to the total ban on cow slaughter. Section 5 (1) of the Bombay Animal Preservation Act, 1954 (Bombay Act No. LXXII of 1954) as amended by Gujarat Act No. XVI of 1961, there was a total ban on cow slaughter in Gujarat. But there was no absolute ban on cow slaughter in several other States.\n\nThe Swatantra party was agitating for a total ba11 on cow slaughter throughout India.\n\nPublic criticism of the Congress party for not abolishing cow slaughter throughout the country was pennissible and legitimate. But the criticism ceases to be legitimate if the speaker commits the corrupt practice of undue influence under s. 123(2), that is, if he interfere; or attempts to interfere with the free exercise of electoral right.\n\nUnder s. 123(2) proviso (a) cl. (ii) there is such undue influence if any person with the consent of the candidate or his election agent \"induces or attempts to induce a candidate or an elector t.o believe that he, or any person in whom he is interested. will become or will be rendered an object of divine displeasure or spiritual ceILrnre.\" The actual effect of the speech is not material.\n\nCorrupt practice is committed if the speech is calculated to interfere with the free exercise of electoral right and to leave no choice to the electors in the matter, see Ram Dial v.\n\nSanit Lal & Others(').\n\nIn considering the speeches the status of the speaker and tbe character of the audience are relevant considerations. Shambhu\n\nMaharaj was a kirtankar of repute and well known and respected for his lectures on Hindu religion.\n\nThe audience consisted mostly of illiterate and orthodox Hindus of the rural areas, adivasis and rabaris belonging to the scheduled tribes and scheduled castes.\n\nIn this background, let us now consider the speeches.\n\nRespondent No. 1 charges corrupt practice in respect of 4 passages in the Ikbalgadh speech (Ex. B 1), 6 passages in the Wav speech (Ex. B4) and 3 passages in the Amirgadh speech (Ex. B3).\n\nft) [t959] S 1pp. 2. S.C.R. 748, 758, 760.\n\nNANDLAL v. MANlLAL (Bachawat, J.) 225\n\nThe learned trial judge found that the corrupt practice was not committed by the 1st and 2nd passages in Ex. Bl, the 1st, 2nd and 3rd and 6th passages in Ex. B4 and the 1st passage in.Ex. B3.\n\nBut the learned Judge held that 3rd and 4th passages in Ex. B 1 and the 4th and 5th passages in Ex. B4, amounted to corrupt practice as the electors were told that Sri Shankracharya had commanded them not to vote for the congress and that if they disobeyed his command they would incur divine displl'.asure and spiritual censure. We have disallowed the amendment mt:oducing this charge and we must therefor-: set aside the findmg of the learned judge with regard to those passages.\n\nWe find that the passages do not show any corrupt practice as alleged in the petition.\n\nIn the 2nd passage in the Amirgadh speech (Ex. B3) the speaker referred tc the ban on cow slaughter in Pakistan, Afghanistan and Madhya Pradesh nd said that the Swatantra Party had promised to ban slaughter of cow progeny and exemption of land revenue.\n\nHe also said : \"Sun rises and twenty two thou- 'and cows are slaughtered .... In Ahmedabad there is a prohibition on cow slaughter but the slaughtering of calf and ox is continued.\n\nThe earth took the form of a cow and if the said 'Gaumata' or ox is slaughtered how can earth be satisfied and so long as the earth is not satisfied how can there be fertility in the earth.\" In the third passage (Ex. B3), the speaker said:-\n\n\"In the year 1942 sixteen lacs and in 1946 twenty four lacs and in 194 7 after India became separate and at present about 1 crore cows are slaughtered.\n\nYou say whether to vote for congress is to become partner in sin or anything else. If you give cooperation for good cause you may get good fruit and if you cooperate in committing a sin you become a partner of sin. Why you bec0me a partner of sin by giving votes to congress ?\"\n\nHe then referred to the command of Sri Shankracharya that the electors should not vote for the Congress party.\n\nBut even apa, rt from the command of Sri Shankracharya the electors are d1stmctly told that though there was a ban on cow slaughter in Ahmedabad, the congress was permitting the slaughter of crores of cows elsewhere in India and was committing the sin of go hat, va and those who vote for the congress would be partners in the sin. The dominant theme of the speech was that those who commit the sin of go-hatya would be visited with divine displeasure.\n\nHaving regard to the character of the audience, the speech was calculated to interfere with the free exercise of\n\nelectoral right. In Narbada Prasad v. Chhagan Lal & Ors. ( 1 ) Hidayatu!lah, C.J., observed :\n\n\"It is not necessary to enlarge upon the fact that cow is venerated in our country by ihe vast majority of. he peole an~ that they believe not only in its uuhty but Its holmess. It is also believed that one of the cardinal sins is that of go-hatya.\n\nTherefore, it is quite obvmts that w remind the voters that they would be comm1ttmg the sm of go-hatya would be to remind them. tat they would be objects of divine displeasure or spmtuaJ. censure.\"\n\nIn Encycjopaedia of Religion and Ethics, edited by James Hastings, vol. 4, pp. 225, 226, it is stated :-\n\n\"A well known verse (Mahabharata, xiii. 74.4) says : 'All that kill, eat and permit the slaughter of cows, rot i, n hell for as many years as there are hairs on the body of the cow so slain.'\n\n\"Reverence for the cow has not diminished in modern times.\n\nIt is well known that the Hindus of the present day are fill¢ with horror at the slaughter of the cow, which is therefore prohibited in native States under treaties with the English.\"\n\nAccording to B. N. Mehta's Modern Gujarati-English Dictionary, vol. 1, page 480, gohatya (go, a cow+hatya, ktlling) means ill Gujarat \"slaughter of a cow; killing a cow, being one of the five great sins according to Hindu scriptures which can be atoned for only with capital punishment.\"\n\nAccordingly, the offending passages in the Amirgadh speech fell within s. 123(2) proviso (a)(ii). We are satisfied that Shambhu Maharaj spoke at the Amirgadh meeting with the consent of Punambhai, the election agent of the appellant. Punambhai was present at the Amirgadh meeting.\n\nHe addressed the meeting before Shambhu Maharaj spoke.\n\nShambhu Maharaj addressed several other election meetings of the Swatantra party.\n\nPunambhai issued a pamphlet calling one of the meetings. P.w, 10 proved that he was asked by Punambhai to call Shambhu Maharaj for addressing another meeting as the voters were uneducated and had deep belief in religion. Punambhai accompanied\n\nShambhu Maharaj from one place to another. On February 8, 1967 he went with Shambhu Maharaj to the meeting at Ikbalgadh\n\n(I) [1969] S.C.E. 49~.\n\nand thereafter went to Amirgadh. On February 9, he went with Shambhu Maharaj to the meeting at Wav. The offending passages. of the speech at the Amirgadh meeting are integral parts of the dominant theme of the sin of cow slaughter. They cannot be regarded as stray words spoken by Shambhu Maharaj without Punambhai's consent. Punambhai did not raise any objection to the impugned speeches at the meeting. He gave evidence in Court bnt did not say that he was not a consenting party to the offending passages.\n\nWe hold that the corrupt practice under s. 123(2) proviso (a)(ii) was committed at the Amirgadh meeting on February 8, 1967 with the consent of the election agent of the appellant.\n\nIn the result, the appeal is dismissed. There will be no order as to costs.\n\nHegde, J. I have had the advantage of reading the judgment just now read out by Bachawat, J.\n\nI agree that the appeal should be dismissed.\n\nBut I am unable to agree that the amendment complained of was not properly allowed. The learned trial judge has given good reasons in support of his order. In my opinion no case is made out to interfere with that order. I am also of the opinion that each and every<'ne of the speeches made by Shambhu Maharaj which are the subject matter of this appeal, read as a whole as we should do, fall within the vice of proviso a(ii) of s. 123(2) of the Representation of the People Act 1951.\n\nNothing so bad as those speeches I have come across in ~Jection cases. They are fanatical outpourings and a direct challeng~ to the concept of a secular democracy.\n\nA ppea/ dismissed.", "total_entities": 127, "entities": [{"text": "A MANUBllAI NANDLAL AMERSEY", "label": "PETITIONER", "start_char": 0, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "MANUBHAI NANDLAL AMERSEY", "offset_not_found": false}}, {"text": "POPATLAL MANILAL JOSW & ORS.", "label": "RESPONDENT", "start_char": 32, "end_char": 60, "source": "metadata", "metadata": {"canonical_name": "POPATLAL MANILAL JOSHI & ORS", "offset_not_found": false}}, {"text": "R. s. BACHAWAT", "label": "JUDGE", "start_char": 93, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "K. s. HEGDE, JJ.", "label": "JUDGE", "start_char": 112, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 131, "end_char": 163, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 86(5)", "label": "PROVISION", "start_char": 178, "end_char": 187, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act", "statute": "Representation of the People Act"}}, {"text": "s. 116A", "label": "PROVISION", "start_char": 309, "end_char": 316, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act", "statute": "Representation of the People Act"}}, {"text": "April 10,\n\n1967", "label": "DATE", "start_char": 538, "end_char": 553, "source": "ner", "metadata": {"in_sentence": "On April 10,\n\n1967, the first respondent, an elector , in the constituency filed an election petition."}}, {"text": "s. 123(2)", "label": "PROVISION", "start_char": 708, "end_char": 717, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act", "statute": "Representation of the People Act"}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 742, "end_char": 780, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "September 25, 1967", "label": "DATE", "start_char": 1045, "end_char": 1063, "source": "ner", "metadata": {"in_sentence": "On September 25, 1967 the first respondent obtained an 01der giving him leave to amend the petition by adding a charge with regard to the sin of Brahma hatya and Sadhu hatya."}}, {"text": "Brahma hatya", "label": "OTHER_PERSON", "start_char": 1187, "end_char": 1199, "source": "ner", "metadata": {"in_sentence": "On September 25, 1967 the first respondent obtained an 01der giving him leave to amend the petition by adding a charge with regard to the sin of Brahma hatya and Sadhu hatya.", "canonical_name": "Brahma hatya"}}, {"text": "Sadhu hatya", "label": "OTHER_PERSON", "start_char": 1204, "end_char": 1215, "source": "ner", "metadata": {"in_sentence": "On September 25, 1967 the first respondent obtained an 01der giving him leave to amend the petition by adding a charge with regard to the sin of Brahma hatya and Sadhu hatya.", "canonical_name": "Sadhu hatya"}}, {"text": "February 29, 1968", "label": "DATE", "start_char": 1221, "end_char": 1238, "source": "ner", "metadata": {"in_sentence": "On February 29, 1968 the trial commenced and one of the witnesses said that he heard S.~1."}}, {"text": "February 8, 1967", "label": "DATE", "start_char": 1328, "end_char": 1344, "source": "ner", "metadata": {"in_sentence": "giving a 'peech on February 8, 1967, where S.M. told the electors that Sri Shankaracharya had commanded them not to vote for the Congress and that a contraventio.n of the mandate \":ould be visited with spiritual censure."}}, {"text": "Shankaracharya", "label": "OTHER_PERSON", "start_char": 1384, "end_char": 1398, "source": "ner", "metadata": {"in_sentence": "giving a 'peech on February 8, 1967, where S.M. told the electors that Sri Shankaracharya had commanded them not to vote for the Congress and that a contraventio.n of the mandate \":ould be visited with spiritual censure.", "canonical_name": "Shankaracharya"}}, {"text": "S.M.", "label": "JUDGE", "start_char": 1825, "end_char": 1829, "source": "ner", "metadata": {"in_sentence": "The trial proceeded, 11 witnesses were examined and the appellant agreed to the marking of the full reports of the speeches of S.M. as exhibits and adopted a definite line of crossexamination on the footing that the first respondent would not rely on the charge with regard to the command of Sri Shankaracharya.", "canonical_name": "S. M."}}, {"text": "March 5, 1968", "label": "DATE", "start_char": 2022, "end_char": 2035, "source": "ner", "metadata": {"in_sentence": "However on March 5, 1968, the first respondent applied for an amendment of his petition to include a charge of corrupt practice based on the command of Sri Shankaracharya and the High Coun allowed the amendment."}}, {"text": "Per Bachawat", "label": "JUDGE", "start_char": 2605, "end_char": 2617, "source": "ner", "metadata": {"in_sentence": "(Per Bachawat, J.) : (I) The High Court erred in allowing the amendment."}}, {"text": "Section 86(5)", "label": "PROVISION", "start_char": 3085, "end_char": 3098, "source": "regex", "metadata": {"statute": null}}, {"text": "Hegde", "label": "JUDGE", "start_char": 4788, "end_char": 4793, "source": "ner", "metadata": {"in_sentence": ".[222 B--0, F-H; 223 A-El\n\n(Per Hegde.", "canonical_name": "Hegde"}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 4955, "end_char": 4963, "source": "ner", "metadata": {"in_sentence": "227 DJ\n\n(2) (Per Bachawat, l.) There is no absolute \\an on cow slaughter in several states in India and the Swatantra party was agitating for such a total ban.", "canonical_name": "Bachawat"}}, {"text": "India", "label": "GPE", "start_char": 5032, "end_char": 5037, "source": "ner", "metadata": {"in_sentence": "227 DJ\n\n(2) (Per Bachawat, l.) There is no absolute \\an on cow slaughter in several states in India and the Swatantra party was agitating for such a total ban."}}, {"text": "Swatantra party", "label": "ORG", "start_char": 5046, "end_char": 5061, "source": "ner", "metadata": {"in_sentence": "227 DJ\n\n(2) (Per Bachawat, l.) There is no absolute \\an on cow slaughter in several states in India and the Swatantra party was agitating for such a total ban."}}, {"text": "s. 123(2)", "label": "PROVISION", "start_char": 5299, "end_char": 5308, "source": "regex", "metadata": {"statute": null}}, {"text": "S.M.", "label": "JUDGE", "start_char": 5615, "end_char": 5619, "source": "ner", "metadata": {"in_sentence": "candidat~ or his election agent, attempts to induce an elector to believe that he will be rendered un object of divine displeasure or spiritual censure\n\n1224 D-FJ In the present case, S.M. spoke at the meetng on February 8, 1967 , i,.-ith the consent of the election agent of the appellant.", "canonical_name": "S. M."}}, {"text": "[1969] 1 S.C.R. 499", "label": "CASE_CITATION", "start_char": 6460, "end_char": 6479, "source": "regex", "metadata": {}}, {"text": "Per Hegde", "label": "JUDGE", "start_char": 6493, "end_char": 6502, "source": "ner", "metadata": {"in_sentence": "(Per Hegde, J.) Everyone of the speeches made by S. M., read as a \\\\'hole _are fanatical outpourings and a direct challenge to the .concept of asecUJar democracv."}}, {"text": "S. M.", "label": "JUDGE", "start_char": 6541, "end_char": 6546, "source": "ner", "metadata": {"in_sentence": "(Per Hegde, J.) Everyone of the speeches made by S. M., read as a \\\\'hole _are fanatical outpourings and a direct challenge to the .concept of asecUJar democracv.", "canonical_name": "S. M."}}, {"text": "s. 123(2)", "label": "PROVISION", "start_char": 6707, "end_char": 6716, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 116", "label": "PROVISION", "start_char": 6817, "end_char": 6823, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 6833, "end_char": 6871, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "I. M. Nanavati", "label": "LAWYER", "start_char": 6989, "end_char": 7003, "source": "ner", "metadata": {"in_sentence": "I. M. Nanavati, P. M. Raval, D. N. Mishra and /. B. Dadachanji, for the appellant."}}, {"text": "P. M. Raval", "label": "LAWYER", "start_char": 7005, "end_char": 7016, "source": "ner", "metadata": {"in_sentence": "I. M. Nanavati, P. M. Raval, D. N. Mishra and /. B. Dadachanji, for the appellant."}}, {"text": "D. N. Mishra", "label": "LAWYER", "start_char": 7018, "end_char": 7030, "source": "ner", "metadata": {"in_sentence": "I. M. Nanavati, P. M. Raval, D. N. Mishra and /. B. Dadachanji, for the appellant."}}, {"text": "B. Dadachanji", "label": "LAWYER", "start_char": 7038, "end_char": 7051, "source": "ner", "metadata": {"in_sentence": "I. M. Nanavati, P. M. Raval, D. N. Mishra and /. B. Dadachanji, for the appellant."}}, {"text": "H. R. Gokha", "label": "LAWYER", "start_char": 7073, "end_char": 7084, "source": "ner", "metadata": {"in_sentence": "H. R. Gokha/e, K. G. Vakharia, K. L. Hath/ and Atiqur Rshman, for respondents Nos."}}, {"text": "K. G. Vakharia", "label": "LAWYER", "start_char": 7088, "end_char": 7102, "source": "ner", "metadata": {"in_sentence": "H. R. Gokha/e, K. G. Vakharia, K. L. Hath/ and Atiqur Rshman, for respondents Nos."}}, {"text": "K. L. Hath/", "label": "LAWYER", "start_char": 7104, "end_char": 7115, "source": "ner", "metadata": {"in_sentence": "H. R. Gokha/e, K. G. Vakharia, K. L. Hath/ and Atiqur Rshman, for respondents Nos."}}, {"text": "Atiqur Rshman", "label": "LAWYER", "start_char": 7120, "end_char": 7133, "source": "ner", "metadata": {"in_sentence": "H. R. Gokha/e, K. G. Vakharia, K. L. Hath/ and Atiqur Rshman, for respondents Nos."}}, {"text": "S1K", "label": "PROVISION", "start_char": 7182, "end_char": 7185, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "BAcHAWAT", "label": "JUDGE", "start_char": 7192, "end_char": 7200, "source": "ner", "metadata": {"in_sentence": "The Judgment of S1KR1 and BAcHAWAT, JJ.", "canonical_name": "Bachawat"}}, {"text": "BACHAWAT", "label": "JUDGE", "start_char": 7224, "end_char": 7232, "source": "ner", "metadata": {"in_sentence": "was delivered by\n\nBACHAWAT, J.\n\nHEGDE, J. delivered a separate opinion.", "canonical_name": "Bachawat"}}, {"text": "HEGDE", "label": "JUDGE", "start_char": 7238, "end_char": 7243, "source": "ner", "metadata": {"in_sentence": "was delivered by\n\nBACHAWAT, J.\n\nHEGDE, J. delivered a separate opinion.", "canonical_name": "Hegde"}}, {"text": "Gujarat", "label": "GPE", "start_char": 7554, "end_char": 7561, "source": "ner", "metadata": {"in_sentence": "At the last general election to the Lok Sabha from the Banaskantha constituency in Gujarat there were three contesting candidates."}}, {"text": "Congress party", "label": "RESPONDENT", "start_char": 7695, "end_char": 7709, "source": "ner", "metadata": {"in_sentence": "2, the Congress party candidate secured 1,05,621 votes."}}, {"text": "s. 123(2)", "label": "PROVISION", "start_char": 8112, "end_char": 8121, "source": "regex", "metadata": {"statute": null}}, {"text": "People Act, 1951", "label": "STATUTE", "start_char": 8169, "end_char": 8185, "source": "regex", "metadata": {}}, {"text": "Amirgadh", "label": "GPE", "start_char": 8566, "end_char": 8574, "source": "ner", "metadata": {"in_sentence": "I:n: the particulars of this charge it was alleged that in the public mettings held at Amirgadh, Ikbalgadh, Wav, Laxmipura, Tharad, Bhabhar and other places one Shambhu Ma!Iaraj told the electors that if they voted for the congress candidate they wuuld commit the sin of cow slaughter and urged them in the name of mother."}}, {"text": "Ikbalgadh", "label": "GPE", "start_char": 8576, "end_char": 8585, "source": "ner", "metadata": {"in_sentence": "I:n: the particulars of this charge it was alleged that in the public mettings held at Amirgadh, Ikbalgadh, Wav, Laxmipura, Tharad, Bhabhar and other places one Shambhu Ma!Iaraj told the electors that if they voted for the congress candidate they wuuld commit the sin of cow slaughter and urged them in the name of mother."}}, {"text": "Wav", "label": "GPE", "start_char": 8587, "end_char": 8590, "source": "ner", "metadata": {"in_sentence": "I:n: the particulars of this charge it was alleged that in the public mettings held at Amirgadh, Ikbalgadh, Wav, Laxmipura, Tharad, Bhabhar and other places one Shambhu Ma!Iaraj told the electors that if they voted for the congress candidate they wuuld commit the sin of cow slaughter and urged them in the name of mother."}}, {"text": "Laxmipura", "label": "GPE", "start_char": 8592, "end_char": 8601, "source": "ner", "metadata": {"in_sentence": "I:n: the particulars of this charge it was alleged that in the public mettings held at Amirgadh, Ikbalgadh, Wav, Laxmipura, Tharad, Bhabhar and other places one Shambhu Ma!Iaraj told the electors that if they voted for the congress candidate they wuuld commit the sin of cow slaughter and urged them in the name of mother."}}, {"text": "Tharad", "label": "GPE", "start_char": 8603, "end_char": 8609, "source": "ner", "metadata": {"in_sentence": "I:n: the particulars of this charge it was alleged that in the public mettings held at Amirgadh, Ikbalgadh, Wav, Laxmipura, Tharad, Bhabhar and other places one Shambhu Ma!Iaraj told the electors that if they voted for the congress candidate they wuuld commit the sin of cow slaughter and urged them in the name of mother."}}, {"text": "Bhabhar", "label": "GPE", "start_char": 8611, "end_char": 8618, "source": "ner", "metadata": {"in_sentence": "I:n: the particulars of this charge it was alleged that in the public mettings held at Amirgadh, Ikbalgadh, Wav, Laxmipura, Tharad, Bhabhar and other places one Shambhu Ma!Iaraj told the electors that if they voted for the congress candidate they wuuld commit the sin of cow slaughter and urged them in the name of mother."}}, {"text": "Shambhu Ma!Iaraj", "label": "RESPONDENT", "start_char": 8640, "end_char": 8656, "source": "ner", "metadata": {"in_sentence": "I:n: the particulars of this charge it was alleged that in the public mettings held at Amirgadh, Ikbalgadh, Wav, Laxmipura, Tharad, Bhabhar and other places one Shambhu Ma!Iaraj told the electors that if they voted for the congress candidate they wuuld commit the sin of cow slaughter and urged them in the name of mother.", "canonical_name": "Shambhu • Maharaj"}}, {"text": "March 7, 1968", "label": "DATE", "start_char": 8968, "end_char": 8981, "source": "ner", "metadata": {"in_sentence": "At a late stage of the trial on March 7, 1968, the High Court gave leave."}}, {"text": "Shambhu Maharaj", "label": "RESPONDENT", "start_char": 9164, "end_char": 9179, "source": "ner", "metadata": {"in_sentence": "The substance of the new charge was that at those meetings Shambhu Maharaj\n\ninduced or attempted to.", "canonical_name": "Shambhu • Maharaj"}}, {"text": "Jagadguru Shankracharya", "label": "OTHER_PERSON", "start_char": 9263, "end_char": 9286, "source": "ner", "metadata": {"in_sentence": "induce the electors to believe that their religious head Jagadguru Shankracharya had commanded them not to vote for the congress and that contravention of his command would be a sin and would be visited with spiritual censure and divine displeasure."}}, {"text": "Punambhai", "label": "OTHER_PERSON", "start_char": 9563, "end_char": 9572, "source": "ner", "metadata": {"in_sentence": "The High Court found that the aforesaid practice was committed by Shambhu Maharaj with the consent of one Punambhai, the election agent of the appellant, and declared the appellant's election to be void."}}, {"text": "Brahma'hatya", "label": "OTHER_PERSON", "start_char": 10072, "end_char": 10084, "source": "ner", "metadata": {"in_sentence": "1 to amend the petition, by adding the charge that certain persons were threatened that they would commit the sins of go-hatya, Brahma'hatya and Sadhuhatya, if they worked for the congress candidate.", "canonical_name": "Brahma hatya"}}, {"text": "Sadhuhatya", "label": "OTHER_PERSON", "start_char": 10089, "end_char": 10099, "source": "ner", "metadata": {"in_sentence": "1 to amend the petition, by adding the charge that certain persons were threatened that they would commit the sins of go-hatya, Brahma'hatya and Sadhuhatya, if they worked for the congress candidate.", "canonical_name": "Sadhu hatya"}}, {"text": "s. 123", "label": "PROVISION", "start_char": 10256, "end_char": 10262, "source": "regex", "metadata": {"statute": null}}, {"text": "January 11, 1968", "label": "DATE", "start_char": 10421, "end_char": 10437, "source": "ner", "metadata": {"in_sentence": "1 filed his list of witnesses on January 11, 1968."}}, {"text": "Ram Swarup", "label": "WITNESS", "start_char": 10535, "end_char": 10545, "source": "ner", "metadata": {"in_sentence": "P.W. 4, Ram Swarup was a witness With regard to the meeting at Amirgadh."}}, {"text": "s. 123", "label": "PROVISION", "start_char": 10715, "end_char": 10721, "source": "regex", "metadata": {"statute": null}}, {"text": "Palanpur", "label": "GPE", "start_char": 10897, "end_char": 10905, "source": "ner", "metadata": {"in_sentence": "P.W. 7 and P.W. 8 spoke about the meetings at Palanpur and Bhabhar."}}, {"text": "Bhogi!al", "label": "WITNESS", "start_char": 10926, "end_char": 10934, "source": "ner", "metadata": {"in_sentence": "P.W. 9 Bhogi!al spoke about the meeting at Ikbalgadh."}}, {"text": "S. P. Pandya", "label": "WITNESS", "start_char": 11097, "end_char": 11109, "source": "ner", "metadata": {"in_sentence": "On the same day, P.W. 12 S. P. Pandya, a sub-inspector of police at Palanpur, and P.W. 13, C.B. Barot, a short-hand writer were examined."}}, {"text": "C.B. Barot", "label": "WITNESS", "start_char": 11163, "end_char": 11173, "source": "ner", "metadata": {"in_sentence": "On the same day, P.W. 12 S. P. Pandya, a sub-inspector of police at Palanpur, and P.W. 13, C.B. Barot, a short-hand writer were examined."}}, {"text": "Barot", "label": "WITNESS", "start_char": 11229, "end_char": 11234, "source": "ner", "metadata": {"in_sentence": "The examination of Barot was concluded 01; March 6."}}, {"text": "Bhab", "label": "GPE", "start_char": 11364, "end_char": 11368, "source": "ner", "metadata": {"in_sentence": "Barot proved that he took shorthand notes of the speeches of Shambhu Maharaj at Ikbalgadh, Amirgadh, Bhab:rnr, Laxmipura, Wav and Tharad and sent reports of the seches to S. P. Pandya."}}, {"text": "rnr", "label": "GPE", "start_char": 11369, "end_char": 11372, "source": "ner", "metadata": {"in_sentence": "Barot proved that he took shorthand notes of the speeches of Shambhu Maharaj at Ikbalgadh, Amirgadh, Bhab:rnr, Laxmipura, Wav and Tharad and sent reports of the seches to S. P. Pandya."}}, {"text": "Laxmipura", "label": "OTHER_PERSON", "start_char": 11374, "end_char": 11383, "source": "ner", "metadata": {"in_sentence": "Barot proved that he took shorthand notes of the speeches of Shambhu Maharaj at Ikbalgadh, Amirgadh, Bhab:rnr, Laxmipura, Wav and Tharad and sent reports of the seches to S. P. Pandya.", "canonical_name": "Laxmipura Bhabhar"}}, {"text": "Wav", "label": "OTHER_PERSON", "start_char": 11385, "end_char": 11388, "source": "ner", "metadata": {"in_sentence": "Barot proved that he took shorthand notes of the speeches of Shambhu Maharaj at Ikbalgadh, Amirgadh, Bhab:rnr, Laxmipura, Wav and Tharad and sent reports of the seches to S. P. Pandya."}}, {"text": "Tharad", "label": "OTHER_PERSON", "start_char": 11393, "end_char": 11399, "source": "ner", "metadata": {"in_sentence": "Barot proved that he took shorthand notes of the speeches of Shambhu Maharaj at Ikbalgadh, Amirgadh, Bhab:rnr, Laxmipura, Wav and Tharad and sent reports of the seches to S. P. Pandya."}}, {"text": "S. P. Pandya", "label": "OTHER_PERSON", "start_char": 11434, "end_char": 11446, "source": "ner", "metadata": {"in_sentence": "Barot proved that he took shorthand notes of the speeches of Shambhu Maharaj at Ikbalgadh, Amirgadh, Bhab:rnr, Laxmipura, Wav and Tharad and sent reports of the seches to S. P. Pandya."}}, {"text": "Shankracharya", "label": "OTHER_PERSON", "start_char": 11647, "end_char": 11660, "source": "ner", "metadata": {"in_sentence": "1 filed an application for leave to amend the petition by adding portions of the speeches which referred to the command of Shankracharya not to vote for the congress and the consequences of not obeying the command.", "canonical_name": "Shankaracharya"}}, {"text": "April 8 and April 15", "label": "DATE", "start_char": 11851, "end_char": 11871, "source": "ner", "metadata": {"in_sentence": "Between April 8 and April 15, P.W. 17, P.W. 18, D.W. 1 and D.W. 2 were examined."}}, {"text": "April 22 and 23", "label": "DATE", "start_char": 11954, "end_char": 11969, "source": "ner", "metadata": {"in_sentence": "The judgment was delivered on April 22 and 23."}}, {"text": "Section 86(5)", "label": "PROVISION", "start_char": 13105, "end_char": 13118, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 83", "label": "PROVISION", "start_char": 13889, "end_char": 13894, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 86", "label": "PROVISION", "start_char": 14296, "end_char": 14301, "source": "regex", "metadata": {"statute": null}}, {"text": "March 7, 19~7 was", "label": "DATE", "start_char": 14450, "end_char": 14467, "source": "ner", "metadata": {"in_sentence": "Assuming that the amendment of March 7, 19~7 was peni; lissible under s. 86(5), the question is whether the High Court nghtly allowed it."}}, {"text": "s. 86(5)", "label": "PROVISION", "start_char": 14489, "end_char": 14497, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 86(5)", "label": "PROVISION", "start_char": 14602, "end_char": 14610, "source": "regex", "metadata": {"statute": null}}, {"text": "Shambhu Maharaj", "label": "RESPONDENT", "start_char": 15157, "end_char": 15172, "source": "ner", "metadata": {"in_sentence": "1 Shambhu Maharaj committed corrupt practice at election meetings held at Ikbalgadh where P.W. 9 was present, Amirgadh where P.W. 4 was present and at Wav where one Chotaii Bhattji was present and that he came to know of the corrupt practices from those persons.", "canonical_name": "Shambhu • Maharaj"}}, {"text": "Chotaii Bhattji", "label": "WITNESS", "start_char": 15320, "end_char": 15335, "source": "ner", "metadata": {"in_sentence": "1 Shambhu Maharaj committed corrupt practice at election meetings held at Ikbalgadh where P.W. 9 was present, Amirgadh where P.W. 4 was present and at Wav where one Chotaii Bhattji was present and that he came to know of the corrupt practices from those persons."}}, {"text": "Shambhu • Maharaj", "label": "RESPONDENT", "start_char": 15482, "end_char": 15499, "source": "ner", "metadata": {"in_sentence": "If Shambhu • Maharaj had told the electors that Sri ShankrachlU')'a had commanded them not to vote for the congress candidate and that disobedience of his command would be sinful,\n\nP.W. 4 and Chotaji Ilhattji must have informed respondent No.", "canonical_name": "Shambhu • Maharaj"}}, {"text": "ShankrachlU')'a", "label": "OTHER_PERSON", "start_char": 15531, "end_char": 15546, "source": "ner", "metadata": {"in_sentence": "If Shambhu • Maharaj had told the electors that Sri ShankrachlU')'a had commanded them not to vote for the congress candidate and that disobedience of his command would be sinful,\n\nP.W. 4 and Chotaji Ilhattji must have informed respondent No."}}, {"text": "Chotaji Ilhattji", "label": "WITNESS", "start_char": 15671, "end_char": 15687, "source": "ner", "metadata": {"in_sentence": "If Shambhu • Maharaj had told the electors that Sri ShankrachlU')'a had commanded them not to vote for the congress candidate and that disobedience of his command would be sinful,\n\nP.W. 4 and Chotaji Ilhattji must have informed respondent No."}}, {"text": "April 10, 1967", "label": "DATE", "start_char": 15756, "end_char": 15770, "source": "ner", "metadata": {"in_sentence": "1 of this corrupt practice before April 10, 1967 when the election petition was filed."}}, {"text": "April 17, 1967", "label": "DATE", "start_char": 15939, "end_char": 15953, "source": "ner", "metadata": {"in_sentence": "1 now says that on April 17, 1967 he applied for certified copies of the reports of C. B. Barot to the Deputy Inspector-General of Police, C.I.D., Ahmedabad but the application was rejected on May 14, 1967."}}, {"text": "C. B. Barot", "label": "OTHER_PERSON", "start_char": 16004, "end_char": 16015, "source": "ner", "metadata": {"in_sentence": "1 now says that on April 17, 1967 he applied for certified copies of the reports of C. B. Barot to the Deputy Inspector-General of Police, C.I.D., Ahmedabad but the application was rejected on May 14, 1967.", "canonical_name": "C. B. Bi.rot"}}, {"text": "Ahmedabad", "label": "GPE", "start_char": 16067, "end_char": 16076, "source": "ner", "metadata": {"in_sentence": "1 now says that on April 17, 1967 he applied for certified copies of the reports of C. B. Barot to the Deputy Inspector-General of Police, C.I.D., Ahmedabad but the application was rejected on May 14, 1967."}}, {"text": "May 14, 1967", "label": "DATE", "start_char": 16113, "end_char": 16125, "source": "ner", "metadata": {"in_sentence": "1 now says that on April 17, 1967 he applied for certified copies of the reports of C. B. Barot to the Deputy Inspector-General of Police, C.I.D., Ahmedabad but the application was rejected on May 14, 1967."}}, {"text": "C. B. Bi.rot", "label": "OTHER_PERSON", "start_char": 16380, "end_char": 16392, "source": "ner", "metadata": {"in_sentence": "He knew of the reports of C. B. Bi.rot before April 17, 1967.", "canonical_name": "C. B. Bi.rot"}}, {"text": "Brahma-hatya", "label": "OTHER_PERSON", "start_char": 16987, "end_char": 16999, "source": "ner", "metadata": {"in_sentence": "On September 25, 1967, he obtainea an order giving him leave to amend the petition by adding the charge with regard to the sins of Brahma-hatya and Sadhu-hatya, but he deliberately refrained from adding the charge with regard to the sin of disobeying the command of Sri Shankracharya.", "canonical_name": "Brahma hatya"}}, {"text": "Sadhu-hatya", "label": "OTHER_PERSON", "start_char": 17004, "end_char": 17015, "source": "ner", "metadata": {"in_sentence": "On September 25, 1967, he obtainea an order giving him leave to amend the petition by adding the charge with regard to the sins of Brahma-hatya and Sadhu-hatya, but he deliberately refrained from adding the charge with regard to the sin of disobeying the command of Sri Shankracharya.", "canonical_name": "Sadhu hatya"}}, {"text": "Shambhu Maharaj", "label": "WITNESS", "start_char": 17238, "end_char": 17253, "source": "ner", "metadata": {"in_sentence": "On that date P.W. 4 said that at the Amirgadh meeting Shambhu Maharaj told the electors that he had brought a mandate from Jagadguru Shankracharya."}}, {"text": "Mehta", "label": "LAWYER", "start_char": 17394, "end_char": 17399, "source": "ner", "metadata": {"in_sentence": "On\n\n~.n objection being raised by the appellant's counsel Mr. Mehta, counsel for respondent No."}}, {"text": "Barot", "label": "GPE", "start_char": 17966, "end_char": 17971, "source": "ner", "metadata": {"in_sentence": "On March 4, he CQllSented to the marking of the full reports of the speeches of Shambhu Maharaj as exhibits and on Marc:1 5, he extracted an admission\n\nfrom Barot that the witness had taken verbatim notes of the speeches of Shambhu Maharaj."}}, {"text": "s. 116C", "label": "PROVISION", "start_char": 18817, "end_char": 18824, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 18848, "end_char": 18875, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 105", "label": "PROVISION", "start_char": 18886, "end_char": 18892, "source": "regex", "metadata": {"statute": null}}, {"text": "Atkin", "label": "OTHER_PERSON", "start_char": 19410, "end_char": 19415, "source": "ner", "metadata": {"in_sentence": "In Evans v. Bart/am(') Lord Atkin observed:\n\n\"Appellate jurisdiction is always statutory : there is in the statute no restriction upon the jurisdiction of the court of appeal: arnt while the appellate coun in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the judge's discretion except on grounds of law, yet if it sees that on other ground' the decision will result in injustice being done it ha> both the power and the duty to remedy it.''"}}, {"text": "Laxmipura Bhabhar", "label": "OTHER_PERSON", "start_char": 20138, "end_char": 20155, "source": "ner", "metadata": {"in_sentence": "1 proved six speeches of Shambhu Maharaj He did not rely in the trial court on the speeches at Laxmipura Bhabhar and Tharad.", "canonical_name": "Laxmipura Bhabhar"}}, {"text": "Gokhale", "label": "OTHER_PERSON", "start_char": 20172, "end_char": 20179, "source": "ner", "metadata": {"in_sentence": "Mr. Gokhale stated that he did not rel)\n\non these speeches for any purpose whatsoever."}}, {"text": "lkbalgadh", "label": "GPE", "start_char": 20507, "end_char": 20516, "source": "ner", "metadata": {"in_sentence": "The only charge against him is that in his speeches at lkbalgadh, Amirgadh and Wav, Shambhu Maharaj with the consent of /his election agent Punambhai told the electors that \"if they voted for the congrei; s party candidates the voters would commit the sin of cow slaughter (gaumata vadh).\""}}, {"text": "February 9, 1967", "label": "DATE", "start_char": 21117, "end_char": 21133, "source": "ner", "metadata": {"in_sentence": "B4) was delivered on February 9, 1967."}}, {"text": "Section 5", "label": "PROVISION", "start_char": 21228, "end_char": 21237, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Animal Preservation Act, 1954", "label": "STATUTE", "start_char": 21249, "end_char": 21285, "source": "regex", "metadata": {}}, {"text": "s. 123(2)", "label": "PROVISION", "start_char": 21809, "end_char": 21818, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Animal Preservation Act, 1954", "statute": "the Bombay Animal Preservation Act, 1954"}}, {"text": "s. 123(2)", "label": "PROVISION", "start_char": 21921, "end_char": 21930, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Animal Preservation Act, 1954", "statute": "the Bombay Animal Preservation Act, 1954"}}, {"text": "Shambhu", "label": "RESPONDENT", "start_char": 22633, "end_char": 22640, "source": "ner", "metadata": {"in_sentence": "Shambhu\n\nMaharaj was a kirtankar of repute and well known and respected for his lectures on Hindu religion."}}, {"text": "Maharaj", "label": "OTHER_PERSON", "start_char": 22642, "end_char": 22649, "source": "ner", "metadata": {"in_sentence": "Shambhu\n\nMaharaj was a kirtankar of repute and well known and respected for his lectures on Hindu religion."}}, {"text": "S 1", "label": "PROVISION", "start_char": 23159, "end_char": 23162, "source": "regex", "metadata": {"statute": null}}, {"text": "Pakistan", "label": "GPE", "start_char": 24098, "end_char": 24106, "source": "ner", "metadata": {"in_sentence": "B3) the speaker referred tc the ban on cow slaughter in Pakistan, Afghanistan and Madhya Pradesh nd said that the Swatantra Party had promised to ban slaughter of cow progeny and exemption of land revenue."}}, {"text": "Afghanistan", "label": "GPE", "start_char": 24108, "end_char": 24119, "source": "ner", "metadata": {"in_sentence": "B3) the speaker referred tc the ban on cow slaughter in Pakistan, Afghanistan and Madhya Pradesh nd said that the Swatantra Party had promised to ban slaughter of cow progeny and exemption of land revenue."}}, {"text": "Madhya Pradesh", "label": "GPE", "start_char": 24124, "end_char": 24138, "source": "ner", "metadata": {"in_sentence": "B3) the speaker referred tc the ban on cow slaughter in Pakistan, Afghanistan and Madhya Pradesh nd said that the Swatantra Party had promised to ban slaughter of cow progeny and exemption of land revenue."}}, {"text": "Swatantra Party", "label": "ORG", "start_char": 24156, "end_char": 24171, "source": "ner", "metadata": {"in_sentence": "B3) the speaker referred tc the ban on cow slaughter in Pakistan, Afghanistan and Madhya Pradesh nd said that the Swatantra Party had promised to ban slaughter of cow progeny and exemption of land revenue."}}, {"text": "Hidayatu!lah,", "label": "JUDGE", "start_char": 25848, "end_char": 25861, "source": "ner", "metadata": {"in_sentence": "1 ) Hidayatu!lah, C.J., observed :\n\n\"It is not necessary to enlarge upon the fact that cow is venerated in our country by ihe vast majority of."}}, {"text": "James Hastings", "label": "OTHER_PERSON", "start_char": 26380, "end_char": 26394, "source": "ner", "metadata": {"in_sentence": "In Encycjopaedia of Religion and Ethics, edited by James Hastings, vol."}}, {"text": "B. N. Mehta", "label": "OTHER_PERSON", "start_char": 26886, "end_char": 26897, "source": "ner", "metadata": {"in_sentence": "According to B. N. Mehta's Modern Gujarati-English Dictionary, vol."}}, {"text": "s. 123(2)", "label": "PROVISION", "start_char": 27233, "end_char": 27242, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123(2)", "label": "PROVISION", "start_char": 28522, "end_char": 28531, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123(2)", "label": "PROVISION", "start_char": 29309, "end_char": 29318, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act 1951", "label": "STATUTE", "start_char": 29326, "end_char": 29363, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1969_3_228_235_EN", "year": 1969, "text": "SAMPAT SINGH v:\n\nSTATE OF RAJASTHAN\n\nJanuary 7, 1969\n\n(M. HIDAYATULLAH, C.J. AND G. K. MITTER, J.j\n\nCode of Criminal Procedure (Act 5 of 1898), s. 342-Non-confes- )\"iouill stare111ent of accused how far 1nay be relied on for purpose of ..,\"011i'iction.\n\nThe appellant was tried for murder under s. 302 of the Indian Penal Code but was convicted only under s. 304 Part II of the Code. In hold- ; ng him so guilty the trial court and the High Court did not fully believe the prosecution version of the incident but accepted the appellant's version in part whereby he claimed the right of self-defence. They howe\\er held on the facts that he had exceeded the right of self-defence and convicted him accordingly.\n\nIn appeal before this Court it was contended that the accused's statement under s. 342 Criminal Procedure Code should -only be considered in itS entirety and a part of it cannot be used for the puroose of convicting him.\n\nJn support of this contention reliance \\\\'as pJaCed on the decision of this Court in Narain Singh's case.\n\nHELD : Both the courts below on the facts were justified in coming to the conclusion that the appellant exceeded his right of self-defence.\n\nNeither court had relied only on the. statement of the appeJlant under s. 342 Cr. P.C. to arrive at the finding.\n\nThere was sufficient other evidence to warrant the conclusion that the right of private defence had been exceeded.\n\nJn these circumstances the rule in Narain Singh's case namely that the conviction of an accused cannot be based on his statement\n\nalone where the statement does not amount to a confession, was not attracted. It is permissible for the court to rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution. [234 H-235 CJ\n\nNarain Singh v. Stat.e of Punjab. [1963) 3 S.C.R. 678, distinguished.\n\n/)lishi KGnt Jha v. State of Bihar, [1969) 2 S.C.R. 1033, followed and applied.\n\nCRIMINAL APPELLATE JURISnICTION : Criminal Appeal No. 146 of 1967.\n\nAppeal by special leave from the judgment and order dated February 27, 1967 of the Rajasthan High Court in D. B.\n\nCriminal Appeal No. 32 of 1964.\n\nB. R. Dhawan, B. P. Maurya, P. N. Tiwari, Santosh Gupta and Sobhag Mal Jain, for the appellant.\n\nK. Baldev Mehta, for the respondent.\n\nThe Judgment of the Court wai delivered, by Mitter, J, The main question inv01ved ill- . this appeal is, whether there was evidence to justify the finding that the appellant\n\nSAMPAT SINGH v. RAJASTHAN (Mitter, !.) 229• A had exceeded his right of private defence in giving two blows with a dagger to one Shyamsingh one of which proved fatal.\n\nThe prosecution case was as follows.\n\nThere was a long-. standing enmity between the families of Achalsingh on the one hand and Hariram and his sons on the other on account of the fact that the admitted advance of Rs. 10,000/- by Hariram to Achalsingh some years back had not been repaid in spite of. numerous demands made from time to time.\n\nThe houses of Hariram and Achalsingh were situated at a short distance from each other in the City of Jodhpur. Hariram had two sons, Rameshwar and Devilal. Rameshwar had been given in adoption to his uncle but the relationship between him and his brother, Devilal continued to be quite cordial. Rameshwar was married. to one Ratan Kanwar whose brother Sbyamsingh came to lose his life in the way to be narrated hereafter. Achalsingh had two•\n\nsons, Sampatsingh and Shyamlal. On March 28, 1963 at about 6 p.m. there was a quarrel between Devilal on the one hand and'.\n\nAsulal, Sampat Singh, Shyamlal and two friends of theirs, Kishensingh and Uttam Giri on the other. This group of people started abusing Devilal whereupon Rameshwar's wife, Ratan Kanwar tried to intervene and stop the quarrel. The said group who were all accused in the Sessions Case which followed beat both Devilal and Ratan Kanwar. They also took away a golden Jhumri from tbe right ear of Ratan Kanwar. Eventually people of the locality put an end to this affair. Ratan Kanwar sent messages to her husband Rameshwar and her brother Shyamsingh, deceased.\n\nBefore Shyamsingh reached the place; all the accused came from the house of Achalsingh to that of Devilal and raised a shout asking the latter to come out. The accused were armed variously, Sampat Singh with a dagger and the others with lathis. Rameshwar who happened to be there tried to close the door of Devilal's house, but the accused managed to get inand dragged Rameshwar out and started beating him.\n\nRatan Kanwar who tried to intervene was also hurt.\n\nShe received a blow on the head with a dagger of Sampatsingh as also lathi blows from the others.\n\nShyamsingh, the deceased, happened to come on the scene at that hour and the fury of the accused felf upon Jiim.\n\nAchalsingh's son, Shyamlal caught hold of Shyamsingh and Sampat Singh, appellant, struck blows with the Jambia on Shyamsingh's thigh and on his back near the waist. People of the neighbourhood like Ambalal. (P.W. 14), Nainsingh (P.W . 13), Satyanarain (P.W. 15) and Bhagwandas (P.W. 16) who came in aid of Rameshwar's group were also injured by the accused.\n\nNainsingh, Ambalal and Satyanarain were all injured by the lambia of Sampat Singh.\n\nThereafter the accused left the place.\n\nShyamsingh, Ratan Kanwar and Ambalal were taken away by Rameshwar to the police station and a first information report was lodged at 8.30 p.m.\n\nThe ijured persos were se_nt to the hospital and Shamsingh was ad1mtted as an mdoor patient. Dr. Ojha who examined Shyamsingh thought his condition to be critical and arranged for a dying. declaration of Shyamsingh to be recorded at 9.25 p.m.\n\nShyamsmgh stated that he had been wounded by Sampat Singh\n\nby means of a Jambia.\n\nThe City Magistrate, Jodhpur who came in answer. to a summons recorded another dying declaration at\n\n10.50 p.m. The injury report on the person of Shyamsingh by Dr. K. C. Singhal was as follows :-\n\n1. Incised wound !\" x t\" x muscle deep tapering 2\" x 1/10\" below the medial aspect of the right thigh middle part.\n\n2. Incised wound 1 !\" x t\" x cavity deep 0:n the left lumbar region, and\n\n3. Teeth marks elliptical in shape 1 t\" in area on the left shoulder.\n\nIn spite of the operation performed on him Shyam Singh expired\n\non March 31, 1963 at 4 a.m. and the postmortam was performed D on the body by Dr. Har Govind. Dr. Singhal also examined Ratan Kanwar, Ambalal. Nain Singh and Satyanarain. On the person of Ratan Kanwar there was only one incised wound while there were three such wounds on the person of Ambalal, two on the person of Nain Singh and one on the person of Satyanarain.\n\nOn the person of the accused Shyamlal there appeared various wounds but the injuries according to Dr. Har Govind were all E simple in nature caused by a blunt weapon excepting a sceptic wound on the right little finger about which the doctor could form no definiteopinion. On the person of some of the other accused several abrasions were noticed on medical examination. Sampat\n\nSingh, the appellant, had a sceptic wound of t\" X t\" skin deep on the right little finger and an abrasion t\" x t\" on the fmn't of the F right knee. The injuries were all simple in nature. The Jambia which was recovered µt the instance of Sampat Singh from his house was not found to be blood-stained.\n\nThe accused Achalsingh was arrested long time after the crime i.e., on 19th April, 1963.\n\nOn examination by the Munsif-Magistrate of Jodhpur, Sam- G patsingh gave a version of the incident which \"\\Vas completely at variance with the prosecution story.\n\nAccording to this, he had learnt at about 5.30 p.m. on March 28. 1963 from his brother.\n\nShyamlal that Devilal and Shyamsingh had threatened to beat him.\n\nSome friends, vi: .. Asulal, Kishensingh and Uttam Giri had also gathered in their house for the purpose of going to a H fair.\n\nUttam Giri wanted to go to the house of Hotchand and the appellant directed his brother, Shyamlal to accompany Uttam Giri. Shortly thereafter, he heard the cry of Shamlal that he was\n\n.,,,\n\n' ~·\n\n, ., i\n\nSAMPAT SINGH v. RAJASTHAN (Miner, 1.) 231\n\nA being beaten and coming out of the house on to the road he • found Shyamsingh, the deceased, Nainsingh, Ambalal and Satyanarain beating Shyamlal and Uttam Girl.\n\nAsulal and Kishen- • singh also came out and tried to save Shyamlal and Uttam Giri.\n\n~ Shyamlal was lying on the ground and Shyamsingh, deceased was sitting on his chest.\n\nShyamlal's eyes were bulging out.\n\nThe\n\nB appellant tried to free his brother from the clutches of Shyamsingh but as he could not do so with bare hands he took out the Jambia which was tied round the waist of the deceased and wielded the same injuring Nainsingh, Ambalal and Satyanarain who were trying to attack him. He also gave a b!Ow on the thigh of the deceased but even then Shyamsingh would not let c go his brother Shyarnlal whereupon he gave another blow to Shyamsingh on his waist with the Jambia.\n\nAccording to the appellant he had given these blows to save the life of his brother Shyamlal and had thereafter run away throwing the Jambia on the spot. Shyamlal's version which substantially agreed with that of his brother Sampatsingh was to the effect that Shyamsingh was trying to throttle him ( Shyamlal) and he had practicaly lost con- D sciousness; when he came round he found Shyamsingh, deceased, lying near him and his brother Sampat Singh leaving him.\n\nThe accused were committed for trial to the Court of Sessions Judge, Jodhpur. There they repeated the statements made by them before the committing Magistrate. According to the Sessions E Judge, the version relating to the occurrence said to have taken place at 6.30 p.m. on March 28, 1963 was not true. As regards the second occurrence on the same day at about 9 p.m. the Judge held that there was no beating given by any of the accused to the prosecution witnesses before Shyamsingh reached the place of occurrence. The Sessions Judge further found that this incident\n\nF had taken place substantially in the manner deposed to by the accused Sampat Singh and others and not as alleged by the prosecution and that Shyasingh had received the fatal injury with a Jambia from Sampatsmgh when the former was sitting on the ches! ?f hyamlal. an_d had caught h_old of his neck. As regards the m1unes to Namsmgh, Satyanaram and Ambalal, the Sessions\n\nG Judge found that these were caused by the Jambia o4' Sampat Singh to save himself from their attack. The Judge further found that the Jambia was not with the appellant initially but was taken from the person of the deceased. For this the Sessions Judge relied on the statement of the accused.\n\nHe however held that the grip of the deceased on the neck of Shyamlal accused was not of such a nature as to lead to an apprehension that the deceased meant to H cause death by strangulation. The Sessions Judge held that the .: deceased had caught hold of Shyamlal to facilitate the beating \"'.hich he intended to give him and that Sampatsingh was a suffi-\n\n\"\"'\n\nc1ently powerful man who could have rescued his brother, Shyam-\n\nJal by pushing or dragging Shyamsingh aside and not by inflicting A injuries wtih the Jambia and the circumstances did not justify the resort to such severe measures. Alternatively, the Sessions Judge held that Sampat Singh had exceeded his right of private defence of his brother and could not be protected under the law for the consequences of his act. On this view, he convicted the appellant of an offence under s. 304 Part II of the Indian Penal Code and B sentenced him to rigorous imprisonment for four years and a fine of Rs. 100/, or in default to suffer two months further rigorous imprisonment. He was however acquitted of the offences under sections 148, 302, 324/323/148 and 324/149 I.P.C.\n\nThe other accused were all acquitted.\n\nOn behalf of the appellant it was urged before the High Court. as it was before us, that on rejection of the evidence of the prosecution witnesses with regard to the -occurrence at 6 p.m. and 9 p.m. by the Sessions Judge, the appellant could not have been convicted merely on the basis of his statement under\n\n5. 342 Cr.P.C.\n\nReliance was placed before us, as before the High Court, on the decision of this Court in Narain Singh v.\n\nState of Punjab(').\n\nThere it was observed on an interpretation of s. 342 that : ~\n\n\"If the accused person in his examination under s. 342 confesses to the commission of the offence charged against him the court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety.\n\nIt is not open to the court to dissect the statement and to pick out a part of the statement which may be incriminative, and then to examine whether the explanation furnished by the accused for his conduct is supported by the evidence on the record. If the accused admits to have done an act which would but for the explanation furnished by him be an offence, the admission cannot be used against him divorced from the explanation.\" In that case the prosecution did not by reliable evidence establish affirmatively that Narain Singh had done any act which rendered him liable for the offence of murder. To quote the words of Shah, J. in that case : \"His responsibiliry, if any, arose only out of the plea raised by him : if the plea amounted to a confession of guilt the court could convict him relying upon that plea, but if it amounted to admission of facts and raised a\n\n(t) [1963] I 3 S.C.R. 678.\n\nA plea of justification, the court could not proceed to deal with the case as if the admission of facts which were not part of the prosecution case was true, and the evidence did not warrant the plea of justification.\" In our view, the ratio of that case is not applicable to the appeal before us.\n\nNo doubt the Sessions Judge did not accept B the genesis of the prosecution story, namely, the inddent at 6 p.m. and was further of the view that the account given by the accused was to be preferred to that of the prosecution with regard to the second incident.\n\nBut tlie High Court which sifted the evidence for itself did not take the same view of the facts as the learned Sessions Judge. According to the High Court, there was C some sort of incident at about 6 p.m. between the sons of Achalsingh and Devilal and from verbal altercation the matter assumed serious proportion leading to a fight.\n\nThe High Court held that the evidence of Ratan Kanwar and Devilal with regard to the assault and the snatching of the golden jhumri, though exaggerated, was not altogether without foundation.\n\nThe accused other than Shyamlal may not have been present on the first D occasion but they were there on the scene of the second occurren, ce.\n\nWe may add that even the story of the accused goes to show that there had been some trouble before the incident at 8.30 or 9 p.m. The High Court did not accept the story with regard to the snatching of the jhumri and was of the view that the first occurrence furnished a background for what happened E later on. The High Court also agreed with the trial court that the prosecution story that Achalsingh and his sons accompanied by Kishansingh and Uttam Giri had gone to the house of Rameshwar at about 8 p.m. and hurled abuses on him and others was not true inasmuch as if five persons armed with lathis and one with a dagger had entered the house of Rameshwar and dragged hini F outside there would have been marks of injury on Rameshwar who did not get himself examined. The High Court relied on the injuries found on the person of the deceased specially the teeth marks as going to show that Shyamlal had tried to free himself from the clutches of Shyamsingh deceased and at that stage Sampatsingh, the appellant, had appeared o, n the scene and finding the deceased sitting on the chest of his brother had tried to force G them apart and when he found that he could not do this with bare hands he had taken the Jambia from the waist of the deceased and inflicted two injuries on him. The prosecution evidence of Ratan Kanwar, Rameshwar and other witnesses was that the injuries to the deceased were inflicted while he was standing. This was not accepted y th<: Sessions Judge who, as already stated, H on? that the versm? given by the accused with regard to the m)unes by .the Jamb1a was. the correct one. According to the _ Htg~ Court, however, the circumstances were more consistent with the infliction of the injury while the deceased Shyamsingh was L7Sup .. I./61-16\n\nstanding. The High Court also commented on the Jact that the Sessions Judge over[ooked the statement of Dr. Ojha who had stated that the injury inflicted in the lumbar region of the decea<ied was sufficient in the ordinary course of nature to cause his de.ath. It may be noted that Dr. Har Govind's evidence was somewhat different.\n\nThis doctor had stated that though the injuries were not dangerous to life, they could result in death. Examining the evidence of the two doctors, the High Court preferred the view of Dr. Ojha that the injury on the lumbar region of the deceased was sufficient in the ordinary course of nature to cause death.\n\nUltimately, the High Court held that the Sessions Judge had not rejected the entire prosecution evidence but had considered the same along with the explanation offered by. the accused in forming his own conclusion. The High Court also pointed out that the Sessions Judge had not rejected the evidence of all the prosecution witnesse_s on the point that it was the appellant who had given two blows by Jambia on the deceased, one on the right thigh and the other on the waist.\n\nThe striking of the deceased by the appellant with Jambia was the common case of the parties.\n\nThe medical evidence showed that one of the wounds was sufficient in the ordinary course of nature to have caused the death of Shyamsingh. Shyamlal, the brother of the appellant, was certainly having the worst of the struggle with Shyamsingh and the circumstances certainly justified the appellant's attempt to force them apart. Both courts held that the nature of the attack on Shyamlal by Shyamsingh was not such as to have necessitated the infliction of the second injury by the Jambia.\n\nBoth courts accepted the appellant's version that he was exercising his right of private defence of the person of his brother. The High Court negatived the contention that such right of private defence went to the extent of causing the death of the assailant by the appellant. The High Court did not accept the version that there was an attempt on the part of Shyamsingh to strangulate Shyamlal giving rise to an apprehension in the mind of the appellant that grievous hurt or even death might be caused thereby. The evidence did not disclose any marks of finger nails or bruises or even blue signs on the neck of Shyamlal who was examined two days after the incident. The High Court relied on the statement of the appellant himself before the committing court that the deceased had caught hold of the neck of his brother. On the evidence, the trial court did not find that the appellant had intention to murder Shyamsingh but he had exceeded the right of private defence of his brother by causing the serious injuries to the deceased with the Jambia.\n\nIn our view, both courts, on the facts, were justified in coming to the conclusion that the appellant' had exceeded his right of private defence. Neither court had relied only on the statement\n\nof the appellant under s. 342 Cr. P. C. to arrive at its finding.\n\nThere was sufficient other evidence including the injury report and the testimony of Dr. Ojha to warrant the conclusion that the right of private defence had been exceeded and the appellant was rightly convicted under s. 304 Part II l.P.C. In Nishi Kant Jha v. The State of Bihar(') it was held by this Court that the court may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution. In that case, there were no eye witnesses to the commission of the crime and the evidence was all circwnstantial and the statement of the accused that he was present at the scene of the crime was a vital circwnstance which taken in conjunction with other circumstances led the court to come to the conclusion that he was guilty of the crime imputed to him. In our view the decision in Narain. Singh's case(') does not apply to the facts before us and we hold that the evidence justified the conviction of the appellant.\n\nThe appeal is, therefore, dismissed and the conviction and sentence upheld.\n\nG.C.\n\n(I) [1969] 2 S.C.R. 1033.\n\n(2) (1963] 3 S.C.R. 678.\n\nAppeal dismissed.", "total_entities": 98, "entities": [{"text": "SAMPAT SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "Sampat\n\nSingh", "offset_not_found": false}}, {"text": "STATE OF RAJASTHAN", "label": "RESPONDENT", "start_char": 17, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "STATE OF RAJASTHAN", "offset_not_found": false}}, {"text": "January 7, 1969", "label": "DATE", "start_char": 37, "end_char": 52, "source": "ner", "metadata": {"in_sentence": "SAMPAT SINGH v:\n\nSTATE OF RAJASTHAN\n\nJanuary 7, 1969\n\n(M. HIDAYATULLAH, C.J. AND G. K. MITTER, J.j\n\nCode of Criminal Procedure (Act 5 of 1898), s. 342-Non-confes- )\"iouill stare111ent of accused how far 1nay be relied on for purpose of ..,\"011i'iction."}}, {"text": "M. HIDAYATULLAH, C.J.", "label": "JUDGE", "start_char": 55, "end_char": 76, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH*", "offset_not_found": false}}, {"text": "G. K. MITTER, J.j", "label": "JUDGE", "start_char": 81, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER", "offset_not_found": false}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 100, "end_char": 126, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 342", "label": "PROVISION", "start_char": 144, "end_char": 150, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 302", "label": "PROVISION", "start_char": 295, "end_char": 301, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 309, "end_char": 326, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 304", "label": "PROVISION", "start_char": 356, "end_char": 362, "source": "regex", "metadata": {"statute": null}}, {"text": "Part II of the Code", "label": "STATUTE", "start_char": 363, "end_char": 382, "source": "regex", "metadata": {}}, {"text": "s. 342", "label": "PROVISION", "start_char": 790, "end_char": 796, "source": "regex", "metadata": {"linked_statute_text": "Part II of the Code", "statute": "Part II of the Code"}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 797, "end_char": 820, "source": "regex", "metadata": {}}, {"text": "Narain Singh", "label": "PETITIONER", "start_char": 1017, "end_char": 1029, "source": "ner", "metadata": {"in_sentence": "Jn support of this contention reliance \\\\'as pJaCed on the decision of this Court in Narain Singh's case.", "canonical_name": "Narain. Singh"}}, {"text": "s. 342", "label": "PROVISION", "start_char": 1251, "end_char": 1257, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "[1963) 3 S.C.R. 678", "label": "CASE_CITATION", "start_char": 1847, "end_char": 1866, "source": "regex", "metadata": {}}, {"text": "[1969) 2 S.C.R. 1033", "label": "CASE_CITATION", "start_char": 1920, "end_char": 1940, "source": "regex", "metadata": {}}, {"text": "D. B.", "label": "JUDGE", "start_char": 2140, "end_char": 2145, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated February 27, 1967 of the Rajasthan High Court in D. B.\n\nCriminal Appeal No."}}, {"text": "B. R. Dhawan", "label": "LAWYER", "start_char": 2180, "end_char": 2192, "source": "ner", "metadata": {"in_sentence": "B. R. Dhawan, B. P. Maurya, P. N. Tiwari, Santosh Gupta and Sobhag Mal Jain, for the appellant."}}, {"text": "B. P. Maurya", "label": "LAWYER", "start_char": 2194, "end_char": 2206, "source": "ner", "metadata": {"in_sentence": "B. R. Dhawan, B. P. Maurya, P. N. Tiwari, Santosh Gupta and Sobhag Mal Jain, for the appellant."}}, {"text": "P. N. Tiwari", "label": "LAWYER", "start_char": 2208, "end_char": 2220, "source": "ner", "metadata": {"in_sentence": "B. R. Dhawan, B. P. Maurya, P. N. Tiwari, Santosh Gupta and Sobhag Mal Jain, for the appellant."}}, {"text": "Santosh Gupta", "label": "LAWYER", "start_char": 2222, "end_char": 2235, "source": "ner", "metadata": {"in_sentence": "B. R. Dhawan, B. P. Maurya, P. N. Tiwari, Santosh Gupta and Sobhag Mal Jain, for the appellant."}}, {"text": "Sobhag Mal Jain", "label": "LAWYER", "start_char": 2240, "end_char": 2255, "source": "ner", "metadata": {"in_sentence": "B. R. Dhawan, B. P. Maurya, P. N. Tiwari, Santosh Gupta and Sobhag Mal Jain, for the appellant."}}, {"text": "K. Baldev Mehta", "label": "LAWYER", "start_char": 2277, "end_char": 2292, "source": "ner", "metadata": {"in_sentence": "K. Baldev Mehta, for the respondent."}}, {"text": "Mitter", "label": "JUDGE", "start_char": 2359, "end_char": 2365, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court wai delivered, by Mitter, J, The main question inv01ved ill- ."}}, {"text": "Shyamsingh", "label": "OTHER_PERSON", "start_char": 2619, "end_char": 2629, "source": "ner", "metadata": {"in_sentence": "229• A had exceeded his right of private defence in giving two blows with a dagger to one Shyamsingh one of which proved fatal.", "canonical_name": "Shyamsingh. Shyamlal"}}, {"text": "Achalsingh", "label": "OTHER_PERSON", "start_char": 2755, "end_char": 2765, "source": "ner", "metadata": {"in_sentence": "standing enmity between the families of Achalsingh on the one hand and Hariram and his sons on the other on account of the fact that the admitted advance of Rs."}}, {"text": "Hariram", "label": "OTHER_PERSON", "start_char": 2786, "end_char": 2793, "source": "ner", "metadata": {"in_sentence": "standing enmity between the families of Achalsingh on the one hand and Hariram and his sons on the other on account of the fact that the admitted advance of Rs."}}, {"text": "Jodhpur", "label": "GPE", "start_char": 3103, "end_char": 3110, "source": "ner", "metadata": {"in_sentence": "The houses of Hariram and Achalsingh were situated at a short distance from each other in the City of Jodhpur."}}, {"text": "Rameshwar", "label": "OTHER_PERSON", "start_char": 3134, "end_char": 3143, "source": "ner", "metadata": {"in_sentence": "Hariram had two sons, Rameshwar and Devilal."}}, {"text": "Devilal", "label": "OTHER_PERSON", "start_char": 3148, "end_char": 3155, "source": "ner", "metadata": {"in_sentence": "Hariram had two sons, Rameshwar and Devilal."}}, {"text": "Ratan Kanwar", "label": "OTHER_PERSON", "start_char": 3326, "end_char": 3338, "source": "ner", "metadata": {"in_sentence": "to one Ratan Kanwar whose brother Sbyamsingh came to lose his life in the way to be narrated hereafter."}}, {"text": "Sbyamsingh", "label": "OTHER_PERSON", "start_char": 3353, "end_char": 3363, "source": "ner", "metadata": {"in_sentence": "to one Ratan Kanwar whose brother Sbyamsingh came to lose his life in the way to be narrated hereafter.", "canonical_name": "Shyamsingh. Shyamlal"}}, {"text": "Sampatsingh", "label": "PETITIONER", "start_char": 3450, "end_char": 3461, "source": "ner", "metadata": {"in_sentence": "Achalsingh had two•\n\nsons, Sampatsingh and Shyamlal.", "canonical_name": "Sampat\n\nSingh"}}, {"text": "Shyamlal", "label": "OTHER_PERSON", "start_char": 3466, "end_char": 3474, "source": "ner", "metadata": {"in_sentence": "Achalsingh had two•\n\nsons, Sampatsingh and Shyamlal.", "canonical_name": "Shyam-\n\nJal"}}, {"text": "March 28, 1963", "label": "DATE", "start_char": 3479, "end_char": 3493, "source": "ner", "metadata": {"in_sentence": "On March 28, 1963 at about 6 p.m. there was a quarrel between Devilal on the one hand and'."}}, {"text": "Asulal", "label": "PETITIONER", "start_char": 3569, "end_char": 3575, "source": "ner", "metadata": {"in_sentence": "Asulal, Sampat Singh, Shyamlal and two friends of theirs, Kishensingh and Uttam Giri on the other.", "canonical_name": "Asulal"}}, {"text": "Sampat Singh", "label": "PETITIONER", "start_char": 3577, "end_char": 3589, "source": "ner", "metadata": {"in_sentence": "Asulal, Sampat Singh, Shyamlal and two friends of theirs, Kishensingh and Uttam Giri on the other.", "canonical_name": "Sampat\n\nSingh"}}, {"text": "Kishensingh", "label": "LAWYER", "start_char": 3627, "end_char": 3638, "source": "ner", "metadata": {"in_sentence": "Asulal, Sampat Singh, Shyamlal and two friends of theirs, Kishensingh and Uttam Giri on the other.", "canonical_name": "Kishen- • singh"}}, {"text": "Uttam Giri", "label": "OTHER_PERSON", "start_char": 3643, "end_char": 3653, "source": "ner", "metadata": {"in_sentence": "Asulal, Sampat Singh, Shyamlal and two friends of theirs, Kishensingh and Uttam Giri on the other.", "canonical_name": "Uttam Giri"}}, {"text": "Jiim", "label": "OTHER_PERSON", "start_char": 4794, "end_char": 4798, "source": "ner", "metadata": {"in_sentence": "Shyamsingh, the deceased, happened to come on the scene at that hour and the fury of the accused felf upon Jiim."}}, {"text": "Ambalal", "label": "WITNESS", "start_char": 4999, "end_char": 5006, "source": "ner", "metadata": {"in_sentence": "People of the neighbourhood like Ambalal. ("}}, {"text": "Nainsingh", "label": "WITNESS", "start_char": 5019, "end_char": 5028, "source": "ner", "metadata": {"in_sentence": "P.W. 14), Nainsingh (P.W ."}}, {"text": "Satyanarain", "label": "WITNESS", "start_char": 5041, "end_char": 5052, "source": "ner", "metadata": {"in_sentence": "13), Satyanarain (P.W. 15) and Bhagwandas (P.W. 16) who came in aid of Rameshwar's group were also injured by the accused."}}, {"text": "Bhagwandas", "label": "WITNESS", "start_char": 5067, "end_char": 5077, "source": "ner", "metadata": {"in_sentence": "13), Satyanarain (P.W. 15) and Bhagwandas (P.W. 16) who came in aid of Rameshwar's group were also injured by the accused."}}, {"text": "Nainsingh", "label": "PETITIONER", "start_char": 5160, "end_char": 5169, "source": "ner", "metadata": {"in_sentence": "Nainsingh, Ambalal and Satyanarain were all injured by the lambia of Sampat Singh.", "canonical_name": "Narain. Singh"}}, {"text": "Ambalal", "label": "PETITIONER", "start_char": 5171, "end_char": 5178, "source": "ner", "metadata": {"in_sentence": "Nainsingh, Ambalal and Satyanarain were all injured by the lambia of Sampat Singh.", "canonical_name": "Ambalal"}}, {"text": "Satyanarain", "label": "OTHER_PERSON", "start_char": 5183, "end_char": 5194, "source": "ner", "metadata": {"in_sentence": "Nainsingh, Ambalal and Satyanarain were all injured by the lambia of Sampat Singh.", "canonical_name": "Satyanarain"}}, {"text": "Ambalal", "label": "PETITIONER", "start_char": 5313, "end_char": 5320, "source": "ner", "metadata": {"in_sentence": "Shyamsingh, Ratan Kanwar and Ambalal were taken away by Rameshwar to the police station and a first information report was lodged at 8.30 p.m.\n\nThe ijured persos were se_nt to the hospital and Shamsingh was ad1mtted as an mdoor patient.", "canonical_name": "Ambalal"}}, {"text": "Shamsingh", "label": "OTHER_PERSON", "start_char": 5477, "end_char": 5486, "source": "ner", "metadata": {"in_sentence": "Shyamsingh, Ratan Kanwar and Ambalal were taken away by Rameshwar to the police station and a first information report was lodged at 8.30 p.m.\n\nThe ijured persos were se_nt to the hospital and Shamsingh was ad1mtted as an mdoor patient.", "canonical_name": "Shyamsingh. Shyamlal"}}, {"text": "Ojha", "label": "OTHER_PERSON", "start_char": 5525, "end_char": 5529, "source": "ner", "metadata": {"in_sentence": "Dr. Ojha who examined Shyamsingh thought his condition to be critical and arranged for a dying."}}, {"text": "Shyamsmgh", "label": "OTHER_PERSON", "start_char": 5672, "end_char": 5681, "source": "ner", "metadata": {"in_sentence": "declaration of Shyamsingh to be recorded at 9.25 p.m.\n\nShyamsmgh stated that he had been wounded by Sampat Singh\n\nby means of a Jambia.", "canonical_name": "Shyamsingh. Shyamlal"}}, {"text": "City Magistrate, Jodhpur", "label": "COURT", "start_char": 5758, "end_char": 5782, "source": "ner", "metadata": {"in_sentence": "The City Magistrate, Jodhpur who came in answer."}}, {"text": "K. C. Singhal", "label": "OTHER_PERSON", "start_char": 5919, "end_char": 5932, "source": "ner", "metadata": {"in_sentence": "to a summons recorded another dying declaration at\n\n10.50 p.m. The injury report on the person of Shyamsingh by Dr. K. C. Singhal was as follows :-\n\n1."}}, {"text": "Shyam Singh", "label": "OTHER_PERSON", "start_char": 6256, "end_char": 6267, "source": "ner", "metadata": {"in_sentence": "In spite of the operation performed on him Shyam Singh expired\n\non March 31, 1963 at 4 a.m. and the postmortam was performed D on the body by Dr. Har Govind.", "canonical_name": "Shyamsingh. Shyamlal"}}, {"text": "March 31, 1963", "label": "DATE", "start_char": 6280, "end_char": 6294, "source": "ner", "metadata": {"in_sentence": "In spite of the operation performed on him Shyam Singh expired\n\non March 31, 1963 at 4 a.m. and the postmortam was performed D on the body by Dr. Har Govind."}}, {"text": "Har Govind", "label": "OTHER_PERSON", "start_char": 6359, "end_char": 6369, "source": "ner", "metadata": {"in_sentence": "In spite of the operation performed on him Shyam Singh expired\n\non March 31, 1963 at 4 a.m. and the postmortam was performed D on the body by Dr. Har Govind."}}, {"text": "Singhal", "label": "OTHER_PERSON", "start_char": 6375, "end_char": 6382, "source": "ner", "metadata": {"in_sentence": "Dr. Singhal also examined Ratan Kanwar, Ambalal."}}, {"text": "Nain Singh", "label": "PETITIONER", "start_char": 6420, "end_char": 6430, "source": "ner", "metadata": {"in_sentence": "Nain Singh and Satyanarain.", "canonical_name": "Narain. Singh"}}, {"text": "Sampat\n\nSingh", "label": "PETITIONER", "start_char": 7014, "end_char": 7027, "source": "ner", "metadata": {"in_sentence": "Sampat\n\nSingh, the appellant, had a sceptic wound of t\" X t\" skin deep on the right little finger and an abrasion t\" x t\" on the fmn't of the F right knee.", "canonical_name": "Sampat\n\nSingh"}}, {"text": "19th April, 1963", "label": "DATE", "start_char": 7395, "end_char": 7411, "source": "ner", "metadata": {"in_sentence": "The accused Achalsingh was arrested long time after the crime i.e., on 19th April, 1963."}}, {"text": "Munsif-Magistrate of Jodhpur", "label": "COURT", "start_char": 7436, "end_char": 7464, "source": "ner", "metadata": {"in_sentence": "On examination by the Munsif-Magistrate of Jodhpur, Sam- G patsingh gave a version of the incident which \"\\Vas completely at variance with the prosecution story."}}, {"text": "Sam- G patsingh", "label": "OTHER_PERSON", "start_char": 7466, "end_char": 7481, "source": "ner", "metadata": {"in_sentence": "On examination by the Munsif-Magistrate of Jodhpur, Sam- G patsingh gave a version of the incident which \"\\Vas completely at variance with the prosecution story."}}, {"text": "March 28. 1963", "label": "DATE", "start_char": 7632, "end_char": 7646, "source": "ner", "metadata": {"in_sentence": "According to this, he had learnt at about 5.30 p.m. on March 28."}}, {"text": "Hotchand", "label": "OTHER_PERSON", "start_char": 7900, "end_char": 7908, "source": "ner", "metadata": {"in_sentence": "Uttam Giri wanted to go to the house of Hotchand and the appellant directed his brother, Shyamlal to accompany Uttam Giri."}}, {"text": "Shamlal", "label": "OTHER_PERSON", "start_char": 8023, "end_char": 8030, "source": "ner", "metadata": {"in_sentence": "Shortly thereafter, he heard the cry of Shamlal that he was\n\n.,,,", "canonical_name": "Shyam-\n\nJal"}}, {"text": "Nainsingh", "label": "PETITIONER", "start_char": 8202, "end_char": 8211, "source": "ner", "metadata": {"in_sentence": "231\n\nA being beaten and coming out of the house on to the road he • found Shyamsingh, the deceased, Nainsingh, Ambalal and Satyanarain beating Shyamlal and Uttam Girl.", "canonical_name": "Narain. Singh"}}, {"text": "Uttam Girl", "label": "OTHER_PERSON", "start_char": 8258, "end_char": 8268, "source": "ner", "metadata": {"in_sentence": "231\n\nA being beaten and coming out of the house on to the road he • found Shyamsingh, the deceased, Nainsingh, Ambalal and Satyanarain beating Shyamlal and Uttam Girl.", "canonical_name": "Uttam Giri"}}, {"text": "Asulal", "label": "PETITIONER", "start_char": 8271, "end_char": 8277, "source": "ner", "metadata": {"in_sentence": "Asulal and Kishen- • singh also came out and tried to save Shyamlal and Uttam Giri.", "canonical_name": "Asulal"}}, {"text": "Kishen- • singh", "label": "LAWYER", "start_char": 8282, "end_char": 8297, "source": "ner", "metadata": {"in_sentence": "Asulal and Kishen- • singh also came out and tried to save Shyamlal and Uttam Giri.", "canonical_name": "Kishen- • singh"}}, {"text": "Shyarnlal", "label": "OTHER_PERSON", "start_char": 8866, "end_char": 8875, "source": "ner", "metadata": {"in_sentence": "He also gave a b!Ow on the thigh of the deceased but even then Shyamsingh would not let c go his brother Shyarnlal whereupon he gave another blow to Shyamsingh on his waist with the Jambia.", "canonical_name": "Shyam-\n\nJal"}}, {"text": "Court of Sessions Judge, Jodhpur", "label": "COURT", "start_char": 9460, "end_char": 9492, "source": "ner", "metadata": {"in_sentence": "The accused were committed for trial to the Court of Sessions Judge, Jodhpur."}}, {"text": "Shyasingh", "label": "OTHER_PERSON", "start_char": 10130, "end_char": 10139, "source": "ner", "metadata": {"in_sentence": "The Sessions Judge further found that this incident\n\nF had taken place substantially in the manner deposed to by the accused Sampat Singh and others and not as alleged by the prosecution and that Shyasingh had received the fatal injury with a Jambia from Sampatsmgh when the former was sitting on the ches! ?", "canonical_name": "Shyamsingh. Shyamlal"}}, {"text": "Sampatsmgh", "label": "PETITIONER", "start_char": 10189, "end_char": 10199, "source": "ner", "metadata": {"in_sentence": "The Sessions Judge further found that this incident\n\nF had taken place substantially in the manner deposed to by the accused Sampat Singh and others and not as alleged by the prosecution and that Shyasingh had received the fatal injury with a Jambia from Sampatsmgh when the former was sitting on the ches! ?", "canonical_name": "Sampat\n\nSingh"}}, {"text": "Namsmgh", "label": "OTHER_PERSON", "start_char": 10313, "end_char": 10320, "source": "ner", "metadata": {"in_sentence": "As regards the m1unes to Namsmgh, Satyanaram and Ambalal, the Sessions\n\nG Judge found that these were caused by the Jambia o4' Sampat Singh to save himself from their attack."}}, {"text": "Satyanaram", "label": "OTHER_PERSON", "start_char": 10322, "end_char": 10332, "source": "ner", "metadata": {"in_sentence": "As regards the m1unes to Namsmgh, Satyanaram and Ambalal, the Sessions\n\nG Judge found that these were caused by the Jambia o4' Sampat Singh to save himself from their attack.", "canonical_name": "Satyanarain"}}, {"text": "Shyam-\n\nJal", "label": "OTHER_PERSON", "start_char": 11076, "end_char": 11087, "source": "ner", "metadata": {"in_sentence": "deceased had caught hold of Shyamlal to facilitate the beating \"'.hich he intended to give him and that Sampatsingh was a suffi-\n\n\"\"'\n\nc1ently powerful man who could have rescued his brother, Shyam-\n\nJal by pushing or dragging Shyamsingh aside and not by inflicting A injuries wtih the Jambia and the circumstances did not justify the resort to such severe measures.", "canonical_name": "Shyam-\n\nJal"}}, {"text": "s. 304", "label": "PROVISION", "start_char": 11500, "end_char": 11506, "source": "regex", "metadata": {"statute": null}}, {"text": "Part II of the Indian Penal Code", "label": "STATUTE", "start_char": 11507, "end_char": 11539, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "sections 148, 302, 324", "label": "PROVISION", "start_char": 11737, "end_char": 11759, "source": "regex", "metadata": {"linked_statute_text": "Part II of the Indian Penal Code", "statute": "Part II of the Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 11780, "end_char": 11785, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 12144, "end_char": 12150, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 342", "label": "PROVISION", "start_char": 12327, "end_char": 12333, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "s. 342", "label": "PROVISION", "start_char": 12392, "end_char": 12398, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Shah", "label": "JUDGE", "start_char": 13436, "end_char": 13440, "source": "ner", "metadata": {"in_sentence": "To quote the words of Shah, J. in that case : \"His responsibiliry, if any, arose only out of the plea raised by him : if the plea amounted to a confession of guilt the court could convict him relying upon that plea, but if it amounted to admission of facts and raised a\n\n(t) [1963] I 3 S.C.R. 678."}}, {"text": "Kishansingh", "label": "LAWYER", "start_char": 15380, "end_char": 15391, "source": "ner", "metadata": {"in_sentence": "The High Court also agreed with the trial court that the prosecution story that Achalsingh and his sons accompanied by Kishansingh and Uttam Giri had gone to the house of Rameshwar at about 8 p.m. and hurled abuses on him and others was not true inasmuch as if five persons armed with lathis and one with a dagger had entered the house of Rameshwar and dragged hini F outside there would have been marks of injury on Rameshwar who did not get himself examined.", "canonical_name": "Kishen- • singh"}}, {"text": "Sampatsingh", "label": "PETITIONER", "start_char": 15938, "end_char": 15949, "source": "ner", "metadata": {"in_sentence": "The High Court relied on the injuries found on the person of the deceased specially the teeth marks as going to show that Shyamlal had tried to free himself from the clutches of Shyamsingh deceased and at that stage Sampatsingh, the appellant, had appeared o, n the scene and finding the deceased sitting on the chest of his brother had tried to force G them apart and when he found that he could not do this with bare hands he had taken the Jambia from the waist of the deceased and inflicted two injuries on him.", "canonical_name": "Sampat\n\nSingh"}}, {"text": "Ratan Kanwar", "label": "WITNESS", "start_char": 16265, "end_char": 16277, "source": "ner", "metadata": {"in_sentence": "The prosecution evidence of Ratan Kanwar, Rameshwar and other witnesses was that the injuries to the deceased were inflicted while he was standing."}}, {"text": "Rameshwar", "label": "WITNESS", "start_char": 16279, "end_char": 16288, "source": "ner", "metadata": {"in_sentence": "The prosecution evidence of Ratan Kanwar, Rameshwar and other witnesses was that the injuries to the deceased were inflicted while he was standing."}}, {"text": "Har Govind", "label": "WITNESS", "start_char": 17011, "end_char": 17021, "source": "ner", "metadata": {"in_sentence": "It may be noted that Dr. Har Govind's evidence was somewhat different."}}, {"text": "Jambia", "label": "OTHER_PERSON", "start_char": 17770, "end_char": 17776, "source": "ner", "metadata": {"in_sentence": "The High Court also pointed out that the Sessions Judge had not rejected the evidence of all the prosecution witnesse_s on the point that it was the appellant who had given two blows by Jambia on the deceased, one on the right thigh and the other on the waist."}}, {"text": "Shyamsingh. Shyamlal", "label": "OTHER_PERSON", "start_char": 18068, "end_char": 18088, "source": "ner", "metadata": {"in_sentence": "The medical evidence showed that one of the wounds was sufficient in the ordinary course of nature to have caused the death of Shyamsingh.", "canonical_name": "Shyamsingh. Shyamlal"}}, {"text": "s. 342", "label": "PROVISION", "start_char": 19702, "end_char": 19708, "source": "regex", "metadata": {"statute": null}}, {"text": "Ojha", "label": "WITNESS", "start_char": 19835, "end_char": 19839, "source": "ner", "metadata": {"in_sentence": "There was sufficient other evidence including the injury report and the testimony of Dr. Ojha to warrant the conclusion that the right of private defence had been exceeded and the appellant was rightly convicted under s. 304 Part II l.P.C. In Nishi Kant Jha v. The State of Bihar(') it was held by this Court that the court may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution."}}, {"text": "s. 304", "label": "PROVISION", "start_char": 19964, "end_char": 19970, "source": "regex", "metadata": {"statute": null}}, {"text": "Narain. Singh", "label": "PETITIONER", "start_char": 20604, "end_char": 20617, "source": "ner", "metadata": {"in_sentence": "In our view the decision in Narain.", "canonical_name": "Narain. Singh"}}, {"text": "[1969] 2 S.C.R. 1033", "label": "CASE_CITATION", "start_char": 20827, "end_char": 20847, "source": "regex", "metadata": {}}, {"text": "(1963] 3 S.C.R. 678", "label": "CASE_CITATION", "start_char": 20854, "end_char": 20873, "source": "regex", "metadata": {}}]}
{"document_id": "1969_3_236_244_EN", "year": 1969, "text": "PIARA SINGH v.\n\nSTATE OF PUNJAB\n\nJanuary 8, 1969\n\n(J. C. SHAH, V. RAMASWAM! AND A. N, GROVER, JJ, J B\n\nEvidence-Pri11ciple of i.Btteestoppel-Approver's evidence, value Of.\n\nThe appellant and S were charged for an olfen.ce under s. 302 I.P.C. anti under the Explosive Substances Act.\n\nThe prosecution relied upon the evidence of the approver. The approver's statement was corrobow rntcd, (a) by the rec0very of a piece of cloth which was part of the same cloth used in the crime, (b) by the evidence of that the box was made for the appellant, and ( c) by the evidence regarding despatch of\n\nthL~ parcel by the appellant.· The Sessions Judge convicted the appellant\n\n~1nJ S, against which both appealed. 1'he conviction of the appellant was upheld by the High Court, as it considered that the statement of theapprover was corroborated by the evidence of other witnesses so far the appellant was concerned.\n\nBut the High Court acquitted S being of the view that there Y.'as no independent corroboration of the approver's C\\ idcnce Y.1hich lead to the inference that S was instrumental in the con1mission of the crime. In appeal to this Court, the appellant contcr..Jcd that (i) the affect of acquittal of S was to weaken, if not to dc, troy, the approver's evidence so far as it concerned the appellant, rd ting on the principles of issue-estoppel; and (ii) there was no corroboration of the approver's evidence so far as the appellant was concerned.\n\nDi~.missing the appeal,\n\nHELD: (i) For the principle of issuccstoppel to arise, there must ha\\..: been distinctly raised and inevitably decided the same issue in the earlier proceedings between the .same parties.\n\nBut the principle cannot he invoked in the present case because the parties are djfferent and the decision. upon any Jssue as between State and s. in the same litigation\n\nc~1nnot operate as binding upon the State with regard to the present appellant. [242 DE]\n\nPrita1n Singh v. State of Punjab, A.LR. 1956 S.C, 415, and Manipur Adntinistration v. Thokchoni Bira Singh, [1964] 7 S.C.R.' 123, fo1Jowed.\n\nSa1nh(; sir(I1J1 v. Puh/ic Prosecutor, Federation of Malaya, [1950] A.C.\n\n4'~· Kin!! v. Wilkes. 77 C.L.R. 511 at pp. 518·5!9, Marz v. The Queen. ( 1~56) 96 C.L.R. 62, Again in Brown v. Robinson, (1960) SR, (N.S.W.)\n\n297. 301, applied.\n\n(ii) The application of approver's evidence has to satisfy a double tC'>L His evidence rnu-; t show that he is a reliable witness and that is a test 1Nhich is common to afl the \\Vitncsses.\n\nIf this test is satisfied the second test which still remains to be applied is that the approver's e\\idence nlUSl receive sufficient corroboration. It would not however. be right to expect that such independent corroboration shciuld cover the \\vhole of the prosecution case.\n\nIn the present case, the High Court had H rightly applied this principle and reached the conclusion that the appro- Yc:\"s evidence was materiatly corroborated so far as the appel'lan.t v.1a; concerned. [243 A-Cl\n\nA Sarwa11 Singh v. StMe of Punjab, A.LR. 1957 S.C. 637, followed.\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeals No. 158 and 197 of 1968.\n\nAppeals by certificate/special leave from the judgment and order dated November 3, 1967 of the Punjab and Haryana High B Court in Criminal Appeal No. 602 of 1967 and Murder Reference No. 45 of 1967.\n\nJ. P. Mitter, J. C. Talwar and R. L. Kohli, for the appellant (in both the appeals).\n\nKartar Singh Chawla and R. N. Sachthey, for the respondent (in both the appeals).\n\nThe Judgmet of the Court was delivered by Ramaswami, J. The appellant Piara Singh and one Nand Lal Sehgal were tried together by the Sessions Judge of Kapurthala, who by his judgment dated 1st July, 1967 convicted the appellant under section 302, LP .C. and sentenced him to death. The appellant was also convicted and sentenced to 5 years' rigorous imprisonment under section 3 of the Explosive Substances Act and to 5 years' rigorous imprisonment under section 326 of the Indian Penal Code. Nand Lal Sehgal was sentenced to life imprisonment under section 302 read with sections 109 and 113, I.P .C. and to 5 years' rigorous imprisonment under section 4 of the Explosive Substances Act. Both the convicted persons filed appeals in the Punjab and Haryana High Court, viz.\n\nCriminal Appeal No. 602 of 1967 and 601 of 1967. The State of Punjab also filed a criminal revision No. 1006 of 1967 for enhanceme.nt\n\nof sentence of Nand Lal Sehgal. By a common judgment dated 3rd November, 1967, the High Court dismissed the appeal of the appellant and confirmed th~ sentence of death imposed upon him.\n\nThe High Court, however, acquitted Nand Lal Sehgal by allowing his appeal and dismissed the revision petition filed by the State of Punjab. These are two appeals one by certificate and the other by special leave on behalf of the appellant Piara Singh against the judgment of the Punjab and Hary.ana High Court dated 3rd Novemoor, 1967.\n\nThe case of the prosecution was that one Ram Sahai P.W. 19, wh? was the organising Secretary of Jagatjit Kapra Mills Mazdoor U mon, Phagwara, had proceeded on hunger strike from 1st October, 1966 in front of the gate of the J agatjit Textile Mills, Phagwara (hereinafter called the Mills) in order to compel the management to accept certain demands of that Union regarding dearness allowance, gratuity for re-employment of the labourers who had been tunned out of service and the like.\n\nThe hunger strike of Ram Sahai was supposed to last till death or the acceptance of the\n\ndemands by the Mills whichever was earlier. A tent had been fixed outside the gate of the Mills and Ram Sahai used to sit on a cot under the tent. On 4th October, 1966, at 1.45 p.m. Ram Labhaya, Postman, P.W. 31 came there with a registered parcel addressed to Ram Sahai. On the parcel being opened, a bomb\n\ninide it exploded, as a result of which Radhey Sham, Shadi Lal and Charanjit Lal died and P.W. 11 Chanan Singh, P.W. 14 Moti Lal, P.W. 16 Madhu Parshad, P.W. 17 Tara Singh, P.W. 18 Ram Dass, P.W. 20 Muni Lal and P.W. 21 Naunihal Singh received injuries. It is alleged for the prosecution that the parcel had been despatched by the appellant from Amritsar at the instance of Nand Lal Sehgal and that the approver Mohinder Singh had helped the appellant in pr.paring the parcel contining the bomb.\n\nThe first clue in connection with the crime was obtained by the police on 8th October, 1966 when at about 4.00 p.m., P.W. 25 Amrik Singh, a resident of Amritsar appeared before Sub- Inspector Mohinderpal Singh P.W. 59 and made a statement that he had known Piara Singh before and was friendly with him, that on 3rd October, 1966, Piara Singh, who was carrying a Jhola, which appeared to contain something bulky, met him and in response to an invitation for tea, told Amrik Singh that he was in a hurry to go for some work. Three or four days later, Amrik Singh read in a newspaper regarding explosion of a bomb near the Textile Mills Phagwara. On the 7th October, 1966, Sri Niwas.\n\nP.W. 27 who is a deed writer, met him and told him that Piara Singh had despatched a parcel from Amritsar.\n\nThe most important witness in the case is Mohinder Singh.\n\nP.W. 8 who was tendered pardon under section 337 of the Code of Criminal Procedure by the District Magistrate, Kapurthala. The evidence of approver is to the effect that he was working in the Mills since 1951 and three or four years later Piara Singh also joined service in that Mills and was working as his subordinaie.\n\nPiara Singh developed cordial relations with Nand Lal Sehgal and used to assist him in breaking up labour strikes. One and a half months before the occurrence, Piara Singh came to the approver's residence and told him that Sehgal wanted one Ram Singh who\n\nwa~ employed in the Textile Mills, Ganga Nagar, to be killed, Piara Singh suggested the device of sending a bomb in a parcel ta the victim and when the parcel would be opened, the bomb would explode. About 15 days before the incident, Piara Singh again came to the approver and told him that he had secured a bomb nnd he wanted to get prepared two wooden boxes, one smaller in\n\n,; L~ than the other. The approver and Piara Singh thereafter went to the shop of Nazar Singh, P.W. 22 a carpenter of Phagwara. who made the box. Later in the evening they. went to the shop •Jf Gian Singh. P.W. 23 a carpenter of village Chachoki, which is said to be half a mile from Phagwara. Piara Singh got prepared\n\nP!ARA SINGH v. PUNJAB (Ramaswami, !.) 239\n\nfrom him six picc.s of phaties of raw wood. After it had ecomc dark, Piara Singh brought to the approver's house these articles as also a bomb saying that he had removed the fuse of the bomb rn that if it should fall, it may not explode. On 2nd October, 1966 Piara Singh came to the approver's house at 10 p.m. and informed him of Sehgal's intention that the bomb should now be sent ro as to explode at Ram Sahai who was the leader of the strikers at Phagwara.\n\nPiara Singh thereafter prepared a wooden box from the six pieces of phaties.\n\nThe approver described the arrangement for packing the bomb as follows :-\n\n\"Placing the fuse in the bomb after removing the pin and placing a wire in its place, we placed it in that box. Then the box was closed and the lid was placed on it with Kabza a1nd Kundi. In that Kundi a nut was placed and a bolt was fitted in it so that the box may not open.\n\nThen the box was also tied with strings so that the\n\nPhaties may not give way on account of the pressure of the lever. Then from the hole, which was on one side of the box corresponding to the wire fitted in the bomb, the wire was pulled out. Then that wooden box was placed in the bigger box.\n\nPiara Singh accused had brought with him a piece of Khaddar cloth and a parcel was made of the bigger box in that cloth. The pieces of Khaddar which were spare placed in between the two boxes so that the smaller box may not move inside the bigger box. Because of the spare pieces of cloth were not sufficient so I gave two shirts of my ch'ildren to Piara Singh. Those shirts were of Poplin of blue colour. Piara Singh tore one shirt into pieces and placed those pieces also in between those boxes.\n\nBefore the parcel was prepared in the Khaddar cloth the bigger box was secured with nails.\"\n\nAt about 1 a.m. the approver and Piara Singh went to the house of Sehgal and explained to him how they had prepared the parcel. Piara Singh told Sehgal that when Ram Sahai would open the parcel, the bomb would explode and he would die.\n\nSehgal made over a sheet of paper to Piara Singh on which was written\n\nte address of Ram Sabai.\n\nSehgal also gave Rs. 40/- to Piara Smgh for expenses and instructed him that the parcel had to be sent through the Post ffice at Amritsar. Next day on 3rd\n\nOctoer, 1966 P1.ara Sgh came to the approver in the morning carrymg a Jhola m which he placed the parcel containing the wen box.\n\nThe approver took Prara Singh to the Railway Station, Phagwara. In the evening Piara Singh returned at about 6 p.m. and told the approver that he had got the parcel despatched as directed by Sehgal from Amritsar where he had also met Amrik Singh. Both of them then went to the house of Sehgal and\n\nPiara Singh handed over the registration receipt to him saying that it should be destroyed.\n\nAt about 2 p.m. on the next day, i.e. 4th October, 1966, the approver learnt about the explosion of the bomb.\n\n, The High Court considered that the statement of the approver was sufficiently corroborated by the evidence of Nazar Singh P.W. 22, Gian Singh P.W. 23, Sardara Singh P.W. 24, Amrik Singh P.W. 25 and Sri Niwas P.S. 27 so far as the appellant was concerned. The High Court accordingly held that charges under ss. 302 and 326,\n\nI.P.C. and section 3 of the Explosive Substances Act were established against the appellant. As regards Nand Lal Sehgal the High Court took the view that there was no independent corroboration of the approver's evidence which could reasonably lead to the inference that Sehgal was insirumental in the commission of the crime. The High Court, therefore, acquitted Nand Lal Sehgal.\n\nIn support of his appeal Mr. Mitter contended, \\n the first place, that by reason of the acquittal of Nand Lal Sehgal the evidence given in the case concerning N and Lal Sehgal must be totally rejected. It was contended that the evidence of the approver so far as it concerns Nand Lal Sehgal must be eliminated.\n\nIn other words, the argument was that the effect of acquitial of Nand Lal Sehgal was to weaken if not to destroy the approver's evidence so far as it concerns the appellant also. In this connection Mr. Mitter relied upon the principle of issue-estoppel and tefurred to the decision of the Judicial Committee in Sambasivam\n\nv. Public Prosecutor, Federation of Malaya,('), and the decision of this Court in Pritam Singh v. State of Punjab,(2 ) and Manipur Administration v. Thokchom Bira Singh( 8). In our opinion, there is no justification for this argument. It is true that Nand Lal Sehgal was acquitted by the High Court which took the view that the evidence of the approver was not corroborated . so far as Nand Lal Sehgal was concerned. But there is no finding of the High Court that the approver had implicated Nand Lal Sehgal falsely.\n\nThe High Court considered th.at there was no legal corroboration of the approver's evidence as regards Nand Lal Sehgal and in the absence of such corroboration it was not safe to upheld the conviction of Sehgal. That is a different thing from saying that the. Court found that the approver's evidence regarding the participation of Nand Lal Sehgal is false.\n\nIn any event, the principle of issue-estoppel has no application to )he present case.\n\nIt should be stated that the principle of issue-estoppel is different from the pr\\nciple of double jeopardy or autre fois acquit as embodied in s. 403 of the Criminal Procedure ode. The prin-\n\n(1) [19SO] A.C. 458.\n\n(2) A.T.R. 1956 S.C. 415.\n\n(3) [19641 7 S.C.R. 123.\n\nciple of issue-estoppel is a different principle, viz. where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of s. 403(2), Cr.P.C. Speaking on the principle of estoppel Dixon, J. said in King v. Wilkes(') :\n\n\"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 is an issue-estoppel, if it appears by record of itself of as exp!~ by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in view on a second criminal trial of the same prisoner. That :; eems to be implied in the language used by Wright, J. in R. v. Ollis which in effect I have adopted in the foregoing statement ...... There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acuittal of the prisoner in the previous proceeding. But 1f such a condition of affairs arises I see no reason why the ordinary 1ules :if 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 autre fois acquit and autre fois 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.\n\nIssue-estoppel is concerned with the judicial etablishment of a proposition of Jaw or fact between parties.\n\nIt depends upon wellkn?wn doctrines which control the relitigation of issues which are settled by prior litigation.\"\n\nIn a subsequent case Marz v. The Queen( 2 ), Dixon, C.J. stated as follows :-\n\n\"The law which gives effect to issue-estoppels is not concerned with the correctness or incorrectness of the finding which amounts to an estoppel still Jess with the\n\nproesses of reasonig by which the finding was reached m fact ...... It 1s enough that an issue or issues-\n\n(1) 77C.L.R. Sii at pp. S18-Sl9.\n\n(2) [19S6] 96 C.L.R. 62.\n\nhave been directly raised and found.\n\nOnce that is A done, then, so long as the finding stands, if there by any subsequent litigation between the same parties, no al!egations legally inconsistent with the finding may be made by qrre of them against the other. Res judicate pro veritme accipitur.\n\nAnd .... this applies in pleas of the Crown.\" B\n\nAgain in Brown v. Robinson(') Herron and Maguire, JJ. said:\n\n\"Before issue-estoppel can succeed in a case such as this there must be prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner . . .. It depends upon an issue or issues having been distinctly raised and found in the former proceeding''.\n\nThe principle of issue-estoppel has received the approval of this Court in Pritam Singh v. State of Punjab(') and Manipur Administration v.\n\nThokchom Bira Singh(') and several later decisions. But the principle cannot be invoked in the present case because the parties are different and the decision upon any issue as between State and Nand Lal Sehgal in the same litigation cannot operate as binding upon the State with regard to present appellant.\n\nFor issue-estoppel to arise, there must have been distinctly raised and inevitably decided the same issue in the earlier proceedings between the same parties. In our opinion, Mr. Mitter is unable to make good his argumeint on this aspect of the case.\n\nIt was then contended on behalf of the appellant that there was no corroboration of the approver's evidence so far as he was concerned.\n\nAn accomplice is undoubtedly a competent witness under the Indian Evidence Act.\n\nThere can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious taint in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other jndependent evidence. It would not, however, be right to expect that such independent corroboration should cover the whole of the prosecution case or even all the material particulars of the prosecution case. If such a view is adopted it will render the evidence of the accomplice wholy superfluous. On the other hand, it wiU not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, iin such a case, corroboration does not afford the necessary assurance that the\n\n(I) (1960] S.R. (N. S. W.) 297. 301.\n\n(2) A.1.R. 19'.6 S.C. 415.\n\n(J) 119641 7 S.C.R. 123.\n\nmain story disclosed by the approver can be reasonably und safely accepted as true.\n\nIt is well settled that the appreciation of approver's evidence has to satisfy a double test.\n\nHis evidence must show that he is reliable witness and that is a test which is common to all the witnesses.\n\nIf this test is satisfied the second test which still remain to be applied is that the approver'1 evidence must receive sufficient corroboration. (See .Sarwan 5ingh v. State of Punjab) ( 1).\n\nIn the presnt case the High Court has rightly applied this principle and reached the conclusion that the approver's evidence was materially corroborated so far as the appellant was concerned. In the first place, the approver, satd that while going from his house when he fled from Phagwara, he had thrown the remaining pieces of the shirt in a cluster of sarkandas.\n\nAs a result of search A.SJ. Pritam Singh recovered torn pieces of cloth Exs. P. 9/1 to P. 9/3 from a bush about 150 yards from the Mill. The testimony of the expert Mr. Longia P.W. 7 shows that Exs. P. 9 / 1 to P. 9 I 3 were parts o.f the same cloth as pieces Exs. P. 10/ 1 to P. 10/3 which were used for packing the bomb between the inner and the outer boxes. If the approver was not a participant to the packing of the hand grenade, he could not possibly be in possession of the pieces of cloth Exs. P. ll/ I to P. 9/3. In the second place, the evidence of Nazar Singh, P. W. 22 indicates that he made the outer box for Piara Singh and was paid Re. 1/- by him. Gian Singh, P.W. 23 also said that he had been asked by Piara Singh to make Phaties about 4'' in length for the preparation oi the box. Amrik Singh, P .W. 23 has also given corroborative evidence. Piara Singh had met him at Amritsar on 3rd October, 'J 966 and told him that Piara Singh had despatched the parcel. The testimony of Sri Niwas, P .W 27 is crucial in this case. He has corroborated the statement of the approver in important particulars.\n\nThe evidence of Sri Niwas. was criticised on behalf of the appellant 'as Sri Niwas made his statement to the police after some delay viz., on the 17th October, 1966.\n\nOn this point Sub-Inspector Mohinderpal Singh explained that earlier on 9th October, 1966, he tried lo contact Sri\n\nNiwas, but the latter was not found in his seat in Phagwara Chowk.\n\nHe made another effort to trace him en 13th October, 1966, but it was equally fruitless. It is tr.ue that the Sub-Inspector could have made more strenuous efforts to trace out Sri Niwas, but he was going to other places also in connection with the invetigation. The High Court has held that merely on account of this delay the statement of Sri Niwas could not be rejected. On\n\nthe contrary the High Court has found the evidence of Sri Niwas to be true and reliable. It is maJnifest that there is sufficient corro- H' ?oration of the evidence of the approver so far as the appellant\n\nis concerned and the argument of Mr. Mitter must be rejected on this aspect of the case.\n\n(I) A.LR. 1957 S.C. 637.\n\nLastly, it was contended that the hand grenade could not be .arrainged in the manner stated by the approver, but that the hand grenade was intact and when the parcel was opened, some one may have caused it to explode. In this connection Mr. Mitter referred to the evidence of expert Mr. Murti P.W. 6. According to Mohinder Singh, only one hole was made 1n the inner box through which the wire fitted in the grenade in place of the safety pin was taken out. The argument of the appellant was that two holes should have been made in the inner, box, but according to the approver only one hofo was made.\n\nIt was also said that according to the report iX the expert, bent steel wire was found .in the first parcel whiCh was sent to him. It was argued that the report of the expert was not consistent with the evidence of the approver who said that the safety pin of the wire had been removed. It was suggested that Mohinder Singh would have probably thrown the safety pin and not kept it in the box. The High Court has examined in detail the argument of the appellant on-this point and reached the conclusion that the statement of the approver with regard o the packing of the hand grenade should be accepted as true. The question involved is one of appreciation of evidence and nc't a question of Jaw. In any event, we see no sufficient reason for taking a view different from that of the High Court in this matter.\n\nFor these reasons we hold that there is no merit in these appeals\n\nwhich are accordingly dismissed. E\n\nY.P.\n\nAppeals dismissed.", "total_entities": 99, "entities": [{"text": "PIARA SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "PIARA SINGH", "offset_not_found": false}}, {"text": "STATE OF PUNJAB", "label": "RESPONDENT", "start_char": 16, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "STATE OF PUNJAB", "offset_not_found": false}}, {"text": "January 8, 1969", "label": "DATE", "start_char": 33, "end_char": 48, "source": "ner", "metadata": {"in_sentence": "PIARA SINGH v.\n\nSTATE OF PUNJAB\n\nJanuary 8, 1969\n\n(J. C. SHAH, V. RAMASWAM!"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 54, "end_char": 61, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "GROVER, JJ", "label": "JUDGE", "start_char": 86, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "s. 302", "label": "PROVISION", "start_char": 228, "end_char": 234, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 235, "end_char": 240, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Explosive Substances Act", "label": "STATUTE", "start_char": 257, "end_char": 281, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "J. P. Mitter", "label": "OTHER_PERSON", "start_char": 3325, "end_char": 3337, "source": "ner", "metadata": {"in_sentence": "J. P. Mitter, J. C. Talwar and R. L. Kohli, for the appellant (in both the appeals)."}}, {"text": "J. C. Talwar", "label": "OTHER_PERSON", "start_char": 3339, "end_char": 3351, "source": "ner", "metadata": {"in_sentence": "J. P. Mitter, J. C. Talwar and R. L. Kohli, for the appellant (in both the appeals)."}}, {"text": "R. L. Kohli", "label": "OTHER_PERSON", "start_char": 3356, "end_char": 3367, "source": "ner", "metadata": {"in_sentence": "J. P. Mitter, J. C. Talwar and R. L. Kohli, for the appellant (in both the appeals)."}}, {"text": "Kartar Singh Chawla", "label": "LAWYER", "start_char": 3411, "end_char": 3430, "source": "ner", "metadata": {"in_sentence": "Kartar Singh Chawla and R. N. Sachthey, for the respondent (in both the appeals)."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3435, "end_char": 3449, "source": "ner", "metadata": {"in_sentence": "Kartar Singh Chawla and R. N. Sachthey, for the respondent (in both the appeals)."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 3536, "end_char": 3545, "source": "ner", "metadata": {"in_sentence": "The Judgmet of the Court was delivered by Ramaswami, J. The appellant Piara Singh and one Nand Lal Sehgal were tried together by the Sessions Judge of Kapurthala, who by his judgment dated 1st July, 1967 convicted the appellant under section 302, LP .C. and sentenced him to death.", "canonical_name": "V. RAMASWAMI"}}, {"text": "Piara Singh", "label": "PETITIONER", "start_char": 3564, "end_char": 3575, "source": "ner", "metadata": {"in_sentence": "The Judgmet of the Court was delivered by Ramaswami, J. The appellant Piara Singh and one Nand Lal Sehgal were tried together by the Sessions Judge of Kapurthala, who by his judgment dated 1st July, 1967 convicted the appellant under section 302, LP .C. and sentenced him to death.", "canonical_name": "PIARA SINGH"}}, {"text": "Nand Lal Sehgal", "label": "JUDGE", "start_char": 3584, "end_char": 3599, "source": "ner", "metadata": {"in_sentence": "The Judgmet of the Court was delivered by Ramaswami, J. The appellant Piara Singh and one Nand Lal Sehgal were tried together by the Sessions Judge of Kapurthala, who by his judgment dated 1st July, 1967 convicted the appellant under section 302, LP .C. and sentenced him to death.", "canonical_name": "N and Lal Sehgal"}}, {"text": "1st July, 1967", "label": "DATE", "start_char": 3683, "end_char": 3697, "source": "ner", "metadata": {"in_sentence": "The Judgmet of the Court was delivered by Ramaswami, J. The appellant Piara Singh and one Nand Lal Sehgal were tried together by the Sessions Judge of Kapurthala, who by his judgment dated 1st July, 1967 convicted the appellant under section 302, LP .C. and sentenced him to death."}}, {"text": "section 302", "label": "PROVISION", "start_char": 3728, "end_char": 3739, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 3863, "end_char": 3872, "source": "regex", "metadata": {"statute": null}}, {"text": "Explosive Substances Act", "label": "STATUTE", "start_char": 3880, "end_char": 3904, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 326", "label": "PROVISION", "start_char": 3949, "end_char": 3960, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 3968, "end_char": 3985, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Nand Lal Sehgal", "label": "JUDGE", "start_char": 3987, "end_char": 4002, "source": "ner", "metadata": {"in_sentence": "Nand Lal Sehgal was sentenced to life imprisonment under section 302 read with sections 109 and 113, I.P .C. and to 5 years' rigorous imprisonment under section 4 of the Explosive Substances Act.", "canonical_name": "N and Lal Sehgal"}}, {"text": "section 302", "label": "PROVISION", "start_char": 4044, "end_char": 4055, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 109 and 113", "label": "PROVISION", "start_char": 4066, "end_char": 4086, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 4140, "end_char": 4149, "source": "regex", "metadata": {"statute": null}}, {"text": "Explosive Substances Act", "label": "STATUTE", "start_char": 4157, "end_char": 4181, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Punjab and Haryana High Court", "label": "COURT", "start_char": 4231, "end_char": 4260, "source": "ner", "metadata": {"in_sentence": "Both the convicted persons filed appeals in the Punjab and Haryana High Court, viz."}}, {"text": "State of Punjab", "label": "ORG", "start_char": 4321, "end_char": 4336, "source": "ner", "metadata": {"in_sentence": "The State of Punjab also filed a criminal revision No."}}, {"text": "Punjab and Hary.ana High Court", "label": "COURT", "start_char": 4869, "end_char": 4899, "source": "ner", "metadata": {"in_sentence": "These are two appeals one by certificate and the other by special leave on behalf of the appellant Piara Singh against the judgment of the Punjab and Hary.ana High Court dated 3rd Novemoor, 1967."}}, {"text": "3rd Novemoor, 1967", "label": "DATE", "start_char": 4906, "end_char": 4924, "source": "ner", "metadata": {"in_sentence": "These are two appeals one by certificate and the other by special leave on behalf of the appellant Piara Singh against the judgment of the Punjab and Hary.ana High Court dated 3rd Novemoor, 1967."}}, {"text": "Ram Sahai", "label": "WITNESS", "start_char": 4968, "end_char": 4977, "source": "ner", "metadata": {"in_sentence": "The case of the prosecution was that one Ram Sahai P.W. 19, wh?"}}, {"text": "Jagatjit Kapra Mills Mazdoor U mon, Phagwara", "label": "ORG", "start_char": 5023, "end_char": 5067, "source": "ner", "metadata": {"in_sentence": "was the organising Secretary of Jagatjit Kapra Mills Mazdoor U mon, Phagwara, had proceeded on hunger strike from 1st October, 1966 in front of the gate of the J agatjit Textile Mills, Phagwara (hereinafter called the Mills) in order to compel the management to accept certain demands of that Union regarding dearness allowance, gratuity for re-employment of the labourers who had been tunned out of service and the like."}}, {"text": "1st October, 1966", "label": "DATE", "start_char": 5105, "end_char": 5122, "source": "ner", "metadata": {"in_sentence": "was the organising Secretary of Jagatjit Kapra Mills Mazdoor U mon, Phagwara, had proceeded on hunger strike from 1st October, 1966 in front of the gate of the J agatjit Textile Mills, Phagwara (hereinafter called the Mills) in order to compel the management to accept certain demands of that Union regarding dearness allowance, gratuity for re-employment of the labourers who had been tunned out of service and the like."}}, {"text": "J agatjit Textile Mills", "label": "ORG", "start_char": 5151, "end_char": 5174, "source": "ner", "metadata": {"in_sentence": "was the organising Secretary of Jagatjit Kapra Mills Mazdoor U mon, Phagwara, had proceeded on hunger strike from 1st October, 1966 in front of the gate of the J agatjit Textile Mills, Phagwara (hereinafter called the Mills) in order to compel the management to accept certain demands of that Union regarding dearness allowance, gratuity for re-employment of the labourers who had been tunned out of service and the like."}}, {"text": "Phagwara", "label": "GPE", "start_char": 5176, "end_char": 5184, "source": "ner", "metadata": {"in_sentence": "was the organising Secretary of Jagatjit Kapra Mills Mazdoor U mon, Phagwara, had proceeded on hunger strike from 1st October, 1966 in front of the gate of the J agatjit Textile Mills, Phagwara (hereinafter called the Mills) in order to compel the management to accept certain demands of that Union regarding dearness allowance, gratuity for re-employment of the labourers who had been tunned out of service and the like."}}, {"text": "Ram Sahai", "label": "OTHER_PERSON", "start_char": 5435, "end_char": 5444, "source": "ner", "metadata": {"in_sentence": "The hunger strike of Ram Sahai was supposed to last till death or the acceptance of the\n\ndemands by the Mills whichever was earlier.", "canonical_name": "Ram Sahai"}}, {"text": "4th October, 1966", "label": "DATE", "start_char": 5653, "end_char": 5670, "source": "ner", "metadata": {"in_sentence": "On 4th October, 1966, at 1.45 p.m. Ram Labhaya, Postman, P.W. 31 came there with a registered parcel addressed to Ram Sahai."}}, {"text": "Ram Labhaya", "label": "WITNESS", "start_char": 5685, "end_char": 5696, "source": "ner", "metadata": {"in_sentence": "On 4th October, 1966, at 1.45 p.m. Ram Labhaya, Postman, P.W. 31 came there with a registered parcel addressed to Ram Sahai."}}, {"text": "Radhey Sham", "label": "WITNESS", "start_char": 5851, "end_char": 5862, "source": "ner", "metadata": {"in_sentence": "On the parcel being opened, a bomb\n\ninide it exploded, as a result of which Radhey Sham, Shadi Lal and Charanjit Lal died and P.W. 11 Chanan Singh, P.W. 14 Moti Lal, P.W. 16 Madhu Parshad, P.W. 17 Tara Singh, P.W. 18 Ram Dass, P.W. 20 Muni Lal and P.W. 21 Naunihal Singh received injuries."}}, {"text": "Shadi Lal", "label": "OTHER_PERSON", "start_char": 5864, "end_char": 5873, "source": "ner", "metadata": {"in_sentence": "On the parcel being opened, a bomb\n\ninide it exploded, as a result of which Radhey Sham, Shadi Lal and Charanjit Lal died and P.W. 11 Chanan Singh, P.W. 14 Moti Lal, P.W. 16 Madhu Parshad, P.W. 17 Tara Singh, P.W. 18 Ram Dass, P.W. 20 Muni Lal and P.W. 21 Naunihal Singh received injuries."}}, {"text": "Charanjit Lal", "label": "WITNESS", "start_char": 5878, "end_char": 5891, "source": "ner", "metadata": {"in_sentence": "On the parcel being opened, a bomb\n\ninide it exploded, as a result of which Radhey Sham, Shadi Lal and Charanjit Lal died and P.W. 11 Chanan Singh, P.W. 14 Moti Lal, P.W. 16 Madhu Parshad, P.W. 17 Tara Singh, P.W. 18 Ram Dass, P.W. 20 Muni Lal and P.W. 21 Naunihal Singh received injuries."}}, {"text": "Chanan Singh", "label": "WITNESS", "start_char": 5909, "end_char": 5921, "source": "ner", "metadata": {"in_sentence": "On the parcel being opened, a bomb\n\ninide it exploded, as a result of which Radhey Sham, Shadi Lal and Charanjit Lal died and P.W. 11 Chanan Singh, P.W. 14 Moti Lal, P.W. 16 Madhu Parshad, P.W. 17 Tara Singh, P.W. 18 Ram Dass, P.W. 20 Muni Lal and P.W. 21 Naunihal Singh received injuries."}}, {"text": "Moti Lal", "label": "WITNESS", "start_char": 5931, "end_char": 5939, "source": "ner", "metadata": {"in_sentence": "On the parcel being opened, a bomb\n\ninide it exploded, as a result of which Radhey Sham, Shadi Lal and Charanjit Lal died and P.W. 11 Chanan Singh, P.W. 14 Moti Lal, P.W. 16 Madhu Parshad, P.W. 17 Tara Singh, P.W. 18 Ram Dass, P.W. 20 Muni Lal and P.W. 21 Naunihal Singh received injuries."}}, {"text": "Madhu Parshad", "label": "WITNESS", "start_char": 5949, "end_char": 5962, "source": "ner", "metadata": {"in_sentence": "On the parcel being opened, a bomb\n\ninide it exploded, as a result of which Radhey Sham, Shadi Lal and Charanjit Lal died and P.W. 11 Chanan Singh, P.W. 14 Moti Lal, P.W. 16 Madhu Parshad, P.W. 17 Tara Singh, P.W. 18 Ram Dass, P.W. 20 Muni Lal and P.W. 21 Naunihal Singh received injuries."}}, {"text": "Tara Singh", "label": "WITNESS", "start_char": 5972, "end_char": 5982, "source": "ner", "metadata": {"in_sentence": "On the parcel being opened, a bomb\n\ninide it exploded, as a result of which Radhey Sham, Shadi Lal and Charanjit Lal died and P.W. 11 Chanan Singh, P.W. 14 Moti Lal, P.W. 16 Madhu Parshad, P.W. 17 Tara Singh, P.W. 18 Ram Dass, P.W. 20 Muni Lal and P.W. 21 Naunihal Singh received injuries."}}, {"text": "Ram Dass", "label": "WITNESS", "start_char": 5992, "end_char": 6000, "source": "ner", "metadata": {"in_sentence": "On the parcel being opened, a bomb\n\ninide it exploded, as a result of which Radhey Sham, Shadi Lal and Charanjit Lal died and P.W. 11 Chanan Singh, P.W. 14 Moti Lal, P.W. 16 Madhu Parshad, P.W. 17 Tara Singh, P.W. 18 Ram Dass, P.W. 20 Muni Lal and P.W. 21 Naunihal Singh received injuries."}}, {"text": "Muni Lal", "label": "WITNESS", "start_char": 6010, "end_char": 6018, "source": "ner", "metadata": {"in_sentence": "On the parcel being opened, a bomb\n\ninide it exploded, as a result of which Radhey Sham, Shadi Lal and Charanjit Lal died and P.W. 11 Chanan Singh, P.W. 14 Moti Lal, P.W. 16 Madhu Parshad, P.W. 17 Tara Singh, P.W. 18 Ram Dass, P.W. 20 Muni Lal and P.W. 21 Naunihal Singh received injuries."}}, {"text": "Naunihal Singh", "label": "WITNESS", "start_char": 6031, "end_char": 6045, "source": "ner", "metadata": {"in_sentence": "On the parcel being opened, a bomb\n\ninide it exploded, as a result of which Radhey Sham, Shadi Lal and Charanjit Lal died and P.W. 11 Chanan Singh, P.W. 14 Moti Lal, P.W. 16 Madhu Parshad, P.W. 17 Tara Singh, P.W. 18 Ram Dass, P.W. 20 Muni Lal and P.W. 21 Naunihal Singh received injuries."}}, {"text": "Amritsar", "label": "GPE", "start_char": 6157, "end_char": 6165, "source": "ner", "metadata": {"in_sentence": "It is alleged for the prosecution that the parcel had been despatched by the appellant from Amritsar at the instance of Nand Lal Sehgal and that the approver Mohinder Singh had helped the appellant in pr.paring the parcel contining the bomb."}}, {"text": "Mohinder Singh", "label": "OTHER_PERSON", "start_char": 6223, "end_char": 6237, "source": "ner", "metadata": {"in_sentence": "It is alleged for the prosecution that the parcel had been despatched by the appellant from Amritsar at the instance of Nand Lal Sehgal and that the approver Mohinder Singh had helped the appellant in pr.paring the parcel contining the bomb.", "canonical_name": "Mohinderpal Singh"}}, {"text": "8th October, 1966", "label": "DATE", "start_char": 6382, "end_char": 6399, "source": "ner", "metadata": {"in_sentence": "The first clue in connection with the crime was obtained by the police on 8th October, 1966 when at about 4.00 p.m., P.W. 25 Amrik Singh, a resident of Amritsar appeared before Sub- Inspector Mohinderpal Singh P.W. 59 and made a statement that he had known Piara Singh before and was friendly with him, that on 3rd October, 1966, Piara Singh, who was carrying a Jhola, which appeared to contain something bulky, met him and in response to an invitation for tea, told Amrik Singh that he was in a hurry to go for some work."}}, {"text": "Amrik Singh", "label": "WITNESS", "start_char": 6433, "end_char": 6444, "source": "ner", "metadata": {"in_sentence": "The first clue in connection with the crime was obtained by the police on 8th October, 1966 when at about 4.00 p.m., P.W. 25 Amrik Singh, a resident of Amritsar appeared before Sub- Inspector Mohinderpal Singh P.W. 59 and made a statement that he had known Piara Singh before and was friendly with him, that on 3rd October, 1966, Piara Singh, who was carrying a Jhola, which appeared to contain something bulky, met him and in response to an invitation for tea, told Amrik Singh that he was in a hurry to go for some work."}}, {"text": "Mohinderpal Singh", "label": "WITNESS", "start_char": 6500, "end_char": 6517, "source": "ner", "metadata": {"in_sentence": "The first clue in connection with the crime was obtained by the police on 8th October, 1966 when at about 4.00 p.m., P.W. 25 Amrik Singh, a resident of Amritsar appeared before Sub- Inspector Mohinderpal Singh P.W. 59 and made a statement that he had known Piara Singh before and was friendly with him, that on 3rd October, 1966, Piara Singh, who was carrying a Jhola, which appeared to contain something bulky, met him and in response to an invitation for tea, told Amrik Singh that he was in a hurry to go for some work."}}, {"text": "Piara Singh", "label": "PETITIONER", "start_char": 6565, "end_char": 6576, "source": "ner", "metadata": {"in_sentence": "The first clue in connection with the crime was obtained by the police on 8th October, 1966 when at about 4.00 p.m., P.W. 25 Amrik Singh, a resident of Amritsar appeared before Sub- Inspector Mohinderpal Singh P.W. 59 and made a statement that he had known Piara Singh before and was friendly with him, that on 3rd October, 1966, Piara Singh, who was carrying a Jhola, which appeared to contain something bulky, met him and in response to an invitation for tea, told Amrik Singh that he was in a hurry to go for some work.", "canonical_name": "PIARA SINGH"}}, {"text": "3rd October, 1966", "label": "DATE", "start_char": 6619, "end_char": 6636, "source": "ner", "metadata": {"in_sentence": "The first clue in connection with the crime was obtained by the police on 8th October, 1966 when at about 4.00 p.m., P.W. 25 Amrik Singh, a resident of Amritsar appeared before Sub- Inspector Mohinderpal Singh P.W. 59 and made a statement that he had known Piara Singh before and was friendly with him, that on 3rd October, 1966, Piara Singh, who was carrying a Jhola, which appeared to contain something bulky, met him and in response to an invitation for tea, told Amrik Singh that he was in a hurry to go for some work."}}, {"text": "Amrik Singh", "label": "OTHER_PERSON", "start_char": 6775, "end_char": 6786, "source": "ner", "metadata": {"in_sentence": "The first clue in connection with the crime was obtained by the police on 8th October, 1966 when at about 4.00 p.m., P.W. 25 Amrik Singh, a resident of Amritsar appeared before Sub- Inspector Mohinderpal Singh P.W. 59 and made a statement that he had known Piara Singh before and was friendly with him, that on 3rd October, 1966, Piara Singh, who was carrying a Jhola, which appeared to contain something bulky, met him and in response to an invitation for tea, told Amrik Singh that he was in a hurry to go for some work."}}, {"text": "7th October, 1966", "label": "DATE", "start_char": 6959, "end_char": 6976, "source": "ner", "metadata": {"in_sentence": "On the 7th October, 1966, Sri Niwas."}}, {"text": "Niwas", "label": "WITNESS", "start_char": 6982, "end_char": 6987, "source": "ner", "metadata": {"in_sentence": "On the 7th October, 1966, Sri Niwas."}}, {"text": "Mohinder Singh", "label": "WITNESS", "start_char": 7140, "end_char": 7154, "source": "ner", "metadata": {"in_sentence": "The most important witness in the case is Mohinder Singh."}}, {"text": "section 337", "label": "PROVISION", "start_char": 7194, "end_char": 7205, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 7213, "end_char": 7239, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sehgal", "label": "OTHER_PERSON", "start_char": 7702, "end_char": 7708, "source": "ner", "metadata": {"in_sentence": "One and a half months before the occurrence, Piara Singh came to the approver's residence and told him that Sehgal wanted one Ram Singh who\n\nwa~ employed in the Textile Mills, Ganga Nagar, to be killed, Piara Singh suggested the device of sending a bomb in a parcel ta the victim and when the parcel would be opened, the bomb would explode."}}, {"text": "Ram Singh", "label": "OTHER_PERSON", "start_char": 7720, "end_char": 7729, "source": "ner", "metadata": {"in_sentence": "One and a half months before the occurrence, Piara Singh came to the approver's residence and told him that Sehgal wanted one Ram Singh who\n\nwa~ employed in the Textile Mills, Ganga Nagar, to be killed, Piara Singh suggested the device of sending a bomb in a parcel ta the victim and when the parcel would be opened, the bomb would explode."}}, {"text": "Nazar Singh", "label": "WITNESS", "start_char": 8195, "end_char": 8206, "source": "ner", "metadata": {"in_sentence": "The approver and Piara Singh thereafter went to the shop of Nazar Singh, P.W. 22 a carpenter of Phagwara."}}, {"text": "Chachoki", "label": "GPE", "start_char": 8350, "end_char": 8358, "source": "ner", "metadata": {"in_sentence": "P.W. 23 a carpenter of village Chachoki, which is said to be half a mile from Phagwara."}}, {"text": "2nd October, 1966", "label": "DATE", "start_char": 8717, "end_char": 8734, "source": "ner", "metadata": {"in_sentence": "On 2nd October, 1966 Piara Singh came to the approver's house at 10 p.m. and informed him of Sehgal's intention that the bomb should now be sent ro as to explode at Ram Sahai who was the leader of the strikers at Phagwara."}}, {"text": "Ram Sabai", "label": "OTHER_PERSON", "start_char": 10578, "end_char": 10587, "source": "ner", "metadata": {"in_sentence": "Sehgal made over a sheet of paper to Piara Singh on which was written\n\nte address of Ram Sabai.", "canonical_name": "Ram Sahai"}}, {"text": "Piara Smgh", "label": "PETITIONER", "start_char": 10619, "end_char": 10629, "source": "ner", "metadata": {"in_sentence": "40/- to Piara Smgh for expenses and instructed him that the parcel had to be sent through the Post ffice at Amritsar.", "canonical_name": "PIARA SINGH"}}, {"text": "3rd\n\nOctoer, 1966", "label": "DATE", "start_char": 10741, "end_char": 10758, "source": "ner", "metadata": {"in_sentence": "Next day on 3rd\n\nOctoer, 1966 P1.ara Sgh came to the approver in the morning carrymg a Jhola m which he placed the parcel containing the wen box."}}, {"text": "P1.ara Sgh", "label": "OTHER_PERSON", "start_char": 10759, "end_char": 10769, "source": "ner", "metadata": {"in_sentence": "Next day on 3rd\n\nOctoer, 1966 P1.ara Sgh came to the approver in the morning carrymg a Jhola m which he placed the parcel containing the wen box."}}, {"text": "Prara Singh", "label": "PETITIONER", "start_char": 10894, "end_char": 10905, "source": "ner", "metadata": {"in_sentence": "The approver took Prara Singh to the Railway Station, Phagwara.", "canonical_name": "PIARA SINGH"}}, {"text": "Gian Singh", "label": "WITNESS", "start_char": 11511, "end_char": 11521, "source": "ner", "metadata": {"in_sentence": ", The High Court considered that the statement of the approver was sufficiently corroborated by the evidence of Nazar Singh P.W. 22, Gian Singh P.W. 23, Sardara Singh P.W. 24, Amrik Singh P.W. 25 and Sri Niwas P.S. 27 so far as the appellant was concerned."}}, {"text": "Sardara Singh", "label": "WITNESS", "start_char": 11531, "end_char": 11544, "source": "ner", "metadata": {"in_sentence": ", The High Court considered that the statement of the approver was sufficiently corroborated by the evidence of Nazar Singh P.W. 22, Gian Singh P.W. 23, Sardara Singh P.W. 24, Amrik Singh P.W. 25 and Sri Niwas P.S. 27 so far as the appellant was concerned."}}, {"text": "S. 27", "label": "PROVISION", "start_char": 11590, "end_char": 11595, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 302 and 326", "label": "PROVISION", "start_char": 11686, "end_char": 11701, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 11704, "end_char": 11709, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 3", "label": "PROVISION", "start_char": 11715, "end_char": 11724, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Explosive Substances Act", "label": "STATUTE", "start_char": 11732, "end_char": 11756, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Mitter", "label": "OTHER_PERSON", "start_char": 12114, "end_char": 12120, "source": "ner", "metadata": {"in_sentence": "In support of his appeal Mr. Mitter contended, \\n the first place, that by reason of the acquittal of Nand Lal Sehgal the evidence given in the case concerning N and Lal Sehgal must be totally rejected."}}, {"text": "N and Lal Sehgal", "label": "JUDGE", "start_char": 12245, "end_char": 12261, "source": "ner", "metadata": {"in_sentence": "In support of his appeal Mr. Mitter contended, \\n the first place, that by reason of the acquittal of Nand Lal Sehgal the evidence given in the case concerning N and Lal Sehgal must be totally rejected.", "canonical_name": "N and Lal Sehgal"}}, {"text": "s. 403", "label": "PROVISION", "start_char": 13829, "end_char": 13835, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 403(2)", "label": "PROVISION", "start_char": 14505, "end_char": 14514, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 14516, "end_char": 14522, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Dixon", "label": "JUDGE", "start_char": 14562, "end_char": 14567, "source": "ner", "metadata": {"in_sentence": "P.C. Speaking on the principle of estoppel Dixon, J. said in King v. Wilkes(') :\n\n\"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 is an issue-estoppel, if it appears by record of itself of as exp!~ by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in view on a second criminal trial of the same prisoner."}}, {"text": "Wright", "label": "JUDGE", "start_char": 15035, "end_char": 15041, "source": "ner", "metadata": {"in_sentence": "That :; eems to be implied in the language used by Wright, J. in R. v. Ollis which in effect I have adopted in the foregoing statement ...... There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner."}}, {"text": "S18", "label": "PROVISION", "start_char": 16511, "end_char": 16514, "source": "regex", "metadata": {"statute": null}}, {"text": "Herron", "label": "JUDGE", "start_char": 16923, "end_char": 16929, "source": "ner", "metadata": {"in_sentence": "B\n\nAgain in Brown v. Robinson(') Herron and Maguire, JJ."}}, {"text": "Maguire", "label": "JUDGE", "start_char": 16934, "end_char": 16941, "source": "ner", "metadata": {"in_sentence": "B\n\nAgain in Brown v. Robinson(') Herron and Maguire, JJ."}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 18198, "end_char": 18217, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "A.SJ. Pritam Singh", "label": "OTHER_PERSON", "start_char": 19991, "end_char": 20009, "source": "ner", "metadata": {"in_sentence": "As a result of search A.SJ."}}, {"text": "Longia", "label": "WITNESS", "start_char": 20138, "end_char": 20144, "source": "ner", "metadata": {"in_sentence": "The testimony of the expert Mr. Longia P.W. 7 shows that Exs."}}, {"text": "3rd October, 'J 966", "label": "DATE", "start_char": 20868, "end_char": 20887, "source": "ner", "metadata": {"in_sentence": "Piara Singh had met him at Amritsar on 3rd October, 'J 966 and told him that Piara Singh had despatched the parcel."}}, {"text": "Niwas", "label": "OTHER_PERSON", "start_char": 21160, "end_char": 21165, "source": "ner", "metadata": {"in_sentence": "was criticised on behalf of the appellant 'as Sri Niwas made his statement to the police after some delay viz.,"}}, {"text": "17th October, 1966", "label": "DATE", "start_char": 21229, "end_char": 21247, "source": "ner", "metadata": {"in_sentence": "on the 17th October, 1966."}}, {"text": "Mohinderpal Singh", "label": "OTHER_PERSON", "start_char": 21278, "end_char": 21295, "source": "ner", "metadata": {"in_sentence": "On this point Sub-Inspector Mohinderpal Singh explained that earlier on 9th October, 1966, he tried lo contact Sri\n\nNiwas, but the latter was not found in his seat in Phagwara Chowk.", "canonical_name": "Mohinderpal Singh"}}, {"text": "9th October, 1966", "label": "DATE", "start_char": 21322, "end_char": 21339, "source": "ner", "metadata": {"in_sentence": "On this point Sub-Inspector Mohinderpal Singh explained that earlier on 9th October, 1966, he tried lo contact Sri\n\nNiwas, but the latter was not found in his seat in Phagwara Chowk."}}, {"text": "13th October, 1966", "label": "DATE", "start_char": 21473, "end_char": 21491, "source": "ner", "metadata": {"in_sentence": "He made another effort to trace him en 13th October, 1966, but it was equally fruitless."}}, {"text": "Murti", "label": "WITNESS", "start_char": 22420, "end_char": 22425, "source": "ner", "metadata": {"in_sentence": "In this connection Mr. Mitter referred to the evidence of expert Mr. Murti P.W. 6."}}]}
{"document_id": "1969_3_245_253_EN", "year": 1969, "text": "MUDIGOWDA GOWDAPPA SANKH & ORS.\n\nRAMCHANDRA RA VAGOWDA SANKH & ANR.\n\nJanuary 9. 1969\n\n(J. C. SHAH. V. RAMASWAMI AND A. N. GROVER, {J.J\n\nHindu Law--Partition-Partition deed s/lani and nominal-Effect of- - Joint fa1nily having nucleus-Later acquisitions-Income fro1n nucleus. cdequate for making acquisitions-If cati bi presumed to be joint family properties-Alienation-Challenge of in plaint.\n\nA joint family .consisting of two brothers G and A and their wives,. sons and daughters was possessed of joint family properties. Between the years 1911 and 1940 several other properties were acquired. In 1930, the son of A was taken in adoption by G. The adopted son died in 1944, and both the brothers denied the adoption and purported to effect a parti, tion. In the partition deed the lands were unequally divided between the brothers, G getting twice as much as A, but the brothers continued to be in joint possession of the. lands. There was no division of their house at all and the brothers had a joint mess even after the date of partition, After the partition-deed was executed the two brothers executed various alienations.\n\nThe first respondent. claiming to be the adopted son of another son of A, filed a suit in 1954 after the death of G and A, challenging the partition deed as fraudulent, that it was never acted upon and was only intended to defeat the 'rights of two widows in A's family. The appellants contested the suit and supported all the alienations.\n\nThe trial court decreed the suit except \\Vith respect to one sale deed; and the High Court, in appeal, held in favour of the first respondent even, \\Vith respect to that item.\n\nIn appeal to this Court, it was contended that : ( 1) The partition deed: \\Vas not a sham transaction; (2) Even if the partition deed was bogus. there was in law a severance of joint family status; (3) The later acquisitions between the years 1911 and 1940 were not joint family properties but belonged exclusively to G; and ( 4) The High Court should not have reversed the decree of the trial court with respect to the sale ded, bed;:tuse it was not challenged in the plaint. ·\n\nHELD : ( 1) The scheme of the partition was to deprive the widows in A's family of any claim for maintenance out of the joint family properties but to limit their rights to the smaller share given to A~ In viey,.-·\n\nof the state of law before the 'decision in Anant v. Shankar, A.I.R. 1943 P.C. 196 the two brothers decided to execute a bogus deed of pai:tition in order to avoid any legal consequences which may follow if either of the widows should take a son in adoption.\n\nTherefore, the. deed was not genuine. [249 D-G; 250 F-GJ\n\n(2) In order to operate as a severance of joint status, it is necessary A that the expression of intention to separate himself, by the particular member, must be definite and unequivocal.\n\nIf the expression of the intention is a mere pretence or sham, there is, in the eye of law. no separation of the joint family status. [251 C-D]\n\nMerla Ramanna v. Chelikani Jagannadha Rao, A.I.R. 1941 P.C. 48, B applied.\n\n(3) ihere is no presumption that a joint Hindu family, because it is joint, possesses any joint family property or if there was a nucleus, any acquisition made by any member of the joint family is joint family pro~ perty.\n\nIt is only after the possession of an GdeqUate nucleus is shown that such a presumption is drawn and the onus shifts on to the person C who claims the property as a self-acquisition to make out his claim.\n\nIn the present case, the income from the nucleus was more than sufficient for the purchase of the .various items acquired later, and there was no proof that G had any separate income of his own oui. of which he could have acquired those items.\n\nTherefore, the late'r acquisitions were also joint family properties. [251 E-G; 252 C-D, E-F] D\n\nAppalaswami v. Suryanara, vanamurti, I.LR. [1948] Mad. 440, (P.C.) applied.\n\n( 4) The first respondent challenged all the alienations in the plaint and the High Court was right in holding that the sale was without consi\n\nderation and hence was not genuine and was not binding on the first respondent. [253 D-E]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 339 of 1966.\n\nAppeal by special leave from the judgment and order dated F December 12, 1962 of the Bombay High Court in First Appeal No. 436 of 1967.\n\nG. L. Sanghi and A. G. Ratnaparkhi, for the appellants.\n\nS. T. Desai and /. N. Shroff, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J. This appeal is brought by special leave from\n\nthe judgment of the Bombay High Court dated 12th December, 1962 in First Appeal No. 436 of 1958 by which the High Court H dismissed the appeal and allowed the cross-objections filed by the respondents in the said appeal.\n\nThe relationship of the parties will appear from the following pedigree :\n\nNeneppa\n\nI I I bib Gowdappa = 1. Kas a.I Apparaya=Sidgajawa II (died on (wife of Apparaya 20-12-53) died during life\n\n2. Sidgangawa I\n\n(Widows of Gowdappa) I time ol Apparaya)\n\nJangabai (widowed daughter of Gowdappa) Appellant No. S\n\nNenebpa II NLpa II RcvgLa SubJ.drabai (adopted in =Sidgangawa (daughter 1930 died Ill (wife of Apparaya) in 1944) of Revgowda) Appellant I\n\nRespondent No. 3.\n\nNo. 2 Neelagangawa=Mudlgowda / (daughter of (alleged to Ncneppa II) have been Ramchandra (adopted Appellant adopted to Revgowda by No. 2. by Oowdappa Sidgangawa III) in 1948; and ResJ>ondent No. I became the since deceased. husband of Neelagangawa)\n\nAppellant No. I.\n\nGoudappa had one daughter by name (}angabai, while Apparaya had three children (i) Nenappa II, (ii) Ravagowda and (iii) Subhadrabai. In 1930 Nenappa II was given in adoption to Goudappa. He had two wives Kashibai and Sidgangawa.\n\nRevagowda married another Sidgangavva. In 1938 Revagowda was murdered.\n\nThereafter Goudappa and Apparaya purported to effect a partition between themselves. At the time of the death of Nenappa I, six plots of lands belonged to the joint family. Five of these plots are survey Nos. 43, 59, 65, 66 and 69 measuring 137 acres and 15 gunthas and assessed at Rs. 126/12/- and are located in Borgi Khurd. The other plot survey No. 77 which was in Borgi Budruk measured 14 acres and 24 gunthas and was assessed at Rs. 16/14/-. The total area of the ancestral lands was, therefore,. 151 acres and 27 gunthas assessed at Rs. 143/. Between 1911 and 1940, 12 other pieces of lands in both these villages measuring 137 acres and 39 gunthas and assessed at Rs. 18/10/- were acquired in various names. After Nenappa TI\n\nwas murdered in 1944, both the brothers denied his adoption by Goudappa and purported to effect a partition on 28th April, 1944.\n\nAfter the partition deed was executed various alienations were made by the two brothers. On 25th September, 1944 by Ex. 161 Goudappa gifted S. Nos. 61 and 62 of Borgi Budruk and Survey No. 45 of Borgj Khurd to defendant No. 4, Subhadrabai. By Ex. 162, dated 1st October, 1946 Goudappa made a gift of plot survey Nos. 62 and 63 of Borgi Khurd and Survey No. 11/3 of Borgi Budruk to defendant No. 3 who is the daughter of Nenappa II.\n\nOn 20th April, 1948 by Ex. 159 Apparaya sold survey Nos. 77 and 43 to defendant No. 3 for a sum of Rs. 5000/. On the same day by Ex. 160 Goudappa sold survey No. 79 for Rs. 1,000/- to Apparaya. Again on 17th May, 1948, by Ex. 158 Goudappa made a gift of plot survey Nos. 59 and 60 of Borgi Khurd to defendant No. 3. By Ex. 117, dated 7th December, 1948 Goudappa by a Vardi transferred survey No. 66 of Borgi Khurd, to defendant No. 6 his widowed daughter. On 15th December. 1948 Goudappa gave a portion of plot No. 96 to Sidgang, avva, wife of Apparaya for maintenance. By Ex. 166, dated 25th May, 1950, Goudappa and .defendant No. 1 together sold to defendant No. 5 portion of survey No. 23 for a sum of Rs. 3,000/. Finally on 19th November, 1953, Apparaya executed his last will which is Ex. 168 whereby he bequeathed survey No. 79 to defendant No. 4 and one house to his daughter defendant No. 4. The plain\n\ntiff claimed to be the adopted son of Revagouda and brought the present suit on 10th June, 1954 challenging the partition deed as fraudulent. He alleged that it was intended to defeat the rights of the widows, that it was never acfed upon and that the family continued to be joint. The defendants contested the suit on the ground tb.-t the partition deed Ex. 157 was a genuine transaction and was acl.:d upon, that Apparaya and Goudappa 1'ecame separate in status and managed their properties separately. The defendants supported all the alienations as being genuine and effective. The trial. court came to the conclusion that the 12 pieces of lands which were acquired between 1911 and 1940 formed oart of the joint family properties, that the pariition deed Ex. 157 was not intended to be acted upon but was executed to defeat the rights of the widows. The trial court held that none of the alienations except the sale deed Ex. 159 executed by Apparaya in respect of survey plots Nos. 43 and 77 in favour of defendant No. 3 was binding on the plaintiff. The trial court accordingly made a decree for partition with appropriate direciions.\n\nThe defendants took the matter in appeal to the High Court. The plaintiff also filed a cross-objection with regard to the sale-deed Ex. 159. By its judgment dated 12t11 December, 1962, the High tourt dismissed the . appeal of the defendants and allowed the cross-objection of the plaintiff holding that the sale-deed Ex. 159 regarding survey plots Nos. 43 and 77 was also not binding upon the plaintiff.\n\n; ....\n\nA The first question to be considered in this appeal is whether the partition deed executed by Goudappa and Apparaya on 28th April, 1944 was a sham transaction and not intended to be elfective. Both the trial court and the High Court have reached a concurrent finding after an elaborate examination of the evidence that the partition deed was not genuine, and that it was effected for an B ulterior purpose in order to defeat the rights of the widows in the joint family. It is manifest that the finding of the lower courts upon this question is essentially a finding upon a question of fact, and in an appeal by special leave it is the normal practice of this Court to accept such a concurrent finding of fact as correct. It was, however, contended by Mr. Sanghi that the finding of the lower courts is vitiated in law because there was no evidence in C support of that finding. In our opinion, there is no justification for this argument. In the partition deed it is recited that the lands were partitioned with the help of Panchas but the names of Panchas are not mentioned in the document and none of the Panchas has signed it. As to the division of the properties, Goudappa has been given 101 acres and 39 gunthas while Apparaya has been given D 50 acres and 10 gllllthas only.\n\nThe total assessment of lands given to Goudappa is Rs. 82/3/ - while the assessment of the lands given to Apparaya is Rs. 61/7/-. There appears to be no division of the house at all, since nothing is mentioned in the partHion deed about the house, The unequal division of the lands in the so called partition deed is a strong circumstance which indicates that E the transaction was not genuine. It should also be noticed that at the time of the partition deed there were widows of two sons in the family, Nenappa the second and Revagouda. At about this time, after Nenappa's death, the adopiion of Nenappa by Goudappa was denied. The scheme of the partition was, therefore, to deprive the two widows of any claim for maintenance out of the joint family properties but to limit their rights to about 50 F acres of land given to Apparaya. There is also evidence that after the partition deed, the two brothers coniinued to be in joint possession of the lands and they lived joint in the same house as before.\n\nIt appears t~t the two brothers had a joint mess even after the date of partition. It was contended by Mr. Sanghi that there was n_o evidence that. the two. bothers con_tinued to be in joint posses- G s1on of the lands. But 1t 1s not possible to accept this argument as correct. On a perusal of the evidence it is apparent that P.Ws. 1 to 4 all supported the case of the joint possession of the two brothers and their evidence has been believed by both the lower courts. There is another circumstance which strongly lends support of the plainiiff's case on this point. It was at one time H supposed that the doctrine of Mitakshara law was that if the last surviving coparcener died and the property passed to his heir such as a widow or a collateral, the power of the widow of a predeased 7Sup, CI/69~17\n\ncoparooner to adopt was ; f an end. (Chandra v. Gojarabai(') and Adivi Suryaprakasarao v, Nidamarty Gangaraju( 2 ). The cases on this point were considered in 1936 by the Full Bench of the Bombay High Court in Balu Sakharam Powar v. Lahoo Sambhaji Tetgura( 8 ). It was held in that case that where a coparcenary exists at the date of the adoption the adopted son becomes a member. of the coparcenary, and takes his share in the joint property, but where the partition takes place after the termination ol the coparcenary by the death, actually or fictionally, of the last surviving coparcener, the adoption by a widow of a deceased coparcener has not the effect of reviving the coparcenary and does not divest property from the heir of !he last surviving coparcener (other than the widow) or those claiming through him or her.\n\nBut the decision of the Full Bench of the Bombay High Court was expressly over-ruled by the Judicial Cominittee in Anant\n\nv. Shankar('). It was held that the power of a Hindu widow does not come to an end on the death of the sole surviving coparcener.\n\nNeither does it depend upon the vesting' or divesting of the estate, nor can the right to adopt be defeated by partition between the coparceners. The rights of the adopted son relate back to the date of the adoptive father's death and the adopted son must be deemed by a fiction of law to have. been in existe; nce as the son of the ' adoptive father at the time of the latter's death. If, therefore, there was a coparcenary in existence when the adoptive father died, then whether it came to an end by the death of the last surviving coparcener or by subsequeni partition among the remaining members, an adoption validly made by the widow of the deceased coparcener would have the etfoct of divesting the estate in the hands of the heir to the last surviving coparcener in the first case and of putting an end to the partition in the second case and enabling the adopted son to claim a share in the family properties as if they were still . joint. The decision of the Judicial Committee in A7!llnt v. Shankar(') was unexpected and revolutionary in character.\n\nIt is likely that in view of the fiuid and uncertain state of the law on this point the two brothers Goudappa and Apparaya decided to execut~ a bogus deed of partition in order to avoid any legal consequence which may follow if either of the widows should take a son in adoption. We are accordingly of the view that there is proper evidence to support the concurrent finding of the lower courts and there is no reason to disturb that finding.\n\nIt was also contended on behalf of the appellants that even though the partition deed was bogus there was in law a severance of joint family status and the family could not continue to be joint\n\n(1) I.L.R. 14 Born. 463.\n\n(3) , A.I.R. 1937 Born. 279.\n\n(2) I.LR. 33 Mad. 228.\n\n(4) A.l.R.1943 P.C. 196.\n\nafter 20th April, 1944 which was the date of the partition deed. , In other words, the argument was that there was a declarati1;1n by • the coparceners of their intention to separate and that declaration was sufficient to put an end to the joint family status of the two brothers.\n\nIn our opinion, there is no substance in this argument.\n\nIt is now well established that an agreement between all the coparceners is not essential to the disruption of the joint family status, but a definiie and unambiguous indication of intention by one member to separate himself from the family . and to enjoy his share in severalty will amount in law to a division of status. It is immaterial in such a case whether the other members assent or pot.\n\nOnce the decision is unequivocally expressed, and clearly intimated to his co-sharers, the right of the coparcener to obtain and possess the share to which he admittedly is entitled, is unimpeachable. But in order to operate as a severence of joint status, it is necessary that the expression of intention by the member separating himself from the joint family must be definite and unequivocal. If, however, the expression of intention is a mere pretence or a sham, there is in the eye of law no separation of the joint family status. See for instance the decision of the Judicial Committee in Merla Ramanna v. Chelikani Jagannadha Rao & Ors.(').\n\nWe pass on to consider the next question arising in this appeal, viz. whether the High Court was right in holding that the 12 pieces of lands were joint family properties and were not the •self acquisition of Goudappa. The case of the appellants was that these lands were self-acquisition of Goudappa, but the respondents contended that they were joint family properties. The law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however, subject to the limitation that t!Je joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleu~. is shown, that the onus shifts on to the person who claims the property as self acquisition to affirmatively make out that the property was acquired without any aid from the family estate. Jn Appalaswami v. Suryanarayanamurti( 2 ), Sir John Beaumoot observed as follows :-\n\n''The Hindu. law upon this aspect' of the case is well settled. Proof of the existence of a joint' family does\n\nfl) A.J.R, 1941 P.C. 48.\n\n(2) l.L.R. (1948) Mad. 440. (P.C.)\n\nnot lead to the presumption that property held by any member of the family is joint, and the burden rests\n\nupon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.\n\nSee Babubhai Girdharlal v. Ujamlal Hargovandas(1 ), Venkataramayya v. Seshamma( 2 ) and Vythianatha v. Varadaraja( 1 ).\n\nIn the present case, both the lower courts have found that there was an adequate nucleus of joint family properties from which the acquisitions could have been made. It is admitted that when Nenappa I died, the joint family was possessed of 151 acres and 27 gunthas of land assessed at Rs. 143. It is further admitted by defendant No. 1 that out of the four ancestral lands, one land was Bagayat land. Witnesses on behalf of the plaintiff assessed the income between Rs. 5,000 to Rs. 6,000 before the first world war.\n\nIt is also conceded that the family had between 8 to 12 bullocks for the purposes of cultivaµon and most of the lands were cultivated personally by the family members. Between l911 and 1940 12 other pieces of lands measuring 137 acres and 39 gunthas assessed at Rs. 18/10/- were acquired in various names. The total price of the sale deeds is Rs. 4800 spread over a period of 30 years. In view of this evidence, we see no reason to differ from the finding of the lower courts that the income from the nucleus was more than sufficient for the purchase on the different dates. The respondents alleged that these properties belonged to the joint family, and unless it is shown by the appellants that Goudappa carried on any other business and that these properties were acquired out of that income, the appellants must fail.\n\nThe case of defendant No. 1 was that Gou.dappa made these acquisitions out of his business.\n\nD. W. 1 did not however state the nature of the business. In cross-examination he said that Goudappa was trading 1n cotton and this information he had got from Goudappa after his adoption. D.W. 1 was however unable to say with whom Goudappa had dealings in cotton. If Goudappa was doing cotton business it should not have been difficult for the defendants to have produced more direct evidence of persons with whom he had business dealings.\n\nThe High Court has rejected the evidence of D.W. 3, Imamsaheb as worthless. It is manifest that there is no proof that Goudappa had any separate income of his\n\n(l) l.L.R. [1937] Born. 708.\n\n(2) l.L.R. [1937] M, d. 1012.\n\n(3) I.L.R. [1938] Mad. 696.\n\nown out of which he could have acquired the 12 pieces of land.\n\nThe lower courts were, therefore, right in reaching the conclusion that the 12 pieces of lands belonged to joint family and that the plaintiff was entitled to a share thereof in the partiuon.\n\nIt was lastly contended on behalf of the appellants that in any case the High Court should i!llOt have allowed the cross-objection of the respondents with regard to survey plots Nos. 43 and 77.\n\nReference was made to paragraph 5 of the plaint in which there was no specific mention of the sale deed executed by Apparaya in favour of defendant No. 3 of survey plots Nos. 77 and 43. But paragraph 4 should be read along with paragraph 7 of the olaint in which the plaintiff challenged the alienations made in favour of the several parties to the suit and had claimed relief in respect of all the lands mentioned in the schedule to the plaini. Survey plots Nos. 77 and 43 are expressly mentioned in the schedule. It is, therefore, not possible to accept the contention of the appellants that the plaintiff had not challenged the sale deed Ex. 159 with respect to survey plots Nos. 77 and 43. The High Court has pointed out that defendant No. 3 was a minor at the time of sale, that Goudappa had acted as her guardian and thai defendant No. 3 had no property of her own. The High Court therefore rightly held that the sale must be held to be without consideration and not genuine and was, therefore, not binding on the plaintiff.\n\nFor these reasons we hold that the judgment of the Bombay High Court dated 12th December, 1962 is correct and this appeal must be dismissed with costs.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 51, "entities": [{"text": "MUDIGOWDA GOWDAPPA SANKH & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 30, "source": "metadata", "metadata": {"canonical_name": "MUDIGOWDA GOWDAPPA SANKH & ORS", "offset_not_found": false}}, {"text": "RAMCHANDRA RA VAGOWDA SANKH & ANR", "label": "RESPONDENT", "start_char": 33, "end_char": 66, "source": "metadata", "metadata": {"canonical_name": "RAMCHANDRA RAVAGOWDA SANKH & ANR", "offset_not_found": false}}, {"text": "January 9. 1969", "label": "DATE", "start_char": 69, "end_char": 84, "source": "ner", "metadata": {"in_sentence": "January 9."}}, {"text": "C. SHAH. V. RAMASWAMI", "label": "JUDGE", "start_char": 90, "end_char": 111, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER", "label": "JUDGE", "start_char": 116, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "G. L. Sanghi", "label": "LAWYER", "start_char": 4353, "end_char": 4365, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi and A. G. Ratnaparkhi, for the appellants."}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 4370, "end_char": 4387, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi and A. G. Ratnaparkhi, for the appellants."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 4410, "end_char": 4421, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and /. N. Shroff, for the respondents."}}, {"text": "N. Shroff", "label": "LAWYER", "start_char": 4429, "end_char": 4438, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and /. N. Shroff, for the respondents."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 4506, "end_char": 4515, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. This appeal is brought by special leave from\n\nthe judgment of the Bombay High Court dated 12th December, 1962 in First Appeal No."}}, {"text": "12th December, 1962", "label": "DATE", "start_char": 4610, "end_char": 4629, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. This appeal is brought by special leave from\n\nthe judgment of the Bombay High Court dated 12th December, 1962 in First Appeal No."}}, {"text": "Neneppa", "label": "PETITIONER", "start_char": 4863, "end_char": 4870, "source": "ner", "metadata": {"in_sentence": "The relationship of the parties will appear from the following pedigree :\n\nNeneppa\n\nI I I bib Gowdappa = 1.", "canonical_name": "Nenappa I"}}, {"text": "Sidgangawa", "label": "PETITIONER", "start_char": 4984, "end_char": 4994, "source": "ner", "metadata": {"in_sentence": "Sidgangawa I\n\n(Widows of Gowdappa) I time ol Apparaya)\n\nJangabai (widowed daughter of Gowdappa) Appellant No.", "canonical_name": "Sidgangavva"}}, {"text": "Jangabai", "label": "PETITIONER", "start_char": 5040, "end_char": 5048, "source": "ner", "metadata": {"in_sentence": "Sidgangawa I\n\n(Widows of Gowdappa) I time ol Apparaya)\n\nJangabai (widowed daughter of Gowdappa) Appellant No.", "canonical_name": "Jangabai"}}, {"text": "Neelagangawa=Mudlgowda", "label": "RESPONDENT", "start_char": 5262, "end_char": 5284, "source": "ner", "metadata": {"in_sentence": "2 Neelagangawa=Mudlgowda / (daughter of (alleged to Ncneppa II) have been Ramchandra (adopted Appellant adopted to Revgowda by No.", "canonical_name": "Neelagangawa=Mudlgowda"}}, {"text": "Oowdappa Sidgangawa", "label": "LAWYER", "start_char": 5397, "end_char": 5416, "source": "ner", "metadata": {"in_sentence": "by Oowdappa Sidgangawa III) in 1948; and ResJ>ondent No."}}, {"text": "Neelagangawa", "label": "RESPONDENT", "start_char": 5491, "end_char": 5503, "source": "ner", "metadata": {"in_sentence": "husband of Neelagangawa)\n\nAppellant No.", "canonical_name": "Neelagangawa=Mudlgowda"}}, {"text": "Goudappa", "label": "PETITIONER", "start_char": 5524, "end_char": 5532, "source": "ner", "metadata": {"in_sentence": "I.\n\nGoudappa had one daughter by name (}angabai, while Apparaya had three children (i) Nenappa II, (ii) Ravagowda and (iii) Subhadrabai.", "canonical_name": "Gou.dappa"}}, {"text": "angabai", "label": "PETITIONER", "start_char": 5560, "end_char": 5567, "source": "ner", "metadata": {"in_sentence": "I.\n\nGoudappa had one daughter by name (}angabai, while Apparaya had three children (i) Nenappa II, (ii) Ravagowda and (iii) Subhadrabai.", "canonical_name": "Jangabai"}}, {"text": "Apparaya", "label": "PETITIONER", "start_char": 5575, "end_char": 5583, "source": "ner", "metadata": {"in_sentence": "I.\n\nGoudappa had one daughter by name (}angabai, while Apparaya had three children (i) Nenappa II, (ii) Ravagowda and (iii) Subhadrabai.", "canonical_name": "Apparaya"}}, {"text": "Ravagowda", "label": "OTHER_PERSON", "start_char": 5624, "end_char": 5633, "source": "ner", "metadata": {"in_sentence": "I.\n\nGoudappa had one daughter by name (}angabai, while Apparaya had three children (i) Nenappa II, (ii) Ravagowda and (iii) Subhadrabai."}}, {"text": "Subhadrabai", "label": "RESPONDENT", "start_char": 5644, "end_char": 5655, "source": "ner", "metadata": {"in_sentence": "I.\n\nGoudappa had one daughter by name (}angabai, while Apparaya had three children (i) Nenappa II, (ii) Ravagowda and (iii) Subhadrabai.", "canonical_name": "Subhadrabai"}}, {"text": "Goudappa", "label": "PETITIONER", "start_char": 5701, "end_char": 5709, "source": "ner", "metadata": {"in_sentence": "In 1930 Nenappa II was given in adoption to Goudappa.", "canonical_name": "Gou.dappa"}}, {"text": "Kashibai", "label": "OTHER_PERSON", "start_char": 5728, "end_char": 5736, "source": "ner", "metadata": {"in_sentence": "He had two wives Kashibai and Sidgangawa."}}, {"text": "Sidgangawa", "label": "PETITIONER", "start_char": 5741, "end_char": 5751, "source": "ner", "metadata": {"in_sentence": "He had two wives Kashibai and Sidgangawa.", "canonical_name": "Sidgangavva"}}, {"text": "Revagowda", "label": "OTHER_PERSON", "start_char": 5754, "end_char": 5763, "source": "ner", "metadata": {"in_sentence": "Revagowda married another Sidgangavva.", "canonical_name": "Revagowda"}}, {"text": "Sidgangavva", "label": "PETITIONER", "start_char": 5780, "end_char": 5791, "source": "ner", "metadata": {"in_sentence": "Revagowda married another Sidgangavva.", "canonical_name": "Sidgangavva"}}, {"text": "Nenappa", "label": "PETITIONER", "start_char": 5939, "end_char": 5946, "source": "ner", "metadata": {"in_sentence": "At the time of the death of Nenappa I, six plots of lands belonged to the joint family.", "canonical_name": "Nenappa I"}}, {"text": "28th April, 1944", "label": "DATE", "start_char": 6671, "end_char": 6687, "source": "ner", "metadata": {"in_sentence": "After Nenappa TI\n\nwas murdered in 1944, both the brothers denied his adoption by Goudappa and purported to effect a partition on 28th April, 1944."}}, {"text": "25th September, 1944", "label": "DATE", "start_char": 6782, "end_char": 6802, "source": "ner", "metadata": {"in_sentence": "On 25th September, 1944 by Ex."}}, {"text": "Borgi Budruk", "label": "OTHER_PERSON", "start_char": 6851, "end_char": 6863, "source": "ner", "metadata": {"in_sentence": "61 and 62 of Borgi Budruk and Survey No.", "canonical_name": "Borgi Budruk"}}, {"text": "Borgj Khurd", "label": "OTHER_PERSON", "start_char": 6885, "end_char": 6896, "source": "ner", "metadata": {"in_sentence": "45 of Borgj Khurd to defendant No.", "canonical_name": "Borgi Budruk"}}, {"text": "Subhadrabai", "label": "RESPONDENT", "start_char": 6917, "end_char": 6928, "source": "ner", "metadata": {"in_sentence": "4, Subhadrabai.", "canonical_name": "Subhadrabai"}}, {"text": "1st October, 1946", "label": "DATE", "start_char": 6948, "end_char": 6965, "source": "ner", "metadata": {"in_sentence": "162, dated 1st October, 1946 Goudappa made a gift of plot survey Nos."}}, {"text": "Borgi Khurd", "label": "OTHER_PERSON", "start_char": 7020, "end_char": 7031, "source": "ner", "metadata": {"in_sentence": "62 and 63 of Borgi Khurd and Survey No.", "canonical_name": "Borgi Budruk"}}, {"text": "20th April, 1948", "label": "DATE", "start_char": 7126, "end_char": 7142, "source": "ner", "metadata": {"in_sentence": "On 20th April, 1948 by Ex."}}, {"text": "Apparaya", "label": "PETITIONER", "start_char": 7154, "end_char": 7162, "source": "ner", "metadata": {"in_sentence": "159 Apparaya sold survey Nos.", "canonical_name": "Apparaya"}}, {"text": "15th December. 1948", "label": "DATE", "start_char": 7582, "end_char": 7601, "source": "ner", "metadata": {"in_sentence": "On 15th December."}}, {"text": "Sidgang", "label": "PETITIONER", "start_char": 7644, "end_char": 7651, "source": "ner", "metadata": {"in_sentence": "96 to Sidgang, avva, wife of Apparaya for maintenance.", "canonical_name": "Sidgangavva"}}, {"text": "19th November, 1953", "label": "DATE", "start_char": 7851, "end_char": 7870, "source": "ner", "metadata": {"in_sentence": "3,000/. Finally on 19th November, 1953, Apparaya executed his last will which is Ex."}}, {"text": "Revagouda", "label": "OTHER_PERSON", "start_char": 8072, "end_char": 8081, "source": "ner", "metadata": {"in_sentence": "The plain\n\ntiff claimed to be the adopted son of Revagouda and brought the present suit on 10th June, 1954 challenging the partition deed as fraudulent.", "canonical_name": "Revagowda"}}, {"text": "10th June, 1954", "label": "DATE", "start_char": 8114, "end_char": 8129, "source": "ner", "metadata": {"in_sentence": "The plain\n\ntiff claimed to be the adopted son of Revagouda and brought the present suit on 10th June, 1954 challenging the partition deed as fraudulent."}}, {"text": "12t11 December, 1962", "label": "DATE", "start_char": 9339, "end_char": 9359, "source": "ner", "metadata": {"in_sentence": "By its judgment dated 12t11 December, 1962, the High tourt dismissed the ."}}, {"text": "Sanghi", "label": "OTHER_PERSON", "start_char": 10346, "end_char": 10352, "source": "ner", "metadata": {"in_sentence": "It was, however, contended by Mr. Sanghi that the finding of the lower courts is vitiated in law because there was no evidence in C support of that finding."}}, {"text": "s1", "label": "PROVISION", "start_char": 12082, "end_char": 12084, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay", "label": "GPE", "start_char": 12875, "end_char": 12881, "source": "ner", "metadata": {"in_sentence": "The cases on this point were considered in 1936 by the Full Bench of the Bombay High Court in Balu Sakharam Powar v. Lahoo Sambhaji Tetgura( 8 )."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 13556, "end_char": 13573, "source": "ner", "metadata": {"in_sentence": "But the decision of the Full Bench of the Bombay High Court was expressly over-ruled by the Judicial Cominittee in Anant\n\nv. Shankar(')."}}, {"text": "John Beaumoot", "label": "OTHER_PERSON", "start_char": 18297, "end_char": 18310, "source": "ner", "metadata": {"in_sentence": "Jn Appalaswami v. Suryanarayanamurti( 2 ), Sir John Beaumoot observed as follows :-\n\n''The Hindu."}}, {"text": "Nenappa I", "label": "PETITIONER", "start_char": 19374, "end_char": 19383, "source": "ner", "metadata": {"in_sentence": "It is admitted that when Nenappa I died, the joint family was possessed of 151 acres and 27 gunthas of land assessed at Rs.", "canonical_name": "Nenappa I"}}, {"text": "Gou.dappa", "label": "PETITIONER", "start_char": 20562, "end_char": 20571, "source": "ner", "metadata": {"in_sentence": "1 was that Gou.dappa made these acquisitions out of his business.", "canonical_name": "Gou.dappa"}}, {"text": "Imamsaheb", "label": "WITNESS", "start_char": 21112, "end_char": 21121, "source": "ner", "metadata": {"in_sentence": "The High Court has rejected the evidence of D.W. 3, Imamsaheb as worthless."}}]}
{"document_id": "1969_3_254_308_EN", "year": 1969, "text": "MAGANBHAl~HWARBHAIPATEL\n\nUNION Olf INDIA AND ANR.\n\nJanuary 9, 1969\n\n[M. HmAYATULLAH, C.J., '. J. c. SHAH,\n\nV. RAMASWAMI,\n\nG. K. MITTER AND A. N. GROVER, JJ.]\n\nConStitution of Jndia, Arts\" 1, 3, 73, 254, Entries 14, 15 List I, Schedule VII-Award settling disputed boundory-lf constitutional amend-\n\n1nent necess,)ry for , implementation of award-Implementation of treaties, and arbitral awards-Boundary dispute, settlement of and cession of territory difference between.\n\nThe Constitution of India, Art. 1 defines the \"territory of India\" as including the territories of the States; and the States and the territories thereof are as specified in the First Schedule. Article 3 enables Parliament by law to alter the boundaries of the existing States and it includes the power to increase the area of any State oc diminish the area of any State. The power to legislate in re•pect of treaties lies with the Parliament by virtue of entries 10 and 14 of List I of Seventh Schedule, namely,\n\n\"Foreign affairs; all matters which bring the Union into relation with any foreign country\" and \"entering into treaties and agreements with foreign .countries and implementing of treaties, agreements and conventions with foreign countries\". Article 253 provides that Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty. agreement or convention with any other oountry or countries or any decision made at any international conference, association or other body. Article 73 lays down that the executive power of the Union shall extend to \"the matters with respect to which Parliament has powet to make laws'' and to \"the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agree~nt\".\n\nWith the enactment of the Indian Independence Act, 1947, and the lapoe of Paramountcy Of the Crown the State of Kutch merged with the Dominion of India.\n\nThe te1ritory was constituted into a Chief Comrrll'ssioner's Province and up- er the Constitution, the territory became a Part C Slate. Its extent was .determined by Part C to Sch. 1 of the Constitution as \"territorie$ >vhich by virtue of an order made under s. 290A of the Government of Intlia A~. 1935, were immediately before the commencement of. the Constituti0n being administered as if they were a Chief Commissioner's Provil{ce of_ the same name\".\n\nKutch was incorporated in the State of Bombay by the Stales Reorganisation Act, 1956 and was included in the new Sta ot Gujarat by the Bombay Reorganisation Act, 1960.\n\nThe Great Rann of KUtch lies between the malnland of Sind (now part of Pakistan) and the mainland of Kutch. For four months in the year it is mostly under water, for the rest of the year it is marshy land.\n\nFrom the very nature of the terrain the boundaries of the Rann are shift\n\ning, its extent depending on the violence of natural element.$ in different years.\n\nThe northern boundary of the Ra.nil, therefore, always remained ill defined. From 1948 onwards diplomatic notes were exchanged between the Governments of India and Pakistan concerning the boundary between the two countries in the Gujarat-West Pakistan Sector. The dispute led to great tension between the two r.ountries resulting in armed conflict in\n\nMAGANBHAI V. UNION 255\n\n1965. In June 1965 the Governments of India and Pakistan concluded an agreement for setting up a Tribunal \"for determination and demarcation of the border\" in the area of Gujarat-West Pakistan. Both Governments undertook to implement the findings of the Tribunal. The award to be made by the Tribunal was, it was agreed, to operate as a self executing arrangement; it was not only to declare the boundary but also to provide for fixing its location on site. By award dated Febrnary 19, 1968, the Tribrinal accepted the claim of Pakistan to three sectors and two inlets in the Rann of Kutch.\n\nThe petitioners, who claimed infringement of the fundamental rights guaranteed under Art. 19(1)(d)(e) and (f) of the Constitution, moved this Court under Art. 32 to restrain the Government of India from ceding to Pakistan the territories in the Rann of Kutch awarded by the Tribunal.\n\nNone of the petitioners claimed that the award had to be rejected. They contended that the territories were part of India and had always been so from the establishment of the two Dominions, that India had exercised effective administrative confrol over them and that giving up a claim to those territories involved cession of Indian territory which could only be affected by an amendment of the First Schedule to the Constitution. The Union of India, on the other hand, contended that no cession of territory was involved since the dispute concerned the settlement of boundary which was uncertain, that the award itself was the operative treaty and after demarcation of boundary ii was only necessary to exchange letters recognising the established border.\n\nHELD : The Award does not purport to nor does it operate as giving rise to an obligation to cede Indian territory and therefore no constitutional amendment is necessary.\n\nThe decision to implement the Award by exchange of letters, treatin~ the award as an operative treaty after the boundary has been marked, IS within the competence of the executive\n\nwing of the Government. [288 H-289 BJ\n\n(Per Hidayatullah, C.J., Hamaswami, Mitter and Urover, JJ.) : (i) The Award has been accepted by the Government of India and therefore it is binding.\n\nAn examination of International Arbitration Awards only reveals that generally an Award is not accepted when the terms of submission are departed from or ther~ are fatal Oll)issions, contradictions obscurities or the arbitrators substantially exceeded their jurisdiction. Nooe of these factors obtains here and the petitioners have rightly refrained\n\nfrom challenging the binding nature of the Award. [269 Fl\n\n(ii) When a treaty or an Award at:ter arbitration comes into existence it has to be implemented and this can only be if all the three branches of Government; to wit, the legislatuie the executive and the judiciary, or any of them, possesses the po)Ver to implement it. The practice of nations\n\nis different in the matter of implementation of treaties and arbitratioo awards in boundary disputes in particular. The question is one of d1>- mestic as well as International Law. In the United States of America a freaty is the Supreme Law and it is only when the terms of a treaty require that a law must be passed that it has tQ be so passed. Under the French Constitution treaties that require ratification by law include treaties of cession, exchange or addition of territory. In England, as no written constitution exists, difference is made between treaties of peace when the Crown acts without obtaining the approval of Parliament and session in peace time when such approval rDU$t be had. But even so a distinction is made in the case of British possessions abroad and the United Kingdom.\n\nAgain a difference is made in cases. involving minor changes where boun\n\ndaries have to be ascertained and adjusted. [275 G]\n\nFoster v. Neilson 2 Peters 253; Dickinson, Law of Nations; Blackstone's Commentaries, Forsyth Hansard vol. CLXIX p: 230, 231; The Parlement Beige, [1879J 4 P.D. 129; Walker v. Baird [1892J A.C. 491 and Attorney-General for Canada v. Attorney-Generc, I for Ontario, [1937J A.C. 326 at 347, referred to.\n\nIn British India Parliamentary sanction was not necessary for cession of territory. The Constitution of India does not contain any clear directioa about treaties such as is to be found in the United States and French Comtjtutions. Therefore in our country we can only go by inferences from our Constitution, the circumstances and precedents. The legislative entries which enable Parliament to enact laws in respect of treaties are lo be read with Art. 253.\n\nThe Article adds nothing to the legislative entries but confers exclusive power of law making upon Parliament.\n\n[276 B, C; 277 A-BJ The precedents of this Court are clea:r only on one point, namely. that no cession of Indian territory can take plaCi> without a constitutional amendment. The first Berubari case dealt with transfer of territory which was de facto and de jure Indian territory and therefore as the extmt Indian territories as defined in Art. 1 read with the 1st Schedule waa reduced a constitutional amendment was held necessary. The second Berubari case concerned territory which was de facto under administration by India but being de ; ure that of Pakistan, transfer of that territory which was not a part of Indian territolry was held not to require a constitutional amendment. Neither case dealt with a boundary dispute. [282 G-\n\n283 CJ\n\nIn ,. : The Berubari Union and Exchange of Enclaves (The First Berubari case), [1960J 3 S.C.R. 250 and Ram Kishore Sen v. Union of India (The second Berubari case), [1966J 1 S.C.R. 430, explained.\n\nThe question on which side a disputed border falls is one of authdrity.\n\nWho in the State can be said to possess Plenum dominium depends upon the Constitution and the nature of adjustment. As to the necessity of it courta must assume it as a matter of law. It is scarcely to be thought that the 'fBlidity of the action can ever depend upon the judgment of a court.\n\nA boundary dispute and its settlement by an arbitral tribunal cannot be put on the same footing as cession of territciry. An agreement to refer the dispute regarding boundary involves the ascertainment and representation on the surface of the earth a boundary line dividing the neighbouring countries and the very fact of referring such a dispute implies that the executive may do such acts as are necessary for permanently fixing the boundary.\n\nOrdinarily, an adjusttnent of a boundary, which International Law regards as valid between two nations. should be recognised by the courts and the implementation thereof can always be with the executive unless a clear case of cession is involved when parliamentary intercession cu be •xpected and should be had. This has been the custom of nations whose constitutions are nr.t sufficiently elaborate on this subject. r283 D-\n\n284 BJ (iii)The petitioners have not established that the territories ceded to Pakistan was a part of Kutch. The phrase \"as if they were a Chief Com.missioner's Province of the same name\" in Part C, to first Schedule of the Constitution must be understood as was laid d1>wn by this Court\n\nin the second Berubari case where the word \"as iP' was held to refer to \"territories which originally did not belong to West Bengal but which became a part of West Bengal by reason of merger agreements.\" The history of Kutch does not establish that the territories were part of Kutch.\n\nThe White Paper on Indian States only gives the area of Kutch not the bot\"lC!aries. The Kutch merger agreement gives no clue to the boundaries\n\nMAGANBHA! v. UNION 257\n\nand also leaves the matter at large. Also, in the States Merger (Cief Commissioner's) Province Order, 1949, in the States Reorganisation Act, 19S6 and in the Bombay Reorganisation Act, 1960 the boundaries of Kutch are not mentioned.\n\nTherefore, none of these documets is of any help in determining boundaries or that the disputed area was definitely a part of India. The assertion of the Prime Minister of lndia in 1956 and later in 1965 that the area belonged to India was only a statement and cannot be held to be of an evidentiary character. The claim map and other evidence produced by India before the Tribunal show that there bas 11.ever been clear demarcation of boundary in this area. [281 H, 286 AB]\n\n(iv) There is no evidence of administration of the disputed area by India.\n\nThe existence of Watch and War<j Officers or the establishment ot a polling booth for them at election time cannot connote administration such as would make them territory of India. The diplomatic notes berp.n soon after the establishment of the two dominions and the occupation may have meant de facto control but there was no proof of dt iurt occupation or any other administration.\n\nSovereignty over an area is a matter of inference and unless real existence of sovereignty over this area is proved India cannot be in de, jure occupation.\n\n(Per Shah J.) : (i) The Constitution of India makes no provision making legislation a condition of the entry ioto an international treaty in times of war or peace. The executive is qua the State competent to re present the State in all matters international and may incur obligations which in International Law are binding upon the State. There is a distinction between the formation and the performance of the obligations con stituted by a treaty. Under the Constitution the obligations arising under the agreement or treaties are not by their own force binding upon Indian nationals or others. The power to legislate in respect of treaties lies with\n\nthe Parliament and making of law under that authority is necessary when the treaty or agreement operates to restrict the rights of citizens or others or modifies the laws of the State. If the rights of the citizens and others which are justiciable are not affected, no legislative measure is needed to give effect to the agreement or treaty. [299 D-F]\n\nThe Pc,/ement Beige, [1879] 4 P.O. 129, Walker v. Baird, [1892] A.C. 491 and Attorney-General for Canada v. Attorney .. General for Ontario, [1937] A.C. 326, referred to.\n\nThe argument that power to make or implement a treaty agreement or .:onvention can only be exercised under authority of law proceeds\n\nupon a misreading of Art. 253. The effect of Art. 253 is that if a treaty agreement or convention with a foreign State deals with a subject matter within the competence of the State Legislature, the Parliament alone has, notwithstanding Art. 246(3) the power to make laws to implement the treaty agreement or convention.\n\nIn terms the Article deals with legislative rower; thereby power is conferred upon the Parliament which it may nl•! otherwise possess.\n\nBut it does not seek to circumscribe the extent c•f the executive power conferred by Art. 73; the exercise of this power must be supported by. legislation only if in consequence of the\n\nexercise of the po\"\"er, rights of citizens dr others are restricted or infringed or laws are modified. [299 G-300 CJ\n\n(ii) In implementing the Award there is no cession of the territory of India to Pakistan. A review of the terms of the agreement, the unanimous introductory part of the Award and the tel'lllll of the agreement\n\nrelating to the implementation of the Award and the final Award, mate it abundantly clear that the dispute relates to the boundary between the twG\n\nStates, settlement of dispute which relates to the alignment of an undelln- Cld boundary between two States involves no cession of territory by either State. 1n the First Berubari case this Court advised that the Indo- Pakistan agreement could be implemented under the authority of a constitutional amendment only, because, there was no question of demarcation of a disputed. boundary; it was a case of pure cession of territory.\n\nTherefore the principle of the first Berubari case bas no application to the facts of the present case. The second Berubari case related to transfer of territory which though temporarily under Indian administration had never\n\nbecome Indian territory. The principle of this case is against the contention raised by the petitioners. [301 C-302 FJ\n\nIn re : The 'nerubari Union and Exchange of Enclaves (the first Beru- hari case), [1960] 3 S.C.R. 250 and Ram Kishore Sen v. Union of India, ·(the second Berubari case), [1966] 1 S.C.R. 430 explained.\n\nThere is no definite .and reliable piece of evidence which establishes that the disputed sectors were part of the State of Kutch and, therefore, part of the territory of lildia.\n\nConflicting claims were made from time to time by the British authorities and the Maharao of Kutch; and about the exercise of sovereign rights over the areas now in dispute the evidence in scrappy and discrepant. Different positions were adopted by the officers of the Government of India according as the exigencies of a particular situation. demanded. These statements or assertions do not evidence an existing state of affairs; they were only made to support or resist claims then made, or to serve some immediate purpose. [305 F-HJ\n\nRegarding the two inlets the ultimate decision of the Tribunal is founded on considerations of expediency and not on strict determination <Jf rights.\n\nBut the ground on which the Award is made against the claim Jllade by the Government of India does not strengthen the rights of the claimants for relief.\n\nThere being no evidence of exercise of sovereign, authority over the inlets by the Maharao of Kutch this Court cannot treat them as part of Indian territory. Exercise of de facto authority over the territory in the sectors after the disputes toQ)< concrete form is evidence of an assertion merely and not evidence of pre-existing sovereign rights.\n\nThe merger of the State of Kutch with the D.ominion of India does not Tesult in vesting of overeign authority over the terTitory unless the suze~ rainty of the State of Kutch is established. The Award does no more than define on the surface of the earth a boundary which bas at all material times remained indefinite because of the nature of the terrain, t, he shiftiµ.g natul\"e of the border of. what was called Rann, the highly discrepant and conllicting claims made from time . to time by the British authorities as well as the Kutch State authorities before the State merged with the Dominion of 'India in 1948 and the persistent refusal of the British anthorities. though there were several occasions, to demarcate the bound3.ry between Sind and the Rann of Kutch. [307 G; 208 D-EJ\n\nCIVIL APPELLATE JURISDICTION/ORIGINAL\n\nJURISDICTION : Civil Appeal No. 1528 of 1968.\n\nAppeal by special leave (rom the order of March 18, 1968 of the Gujarat High Court in Special Civil Application No. 365 of 1968 and Civil Appeals Nos. 1900 and 2118 of 1968.\n\nAppeals from the judgment and order dated May 14, 1968 of the Delhi High Court in Civil Writ Petitions N0s. 343 and 294\n\nMAGANBHA! v. UNION (Hidayatullah, C.J.) 259\n\nA of 1968 and Petitions under Art. 32.of the Constitution of India\n\nfor the enforcement of the fundamqntal rights. ·\n\n1. N. Shrofj, for the appellant (in C.A. No. 1528 of 1968).\n\nA. S. Bobde, G. L. Sanghi, V. K. Sanghi and S. S. Khanduja, for the appellant (in C.A. No. 1900 of 1968) .\n\nC. B. Agarwala, Virendra Kumar, S. S. Pareikh, Uma Mehta and S. S. Khanduja, for the appellant (in C.A. No. 2118 of 1968).\n\nThe petitioner appeared in person (in w.P. No. 109 of 196$).\n\nThe petitloner appeared in. person (in W.P. No. 234 of 1968).\n\nThe petitioner appeared in person (in W.P. No. 402 of 1968).\n\nC. B. Agarwala, B. N. Atimi and R. K. Bhatt, for the petitioner (in W.P. No. 403 of 1968).\n\nA. S. Bobde and S. S. Khanduja, for the petitioner (in W.P.\n\nD No. 409 of 1968).\n\nC. K. Daphtary, B. Sen, R. H. Dhebar and S. P. Nayar, for the Unioh of Indi11 (in C.A. Nos. 1528, 1900 and 2118 of 1968 and W.P. Nos. 234, 402 and 403 of 1968).\n\nG. R. Rajagopal, R. H. Dhebar and S. P. Nayar, for the Union E of India (in W.P. No. 109 of 1968).\n\nC. K. Daphtary, B. Sen, A. Sreedharan Nambiar, R.H. Dhebar and S. P. Nayar, for the Union of India (in W.P. No. 409 of 1968). '\n\nR. H. Dhebar and S. P. Nayar, for the State of Gujarat.\n\nF The Judgment of HIDAYATULLAH, C.J., RAMASWAMI, MITTER and GROVER, JJ. was delivered by HIDAYATULLAH, C.J. SHAFI, J. delivered a separate Opinion.\n\nHidayatullah, C.J. These are five writ petitions under Art. 32 of the Constitution and three appeals against the decisions of the High Courts of Gujarat and Delhi. The writ petitions have been G filed by Mr. Manikant Tiwari (W.P. No. 109/68), Mr. Shiv Kumar Sharma (W.P. No. 234/68), Mr. Madhu Limaye (W.P.\n\nNo. 402/68), Mr.\n\nGulabshankar Amritlal Dholakia\n\n(W.P.\n\nNo. 403/68) and Mr. Node Sadi Rau (W.P. No. 409/68). the\n\nappeals from the Delhi High Court's common judgment, 14 May, 1968 on certificate are by Mr. Shiv Kumar Sharma (C.A. No.\n\nH 2118/68) and Major Ranjit Singh (C.A. 1900/68) and the appeal from the decision of the Gujarat High Court is in a writ petition filed by Mr. Maganbhai Ishwarbhai Patel (C.A. No. 1528/68). The Gujarat High Court, 18 March, 1968, dismissed\n\nthe petition summarily and the appeal is by special leave of this A Court. This judgment will dispose cif all of them.\n\nThe several petitioners seek a writ of mandamus or any other appropriate writ or order or direction under Article 32 of the Constitution to restrain the Government of India from ceding without the approval of Parliament the areas in the Rann of Kutch known as Kanjarkot, Chhadbet, Dharabanni, Priol V alo Kun and two inlets on either side of Tharparkar to Pakistan as awarded to it in the award, 19 February, 1968, of the Indo-Pakistan Western Bombay case Tribunal. Mr. I. N. Shroff (C.A. No. 1528/68), Mr. A. S. Bob<le (C.A. No. 1900/68) and Mr. C. R Agarwal (W.P. No. 403/68) represented three such petitioners. Mr. Shiv Kumar Sharma, Mr. Madhu Limaye and Mr. Manikant Tiwari argued their own matters. The Union of India was represented by Mr. C. K. Daphtary, former Attorney General of India, who had also conducted the case for India before the Tribunal.\n\nThe Indian Independence Act of July 18, 1947, .(an Act of the British Parliament) created from August 15, 1947 two dominions known as India and Pakistan. By the same statute the paramountcy of the British CroW1D over the States of Kutch, Santalpur, Tharad, Suigam, Wav and J odhpur lapsed and they soon acceded to and merged with India. The former British Indian Province of Sind was included in Pakistan while the Presidency of Bombay was pan of India. Between these two lies the Great Rann of Kutch, Sind shutting on the North and West and the Indian mainland on the Souih and East.\n\nThe Rann is a vast expanse of water and desert. For part of the year even the desert is covered by water. At other times it is either soft mud or land with grass.\n\nNo one ordinarily lives in that area which the onagers roam at large.\n\nIt appears that from July 1948 Diplomatic Notes were ex- F changed between the two Governments with regard to the boundary between the areas known as Gujarat and West Pakistan. The difference led to open hostilities in April 1965. On June 30, 1965 the two Governments reached an agreement which read :\n\n\"Constitution of the Tribunal, Proceedings.\n\nOn 30 June, 1965, the Government of India and the Government of Pakistan concluded an Agreement, reading as follows : Whereas both the Governments ol India and Pakistan have agreed to a cease-fire and to restoration of the status quo as at 1 January, 1965, in the area of the Gujarat-West Pakistan border, in the confidence that this will also contribute to a reduction of the present tension along the entire ludo-Pakistan border;\n\nH -\n\nMAGANBHAI v. UNION (Hidayatul/ah, C.J.) 261\n\nWhereas it is necessary that after the status quo has been established in the af9resaid Gujarat-West Pakistan border area, arrangements should be made for detennination and demarcation of the border in that area;\n\nB NOW, THEREFORE, the two Governments agree\n\nthat the following. action shall be taken in regard to the said area :\n\nArticle 1 :\n\nThere shall be an immediate cease-fire with effect from 0030 hours GMT on 1 July 1965.\n\nArticle 2 :\n\nOn the cease fire .:\n\n(i) All troops on both sides will immediately begin to withdraw;\n\n(ii) This process will be completed within seven . day$;\n\n(iii) Indian police may then reoccupy the post at Chhad Bet in strength no greater than that employed at the post on 31 December 1964;\n\n(iv) Indian a.nd Pakistan police may patrol on the tracks on which they were patrolling prior to 1 January 1965, provided that their patrolling will not exceed in intensity that which they were doing prior to 1 January 1965 and during the monsoon period will not exceed in intensity that done during the monsoon period of 1964;\n\n(v) If patrols of Indian and Pakistan police should come into contact they will not interfere with\n\neach other, and in particular will act in accordance with West . Pakistan-India border ground-rules agreed to-in January 1960;\n\n(vi) Officials of the two Governments will meet immediately after the cease-fire and from time to time threafter as may prove desirable in order H to consider whether any problems arise in the\n\nplementation of the provisions of paragraphs ( 111) to ( v) above and to agree on the settlement of any such problems.\n\nArticle 3 :\n\n( i) In view of the fact that :\n\n(a) India claims that there is no territorial dispute as there is a well established boundary running roughly along the northern edge of the Rann of Kutch as shown in the pre-partition maps, which . a\n\n(b)\n\n(c)\n\nneeds to be demarcated on the ground.\n\nPakistan claims that the border between India and Pakisian in the Rann of Kutch runs roughly along the 24th parallel as is clear from several pre-partition and post-partition documents and therefore the dispute involves some 3,500 square miles of territory.\n\nAt discussions in January 1960, it was agreed by Ministers of the iwo Governments that they would each collect further data regardiilg the Kutch-Sind boundary and that further, discus- . sions would be held later with a view to arriving at a settlement of this dispute; as soon as officials have finished the task referred to in article 2 (vi), which in any case will not be later than one month after the cease-fire, Ministers of the two Governments will meet in order to agree on the determination of the border in the light of their respective claims, and the arrangements for its demarcation.\n\nAt this meeting and at any proceedings before the Tribunal referred to in article 3(ii) and (iv) below, each Government will be free to preseni and develop their case in full.\n\n(ii) In the event of no agreement between th£ Ministers of the two Governments on the determination of the border being reached within two months of the cease-fire, the two Governments shall, as contemplated in the Joint Communique of 24 October, 1959, have recoui:se to the Tribunal referred to in (iii) below for determination of the border in the light of their respective claims and evidence produced before it and the decision of the Tribunal shall be final and binding on both the parties.\n\n(iii) For this purpose there shall be constituted, within four months of the cease-fire a Tribunal consisting of three persons, none of whom would be a national of either India or Pakistan. One\n\nMAGANBHAI V. UNION (Hidayatu//ah, C.J.) 263\n\nmember shall be nominated by each Government and the third member, who will be the Chairman, shall be jointly selected by the two Governments. In the event of the two Governments failing to agree on the selection of the Chairman within three months of the ceasefire, they shall request the Secretary-General of the United Nations to nominate the Chairman.\n\n(iv) The decision of the Tribunal referred to in\n\n(iii) above shall be binding on both Governments, and shall not be questioned on any ground whatsoever.\n\nBoth Governments undertake to implement the findings of the Tribunal in full as quickly as possible and shall refer to the Tribunal for decision any difficulties which may arise between them in the implementation of these findings.\n\nFor that purpose the Tribunal shall remain in being until its findings have been implemented in full.\n\nThe cease-fire came into effect as provided in Article l of the Agreement.\"\n\nAs a result of this agreement the Government of India nominated Ambassador Ales Bebler, Judge of the Constitutional Court of Yugoslavia, the Government of Pakistan nominated Ambassador Nasrollah Entezam of Iran and former President of the General Assembly of the United Nations. The two Governments having failed to agree on the selection of the Chairman of the Tribunal, the Secretary-General of the United Nations, under the power reserved by sub-paragraph\n\n(iii) of Article 3 of the Agreement, nominated Judge Gunnar Lagergren, now President of the Court of Appeal for Western Sweden. In the courSe of the hearing a compromis on the procedure for the demarcation of the boundary was settled.\n\nMemorials, Counter-Memorials and Final Memorials were submitted along with numerous Maps and documents.\n\nThe oral hearings began on September 15, 1966 and continued with some breaks till July 14, 1967. During the hearing about 10,000 pages of minutes and Verbatim Records were made and about 350 maps were exhibited.\n\nAt an early stage in the hearing Pakistan raised the question that the dispute be decided ex aequo et bono which request was opposed by India.\n\nThe Tribunal did not find that the Agreement of June 30, 1965 .authorised it 'clearly and beyond doubt to adjudicate ex aequo et bono'. T'ue parties did not confer this power by a Special Compromis even thereafter.\n\nThe case on the part of India was propounded with the aid of map A which was a mosaic of Indian Maps B-44, B-37, B-19\n\nand B-20. Pakistan claimed the boundary as marked on Map B.\n\nThe award has delineated the boundary in Map C.\n\nMaps A and B and C form part of the Award. In describing the matter in dispute the Tribunal 'lbserved : India claimed thac :\n\n\"the Tribunal determine the alignment of the entire boundary between West Pakistan and Gujarat from the point at which the blue dotted line meets the purple line in Indian Map B-44 in the west to the North-Eastern Trijunction in the east as it appears in the Indian Maps B-44, B-37, B-19 cmd B-20 where the correct alignment is shown by appropriate boundary symbols.\"\n\nThe Government of Pakistan claimed that :\n\n\"The Tribunal determine that the border between India and Pakistan is that which is marked with green-yellow, thick broken line in the Pakistan Claim\n\nMap\".\n\nIt is common ground that the Gujarat-West \"Pakistan boundary stretches from the mouth of the Sir Creek in the west to a point on the Jodhpur boundary in the east. The Parties agree that the Western Terminus of the boundary to be determined by the Tribunal E is the point at which the blue dotted line meets the purple line as depicted in Indian Map B-44 and the Pakistan Resolution Map, an<i that the Eastern Terminus of the same boundary is a point situated 825 .8 metres below pillar 920 on the Jodhpur boundary as depicted in Pa.leis tan Map-137.\" F\n\n\"This agreement leaves out of the matters submitted to the Tribunal the portion of the boundary along the blue dotted line, as depicted in Indian Map B-44 and the Pakistan Resolution Map, as well as the boundary in the Sir Creek.\n\nThe blue dotted line is agreed by both Parties to form the boundary between India and G Pakistan.\n\nIn view of the aforesaid agreement, the question concerning the Sir Creek part of the boundary is left out of consideration.\"\n\nThe dispute thus rem<.ined with regard to the boundary outside these agreements.\n\nThe Tribunal described this dispute in the following words : H \"From the Western Terminus, the boundary claimed by India takes off to the north and that claimed by\n\nMAGANBHAI v. UNION (Hidayatullah, C.J.) 265\n\nPakistan to the south; and from the Eastern Terminus, the boundary claimed by India t11kes off to the south-west while the boundary claimed by Pakistan turns south-east.\n\nBoth parties agree that before Independence the boundaries between the Province of Sind, on the one hand, and one or more of the Indian States on the other hand, were conterminous.\n\nTherefore, in the disputed region, apart from India and Pakistan, there is no other State that does or could have sovereignty.\n\nThere is between India and Pakistan a conterminous boundary today, whether or not there was at all times a conterminous boundary between Sind and the Indian States.\n\nPakistan contends that, should the Tribunal find that the Province of Sind and the Indian States were not fully conterminous, then the area between Sind and these States would be an \"undefined area\", falling outside the scope of the Indian Independence Act, 194 7.\n\nIn such: an event, the conterminous boundary between India and Pakistan would have to be determined by the Tribunal on the basis of rules and principles applicable in such circumstances.\n\nPakistan adds that the evidence produced by it in this case is in support of its principal submission, although so.me of it could also be used in support of its alternative submisdon.\n\nBoth parties agree that the Rann was not a \"tribal area\" as defined in Section 311 of the Government of India Act, 1935.\n\nEach party states that the boundary claimed by it is the traditional, well-established and well-recognised boundary.\"\n\nPakistan thus claimed in addition to the establishment of a median line roughly along the 24th parallel, what it called 'the upper lands in dispute' and the northwestern part of it which it called 'the jutting triangle'. These included Dhara Banni, Chhadbet, Piro! Valo Kun, Kanjarkot, Vighokot and Sarifbela and these were said to be not part of the Rann. India on the other hand staled that the Rann means the Rann lying to the east of the veriical line and to the south of the horizontal line\n\ns depicted in Map A. Pakistan maintained that ibe Rann lay :o the east of what was once known as the Khori river and that the lands were part of Sind and referred to the sam~ as 'the delta lands'.\n\nL7Sup. CJ/69-18\n\n266 sui>R.BM!l COURT REPORTS [1969] 3 s.c.R..\n\nThe abOve in urief is the outline of the dispute as presented to the Tribunal. Although the Award of the Tribunal is before us ii was necessary to make !his brief mention because we are required to reach a decision whether this was a clear case of cession of territory following the award, which it is claimed makes it incumbent for the executive authority in India to obtain the approval of Parliament by suitable amendment of our Constitution, before effectuating the Award.\n\nThe Tribunal was not unanimous in its decision.\n\nJudge Ales Bebler accepted almost in its entirety the claim of India.\n\nAmbassador Nosrollah Entezam upheld the Pakistani claim.\n\nThe Chairman then delivered his opinion. On the propounding of his opinion Ambassador Entezam gave his opinion as follows : Opinion of Mr. Entezam :\n\n\"In an early stage I considered that Pakistan had m\\lde out a clear title to the northern half of the area shown in the Survey Maps as the Rann. I have now had the advantage of reading the opinion of the learned Chairman, and in the light of it I concur in and endorse the judgment of the larned Chairman.\" The Tribunal thereupon ruled thus :\n\n\"The alignment of the boundary described in the opinion of the Chairman and endorsed by Mr. Entezam has obtained the required majority. It is therefore the boundary determined by the Tribunal.\n\nThe Chairman prefaced his conclusions by observing :\n\n\"For the reasons now given, and with due regard to what is fair and reasonable as to details I conclude on the great issue before me that the boundary between India and Pakistan lies as follows.\n\nReference is made here to the Award Map (Map C). Because of the imprecise topographical features in the region and the impossibility of exactly delimiting many acts of State authority, the boundary must sometimes be represenied by approximate straight lines.\" The Chairman then indicated the exact location of the boun- <lary determined by him which was also delineated by him on the Map C.\n\nThe new boundary begins at the northern tip of the Khori Creek and after going straight up north reaches the mainland of Sind and then follows roughly the configuration of the land till it comes south of Rahim ki Bazar. It thus follows Erskine's Survey. Thereafter hstead of following the mainland it dips fo the South East just South of Sadariajagot and then\n\n]<'\n\nMAGANBJ!AI V. UNION (Hidayatullah, C.J.) 267\n\ngoes up North West to join the mainland and to follow the boundary symbols.\n\nIn the tria.ngle so formed is situated the Kanjarkot area which is the first limb of the disputed territor)' brought to the fore before us.\n\nAfter following the line of. the mainland and the existing boundary symbols, the new boundary again dips to the South Ea; t to a point a little norti1 of the 24th parallel and runs parallel to it thus embracing .iJ!iarabaU: Jnd Chhadbet to Pakistan. Thereafter it goes north to join the main land of Sind again and follows the boundary symbols which it follows till it reaches the Nagar Parkar area. This is a kind of a peninsula jutting to the South.\n\nOn the West and East sides of Nagar Parkar there are two narrow but deep inlets.\n\nThe new boundary instead of running along the banks of the inlets jumps across the two inlets at their southern extremities, thus including them in Pakistan. The inlets, therefore, are the fourth and fifth limbs of the disputed territory of India which the petitioners claim has been lost to India by the Award. The new boundary thence proceeds along the mainland till it reaches the demarcated boundary at the Jodhpur and from where the boundary is not in dispute just as the boundary from Sir Creek to Khori Creek has not been in dispute.\n\nIn drawing up the border the Tribunal based itself on much historical matter and old maps.\n\nIn the opinions of Judge Ales Behler and the Chairman (Ambassador Entezam concurring with the Chairman) this historical material has been differently interpreted but we are not concerned with it.\n\nThe reference was also not decided as a cartographic dispute.\n\nIt was settled by an ad hoc award. No special reasons were given by the Chairman why he included 350 . sq. miles in Pakistan when he dipped the boundary to the South into the Rann of Kutch except when he came to consider the question of the rwo inlets on the fwo sites of Nagar Parkar. In this connection he observed :\n\n\"The rwo deep inlets on either side of Nagar Parkar will constitute the territory of Pakistan.\n\nAlready in 1855, the Deputy Commissioner of Thar Parkar pointed out that if these inlets were to be considered Kutch territory.\n\n(a) glance at the map will show that Parkar would be peninsula almost entirely surrounded by Kutch territory.\n\nThe Kutch State could erect fortifications and establish Custom houses at places situated many miles within the district for instance close to Verrawah, or on some of the roads which, crossing inlets of the Rann, lead from one part of this district to another.\n\n(Pak. Doc. B. 9).\n\n2611 SUPllEME COURT REPORTS\n\n\nIn my opinion it would be inequitable to recognise these inlets as foreign territory. It would be conducive to friction and conflict. The paramount consideration of promoting peace and stability in this region compels the recognition and confirmation that this territory, also be regarded as such. The points where the boundary will thus cut off the two inlets are these : At the western inlet, the boundary will leave the boundary symbols indicated on Indian Map B-34 at the point marked thereon as \"26\", more precisely where the cart track is indicated as departing from the edge of the Rann in a southeasterly direction. This point is indicated as Point \"L\" on Map C. on the other side of the inlet, the point will be that where ihe camel track is indicated on Indian Map B-34 to reach the edge of the Rann; that point is indicated as point \"M\" on Map C. Between Poinis \"L\" and \"M\", the boundary shall be a straight line.\n\nThe boundary will cross the eastern inlet at its narrowest point in a straight line between Points \"N'' and ''O\" marked on Map C.\" In straightening ihe line to avoid a jagged boundary the Chairman gave the following reason :\n\n\"The boundary marked by symbols along the outer edges of the peninsula of Nagar Parkar and up to the Eastern Terminus is a jagged one. As such it is unsuitable and impracticable as an international boundary.\n\nThe boundary shall accordingly lie in conformity with the depiction on Map C between the outer points on jutting-out tongues of land from Point \"M\" and until the Eastern . Terminus, marked as ''ET'' on Map C.\n\nAt no point between the two Terminii shall the alignment of the boundary as above described be such as to include in India ierritory not claimed by India, as defined by the depiction of India's claim line on Map A.\n\nIt might be added that the boundary proposed by me for the greater part of its length roughly coincides with the boundary .proposed by my learned col- . league, Mr. Bebler.''\n\nThis in brief is the decision of the Tnbunal. We now proceed io the consideration of the matters before as.\n\nThere are seven parties before us seeking to re5train the Government of India from making over the areas of Kanjarkot,\n\n• ..\n\n~ '\n\nMAGANBHAI v. UNION (Hidayatullah, C.J.) 269\n\nDharabanni Chhadbet and the two inlets to Pakistan by sheer executive act and insist that the necessary change can only eff.ected by a constitutional amendment of the territories of India as indicated in the Constitution. It may be pointed out that none of the petitioners contends that the Award should be rejected.\n\nThis is as it should be, India was voluntarily a party to an agreement pledging its honour to respect the Award. According to J. H. Rolston (International Arbitrations from Athens to Locarno) pacific settl.ement of international disputes through a binding award on the basis of an undertaking voluntarily accepted is founded on the same principles as are to be found in the concept of Arbitrations in Municipal Law. The history of such' arbitrations begins in modem times from the Jay Treaty between Great Britain and the United States of America of November 19, 1794 to settle the boundary disputes after Independence in 1776 through Mixed Commissions.\n\nThe -- Commissions ... settled the exact position of the Sainte Croix River and the decision was regarded by both sides \"as final and conclusive so that the same shall never thereafter be called in question or made the subject of dispute or difference between them.\". The rules of such arbitrations were settled by the .Alabama Arbitrations in 1871 and the basis of the rules is the maxim Pacta Sunt Servanda. Indeed the Hague Convention of 1907 (Art. 37) contained the rule \"Recourse to arbitration implies an engagement to submit loyally to Awards.\" There have been innumerable arbitrations between nations.\n\nSeverru books contain Surveys of these arbitrations and awards.\n\nStuyt lists 407 between 1794 and 1938 and writers like Moore, La Fontaine, Lapradelle, Darby etc. have made other compilations, the most complete being by Moore.\n\nNantwi brings the list down to .1967 and also lists separately the awards which were not complied with. An examination of such awards only reveals that generally an award isnot accepted when the terms of submission are departed from or there are fatal omissions, contradictions or obscuritie~ or the arbitrators substantially exceed their jurisdiction.\n\nNone of these factors obtains here.\n\nSince the award has been accepted by our Government it is binding.\n\nThe parties also do not want that it be rejected. The only. ques- . tion raised in these matters is how it is to be implemented ..\n\nBefore we deal with the problem we wish. to say something about the standing of the petitioners since it appears to us that most of them have no direct interest to. question the action of Government or to raise any controversy regarding the implementation of the Award. . . . ' . ' .\n\nBefore the hearing co=enced we questioned each . petitioner as to the foundation of his claim.\n\nWe discovered that most of the petitioners had no real or apparent stake in the areas . .\n\n270 SUPlUlME COURT REPORTS\n\n\nnow declared to be Pakistan territory. These persons claim that they had and still have the fundamental rights guaranteed to• them by Art. 19 (1) (d) (e) and (f}, that is to say, the right to•\n\ntravel, to reside or settle down, or to acquire, and b, old property in these areas. None of them has so far made any move in this direction but their apprehension is that they will be deprived of these rights in the future. This, in our judgment, is too tenuous a right to be noticed by the court in administering the law and still less in enforcing fundamental rights.\n\nWhen we communicated our view at an earlier hearing, some more petitioners came forward.\n\nMr. Madhu Limaye puts forward the supporting plea that he had attempted to penetrate this area to reconnoiire possibilities for settlement, but was turned back. In this way . he claims that he had attempted to exercise his fundamental rights and they were infringed. Another party claims to have had a lease of grass lands some ten years ago in this area and he is n<>W to be deprived of the right to obtain a similar lease. Lastly, one of the parties puts forward the plea that he lives in the adjoining territory and thus has interest in the territories proposed to be ceded to Paktan. These petitioners too have very slender rights, if at all. The only person who can claim deprivation of fundamental rights is Mr. Madhu Limaye, although in his case also the connection was temporary and almost ephemeral. How- , ever, we decided to hear him and as we were to decide the questiqn we heard supplementary arguments from the others also to have as much assistance as possible. But we are not to be taken\n\nas establishing a precedent for this Court which declines to issue a writ of mandamus except at the instance of a party whose fundamental rights are directly and substantially invaded or are in imminent danger of being so invaded. From this J?Oint of view we would have been justified in dismissing all peutions except perhaps that of Mr. Madhu Limaye.\n\nWe may now proceed to the consideration of the rival contentions.\n\nThe JJ~'ii..i., ners attempt to establish that this territory is a part of India and has always been so from the establishment of the two dominions, that India has exercised effective administrative control over it and that .giving up a claim to it involves a cession of Indian territory which can only be effected by a constituti~!!al amendment. As to the details of the steps which, in the petitioners' view establish these facts, we shall come later. This in very brief is the gist of the petitioners' case. The reply on behalf of the government of India is equally brief. It is that no cession of territory is involved, since the boundary was always uncertain owing to the shifting nature of the sea and sands and that the effective administrative control amounted to no more than establishing a police outpost with a personnel of 171 persons for watch and ward and that too after the exchange of\n\nMAGANBHAI v. UNION (Hidayatullah, C.J.) 271\n\nDiplomatic Notes began and that the dispute concerns the settle- . mcnt of boundary which was uncertain.\n\nIt is thus contended that the true areas of Pakistan and India have now been demarcated without cession of what may be called undisputed Indian .terri.tory. According to the Government of India the Award itself is the operative treaty and after demarcation Of the boundaey it will only be necessary to exchange letters recognising the established border. The case lies within this narrow compass.\n\nBefore we deal with the points in dispute and the materials relied upon by the rival parties in support thereof we wish to say a few words on the implementation of treaties in general and albitration awards in boundary disputes in particular. The prac- C tice of countries is different but the diverse possible approaches\n\nto the question appear from an examination of the practice obtaining in the United States, France, the United Kingdom and in British India. An examination of these practices will enable us to see how the matter is to be viewed in this case and in the ccntext of our Constitution and the existing rulings of this D Court.\n\nA treaty really concerns the political rather than the judicial wing of the State. When a treaty or an award after arbitration comes into existence, ii has to be implemented and this can only be if all the three branches of Govermment, to wit, the Legislature, the Executive and the Judiciary, or any of them, possess the power to implement it. If there is any deficfoncy in the constitutional foYStem it has to be removed and the State must equip itself with the necessary power. In some jurisdictions the treaty or the compromis read with the Award acquires full effect aut0matically in the Municipal Law, the other body of Municipal Law notwithstanding.\n\nSuch treaties and awards are 'self-executing'. Legislation may nevertheless be passed in aid of implementation but is usually not necessary.\n\nIn tb.e United States of America a treaty concluded with a foreign State by the President of the United States alone, without the consent of the Senate, is not, according to their Constitution, binding upon the Nation and the foreign power derives no rights under it (See Mc Nair Law of Treaties p. 80 quoting from Crandall .= Treties, Making . and Enforcement chapter XIV). As Chief Justtce Taft puts 1t : a treaty is the supreme law and a treaty may repeal a statute and vice versa. It is only when the terms of a treaty require that a law must be passed that it has to be so passed : Foster v. Nielsen (2 Peters 253) 5ee mso Dickinson : Law of Nations 1057.\n\nThe position regarding the United States is quite c~. In other WUioDs different practices exist. In the F=h Constitution of the 4th October, 1958 (Title VI) Article 52 enables the\n\nPresident to negotiate and ratify treaties and he is informed of the negotiation of any international agreement not subject to ratification.\n\nArticle 53 names the treaties that require ratification by law. They, inter alia involve the cession, exchange or addition of territory. They take effect only after having been ratified or approved.\n\nNo cession, exchange or addition of territory is valid without the consent of the popwations concerned.\n\nHowever it is not laid down how consent is to be obtained. Treaties or agreements regularly ratified or approved have, from the time: of publication, an authority superior to that of laws, proviu.,.;, in the case of each agreement or treaty, that it is applied also by the other party (Article 55). If the Constitutional Council consulted by the President of the Republic, the Prime Minister or the President of either assembly, has declared that an international obligation includeS a clause contrary to the constitution, authorisation . to ratify or approve it may be accorded only after revision of the Constitution (Article 54 ).\n\nThe Constitution thus makes provision for all contingencies.\n\nEven though thto Kings of France had power expressly conferred by the Constitutional Charter of 18 30, the French Jurists denied the jurisdiction and power to the King to cede territory.\n\nThe English practice, has like all other British Institutions, grown with time. Blackstone has the following remark :\n\n\"Whatever contracts he (the sovereign) engages in, no other power in the kingdom can legally delay, resist or annul.\" Kent in his Commentaries (Vol. Ip. 175, 10th Edn.) says :\n\n\"the power competent to bind the nation by treaty may alienate the public domain and property by treaty.\" Forsyth in his Opinions gives the reason that if the Nation bas .conferred upon its supreme executive without reserve the right of making tre<ities, the alienation is valid because. it is then made by the reputed will of the Nation. England, however, soon began to make a distinction between territory ceded as a free gift in time of peace without a treaty and that ceded as a result of a war.\n\nForsyth asked the question whether the Crown had the power to alienate British territory by treaty, not following th\" dose of a war as for instance, by a commercial treaty and answered that the proposition seemed questionable.\n\nHe observed \"I should doubt very much whether the Crown, without the auth<'rity of Parliament, would have the legal power to cede by treaty the Channel Islands to France, there having been no war, and the cession not being made as part of the adjustment of a quarrel between the two countries.\"\n\nMAGANBHAI v. UNION (Hidayatullah, C.l.) 27 3\n\nWithout a treaty the power to cede territory in time of peace was always denied. Forsyth cites Grotius (de jure Belli et Pacis Vol.\n\nII c. 6. ss. 3-8) Puffendorf Vol. viii C. 12, Vattel Vo~. 1 C. 20 s. 224, c. 21 s. 260, Livy Vol. IV c. 2 s. 11 3llld Phill1more Part m c. 14 ss. 261, 262.\n\nAt the time of the cession of East Florida to Spain Lord Loughborough maintained that the Crown possessed no prerogative to cede British Territory to a foreign State without authority of Parliament but Lord Thurlow (Lord Chancellor) said that this was based on 'the lucubrations and fancies' of foreign writers which he rejected. However Britain was then at war with Spain and the cession was under a treaty of peace. In 1863 the House ol Commons debated the transfer of Ionian Islands. Lord Palmerston observed :\n\n\"But with regard to cases of territory acquired by conquest during war, and not ceded by treaty, and which are not therefore British freehold, and all possessions that have been ceded by treaty and held as possessions of British Crown, there is no question that the Crown may make a treaty alienating such possession without the consent of Parliament.\" Lord Palmerston cited the examples of Senegal, Minorce, Florida\n\nand Isles of Banca. (See Hansard Part. Debates Vol. CLXIX p. 230-231). These were however cessions made by treaties of peace at the end of wars.\n\nLord Mc Nair gives the settled law of modem times. According to him in the United Kingdom the concurrence of Parliament must always be obtained except in a very small number of cases.\n\nHe opines that if the courts are required to assist in the implementation, a law must obviously be found for courts act only in accordance with law. If a law is obligatory obviously Parliament must have a say because no law can be passed except by Parliament. However, even if a law be required, and yet the Crown enters into a treaty, the courts take the act as final unless a Jaw stands in the way. In other words unless there be .a law conflicting with the treaty, the treaty must stand. In this connection it is profitable to read what Lord Phillimore (then Sir Robert Phillimore) said in the Parliament Beige case('). That case was reversed on appeal in 5 P .D. 197 but on another point.\n\nSee also Walker v. Baird('). As was observed by Lord Atkin in Attorney C!eneral for Canada v. Attorney General for Ontario(8 ) the position may be summed up thus : there is a distinction between ( 1) the ormation ad (2) the performance qf the obligation.\n\nThe first is an executive act, the second a legal act if a law is required.\n\n(I) 4 P.D. 129.\n\n(2) [1892] A.C. 491.\n\n(3) [1937] A.C. 326 at 347.\n\nThe performance then has no force apart from a Jaw that is to say unless Parliament assents to it and Parliament then accords its approval to the first executive act. The treaties created by executive action bind the contracting parties and, therefore, means must be found for their implementation within the Jaw. This is illastrated by a few examples. The Executive authority in the State cannot acquire new rights against the citizens by making treaties with foreign powers. Therefore whenever peace treaties involved municipal execution many statutes had to be passed. Again new offences cannot be created by the mere fact of conventions entered into with other powers.\n\nBoth principles obtain in India.\n\nThe Indian statute book contains numerous examples of conventions which have led to the passing of Municipal Laws. The Civil Court Manual devotes many pages to such statutes, too numerous to be mentioned here and the penal law of India also affords examples. One such is the Jaw against obscenity in India which was the direct resuJt of a c0nvention.\n\nIn the . United Kingdom there is almost a binding convention that cession of British territory requires approval of Parliament in the form of a statute but it must clearly have been the freehold of Britain.\n\nBut even here Parliamentary sanction is not required for cession or abandonment of territory acquired previously by conquest or cession or otherwise wrongly in British possession. The cases of abandonment by the Crown of sovereignty over the various mandated territories are in point. Many of them were given up without an Act of Parliament. The protocol respecting the boundary between Tanganiyika territory and the Belgian mandated territory of Ruonda-ulandi, on August 5, 1924 involving a small territory was never enacted as a Jaw. In 1925 it was ruled that cession of territory which never formed part of a self-governing dominion was a royal prerogative although it was desirable that approval of Parliament be obtained. A giving up of doubtful claims to territory is not considered to be of the same standing as a cession of territory known to be that of the Crown. The tendency however is to have parliamentary sanction when Briti•h territory is ceded. This is provided in. the very treaty itself and it is made subject to Parliament's approval. The present practice of the Crown is \\o obtain either prior sanction of Parliament or to seek ratification after it. This is done by laying the treaty on the table of both Houses for 21 days, after which time it is treated as ratified. Although the practice since 1924 is to submit treaties to Parliament by laying them on the table of the two Houses (known as the Ponsonby rule), there have been in the past numerous instances of treaties implemented by the Crown without referrence to Parliament. These exceptions were connected with circumstances of convenience and public policy that is to say to avert a war, for consideraiion of territory or for rectification of boun-\n\n• •\n\n• • '\n\n...\n\n.> •\n\n. ,_.\n\nl\\IAGANBHAI v. UNION (Hidayatullah, C.l.) 27 5.\n\ndafies. A few examples of such action in time of peace may be given. . In 1824 in treaty with Netherlands, Great Britain ceded\n\nSumatra and the settlement of Bencollen. In 1859-60 the Bay Islands were transferred to Honduras. In 1867 in treaty with Netherlands an exchange of territory took. place.\n\nThe Orange River Territory was transferred by an order in Council. In 1697 by the.Treaty of Reyswick Hndson Bay territory was given back to the French. In 1813 by the Treaties of Stockholm the Island of Guadelope was ceded to Spain. A cession of Mosquito Shcire was made to Nicaragua. All these were in time of peace and without any reference to Parliament : See Hertslett's Treaties .\n\nIn British India section 113 of the Indian Evidence Act of 1872 created a presumption in favour of such transfer which on the issu.e of a notification was to be held by courts to be valid. In. 1872 Scindia was given th.e pergannah of Broach.· In 1803 Pudokcittah State wai ceded.the District of Kullanelly in Tanjore.\n\nIn' 18.06 Sambalpur was given to the Maharaja of Nagpur and in\n\n1871 Scindia was given certain villages. in Jhansi. [See Aitche-· son's treaties Vol. 3.(p. 331), Vol. 4 (p. 214) and (99)]. All these were without intervention of Parliament. ·\n\nIt will thus appear that there is no.settled practice. The least that can be said is that cession in time of war in the United Kingdom can always be made by the Crown but in time of peace it can only be made by Parliamentary sanction whether obtained directly or under the Ponsonby rule. In British India parliamen- tary sanction was not necessary. In Damodar Gordhan v. Deoram Kanji(') it was laid down that \"the general and abstract doctrine laid down by the High Court at Bombay that it is beyond the power of the British Crown without the consent of the Imperial Parliament to make a cession of territory within the jurisdiction of any of the British Courts in India, in time of peace, to a foreign power, is erroneous.n\n\nThe question is one of domestic as well as International Law and we have been at pains to set down the practice of some count-· ries and that obtaining in British India . before dealing with this Gproblem in the light of our Constitution and the facts obtaining here. It will appear from the other analysis that the United States of America and the French Constitutions have a clear guidance on the subject. In England, as no written Constitution exists, difference is made between treaties of peace when the Crown acts without obtaining the approval of Parliament and cession in peace time when such approval must be had. But even so a distinction H is made in the case of British possessions abroad and the United Kingdom.\n\nAgain a difference is made in cases involving minor ·\n\n• (I) (1876] I Appeal cas'5, 332.\n\nchanges where boundaries have to be ascertained and adjusted.\n\nIn British India advantage was taken of Section 113 of the Evidence Act in cases of cessions to Native States, Prince or Ruler.\n\nThat section is now obsolete and has been omitted in Burma lllld Ceylong but is still borne on our statute, although no longer required. We may now pass on to the Indian Constitution and the facts of this case to see how it views this matter.\n\nThe Constitution did not include any clear direction about treaties such as is to be found in the United States of America and the French Constitutions.\n\nArticle I of the Constitution defined the territory of India. It provides that India snail be a Union of States.\n\nIn the Constitution as originally enacted First Schedule classified States as A, B, C and D. After the Seventh Amertdment in 1956 it is now provided that the States and the territories thereof shall be as specified in the First Schedule.\n\nClause (3) of the First Article was also amen1ed by the Seventh Amendment but as the amendment is not material we may read here that clause as it is today. It reads :\n\n\"(3) The territory of India shall comprise-\n\n(a) the territories of the States;\n\n(b) the Union territories specified in the First Schedule; and\n\n(c) such other territories as may be acquired.\"\n\nArticle 3 enables Parliament by law to alter the boundaries of the existing States and it includes the power (b) to increase the area of any State ( c) diminish the area of any State or to alter the name of any State. Then there are items Nos. 14 and 15 in the Seventh Schedule which provide as follows :\n\n\"14. Entering into treaties and agreements with foreign CQUntries and implementing of treaties, agreements and conventions with foreign countries.\n\n15. War and peace.\"\n\nThese entries enable laws to be enacted on these topics.\n\nThey are to be read with Article 253 which occurs in Part XI (Relations between the Union and the States) Chapter I (Legislative Relations) and is headed Distribution of Legilsative Powers, it provides :\n\n\"253. Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any pa1t of the territory of India for implementing any treaty, agreement or .convention with any other country or countries or any\n\nMAGANBHAI v. UNION (Hidayatullah, C.J.) 277\n\ndecision made at any international conference, association or other body.\" In point of fact it adds nothing to the legislative entries 14 and 15 above quoted but confers exclusive power of law-making upon Parliament.\n\nAs the marginal note correctly represents the idea underlying the Article, it may be read-Legislation for giving effect to Inter.national agreements-and the article only says that Parliament is the authority to make such laws. In addition to these provisions we must also take into account Article 73 ( 1) which Jays down the Executive power of the Union. It reads :\n\n\"73 ( 1) Subject to the provisions of this Constitution, the executive power of the Union shall extend- ( a) to the matters with respect to which Parliament has power to make laws; and ( b) to the exercise of such rights, authority and jurisdiction as are eirercisable by the Government of India by virtue of any treaty or agreeme:: .t: Provided that the executive power referred to in subclause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.\" The question is if a law and or a constitutional amendment is necessary for implementing the Award.\n\nBefore we deal with the facts of the case before us and the arguments for and against executive action we may consider here a few cases of this Court in which a problem of cession of Indian Territory had previously arisen because both side seek 'to apply F those cases to the facts here .\n\nIt is convenient to view these cases in the order in which thev were decided. In Midnapore Zamindary Co. Ltd. v. Province ,; f Bengal and Others('), this question was not directly in issue. Tl<e were observations which are pertinent and must be borne in mind.\n\nIt was observed that disputes as to boundaries between two mdependent. tate~ c.ano~ be. the. subject of inquiry of municipal co1;1rts exerc1smg 1unsd1ct10n m either State. The Federal Court\n\nrhed upon the statement of the law by Oppenheim. (Interna- !1onal Law, 7th Edn., Vol. I, p. 408) that \"state territory is an ob- 1ect of the 1:-aw of Nations, becue he latter recognises the supreme authonty of every State within its territory\". The Federal Court quoted with approval the dictum of Farwell, J. in Foster v.\n\nGlobe Venture Syndicate Ltd.(2 ) which reads:\n\n(l)\n\n[1949] F.C.R. 309.\n\n(2) L.R. [1900] I Ch.811.\n\n\"Sound policy appears to me to require that I should act in unison with the Government on such a point as that. Assuming that the Foreign Office have already satisfied themselves that the territory in question is within the dominion of Morocco, and have applied to the\n\nSultan of Morocco for redress in any given matter, it would surely be improper that I, sitting here as a Judge of the High Court, should, in the face of that act of Her Majesty, hold as a matter of fact that the territory in question was not within the dominion of the Sultan of Morocco. I should be contravening the act of Hee Majesty acting as a Sovereign in a matter which is within the cognizance of Her Majesty's Foreign Office.\" This statement of the law had the full approval of Viscount Finlay in Duff Development Co. v. Kalintan Government(') where con- . sultation between Court and Government was advocated.\n\nThis case does not help us to solve the probfom but it shows that Muni- . cipal Courts should be slow to interfere.\n\nA similar question like the p'resent arose In re : The Berubari Union and Exchange of Enclaves ( 2) on a reference by the Presi- . dent of India to this Court of certain questions concerning the Berubari Union and the exchange of certain enclaves. As a result of the Radcliffe, Award dated August 12, 1947 Berubari Union was included in West Bengal and was treated as such. Certain boundary disputes having arisen from interpretation of the Ractcliffe award, the two Dominions referred the dispute to another Tribunal presided over by Lord Justice Algot Bagge for . decision. The Bagge Tribunal gave its award on 26 January,\n\n1950. Subsequently the question of Berubari Union was raised by Pakistan in 1952 and on September 10, 1958 the Prime Ministers of India and Pakistan entered into an agreement between East and West Bengal, which involved transfer of Berubari Union to Pakistan. Simultaneously an agreement to exchange certain enclaves took place also. This is known as the Indo-Pakistan Agreement. Section 290 of the Government of India Act 1935 had provided that His Majesty could by Order in Council increase or diminish the area of any Province or alter the boundary of any Province and the Extra-Provincial Jurisdiction Act of 1947 gave the necessary power in that behalf. The question arose whether the inauguration of the Constitution had led to any change. Three questions were referred to this Court by the President. They were:\n\n\" ( 1) Is any legislative action necessary for the implementation of the Agreement relating to Berubari Union?\n\n(I) [19241 A.C. 797,\n\n\nF ...\n\nMAGANBHAI v. UNION (Hidayatul/ah, C.J.) 279\n\n( 2) If so, is a. law of P_arliament relatable to acle 3 of the Constitution sufficient for the purpose or JS an amondment of the Constitution in accordance with article 368 of the Constitution necessary, in addition to or in the alternative ?\n\n\"(3) Is a law of Paliament .relatabl.e to. article 3 of the Constitution sufficient for 1D1plementat10n of the agreement relating to Exchange of Enclaves or is an amendment of the Constitution in accordance with article 368 of the Constitution necessary for the purpose, in addition or in the alternative.\"\n\nThis Court gave the following answers :\n\n\"Q. 1. Yes.\n\nQ. 2. (a) A law of Parliament relatable to Art. 3 of the Constitution would be incompetent;\n\n(b) A law of Parliament relatable to Art. 368 of the Constitution is competent and necessary;\n\n(c) A law of Parliament relatable to both Art. 368 and Art. 3 would be necessary only if Parliament chooses first to pass a law amending Art. 3 as indicated above; in that case Parliament may have to pass a law on those lines under Art. 368 and then follow it up with a Jaw relatable to the amended Art. 3 to implement the agreement.\n\nQ. 3. Same as answers (a), (b) and (c) to Question 2.\" The contention on behalf of the Union was that the lndo-Pakistan Agreement regarding Berubari Union only ascertained and <)elineated the exact boundary and did not involve alteration of territorial limits of Indra or alienation or cession of Indian territory. The exchange of enclaves was also described as a part of the general and broader agreement about Berubari Union and incidental to it. According to the Union Government the Indo- Pakistan Agreement could be implemented by executive action alone without Parliamentary legislation whether with or without a constitutional amendment. . Reliance was placed on the observations of Mukherjee, C.J. in Rar Sahib Ram Jawaya Kapur v, The State o,' Punjab(') where dealing with the limits within which th: Executive Government can function, the learned Chief Justice said :\n\n• \"tat the execuve function comprised both the determ1i; iation o~ the.policy as well as the carrying it into execution. This evidently includes the initiation of legisla-\n\n(1) [1955] I S.C.R. 225,\n\nSUPREME COUR, T REPORTS [1969] 3 S.C.ll.\n\ntion, maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or superviSion of the general administra ti on of the State.\" The Court posed the question whether the Indo-Pakistan Agreement had purported to settle a boundary dispute or to divide the disputed territory half and half. The Court found the latter as there was no attempt in the said Agreement to read or interpret the Awards previously given in that dispute. This Court rejected the contention that it was a pure ascertainment of boundary between the two Countries. On the other hand the Indo-Pakistan Agreement ceded territory of India to Pakistan. This conclusion was reached in respect of the Berubari Union as well as the enclaves. Since the Berubari Union was treated after the two Awards as part of India its cession would have altered the content of Entry 13 of the First Schedule to the Constitution and an amendment was held necessary. Once the argument that this was a case of marking a boundary on the surface of the earth was rejected this Court considered the steps necessary to make cession of Indian territory. As a result the 9th Amendment to the Constitution was enacted from December 28, 1960.\n\nThe matter came again in another form before this Court in Ramkishore Sen and Others v. Union of India(') which is known popularly as the Berubari II case. It was a writ petition filed in the Calcutta High Court and the appeal was brought to this Court.\n\nIt was filed by six residents of the District of Jalpaiguri. The complaint was that the village of Chilhati (among others) was being tran5ferred to Pakistan as a result of the Agreement between India and Pakistan and the action was illegal. The main point argued in the petition was that Chilhati was not covered either by the ludo-Pakistan Agreement or the 9ih Amendment. According to those petitioners it was not competent to transfer Chilhati without first amending the Constitution.\n\nThe case before the High Court and in this Court was that a part of Chilhati village situated in Debiga, nj Police Station was a part of Chilhati in Jalpaiguri District.\n\nThis Court observed :\n\n\"There is no doubt that if a small portion of land admeasuring about 512 acres which is being transferred to Pakistan is a part of Chilahati situated within the. jurisdiction of Debiganj Thana, there can be no valid objection to the proposed transfer.\n\nIt is common ground that the village of Chilahati in the Debiganj Thana has been allotted to Pakistan; and it appears that through inadvertence, a part of it was not delivered to Pakistan on the occasion of the partition which followed\n\n(!) [1966] I S.C.R. 430.\n\nH .,\n\nMAGANBHAI v. UNION (Hidayatul/ah, C.J.)\n\nZ81\n\nthe RadcliJie Award. It is not surprising that in dividing territories under the Radcliffe Awar<l, such a mistake should have occurred; but it is plain that what thi; respondents now propose to do is to transfer to Pakistan the area in question which really belongs to her.\"\n\nIt was then contended that even though that part ought to have been originally transferred to Pakistan under the Radcliffe Award, it having become part of India could not be ceded without the procedure laid down in Berubari I case. As this portion was being administered as part of West Bengal under Entry 13 in the First Schedule it was part of the territory which immediately before the commencement of the Constitution was West Bengal. This Court observed :\n\n\"It is true that since this part of Chilahati was not transferred to Pakistan at the proper time, it has been regarded as part of West Bengal and administered as such.\n\nBut the question is : does this fact satisfy the requirement of Entry 13 on which the argument is based? In other words, what is the meaning of the clause \"the territories which were being administered as if they formed part of that ProvinceM; what do the words \"as if' indicate in the context ?\" Bxplaining the phrase 'as if they formed part of that Province' Ibis Court looked into the history of this Province. Clauses (a) and (b) of section 290-A of the Government of India Act 1935 may be reproduced : \"Administration of certain Acceding States as a Chief Commissioner's Province or as part of a Governor's or Chief Commissioner's Province :- . ( 1) Where full exclusive authority, jurisdiction .and powers for and in relation to governance of any Indian State r any group of such States are for the time being exercisable by the Dominion Government, the Governor-General may by order direct-\n\n~~) that .the State or the group of States shall be adm1mstered m all espects as if the State or the group of States were a Chief Commissioner's Province; or\n\n~3) that e State or the group of .States shall be admm1stered m all respects as if the State or the group\n\no~ S!ates , form~ part of a Governor's or a Chief Comm1ss1oner s Provmce specified in the Order.\" The Coun concluded thus :\n\n\"In view of this constitutional background the words .\"as. if'' hve a p.ecial significance. They' refer to temtones which ongmally did not belong to West 7SllP.Cl/69-19\n\nBengal but which became a part of West Bengal by reason of merger agreements.\n\nTherefore, it would be impossible to hold that a portion of Chilahati is a territory which was administered as if it was a part of West Bengal.\n\nChilahati may have been administered as a part of West Bengal; but the said administration cannot attract the provisions of Entry 13 in the First Schedule, because it was not administered as if it was a part of West Bengal within the meaning of that Entry.\n\nThe physical fact of administering the said area was not referable to any merger at all; it was referable to the accidental circumstance that the said area had not been transferred to Pakistan as it should have been. In other words, the clause \"as if\" is not intended to take in cases of territories which are administered with the full knowledge that they do not belong to West Bengal and had to be transferred in due course to Pakistan. The said clause is clearly and specifically intended to refer to territories which merged with the adjoining States at the crucial time, and so, it cannot include a part of Chilahati that was administered by West Bengal under the circumstance to which we have just referred. That is why we think Mr. Muker.iee is not right in contending that by reason of the fact that about 512 acres of Chilahati were not transterred to Pakistan and continued to be administered by the West Bengal Government, that area became a part of West Bengal within the meaning of Entry 13 Schedule I. The West Bengal Government knew all the time that it was an area whictt belonged to Pakistan and which had to be transferred to it. That is, in fact, what the respondents are seeking to do; and so, it would be idle to contend that by virtue of the accidental fact that this area was administered by West Bengal, it has constitutionally and validly become a part of West Bengal itself.\n\nThat being SO; there can be no question about the constitutional validity of the proposed transfer of this area to Pakistan. What the respondents are seeking to do is to give to Pakistan what belongs under the Radcliffe Award.\"\n\nThese two cases did not really decide the point we are called upon to decide.\n\nThe first Berubari Case dealt with transfer of territory which was de facto and de jure Indian territory and therefore as the extent of Indian territories as defined in Art. I read with the I st Schedule was reduced a constitutional amendment was held necessary.\n\nThe second case concerned territory which was de facto under the administration by India but being de jure that of Pakistan, transfer of that territory which was not a part\n\nMAGANBHAI v. UNION (Hidayatu/lah, C.J.) 283\n\nof Indian territory was held not to require a constitutional amend ment.\n\nNeither case dealt with a boundary dispute although in the first case the case from Australia was distinguished on •the ground that that case concerned the demarcation of boundaries pure and simple. However it was not said that for adjustment of boundaries a constitutional amendment was not required. Neither case adverted to the practic.~ of Nations particularly Britain, nor attempted to interpret the relation of Articles 1,253 and 73 of the Constitution read with Items 14 and 15 of List I of Schedule 7.\n\nThe only thing that can be said is that this Court leaned in favour of a constitutional amendment in all cases where admitted terri- .tory of India was being ceded but not where the cession was of territory of a foreign power but de facto in possession of India.\n\nOn which side must a border dispute fall is the question for our decision.\n\nThe petitioners claim that this will fall in the dictum of the first Berubari Case.\n\nThe Union Government claims that it is analogous to the case of Chilahati in the second Berubari Case.\n\nThe question is one' of authority. Who in the State c1n be said to possess plenum dominium depends upon the Constitution and the nature of the adjustment. As to the necessity of it, the Courts must assume it as a matter of law.\n\nIt is scarcely to be thought that the validity of the action can ever depend upon the judgment of a court.\n\nTherefore all argument that the action of Govern ment to go to arbitration was not proper must cease. Unlike the United States of America where the Constitution is defined in express terms. we in our Country can only go bv inferences from our Constitutiof!. the circumstances and the - precedents.\n\nThe precede:nts of this .Court a.re clear only on one point. namely, that\n\no cession of Indian territory can take place without a comtitu t1onal amendme.nt.\n\nMust a boundary dispute and its settlement by a~ arb1tral nbunal be ptt on the same footing. An agreement t9 rder the dispute :egardmg boundary involves the ascenainment .ad. representation on the surface of the earth a boundary lme d1v1mg two neghb<; Juring countries and the very fact of refer- ; mg sue a dispute imphes that the executive mav do such ach as\n\n~e an~~~~ry f~· permanently fixing th.~ boundary. A settlen; ent\n\nary 1spute cannot, therefore be held to b . of territory .. lt contemplates a line of, d , . e a cession face of the earth It I emarcat1on on the surboundary, and it is so ~:d see~1: 0/produce .\" line,. a statutable tending state ex facie is unertain a.~ is o.ne n which each conconsents to th.~ appointment of an ofa;~. 1°n nghts. and therefore case is plainly distinguishable from a 1 ra macmery. Such a known to be home territory The ar case of ce7s1on of territory boundaries be conceded to ihe Exe gmet that if power to settle part of India is to take an extreme r; er':h:night cede some Yitai even be said of Parliament itself bit 't . hmj.!dsl.\n\nThe sme ~1ay 1 1 Is ai Y to be imagined\n\nthat such gross abuse of power is ever likely. Ordinarily an adjustment of a boundary which International Law regards as valid belween: two Nations, should be recognised by the Courts and the implementation thereof can always be with the Executive uµless a dear case of cession is involved when Parliamentary intercession can be expeeted and should be had. This has been the custom of Nations whose constitutions are not sufficiently elaborate on this subject.\n\nThe argument on behalf of the petitioners is intended to prove that the areas of Kanjarkot, Dharabanni and Chhadbet and two inlets on either side of Nagar Parkar are Indian territory. From this it follows that a constitutional amendment as was laid down in the first Berubari case is a condition precedent for the implementation of the Award. The argument, therefore, follows closely the reasoning in that case. It is contended that Article 1 read wfth the First Schedule to the Constitution made Kutch into a part C State and under the second paragraph of Part C ite!f its territory comprised all territories which by virtue of an order made under section 290A of the Government of India Act, 1935 • were immediately before the commencement of the Constituti~ being administered as if they were a Chief Commissioner's Province of the same name.\n\nWe have shown that the meaning of the 'phrase 'as if they were a Chief Commissioner's Province of the same name' must be understood as was laid down in the second Berubari case. .Learned counsel attempted to challenge that deci.- sion but we consider ourselves bound by that decision. The petitioners must establish that this area was a part of Kutch. _The petitioners, therefore, trace the history of Kutch. Kutch is described in the White Paper on Indian States as follows :\n\n\"118. Another important State which was taken over under Central administration was Kutch. This State\n\nhas an area of 17 ,249 Sq. miles of which 8,461 miles is ilihabited by a population of a little over half a million.\n\nThe remaining area is occupied by what is known as the Rann of Kutch which is covered by water during most part of the year. In view of the geographical situation of the State and the potentialities of this area, the development of which will require a considerable amount of money as well as techmcal assistance, which neither the State by itself nor the State of Saurashtra with which it was possible to integrate the State could provide, it was decided that the best solution for 'this State would be to treat it as a Centrally adnUnistered unit.\n\nAn Agreement (Appendix XXIX) was accordingly signed by the Ruler on 4th May, 1948 ~~ the administration was taken over by a Chief Comm1ss10ner on behalf uf the Dominion Government on 1st June,\n\n1949.\"\n\nMAGANBHAI v. UNION (HidayatuJ/ah, C.J.) 28 5\n\nThis only gives the area but not the boundaries. The Kutch Merger agreement is like any other merger agreement and was executed by the Maharao of Kutch on May 4, 1948. It gives no clue to the boundaries and also leaves the matters at large. Immediately after Kutch was taken over by Chief Commissioner on June 1, 1949. On July 29, 1949 the States Merger (Chief Commissioner's Provinces) Order, 1949 was passed. It provided inter alia :\n\n\"2 ( 1) ( c) the parts of States specified in the Second Schedule to this Order shall be administered in all respects as if they were a Chief Commissioner's Province, and shall be known as the Chief Commissioner's Province of Kutch.\" The parts of States comprising Kutch were given as follows :\n\n\"(i) The State of Kutch, excluding the area known as Kutchigarh situate in Okhamandal.\n\n(ii) The part of the United State of Saurashtra which is comprised in the Adhoi Mahal of Morvi, consisting of the seven villages Adhoi, Dharna, Gamdan, Halara, Lakhpat, Rampur and Vasatava.\" Here again the boundaries are not mentioned.\n\nAll that we know of Kutch from these documents is that it had an area of 17,249 Sq. miles of which 8,788 Sq. miles were inhabited. Obviously this is most inconclusive from our point of vi.ew\n\nsince the White Paper is completely silent about boundaries.\n\nThe later history of Kutch is also not helpful. On November 1, 1956 Kutch became a part of Bombay State. The States Reorgamsation Act referred to 'the existing State of Kutch' which did not advance matters any nearer certainly than before. On May 1, 1960 the Bombay Reorganisation Act made the area known as Kutch a part of the State of Gujarat State. Therefore none of these documents is of any help in determining boundaries or that the disputed areas were definitely a part of India.\n\nThere is also no evidence of administration in Dhara Banni and Chhadbet.\n\nNo revenue administration, establishment of Courts, offices, schools etc. is proved. The Chairman found some evidence of administrative control of Sind which contradicted the Indian case. The evidence of leases was held to be contradicted by other evidence.\n\nThe 1957 elections show that a polling station was located at Chhadb.et but the voters were the personnel of the Watch and Ward force. Indeed the census of India (1961) shows the same 171 persons who belonged to the Watch and Ward personnel.\n\nKanjarkot had almost no evidence in its favour and Mr. Madhu Limaye frankly admitted this fact.\n\nThe other petitioners gave no evidence about it. 7Sup.Cl/69-20\n\nNo doubt, Pandit Jawaharlal Nehru on March 3, 1956 and Shri Lal Bahadur Shastri on May 11, 1965 asserted that the area belonged to India but that was only a statement and cannot be held to be of an evidentiary character. We were bound to make such a statement if we were at all to lay claim to it. After all the other side was making a similar claim and even a short skirmish a!So took place. This cannot be treated as definite evidence.\n\nIn support of the case the petitioners took us still further back into history. The definition of boundaries of Sind in 1935 by the Surveyor General was in.general terms. lt did not show whether Kanjarkot, Dhara Banni and Chhadbet were excluded from Sind altogether. The Index Map prepared at the time was not annexed to the order in Council. This index map was relied upon by Ambassador Ales Behler who gave opinion for us but was not accepted by the Chairman and Ambassador Nasrollah Entezam.\n\nThis was probably because the Mosaic Map which is map A on which India rested the claim did not show a continuous boundary along the entire length. The statistical abstracts of India and Pakistan which were sought to supplement the Map before us only give areas and not boundaries and are, therefore, inconclusive.\n\nThe claim of Kutch State in 1914 when it attempted to enlarge the Rann of Kutch at the cost of Sind was not successful. A compromise was the foundation of 'a friendly understanding' and not the settlement of a boundary. The Macdonald line that was then determined represents the uncontested portion of the boundary. It was then attempted to get a confirmation of the Kutch-Sind boundary but no boundary was settled. It appears that the Rann itself was treated as excluded from Kutch. Indeed the Government of Bombay continued to so regard it.\n\nThe fight before the Tribunal, therefore, became a cartographic tussle.\n\nOver 350 maps were exhibited by the parties and many of these maps conflicted. Maps have been used in such cases but the source of information on which the map is based is always doubtful and maps are contradictory. One cannot go by one set only. In this view of the matter our reliance on Maps B32, 34, 35, 36 and 37 became ineffective. The disputed area was about 3,500 Sq. miles.\n\nOut of this about 350 sq. miles were included in Pakistan.\n\nWe are not sitting in appeal over the Award of the Tribunal.\n\nOur interpretation of the Maps and facts of history is really not called for. All that we can determine is whether there is concrete and solid evidence to establish that these areas belonged to India.\n\nIf we could reach this conclusion there may be something to be said applying the first Berubari case.\n\nOtherwise we must hold that there was a disputed boundary and this was the occasion for marking out the final boundary on the surface of the earth.\n\nMAGANBHAl v. UNION (Hidayatullah, C.J.) 287\n\nour opinion this is what was done. We can.not go entirely by what India pressed before the Tribunal. That 1s only one part of the matter. The conditions existing prior to the Award were :\n\n(a) that there was a break of hostilities;\n\n(b) that then there was a cease-fire because the dispute was to be decided by arbitration, ( c) that both sides put forward their claims,\n\n( d) that there was no clear evidence of demarcation of a boundary acceptable to the parties now or in the past, ( e) that the claim Map of India did not show a continuous boundary along all the border,\n\n(f) that the area is in different state at different seasons in the year, for part of the year it is water and for the remaining part it is land. While it is the former it may be regarded as a part of the Rann and while it is land it may well be regarded as part of Sind.\n\nViewed from this angle the contention in this case comes to this ; Does India cede undisputed Indian territory or is it the settlement of a disputed boundary?\n\nWith regard to Kanjarkot which is to the south of Rahim ka Bazar no case was made out at all except assertions that it is Indian territory in which at least Mr.\n\nMadhu Limaye (who argued the case very fully and with considerable ability) did not join. With regard to Dhara Banni and Chhadbet it is clear that Map A (the claim map of India) does not show the border from Manjeet where the boundary determined by the Tribunal leaves the mainland to a point just west of the point\n\nwhre the boundary determined by the Tribunal again joins the mainland.\n\nTo the south of this missing boundary lie Dhara Banni and Chhadbet. It is, therefore, clear that at least in this part India was not cerain of the boundary.\n\nNo doubt some othe; maps ?how a continuous boundary even there, but other maps negative 1t.\n\nI~ other words the e; cact location of the boundary was an open\n\nqusl!on. . Dhara Banm and Chhadbet are contiguous with the\n\nainland in some seasons although they are inundated at oth ltmest and be~OJe in?istinguishable from the Rann. In these ci~: cums ances '. e ocat1on of the boundary at the southern fringe of Dhara Banm. and Chhadbet was no more than fixing a true bouTJdary, accordmg to the Tribunal. It was well within the terms of beference and the decision being a true marking out of a disputed oundary does. no~ amount to cession of these three areas so as to attract a cons!ttuttonal amendment.\n\nA~ regards the two inlets, their area is said to be less than 25\n\ns~. mtles. They are extremely narrow at their southern extremities and really repre!1.ent deep indentations in land, At the narrow\n\npoints roads run across them and they are Pakistan's roads.\n\nTreating the inlets as inland waters, the Tribunal determined the boundary in such a way as to give them to Pakistan. The reasons\n\ngiven by the Tribunal have be.en reproduced above by us.\n\nWe cannot say that this will mean a cession of Indian territory. There was a genuine dispute regarding the title to these inlets whatever India may have thought about them. The decision of the Tribunal is a decision on a disputed boundary and does not attract a constitutional amendment.\n\n The only evidence was this area (which is otherwise un inhabited) was in parts occupied' by an Indian security force. The existence of these Watch and Ward officers or the establishment of a polling' booth for them at election time cannot connote admi nistration such as would make them territory of India. The Dip- Iomatic Notes began soon after the establishment of the two Dominions and the occupation may have meant de facto control but there was no proof of de jure occupation or any other administration.\n\nSovereignty over an area; is always a matter of inference. As Judge Huber puts it in the Island of Pa/mas case :\n\n\"manifestations of territorial sovereignty assume, it is true, different forms, according to time and space.\n\nAlthough continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of a territory. The intermittance and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved ......... \" (Award dated April 4, 1928 : 2 INT.ARB. AWARDS 867) Garrisoning of an area . (a point noted in the International Court of Justice in 19.53 i.n the Minquiers and Ecrehos case, I. C.J.\n\nReports page 78) may be one kind of evidence. But this applied to both sides. Unless they displayed real existence of sovereignty over the area, none could be said to be in occupation de jure.\n\nHence the propounding of so many maps and documents.\n\nIf we were sitting in appeal on the award of the Tribunal we might have formed a different opinion of the material but we are not. The fact remai.ns that India undertook to be bound by the award pledging the national honour and we must implement the award.\n\nThe only question is as to the steps to be taken.\n\nOn the whole, therefore, we are of opinion that this r.efe, ence began in a boundary dispute after open hostilities and was decided as such. In which case it cannot be said that there will be a cession of Indian territory alid the rule earlier laid down by us\n\napplies~ If no constitutional amendment is required the power of the Execut!Ve which extends to matters with respect to which\n\nMAGANBHAI V, UNION (Shah, ].) 289\n\nA1 Parliament has power to make laws, can be exercised to correct boundaries now that they have been settled. The decision to implement the Award by exchange of .letters, treating the Award as an operative treaty after the boundary has been marked in this area, is within the competence of the Executive, wing of Government and no constitutional amendment is necessary.\n\nThe petitions and the appeals fail and will be dismissed but there will be no order about costs.\n\nShah, J, I agree with the learned Chief Justice.\n\nThe controversy raised in this group .of writ petitions and C appeals lies within a narrow compass Whether the award, dated February 19, t 968 of the Indo-Pakistan Western Boundary Case T/ibunal may be implemented by a constitutional amendment and not otherwise. The claimants-I use that expression to refer compendiously to 'the appellants and the petitioners-urge that the award may be implemented only by an amendment modifying . the relevant provisions in Schedule I to the Constitution, because D-- in giving effect to the award of the Tribunal, cession of Indian territory is involved, and the executive is incompetent to cede Indian territory without the authority of a constitutional amendment. The Union of India contends that the Award merely fixes or demarcates the boundary between the State pf Gujarat in India and West Pakistan regarding which there were disputes and E much friction, and by the Award no cession of Indian territory is contemplated, and for implementing it amendment of the Constitution is not needed.\n\nThe .Great Rann of Kuth lies between the mainland of Sind (wc~ IS now part of Pakistan) and the mainland of Kutch-\n\n. F a district of the State of Gujarat It has a peculiar surface : it iS marshy land : for aut four months in. the year large Parts of the Rann are covered with the waters of the Arabian Sea rushin ro:ugh Jhe Khori Creek. It is however not fit for navigatio;\n\nen~~J. f! ~:e ~:1' itJ: muddy or dry land, but not dry\n\nbounaries of the Rann a: 8JiliJ:' ia1:.ef 2e tei; ain, the G the VIOience of the natiiral elements ' . difi pendmg noon northern boundary of the R h m erent years. The terrain and nomadic popwatl: C:· thn ; c; count .of its inhospitable cultivation, remained ill-defined B e rmge with no prospect of Indian State of Kutch Passed uder e:een 1? 16. and 1819 the India Company and the integrity of it et do; unatlon of the !; last .R bv the East ndia Comoany by the tre!tv m ; as I guarant~ Charles Napier annexed the territ f . n J 843 Sir a Governor's Province hi h ory 0 Smd, and made it into of , the Provillce of Bi:;, c K:i~ ~~~~ tuedmed 1be'nto a Division\n\n nu to ruled by the\n\nMaharao, the British authorities having posted a Political Agent at the capital of the State.\n\nIn 1855 the Department of Survey of India commenced a revenue and topographical survey of the Province of Sind.\n\nThe survey, called the Macdonald Survey, was completed in 1870, and survey maps were prepared and published in 1876. It is not clear whether the southern boundaries of the Sind villages shown in the maps were village boundaries, or a boundary conterminous between the territory of Sind and Kutch State.\n\nThe next survey was undertaken under Major Pullan in 1879 and was completed in 1886.\n\nUnder this project survey of the State of Kutch was undertaken. The northern boundary of Kutch State roughly tallied with the Macdonald :)lignment of the Sind boundary. The relevant maps were published in 1882.\n\nAnother survey of a parti of the boundary on the Sind side was undertaken in 1904-05 by C. F. Erskine. The alignment of the boundary with a few corrections tallied with the Macdoland alignment. This survey was intended to be a checking survey and related to the western region extending up to a point near Rahim ki Bazar.\n\nAbout the year 1907-08 the Commissioner of Sind raised certain disputes relating to encroachments on the territory under his administration by the Maharao of Kutch.\n\nThe Government of India made an enquiry and a resolution, dated February 24, 1914, was issued by the Government of the Province of Bombay, of which Sind was ihen a Division.\n\nBy the resolution the disputed area was divided by a new alignment which was partly identical with the claim made by the Kutch State along the Sir Creek from its mouth to its extremity and then slightly departed from it.\n\nIn the other regions the alignment of the Macdonald Survey was adhered to.\n\nTo the resolution was annexed a map on which the rectified boundary was shown.\n\nA Secretary in the Foreign Department of the Government of India recorded that \"the Government of India observe with satisfaction that the dispute between the Sind authorities and the Kutch Durbar has been settled by a compromise agreeable to both parties and are pleased to accord their sanction to the rectification of the boundary line proposed in paras 9 and 10\". To the letter of the Secretary to the Government of Bombay, Political Department, consent to the rectification of the boundary was evidenced by a letter of the Maharao under his own signature.\n\nPursuant to this resolution in 1924, pillars were fixed up to a point known as the Badin-Jati- Rann tri-junction.\n\nIn 1935 the new Province of Sind was constituted. Bv the Government of India (Constitution of Sind) Order, 1936, it\n\nMAGANBHAI v. UNION (Shah, J.) 291\n\nA simply provided therein that-\"In the Act .and this Order, S!nd means the territory known at the date of this Order, as the Dmsion of Sind, and the l;>oundaries of that Division shall be the boundaries of Sind.\"\n\nIt was originally intended to set out by a Schedule to the\n\n8 Order the boundary of Sind, and an Index Map was prepared by the Surveyor General for that purpose.\n\nBy a communication from the Secretary of State for India in Council, it was recommended that a Schedule to the Order defining the boundary was not necessary and the Governor-General accepted that suggestion. c\n\nThe fourth survey-called the Onmaston Survey-was commenced in 1938-39 : it was intended to be a survey of the E:; istem part of the Tharparkar District. This survey adopted the alignment of the Macdonald Survey in that region showing a conterminous boundary between Sind and the States of Western India (now within the State of Gujarat).\n\nWith the enactment of the Indian Independence Act, 194 7 ( 10 & 11 Geo. VI c. 30) the paramountcy of the British power lapsed, and the two independent Dominions of lndia and Pakistan were carved out with effect from the appointed day. By s. 2 ( 2) of the Act the territories of Pakistan were to be--\n\n\" (a)\n\n(~) the territories which, at the date of the passing of this Act, are included in the Province of Sind, ... , and\n\n(c) ,,\n\nF On May 4, 1948, the State of Kutch merged with the Dominion of India and by Artie!~ of the Areement of Merger the Maharao ceded to the Dollllmon of India fall and exclusive authority\n\nove~ the governance of the State. On June 1,.1949, the administrat!on was taken ver by. the Government of India, and the terntory was constituted mto a Chief Commissioner's Province G nde~ s. 2 ( 1) ( c) of the States Merger (Chief Commissioner's ovmce) Ord~', 1949.\n\nUnder the Constitution the territory , ame a an C State.\n\nIts extent was determined by the 2nd paagrap~ m Pan C to Schedule I of the Constitution as \"terriljnes which by vine of the order made under s. 290A of the overnment of India Act, 1935, were immediately before the H commenceI?ent of th~ <:=onst_itution being administered, as if the were a Chief Comm1ss10ner s Province of the same name.\" BY s.f ~~ 1) e) of the States Reorganisation Act, 1956 the territoJ o '\"e art C State of Kutch was incorporated with the State of\n\n292 SUPREME COURt REPOR1'S (1~69] j .s.c.a.\n\nBombay, and bys. 3 (a) of the Bombay Reorganization Act, 1960, it was included in the newly formed State of Gujarat.\n\nFrom , July 1948 and onwards diplomatic notes were exchanged .between the Governments of India and Pakistan concerning the boundary between the two countries in the Gujarat- West Pakistan Sector.\n\nThe dispute led to t tension between India and Pakistan resulting in armed conflict in April 1965. By an agreement dated June 30, 1965, the Government of India and\n\nthe Government of Pakistan c=luded an agreement for setting up machinery \"for determination and demarcation of the border\" in the area of Gujarat-West Pakistan.\n\nThe agreement in so far as it is relevant provides : ·\n\nArt. 1-\"There shall be an immediate cease-fire with effect from 0030 hours GMT on 1 Juiy 1965.\n\nArt. 2-.\n\nArt. 3-(i) In view of the fact that :\n\n(a) India claims that !here is no territorial dispute D as there is a well-established boundary running roughly along the northern edge of the Rann of Kutch as shown in the pre-partition maps, which needs to be demarcated <in the ground.\n\n(b) Pakistan claims that the border between India and Pakistan in the Rann of Kutch runs roughly E\n\n(c)\n\nalong the 24th parallel as is clear from several pre-partition and post-partition documents and therefore the dispute involves some 3,500 square miles of territory.\n\n(ii) In the event of no agreement between the Ministers of the two Governments on the determination of the border being reached within two months of the cease-fire, the two Governments shall, as contemplated in the Joint Communique of 24 October 1959, have recourse to the Tribunal referred to in (iii.) below for determination of the border in the. light of their respective claims and evidence produced before it and the decision of the Tribunal shall be final and binding on both the parties.\n\n(iii) For this purpose there shall be constituted, within four months of the cease-fire, a Trib.unal consisting of three persons, none of whom would be a national of either India or Pakistan. One member shall be nominated by each Government and the third mem-\n\nMAGANBHAI v. UNION (Shah, J.) 293\n\nA ber, who will be the Chairman, shall be jointly selected by the two Governments.\n\nIn \\he event of the two Governments failing to agree on the selection of the Chairman within three months of the cease-fire, they shall request the Secretary-General of the United Nations to nominate the Chairman.\n\nB (iv j The decision of the Tribunal referred to m\n\n(iii) above shall be binding on both Governments, and shall not be questioned on any ground whatsoever.\n\nBoth Governments undertake to implement the findings of the Tribunal in full as quickly as possible and shall refer to the Tribunal for decision any difficulties which C may arise between them in the implementation of these findings.\n\nFor that purpose the Tribunal shall remain in being until its findings have been implemented in full.\"\n\nThe Ministerial Conference contemplated to be held did not take place, and the two Governments decided to have recourse to the D Tribunal to be constituted under article 3(iii) of the agreement.\n\nA Tribunal of three members, one appointed by each State and the Chairman nominated by the Secretary-General of the United Nations Organization was set up.\n\nThe agreement between the two States was reached purely as an executive act, and no legislative sanction was obtained by the Government of the Union of E India to its implementation.\n\nThe respective claims before the Tribunal by India and Pakistan are set out in paragraph 3 ( 1) of the agreement and at pp. 7. 8 & 9 of the Introductory Part of the award which apparently had the concurrence of all the members of the Tribunal. On behalf of the Government of India it was submitted that the boundary lay as detailed in Map 'A' annexed to the award which is a mosaic' of Indian Maps B-44, B-37, B-19 and B-79.\n\nIt was common ground between the two Governments that \"the Gujarat-West Pakistan boundary stretches from the mouth of the Sir Creek in the west to a point on the Jodhpur boundary iii the each.\n\nThe Parties agree that the Western Terminus of the boundary to be de\\ermjned by the Tribunal is the point at which the blue dotted hne meets the purple line as depicted in. Indian Map B-44 and the Pakistan Resolution Map, and that the Eastern Terminus of the same boundary is a point situated 825.8 metres below pillar 92? on the Jodhpur boundary as depicted in Pakistan Map 137.\n\nThis agreement leaves out of the matters submitted to the Tribunal H !he potion of the boundary along the blue dt>tted line, as depicted m Indian Map B-44 and the Pakistan Resolution Map, as weU as the boundary in the Sir Creek. The blue dotted line is agreed by both Parties to form the boundary between. India and Pakistan.\n\nIn view of the aforesaid agreement, the question concerning the Sir Creek part of the boundary is left out of consideration.\"\n\nIt was also common ground that \"before Independence the boundaries between the Province of Sind, on the one hand, and one or more of the Indian States which lay on the opposite side of the Great Rann, on the other hand, were conterminous. Therefore, in the disputed region, apart from India and Pakistan, there is no other State that does or could have sovereignty.\n\nThere is between India and Pakistan a conterminous boundary today, whether or not there was at all times a conterminous boundary between Sind and the Indian States.\"\n\nThe contention raised by Pakistan was :\n\n\"(a) that during and also before the British period, Sind extended to the south into the Great Rann up to its middle and at all relevant times exercised effective and exclqsive control over the northern half of the Great Rann;\n\n(b) that the Rann is a \"marine feature\" (used for want of a standard term to cover the different aspects of the Rann). It is a separating entity lying between the States abutting upon it. It is governed by the principles of the median line and of equitable distribution, the bets in the Rann being governed by the principle of the \"nearness of shores\";\n\n( c) that the whole width of the Rann (without being a condominium) formed a broad belt of boundary between territories on opposite sides; that the question of reducing this wide boundary to a widthless line, though raised, has never been decided; that such widthless line would run through the middle of the Rann and that the Tribunal should determine the said line.\" Pakistan accordingly claimed that the border of Sind extended up to the boundary shown by the thick green dotted line in Map 'B'.\n\nIt was agreed by both the Governments that \"should the Tri- G bunal find that the evidence establishes that the disputed boundary . between India and Pakistan lies along a line different from the claim lines of either party, the Tribunal is free to declare such a line to be the boundary.\n\nThe award to be made by the Tribunal was, it was agreed, to operate as a self-executing arrangement : it was not only to declare the boundary, but to provide for fixing its location on site. It was agreed between the Agents of India and Pakistan that-\n\n....\n\nMAGANBHA! V. UNION (Shah, /.)\n\nA \"l. The basis of demarcation shall be the alignment\n\nof the boundary as delineated by the Tribunal on maps to be annexed to the Award. Each Government should be supplied with two sets of these maps duly authenticated by the Tribunal. 2 ..\n\n3. The Representatives of the two Governments shall meet at Delhi not later than two weeks after the Award is rendered to discuss and decide upon the following matters:\n\n(i) The strength of the team. (It is not possible to give the exact number of personnel composing the team at this stage as the strength of the team will depend upon the alignment of the boundary ,, and the quantum of work involved which can be ascertained only after the Award is rendered) .\n\n(ii) The design and specifi.ctions of the boundary pillars and traverse pillars, the number and spacing of pillars. (The design and specifications of the boundary pillars will depend upon the alignment of the boundary and the nature of the terrain. The pillars may be of cement concrete, stone or masonry according to the requirements of the terrain).\n\n(iii) Detailed operational instructions for the guidance of the field staff. (Such operational instructions have to be necessarily finalised only after the nature of the alignment is known).\n\n(iv) Any other matter which requires consideration for effective demarcation work.\n\nIf the Representatives of the two Governments do not agree upon any of the above matters either Government shall intmediately report to the Tribunal the matters in difference for the decision of the Tribunal.\n\n6. The first task of the demarcation team shall be to ascertain •if any control points exist and are available.\n\nThese control points should be supplemented, wherever necessary, in order to determine the pillar positions on the ground in accordance with the alignment of the boundary. If control points do not exist or are not available. a fresh series of triangulation or traverse will be carriecl out and control points determined and the pillar position< located with the help of these points.\n\n7. Simultaneou, ly witn me location of me pillar A positions, pillars shall be emplaced at each position .... \"\n\nThe award was published by the Tribunal on February 19,\n\n1968. By the decision of the Cha1rman of the Tribunal (Judge Gunnar Lagergren) with whom Ambassador Nasrollah Entezam agreed and Ambassador. Ales Babier disagreed in part, the boundary was aligned from point W T to E T in Map 'C'. It is unnecessary to set out the detailed description of the boundary. The claim of the Government of India to the Rann was accepted. The claim of the Govern}nent of Pakistan to approximately 3,500 square miles out of the Great Rann was rejected except as to 350 square mile:., vf which more than 325 square miles are found beyond the Rann or on which the Maharao had not exercised sovereign authority. The Tribunal unanimously accepted the claim that the Great Rann of Kutch was part of the territory of the State of Kutch and is now Indian territory.\n\nBut the majority of the Tribunal accepted the claim of Pakistan, substantially to the following three sectors : ( 1 ) Margmal area south of Rahim ki Bazar, marked by B, C, D in Map 'C', this may be called the Kanjarkot Sector;\n\n(2) The area marked in the Map 'C' by letters E, F, G, H, K which may be called Ohara Banni and Chhad Bet. Sector;\n\n(3) Two inlets which practically encircle Nagar Parkar which have apparently characteristic features of\n\nthe Rann but are still declared to be within the border of Pakistan by drawing straight lines from points L to M and N to 0 in Map 'C'. '\n\nThe reasons for declaring the first two sectors as Pakistan temtory are set out (at p. 152 of the printed award) by the Chairman Judge Gunnar Lagergren as follows :\n\n \"Reviewing and appraising the combined strength or the evidence relied upon by each side as proof or indication of the exteqt of its respective sovereignty in the region, and comparing the relative weight of such evidence, I conclude as follows. In respect ol those sectors of the Rann in relation to which no specific evidence in the way of display of Sind authority, or merely trivial or isolated evidence of such a character, supports Pakistan's claim, I pronounce in favour of India. These se=tors comprise about ninety per cent of the disputed territory. However, in respect of sectors where a continuous and for ihe region intensive Sind activity, meeting with no efkctivc opposition from the Kutch side, is established, I am of\n\nMAGANBHAI v. UNION (Shah, J.)\n\nthe opinion that Pakistan has made put a better and superior title. This. refers to a marginal area south of Rahim ki Bazar, including Piro! Valo Kun, as weli as to Dhara Banni and Chhad Bet, which on most maps appear as an extension of the mainland of Sind.\"\n\nAbout Item (3) Judge Gunnar Lagergren was of the view that to prevent friction and conflict the inlets should not be declared Kutch territory.\n\nThe effect of an international treaty on the rights of citizens of the States concerned in the agreement is stated in Oppenheim's International Law, 8th Edn., at p. 40 thus :\n\n\"Such treaties as affect private rights and, generally, as require for their enforcement by English courts a modification of common law or of a statute must receive parliamentary assent through an enabling Act of Parliament. To that extent binding treaties which are part of International Law do not form part of the law of the land unless expressly made so by the legislature.\"\n\nand at p. 924 it is stated :\n\n\"The binding force of a treaty concerns in principle the contracting States only, and not their subjects.\n\nAs International Law is prir:iarily a law between States only and exclusively, treaties can normally have effect upon States only. This rule can, as has been pointed out by the Permanent Court of International Justice, be altered by the express or implied terms of the treaty, in which case its provisions become self-executory. Otherwise,, if treaties contain provisions with regard to rights and duties of the subjects of the contracting States, their courts, officials, and the like, these States must take steps as are necessary according to their Municipal Law, to make these provisions binding upon their subjec, ts, courts, officials, and the like.\"\n\nIn Wade and Phillips' Constitutional Law, 7th Edn., it is stated at p. 274:\n\n\"At first sight the treaty-making power appears to conflict with the constitutional principle that the Queen by prerogative cannot alter the law of the land, but the provisions of a treaty duly ratified do not by virtue of the treaty alone have the force of municipal Jaw. The assent of Parliament must be obtained and the necessary legislation passed before a court of law can enforce the treaty, should it conflict with the existing law.\"\n\nOn p. 275 it is stated ihat \"treaties which, for their execution and application in the United Kingdom, require >Ome addition to, or alteration of, the existing law\" are treaties which involve legislation. The statement made by Sir Robert Phillimore, Judge of the Admiralty Court in The Parlemcnt Beige(' )~(though the ultimate decision was revised by the Court of Appcal:'r>n another point [vide ( 1880) 5 P. D. 197] in dealing with the efi'ect of a \"Convention regulatinp Communications by Post\" signed and ratified in 1876 which purported to confer upon Belgian mail streamers immunity of foreign warships is appropriate :\n\n\"If the Crown had power without the authority of parliament by this treaty to order that the Parlement Beige should be entitled to all the privileges of a ship of war, then the warrant, which is prayed for against her as a wrong-doer on account of ~e collision, cannot issue, and the right of the subject, but for this order unquestionable, to recover damages for the injuries done to him by her is extinguished.\n\nThis is a use of the treaty-making prerogative of the Crown which I believe to be without precedent, and in principle contrary to the laws of the Constitution.\"\n\nIn Walker v. Baird(') the Judicial Committee, affirming the decision of the Supreme Court of Newfoundland, observed that the plea of act of State raised in an action for trespass against the Captain of a British fishery vessel who was authorised by the Commissioners of the Admiralty to superintend the execution of an agreement betwee!I the British Crown and the Republic of France, which provided that no new lobster factory shall be established on a certain part of the coast of Newfoundland could not be upheld.\n\nThe Judicial Committee in Attorney-General for Canada v.\n\nAttorney-General for Ontario and Others(') made some observations in the context of a rule applicable within the British Empire. which are pertinent :\n\n\"It. ilt 'be essential to keep in mind the distinction betweeq.Jl) the formation, and (2) the performance, of tht:'.,1obligations constituted by a treaty, using that word as comprising any agreement between two or more\n\nsoveftiign States. Within the British Empire there is a well-established rule that the making of a treaty is an 'executive act, while the perfonnance of its obligations, if they entail alteration of the existing domestic law, requires legislative action. Unlike some other countries,\n\n(I) [1879] 4P.D.129.\n\n(2) [1892] A.C. 491.\n\n(3) [1937] A.C. 326, 347.\n\nB '\n\nMAGANBHAI JI, UKION (Shah, /.)\n\nthe stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty . alone, have the force of law. If the national execuuve, the Government of the day, decide to incur the obligations of a treaty which involve alteration of law the_y have to run the risk of obtaining the assent of Parliament to !he necessary statute or statutes ..... Parliament, no doubt, .... has a CQ11Stitutional control over the executive : but it cannot be disputed that the creation of the obligation.~ undertaken in treaties and the assent to their form and quality are the function of the executive alone. Once they are created, while Uley bind the State as against the other contracting parties, Parliament may refuse to perform them and so leave the State in default.\"\n\nThese observations are valid in the context of our collStitutional sot up. By Art. 73, subject to the provisions of !he Constitution, the executive power ()f the Union extends to the matters with respect to which the Parliament has power to make laws. Our Constitution makes no provision making legislation a conditicn of the entry into an international treaty in times either of war or peace. The executive power of the Union is vested in the Presi dent and is exercisable in accordance with the Constitution. The executive is qua the State competent to represent the State in all matters international and may by agreement, convention or treaties incur obligations which in international law are binding upon the State. But the obligations arising under the agreement or treaties are not by their own force binding upon Indian nationals. The - power to legislate in respect of treaties lies with the Parliament under Entries 10 and 14 of List I of the Seventh Schedule. But making of law under that authority is necessary when the treaty or agreement operates to restrict the rights of citilens i; r others F OI' modifies the laws of the State. If the rights of the citizens or\n\nothers which are justiciable are not affected, no legislative measure is needed to give effect to the agreement or treaty.\n\nThe argument raised at the Bar that power to make treaty or to implement a treaty, agreement or convention with a foreign State can only be exercised under authority of law, proceeds upon a misreading of Art. 253. Article 253 occurs in Ch. I of Part XI of the Constitution which deals with legislative relations : Distinction of Legislative Powers.\n\nBy Art. 245 the territorial operation of legislative power of the Parliament and the State Legislatures is delimited, and Art. 246 distributes legislative power subject-wise between the Parliament and the State Legislatures.\n\nArticles 247, 249, 250, 252 and 253 enact some of the exceµtions to the rule contained in Art. 246. The effect of Art. 253 is that if a treaty, agreement or convention with a foreign State\n\ndeals with a subject within the competence of the State Legislature, the Parliament aloe has, notwithstanding Art. 246 ( 3), the power to make Jaws to 1mplcmcnt the treaty, agreement or convention or any decision made at any international conference, association or other body.\n\nIn terms, the Article deals with legislative power : thereby power is conferred upon the i'arliamcnt which it may not otherwise possess. But it does not seek to circumscribe the extent of the power conferred by Art.· 73.\n\nIf, in consequence of the exercise of executive power, rights of the citizens or others are restricted or infringed, or Jaws are modified, the exercise of power must be supported by legislation : where there, is no such restriction, infringement of the right or modification. of the laws, the executive is competent to exercise the power.\n\nIt may be recalled that cl. 3 (iv) of the Agreement included a .covenant that the decision of the Tribunal shall be binding on both the Governments. The power of the. executive to eriter into that .covenant cannot also be challenged, and was not challenged.\n\nIt was conceded that if the contention based on Art. 253 was not accepted, the award of the Tribunal by majority of two (Judge Gunnar Lagergren with whom Ambassador Nasrollah Entczani agreed) was binding upon the Government of India.\n\nIt was accepted that as an international agreement between the two States represented by their executive Governments it became binding between the two States as expressly undertaken.\n\nNo argument was urged that there exist any grounds which may justify the Union of India from declining to implement the agreement.\n\nThe award of the Tribunal has, it was ; onceded, to be implemented as an international oblig, ation. Counsel who represented the claimants, and claimants who argued their cases, before us, adopted an eminently fair attitude. °It was not urged that the award was not binding upon the Union of India : their plea urged with moderation was that insofar as the award affected the terri- 1orial limits of India, it required a constitutional amendment.\n\nIt was not suggested that apart from the claim to exercise rights to move freely throughout the ierritory of India under Art. 19(l)(d), and to reside and settle in any part of the territory of India. under Art. 19(1 )(e) any other right of 'any individual citizen was likely to be infringed by the implementation of the award. The nature of the terrain of the disputed territory precludes any other claim being made, There are no local residents, qo private property and no agriculture. For four months in the year it is mostly under water, for the rest of th~ year it is marshy land. But it was claimed that every individual citizen of India is entitled to exercise the privileges under els. (d) and ( e) of Art. 19 ( 1 ) in respect of territory between the boundary shown in Map 'A' annexed to the award, and the boundary delineated by Map 'C' which represents, in the view of the Tribunal, the\n\nMAGANBHA! v. UNION (Shah; J.)\n\nJO I\n\nborder between the two States, is Indian territory and deprivation of the rights of the citizens undei: Art. 19 ( l )( d J & ( e) can only be achieved if the cession of what is now part of the territory of India be ceded under the sanction of a constitutional amendment.\n\nMr. Limaye petitioner in Writ Petition No. 402 of 1968 claimed that he made an attempt to enter the territory which under the award falls within the Pakistan Border, and was p1evented by the security police from entering that area.\n\nThe only question to be determined therefore is whether in implementing the award, the executive Government is ceding territory of India to Pakistan.\n\nI have set out the terms of the agreement and the disputes raised by the two States in some detail.\n\nA review of the terms of the agreement, the unanimous introductory part of the award and the terms of the agreement relating to the implementation of the award and of the final award, make it abundantly dear that the dispute related to the boundary between the two States : it was referred as a boundary dispute, the respective claims urged D were about the location of the boundary line, and the operative piirt of the award declared the alignment of the boundary, which has under the terins of the agreement relating to the procedure for demarcation to be fixed by pillars on the alignment.\n\nSettlement of dispute which relates to the alignment of an undefined boundary between two States involves no cession of territory by either State. In the advice rendered to the President in a reference made to this Court under Art. 143 in In Re : The Berubari Union and Exchange of Enclaves(1) this Couri was called upon .to determine the true nature of the agreement between the Prime Ministers of India and Pakistan-each Prime Minister acting on behalf of his Governinent-of September 10, 1958, for a division of the Berubari Union in the State 'of West Bengal and exchange of ce(lain enclave8 and whethefthe agreement may be 'implemented otherwise than by a constitutional amendment.\n\nThis Court held that the agreement between the two Prime Ministers did not seek to interpret the Radcliffe Award or to determine the boundary between the two States.\n\nIt was agreed by the two Prime Ministers that a part of the Berubari Union which was allotted to India under that Award and ll(llS in occ11pation of India was to be ceded to 'Pakistan, and enclaves within Pakistan but in occupation of India de jure were to be echanged for similar enclaves of. Pakistan within Indian territry:: .. This Court advised the President that the agreement could be' implemented under the authority of a constitutional amendment only.\n\nThe Parliament then enacted the Constitution (Ninth Afilndment) Act, 1960, assuming power to implement the agreement and. the\n\n11) (1960] 3 S.C.R. 250.\n\n302 SUPREME COU-!lT REPORTS\n\n\ntwo other agreements dated October 23, 1959 and January 11,\n\n1960. Another matter arising out of those agreements between the two Prime Minlsters was brought before this Court by an appeal from an order passed by the High Court of Calcutta in a writ petition: Ram Kishore Sen & Ors. v. Union of India and Ors. ( 1). It was proposed pursuant to the Constitution (Ninth Amendment) , Act, 1960, to transfer, a_mong other territory, a part of the village of Chilahati in the occupation of the State of West Bngal in India.\n\nA petition filed in the High Court of Calcutta challenging the validity of the proposed transfer to Pakistan on the ground that village Chilahati which was part of the Indian territory could not be transferred by the Government of India. The High Court of Calcutta rejected the petition. In appeal to this Court it was urged, inter a/la, that the disputed part of the village Chilahati though allotted to Pakistan was not delivered to Pakistan and had become pan of the State of West Bengal, because it was being administered as if it formed part of the territory of West Bengal within the meaning of Entry 13 Part A Sch. I as amended by the Constitution (Amendment of the First & Fourth Schedules) Order, 1950. The Court held that the proposed transfer of a part of the village of Chilahati, which was allotted to Pakistan under the Radcliffe Award but was not delivered, and continued to remain administered as a part of the State of West Bengal, was not constitutionally invalid.\n\nIn In Re : The Berubari Union and Exchange of Enclaves(') there was no question of demarcation of a disputed boundary : it was a case of pure cession of Indian territory. Ram Kishore Sen\n\n& Ors' case ( 1 ) which dealt, among others, with the cession of 500 acres of Chilahatl viUage related to transfer of territory which though temporarily under Indian administration had never become Indian territory.\n\nThe principle of the First Berubari case has no application here and the principle of the Second Berubari case is against the contention raised by the claimants.\n\nBut tlle claimants urge that by the alignment of the boundary under the award, territory which is Indian is now declared foreign territory, and it cannot be implemented without the authority of an amendment modifying tlle boundary of the State of Gujarat in which is now included the Rann of Kutch.\n\nNow the alignment of the boundary under the award deviates from the alignment claimed by the Government of India before the Tribunal in three imoortant respects which have already been set out. The Tribunal was of the view, on a consideration of the maps produced. that there did not exist at any time relevant to the proceedings a historically recognized and well-established\n\n(I) [1966] I S.C.R. 430.\n\n(2) [1960] 3 S.C:R. 250.\n\nMAGANBHAI V. UNION (Shah, J.) 303\n\nboundary in the three sectors.\n\nAbout the Kanjarkot Sector the Chairman observed :\n\n\"The evidence shows that Kutch did not make any appearance in this area until 1946, and then only abortive attempts were made by the sons of the lessee, Node Sadi Rau, to go there in order to collect Panchari: _Thy\n\nreported that they did not even dare to stay overmght Ill the place.\n\nWhile no specific evidence has been submitted which proves any activities undertaken by Sind subjects in Piro! Valo Kun, the reports of the Kutch lessees establish that Sind inhabitants engaged in grazing there.\"\n\nand further observed at p. 151 :\n\n\"In a sector bounded to the south by the southern limit of Piro! V alo Kun, not only is there a total absence of effective Kutch activity, but there is a consistent exercise of sovereign rights and duties by Sind authorities, and activities of residents of Sind, in one instance, taking the form of a permanent settlement at Shakur.\" The territory in this sector is contiguous to and in fact is an extension of the mainland of Sind, and apart from the survey maps there is no evidence that it is part of the Great Rann of Kutch. No serious argument was advanced to establish that on Kanjarkot, the Kutch State at any time exercised sovereign authority.\n\nAbout the Ohara Banni and Chhad Jkt Sector Judge Gunnar Lagergren observed (at p. 141) :\n\n\". . . . on the evidence on record it may be taken as positively establish.ed that, in this century, prior to independence, outside Ohara Banni and Chhad Bet (which will be treated presently), the police and criminal jurisdiction of Sind authorities over disputed territory extended, in the sector between the eastern loop and phara Banni, to Ding, Vighokot and Biar Bet. There is, howevr, no evidence which affirmatively proves in a conclusive fashion that the jurisdiction of Sind police and Sind courts encompassed areas west of the eastern loop, or east of Chhad Bet.\n\nConversely. no proof i~ offered that Kutch either assumed or exercised such jurisdiction over any part of the disputed territory (leaving aside Ohara Banni and Chhad Bet).\"\n\nHe again observed (a~ p. 144) :\n\n\" .... I deem it established that, for well over one hundred years, the sole benefits which could be derived\n\nfrom those areas are enjoyed by inhabitants of Sind.\n\nIt is not suggested that the grazing as .such was subject to British taxation.\n\nSuch limited evidence as there is on record seems, however, to justify the assumption that the task of mainJaining law and order was discharged by the Sind authorities; it is not even suggested that the authorities of Kutch at any time viewed such a task as forming part of their duties ........ .\n\nWhatever other Government functions were required with respect to these outly)ng grazing grounds, on which herds of cattle were from time to time 'shepherded, were apparently unaertaken by Sind.\n\nThus, the births, deaths and epidemics occurring there were recorded by the ta/uka office in Diplo. It is not shown that Kutch at any time established a thana on Chhad Bet.\"\n\nHe finally observed (at p. 151) :\n\n\"The remaining sector within the area described above in which authority, in this instance exclusively for the protection of activities of private individuals, is\n\nhown to have been displayed by Sind authorities in a manner which is not sporadic but consistent and effective, is Dhara Banni and Chhad Bet.\n\nAs stated earlier, the activities undertaken by Kutch in these areas cannot be characterised as continuous and effective exercise of jurisdiction. By contrast, the presence of Sind in Dhara Banni and Chhad Bet partakes of characteristics which, having regard to the topography of the territory and the desolate character of the adjacent inhabited region, come as close to effective peaceful occupation and display of Government authority as may reasonably be expected in the circumstances. Both the inhabitants of Sind who openly used the grazing grounds for over cine hundred years and the Sind authorities must have acted on the basis that Dhara. Banni and Chhad Bet were Sind territory.\"\n\nThe claimants urged that the territory in this Sector belonged to the Kutch State and that claim was supported by survey maps, correspondence between the officials of Kutch State and the British\n\nAdministration, assertions made in the Annual Administration Reports for 75 years before 1947, Statistical Abstracts relating to British India, Bombay Administration Reports Gazetteers, Memorandum on Indian States and a number of official publications, and by the Resolution of Jthe Government of Bombay, dated\n\n' c\n\nMAGANBHAI V. UNION (Shah, /.) 305\n\nFebruary 24, 1914. It would be a fruitless exercise to enter upon this historical material.\n\nThe survey and other maps do not lay down a uniform or consistent alignment.\n\nMacdonald Survey appears to align the boundary of Siad towa1 ds th~ north eve~ ot Rahim ki Bazar which 1s adnuttedly on the mamland of Smd,\n\nand was never claimed as part of the Rann. This lends support to the view that the Macdonald Survey report was rough, and was intended to be a topographical m'!.P: The maps prepared at the later surveys follow, with some vanations and rectitications,\n\nthe Macdonald Survey alignmeint, but those survey maps also do not indicate an international boundary.\n\nAbout Pullan's Survey it may be observed that Pullan himself stated that he had \"carefully abstained from laying down\" or suggesting a boundary\n\n(vi de Resolution of the Government of Bombay July 3 and August 7, 1885). The attitude adopted by the Government of Bombay which is set out in the resolution was that they \"did not desire· that any \"question of boundaries in the Rann between the Province of Sind and Kutch\" should be aised.\n\nErskine's Survey also is opert to the criticism that as an officer of the Sind Government he made statements in his letter, dated November 23, 1905, disowning any intention to determine the boundary of the Rann of Kutch.\n\nThe maps prepared in thii Erskine Survey were not accepted as evidencing a boundary.\n\nEven the Maharao of Kutch did not agree to accept the alignment. By the resolution of 1914, it does appear that an attempt was made to resolve the dispute about certain disputed pockets, between the British authorities governing Sind and the Maharao of Kutch.\n\nBut a review of the correspondence of 1905, followed by erection of pillars up to the western tri-junction, and establishment of a customs line in 1934-appear to suggest that the boundary east of the trijunction was in a state of uncertainty.\n\nConflicting claims were made from time to time by the British authorities and the Maharao of Kutch; and about the exercise of sovereign rights over the areas now in dispute the evidence is very scrappy and discrepant. An attempt to determine how far general statements of claim and refusal thereof were applicable to the sector now in dispute would serve no useful purpose.\n\nDifferent positions were adopted by the officers of the Government of India according as the exigencies of a particular situation demanded. The statements or assertions do not evidence an existing state of affairs; they were only made to support or resist claims then made or to serve some im!11ediate PUf!?OSe.\n\nThe. claimnts befor~ us ere unable to pinpomt any defimte and reliable piece of evidence which established the exercise of sovereign authority by the Maharao of Kutch over\n\nthe second sector.\n\n. It is true that the territory of the entire State of Kutch merged with the Dominion of India. That territory was treated as Indian\n\nterritory and was at first governed as a separate administrative unit.\n\nBut unless it be established that the disputed sectors were part of the Kutch State, no firm conclusion can be drawn from the agreement of merger.\n\nUndoubtedly the Government of India claimed at all material times the territory in Sectors ( 1) and (2).\n\nIn respect of the Kanjarkot Sector there is no evidence of exercise of sovereign auth, ority by the Maharao of Kutch at any point of time.\n\nThe sector is apparently contiguous to and an extension of the ma.inland of Sind. It is not shown that it has the characteristics of the Rann terrain.\n\nThe Ohara Banni and Chhad Bet Sector is also apparently\"an extension of the mainland of Sind.\n\nThere is no reliable evidence about the enjoyment of the benefits of the land in the Sector by the inhabitants of Kutch. Evidence of the exe; cise of suzerainty by the Maharao of Kutch over, .. !hat ~'Ctor is also sadly lacking.\n\nThe .sector has more pronounced features of the Rann terrain, but it appears also to be contiguous to the mainland of Sind. Even granting that the evidence about the exercise of sovereign authority by the British authorities governing Sind\n\nsince 1843 over the Rann of Kutch is inconclusive, the claim by Indian citizens to exercise fundamental rights in respect of the territory in that Sector may be entertained only if it be established that the territory is found to be originally governed by the Maharao of Kutch. On that part of the claim, concrete evidence is wanting.\n\nIt was contended that the total area of Kutch according to the White Paper on Indian States was 17 ,249 square miles out of which the area of the Kutch mainland was 8,461 square miles and the balance was 8,788 sqi:are miles which consists of the Great and Little Ranns of Kutch.\n\nIn the Kutch Administration Report for 1910-11 and thereafter the area of Kutch was stated to be \"7616 square miles\" and it was stated that \"the Rann also belongs to the Maharao\". In 1931 a correction was introduced that the area of the State was 8249.5 square miles exclusive of the Rann of Kutch which belongs to the Kutch State territory.\n\nThe Bombay Administration Reports from 1871-72 to 1923-24 give varying figures as the area of Kutch and make a general statement that the Rann of Kutch belongs to the State. The statement in the Imperial Gazetteers of 1881, 1885, 1908, 1909 contain statements about the areas which are so discrepant that no reliance can be placed upon them. Similarly the recitals about the extent of the Rann, in the Gazetteers of the Bombay Presidency are also imprecise.\n\nThe only safe conclusion that can be drawn from these documents is that the Rann was part of Kutch State but do not lend any assistance in determining the northern boundary of the Rann.\n\nMAGANBHAI v. UNION (Shah, J.) 307\n\nA It is stated in the affidavit of Mr. Dholakia that the area of the Kutch District was 16567 .3 square miles inclusive of 9000 square miles of Rann territory. But evidently the area of the Rann is a rough estimate.\n\nIn the Census ?f 1941 the area of Ki, itch was shown: as ~,461 square miles and m 1951 Census as 16,724 square miles mclu- B sive of Rann. There is no evidence that the figures are based upon any precise survey in the context of an accepted boundary.\n\nThe Census of 1961 shows that there were 1 71 residents in the Chhad Bet.\n\nBut these consist exclusively of the Border Guards posted in that area. It is conceded tat !her~ is n<? local population in Chhad Bet and Ohara Banm. The mclUS1on of C Chhad Bet in the area within a polling station for the 1967 <; Jenera!\n\nElecti~ also supports merely an assertion that it was claimed to be Indian territory. It is not evidence of the fact that it was territory over which the Maharao of Kutch exercised sovereign rights and which by merger of the territory became. Indian territory.\n\nThe evidence on which reliance was mainly placed in support D of the claim was the conflicting alignments in the survey and other maps, the claims made by the Maharao of Kutch and the Government of India which were not accepted. Exercise of de facto authority over the territory in the sectors after the disputes took concrete forrn is evidence of an assertion merely and not evidence of pre-existing sovereign rights. The merger of the State E of Kutch with the Dominion of India does not result in vesting of sovereign authority over the territory of the two sectors, unless the suzerainty of the State of Kutch is established. The boundary between the two States was indefinite and by the award of the Tribunal the true boundary of India and Pakistan is determined: 'the award does not purport to, nor does it operte as giving rise to, F an obligation to cede Indian territory.\n\nThe two inlets which practically encircle Nagar Parkar are declared to be within Pakistan Border on the ground that it would be in1l9uitable to recognise those inlets as foreign territory.\n\nIt was said by the Chairman of the Tribunal that the existence of such foreign territory.may be \"conducive to friction and conflict\".\n\nRegarding the two inlets the position is different since the ultimate decision of the Tribunal is founded on considerations of expediency\n\na_nd not on strict determinatiqn of rights. We have no power to sll in appeal over the decision of the Tribunal. The ground on v:hich the a'Yard is made against the c)aim made by the Government of India does not strengthen the rights of the claimants to relief. Unless there is evidence to show that the inlets were territory over which the Maharao of Kutch had sovereigri ri!!hts\n\naccetan; e of the award is not required to be implemented by const1tut10nal amendment.\n\nThe total area of the inlets, we are\n\nSUPREME.COURT REPORTS\n\n\ninfonned by counsel on both sides, does not exceed 25 square miles.\n\nIn the turbulent times which preceded the occupation of Sind by the East India Company in J 843 or even thereafter it is unlikely that any authority was exercised by the Maharao of Kutch over these inlets. It appears from some of the maps that at the extremties the inlets are, very narrow : and roads cross these !nlcts from Nagar Parkr, whic~ is f the shape of a penninsula mto the mamland of Smd.\n\nIt 1s difficult to accept that at any' time effective sovereign authority could have been exercised over these inlets by the Maharao of Kutch.\n\nThere is no evidenpe of exercise of any such right, before or after the occupation of Sind.\n\nThere being no evidence of exercise of sovereign authority by the Mahurao of Kutch, this Court cannot treat it as part of Indian\n\nterritory.\n\nOn the view the claim made by the claimants that in implementing the award of the International Tribunal an attempt is made to cede any part of the territory which formed part of the State of Kutch before 1948, or was in. de facto wcupation and in respect of which sovereign authority was exercised by the Maharao of Kutch. The award does no more than define on the surface of the earth a boundary which has at ~II materi~I times remained indefinite, because of the nature of th~ terrain, the shifting m,1ture\n\nof the border of what was called Rann, the highly discrepant and conflicting claims made from time to time by the British authorities as well as the Kutch State authorities before the State merged with the Dominion of India in 1948, and the persistent refusal of the British authorities, though there were several occasions to demarcate the boundary between Sind and the Rann of Kutch.\n\nThe appeal and the writs are dismissed.\n\nThere will be no order as to costs in the appeals and the writ petitions.\n\nR.K.P.S.\n\nAppeals and petitions dismissed.\n\nL7Su~. Cl /69-2' ; oo-'7-2-70-GIPF.", "total_entities": 408, "entities": [{"text": "MAGANBHAl~HWARBHAIPATEL", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "Maganbhai Ishwarbhai Patel", "offset_not_found": false}}, {"text": "UNION Olf INDIA AND ANR", "label": "RESPONDENT", "start_char": 25, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "UNION Olf INDIA AND ANR", "offset_not_found": false}}, {"text": "January 9, 1969", "label": "DATE", "start_char": 51, "end_char": 66, "source": "ner", "metadata": {"in_sentence": "January 9, 1969\n\n[M. HmAYATULLAH, C.J., '."}}, {"text": "c. SHAH", "label": "JUDGE", "start_char": 97, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 107, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "V. 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between the malnland of Sind (now part of Pakistan) and the mainland of Kutch."}}, {"text": "Kutch", "label": "GPE", "start_char": 2686, "end_char": 2691, "source": "ner", "metadata": {"in_sentence": "The Great Rann of KUtch lies between the malnland of Sind (now part of Pakistan) and the mainland of Kutch."}}, {"text": "Governments of India", "label": "ORG", "start_char": 3089, "end_char": 3109, "source": "ner", "metadata": {"in_sentence": "From 1948 onwards diplomatic notes were exchanged between the Governments of India and Pakistan concerning the boundary between the two countries in the Gujarat-West Pakistan Sector."}}, {"text": "Pakistan", "label": "GPE", "start_char": 3114, "end_char": 3122, "source": "ner", "metadata": {"in_sentence": "From 1948 onwards diplomatic notes were exchanged between the Governments of India and Pakistan concerning the boundary between the two countries in the Gujarat-West Pakistan Sector."}}, {"text": "Febrnary 19, 1968", "label": "DATE", "start_char": 3799, "end_char": 3816, "source": "ner", "metadata": {"in_sentence": "By award dated Febrnary 19, 1968, the Tribrinal accepted the claim of Pakistan to three sectors and two inlets in the Rann of Kutch."}}, {"text": "Art. 19(1)(d)(e)", "label": "PROVISION", "start_char": 4003, "end_char": 4019, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 4072, "end_char": 4079, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 4598, "end_char": 4612, "source": "regex", "metadata": {"statute": null}}, {"text": "Union of India", "label": "ORG", "start_char": 4638, "end_char": 4652, "source": "ner", "metadata": {"in_sentence": "The Union of India, on the other hand, contended that no cession of territory was involved since the dispute concerned the settlement of boundary which was uncertain, that the award itself was the operative treaty and after demarcation of boundary ii was only necessary to exchange letters recognising the established border."}}, {"text": "Per Hidayatullah", "label": "JUDGE", "start_char": 5353, "end_char": 5369, "source": "ner", "metadata": {"in_sentence": "288 H-289 BJ\n\n(Per Hidayatullah, C.J., Hamaswami, Mitter and Urover, JJ.) : (", "canonical_name": "Per Hidayatullah"}}, {"text": "Hamaswami", "label": "JUDGE", "start_char": 5377, "end_char": 5386, "source": "ner", "metadata": {"in_sentence": "288 H-289 BJ\n\n(Per Hidayatullah, C.J., Hamaswami, Mitter and Urover, JJ.) : (", "canonical_name": "V. RAMASWAMI"}}, {"text": "Mitter", "label": "JUDGE", "start_char": 5388, "end_char": 5394, "source": "ner", "metadata": {"in_sentence": "288 H-289 BJ\n\n(Per Hidayatullah, C.J., Hamaswami, Mitter and Urover, JJ.) : (", "canonical_name": "Mitter"}}, {"text": "Urover", "label": "JUDGE", "start_char": 5399, "end_char": 5405, "source": "ner", "metadata": {"in_sentence": "288 H-289 BJ\n\n(Per Hidayatullah, C.J., Hamaswami, Mitter and Urover, JJ.) : ("}}, {"text": "United States of America", "label": "GPE", "start_char": 6395, "end_char": 6419, "source": "ner", "metadata": {"in_sentence": "In the United States of America a freaty is the Supreme Law and it is only when the terms of a treaty require that a law must be passed that it has tQ be so passed."}}, {"text": "England", "label": "GPE", "start_char": 6692, "end_char": 6699, "source": "ner", "metadata": {"in_sentence": "In England, as no written constitution exists, difference is made between treaties of peace when the Crown acts without obtaining the approval of Parliament and session in peace time when such approval rDU$t be had."}}, {"text": "United Kingdom", "label": "GPE", "start_char": 6989, "end_char": 7003, "source": "ner", "metadata": {"in_sentence": "But even so a distinction is made in the case of British possessions abroad and the United Kingdom."}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 7523, "end_char": 7544, "source": "regex", "metadata": {}}, {"text": "United States", "label": "GPE", "start_char": 7627, "end_char": 7640, "source": "ner", "metadata": {"in_sentence": "The Constitution of India does not contain any clear directioa about treaties such as is to be found in the United States and French Comtjtutions."}}, {"text": "Art. 253", "label": "PROVISION", "start_char": 7882, "end_char": 7890, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 1", "label": "PROVISION", "start_char": 8345, 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{"confirmed_by_gazetteer": true}}, {"text": "Shah", "label": "JUDGE", "start_char": 12264, "end_char": 12268, "source": "ner", "metadata": {"in_sentence": "(Per Shah J.) : (i) The Constitution of India makes no provision making legislation a condition of the entry ioto an international treaty in times of war or peace."}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 12283, "end_char": 12304, "source": "regex", "metadata": {}}, {"text": "Art. 253", "label": "PROVISION", "start_char": 13592, "end_char": 13600, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 253", "label": "PROVISION", "start_char": 13616, "end_char": 13624, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 246(3)", "label": "PROVISION", "start_char": 13808, "end_char": 13819, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 73", "label": "PROVISION", "start_char": 14114, "end_char": 14121, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "[1960] 3 S.C.R. 250", "label": "CASE_CITATION", "start_char": 15551, "end_char": 15570, "source": "regex", "metadata": {}}, {"text": "[1966] 1 S.C.R. 430", "label": "CASE_CITATION", "start_char": 15639, "end_char": 15658, "source": "regex", "metadata": {}}, {"text": "D.ominion of India", "label": "RESPONDENT", "start_char": 17084, "end_char": 17102, "source": "ner", "metadata": {"in_sentence": "The merger of the State of Kutch with the D.ominion of India does not Tesult in vesting of overeign authority over the terTitory unless the suze~ rainty of the State of Kutch is established."}}, {"text": "State of Kutch", "label": "GPE", "start_char": 17202, "end_char": 17216, "source": "ner", "metadata": {"in_sentence": "The merger of the State of Kutch with the D.ominion of India does not Tesult in vesting of overeign authority over the terTitory unless the suze~ rainty of the State of Kutch is established."}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 17830, "end_char": 17858, "source": "ner", "metadata": {"in_sentence": "307 G; 208 D-EJ\n\nCIVIL APPELLATE JURISDICTION/ORIGINAL\n\nJURISDICTION : Civil Appeal No."}}, {"text": "MAGANBHA", "label": "PETITIONER", "start_char": 18212, "end_char": 18220, "source": "ner", "metadata": {"in_sentence": "343 and 294\n\nMAGANBHA!", "canonical_name": "MAGANBHAI"}}, {"text": "UNION", "label": "RESPONDENT", "start_char": 18225, "end_char": 18230, "source": "ner", "metadata": {"in_sentence": "v. UNION (Hidayatullah, C.J.) 259\n\nA of 1968 and Petitions under Art."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 18232, "end_char": 18244, "source": "ner", "metadata": {"in_sentence": "v. UNION (Hidayatullah, C.J.) 259\n\nA of 1968 and Petitions under Art.", "canonical_name": "Per Hidayatullah"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 18287, "end_char": 18294, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 18302, "end_char": 18323, "source": "regex", "metadata": {}}, {"text": "N. Shrofj", "label": "RESPONDENT", "start_char": 18378, "end_char": 18387, "source": "ner", "metadata": {"in_sentence": "N. Shrofj, for the appellant (in C.A. No."}}, {"text": "A. S. Bobde", "label": "LAWYER", "start_char": 18436, "end_char": 18447, "source": "ner", "metadata": {"in_sentence": "A. S. Bobde, G. L. Sanghi, V. K. Sanghi and S. 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UNION (Hidayatul/ah, C.J.) 261\n\nWhereas it is necessary that after the status quo has been established in the af9resaid Gujarat-West Pakistan border area, arrangements should be made for detennination and demarcation of the border in that area;\n\nB NOW, THEREFORE, the two Governments agree\n\nthat the following."}}, {"text": "Government of Pakistan", "label": "ORG", "start_char": 22610, "end_char": 22632, "source": "ner", "metadata": {"in_sentence": "On 30 June, 1965, the Government of India and the Government of Pakistan concluded an Agreement, reading as follows : Whereas both the Governments ol India and Pakistan have agreed to a cease-fire and to restoration of the status quo as at 1 January, 1965, in the area of the Gujarat-West Pakistan border, in the confidence that this will also contribute to a reduction of the present tension along the entire ludo-Pakistan border;\n\nH -\n\nMAGANBHAI v. 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UNION (Hidayatu//ah, C.J.) 263\n\nmember shall be nominated by each Government and the third member, who will be the Chairman, shall be jointly selected by the two Governments.", "canonical_name": "Per Hidayatullah"}}, {"text": "United Nations", "label": "ORG", "start_char": 27024, "end_char": 27038, "source": "ner", "metadata": {"in_sentence": "In the event of the two Governments failing to agree on the selection of the Chairman within three months of the ceasefire, they shall request the Secretary-General of the United Nations to nominate the Chairman."}}, {"text": "Ales Bebler", "label": "JUDGE", "start_char": 27709, "end_char": 27720, "source": "ner", "metadata": {"in_sentence": "As a result of this agreement the Government of India nominated Ambassador Ales Bebler, Judge of the Constitutional Court of Yugoslavia, the Government of Pakistan nominated Ambassador Nasrollah Entezam of Iran and former President of the General Assembly of the United Nations.", "canonical_name": "Ales Bebler"}}, {"text": "Constitutional Court of Yugoslavia", "label": "COURT", "start_char": 27735, "end_char": 27769, "source": "ner", "metadata": {"in_sentence": "As a result of this agreement the Government of India nominated Ambassador Ales Bebler, Judge of the Constitutional Court of Yugoslavia, the Government of Pakistan nominated Ambassador Nasrollah Entezam of Iran and former President of the General Assembly of the United Nations."}}, {"text": "Nasrollah Entezam", "label": "LAWYER", "start_char": 27819, "end_char": 27836, "source": "ner", "metadata": {"in_sentence": "As a result of this agreement the Government of India nominated Ambassador Ales Bebler, Judge of the Constitutional Court of Yugoslavia, the Government of Pakistan nominated Ambassador Nasrollah Entezam of Iran and former President of the General Assembly of the United Nations.", "canonical_name": "Nasrollah Entczani"}}, {"text": "Iran", "label": "GPE", "start_char": 27840, "end_char": 27844, "source": "ner", "metadata": {"in_sentence": "As a result of this agreement the Government of India nominated Ambassador Ales Bebler, Judge of the Constitutional Court of Yugoslavia, the Government of Pakistan nominated Ambassador Nasrollah Entezam of Iran and former President of the General Assembly of the United Nations."}}, {"text": "Article 3", "label": "PROVISION", "start_char": 28103, "end_char": 28112, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Gunnar Lagergren", "label": "JUDGE", "start_char": 28147, "end_char": 28163, "source": "ner", "metadata": {"in_sentence": "The two Governments having failed to agree on the selection of the Chairman of the Tribunal, the Secretary-General of the United Nations, under the power reserved by sub-paragraph\n\n(iii) of Article 3 of the Agreement, nominated Judge Gunnar Lagergren, now President of the Court of Appeal for Western Sweden.", "canonical_name": "Gunnar Lagergren"}}, {"text": "September 15, 1966", "label": "DATE", "start_char": 28462, "end_char": 28480, "source": "ner", "metadata": {"in_sentence": "The oral hearings began on September 15, 1966 and continued with some breaks till July 14, 1967."}}, {"text": "July 14, 1967", "label": "DATE", "start_char": 28517, "end_char": 28530, "source": "ner", "metadata": {"in_sentence": "The oral hearings began on September 15, 1966 and continued with some breaks till July 14, 1967."}}, {"text": "Jodhpur", "label": "GPE", "start_char": 30066, "end_char": 30073, "source": "ner", "metadata": {"in_sentence": "It is common ground that the Gujarat-West \"Pakistan boundary stretches from the mouth of the Sir Creek in the west to a point on the Jodhpur boundary in the east."}}, {"text": "Section 311", "label": "PROVISION", "start_char": 32593, "end_char": 32604, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 32612, "end_char": 32641, "source": "regex", "metadata": {}}, {"text": "Chhadbet", "label": "OTHER_PERSON", "start_char": 33012, "end_char": 33020, "source": "ner", "metadata": {"in_sentence": "These included Dhara Banni, Chhadbet, Piro!", "canonical_name": "Chhad Bet"}}, {"text": "Piro! Valo Kun", "label": "OTHER_PERSON", "start_char": 33022, "end_char": 33036, "source": "ner", "metadata": {"in_sentence": "These included Dhara Banni, Chhadbet, Piro!"}}, {"text": "Kanjarkot", "label": "OTHER_PERSON", "start_char": 33038, "end_char": 33047, "source": "ner", "metadata": {"in_sentence": "Valo Kun, Kanjarkot, Vighokot and Sarifbela and these were said to be not part of the Rann."}}, {"text": "Vighokot", "label": "OTHER_PERSON", "start_char": 33049, "end_char": 33057, "source": "ner", "metadata": {"in_sentence": "Valo Kun, Kanjarkot, Vighokot and Sarifbela and these were said to be not part of the Rann."}}, {"text": "Sarifbela", "label": "OTHER_PERSON", "start_char": 33062, "end_char": 33071, "source": "ner", "metadata": {"in_sentence": "Valo Kun, Kanjarkot, Vighokot and Sarifbela and these were said to be not part of the Rann."}}, {"text": "Nosrollah Entezam", "label": "LAWYER", "start_char": 34131, "end_char": 34148, "source": "ner", "metadata": {"in_sentence": "Ambassador Nosrollah Entezam upheld the Pakistani claim.", "canonical_name": "Nasrollah Entczani"}}, {"text": "Entezam", "label": "OTHER_PERSON", "start_char": 34264, "end_char": 34271, "source": "ner", "metadata": {"in_sentence": "On the propounding of his opinion Ambassador Entezam gave his opinion as follows : Opinion of Mr. Entezam :\n\n\"In an early stage I considered that Pakistan had m\\lde out a clear title to the northern half of the area shown in the Survey Maps as the Rann."}}, {"text": "Erskine", "label": "OTHER_PERSON", "start_char": 35744, "end_char": 35751, "source": "ner", "metadata": {"in_sentence": "It thus follows Erskine's Survey."}}, {"text": "Sadariajagot", "label": "GPE", "start_char": 35846, "end_char": 35858, "source": "ner", "metadata": {"in_sentence": "Thereafter hstead of following the mainland it dips fo the South East just South of Sadariajagot and then\n\n]<'\n\nMAGANBJ!AI V. UNION (Hidayatullah, C.J.) 267\n\ngoes up North West to join the mainland and to follow the boundary symbols."}}, {"text": "Sir Creek", "label": "GPE", "start_char": 37164, "end_char": 37173, "source": "ner", "metadata": {"in_sentence": "The new boundary thence proceeds along the mainland till it reaches the demarcated boundary at the Jodhpur and from where the boundary is not in dispute just as the boundary from Sir Creek to Khori Creek has not been in dispute."}}, {"text": "Khori Creek", "label": "GPE", "start_char": 37177, "end_char": 37188, "source": "ner", "metadata": {"in_sentence": "The new boundary thence proceeds along the mainland till it reaches the demarcated boundary at the Jodhpur and from where the boundary is not in dispute just as the boundary from Sir Creek to Khori Creek has not been in dispute."}}, {"text": "Ales Behler", "label": "JUDGE", "start_char": 37332, "end_char": 37343, "source": "ner", "metadata": {"in_sentence": "In the opinions of Judge Ales Behler and the Chairman (Ambassador Entezam concurring with the Chairman) this historical material has been differently interpreted but we are not concerned with it.", "canonical_name": "Ales Bebler"}}, {"text": "Thar Parkar", "label": "GPE", "start_char": 38027, "end_char": 38038, "source": "ner", "metadata": {"in_sentence": "Already in 1855, the Deputy Commissioner of Thar Parkar pointed out that if these inlets were to be considered Kutch territory."}}, {"text": "Kutch State", "label": "ORG", "start_char": 38227, "end_char": 38238, "source": "ner", "metadata": {"in_sentence": "The Kutch State could erect fortifications and establish Custom houses at places situated many miles within the district for instance close to Verrawah, or on some of the roads which, crossing inlets of the Rann, lead from one part of this district to another."}}, {"text": "Verrawah", "label": "GPE", "start_char": 38366, "end_char": 38374, "source": "ner", "metadata": {"in_sentence": "The Kutch State could erect fortifications and establish Custom houses at places situated many miles within the district for instance close to Verrawah, or on some of the roads which, crossing inlets of the Rann, lead from one part of this district to another."}}, {"text": "Bebler", "label": "OTHER_PERSON", "start_char": 40486, "end_char": 40492, "source": "ner", "metadata": {"in_sentence": "league, Mr. Bebler.''"}}, {"text": "Kanjarkot", "label": "GPE", "start_char": 40714, "end_char": 40723, "source": "ner", "metadata": {"in_sentence": "There are seven parties before us seeking to re5train the Government of India from making over the areas of Kanjarkot,\n\n• ..\n\n~ '\n\nMAGANBHAI v. UNION (Hidayatullah, C.J.) 269\n\nDharabanni Chhadbet and the two inlets to Pakistan by sheer executive act and insist that the necessary change can only eff.ected by a constitutional amendment of the territories of India as indicated in the Constitution."}}, {"text": "Dharabanni Chhadbet", "label": "OTHER_PERSON", "start_char": 40782, "end_char": 40801, "source": "ner", "metadata": {"in_sentence": "There are seven parties before us seeking to re5train the Government of India from making over the areas of Kanjarkot,\n\n• ..\n\n~ '\n\nMAGANBHAI v. UNION (Hidayatullah, C.J.) 269\n\nDharabanni Chhadbet and the two inlets to Pakistan by sheer executive act and insist that the necessary change can only eff.ected by a constitutional amendment of the territories of India as indicated in the Constitution."}}, {"text": "J. H. Rolston", "label": "OTHER_PERSON", "start_char": 41226, "end_char": 41239, "source": "ner", "metadata": {"in_sentence": "According to J. H. Rolston (International Arbitrations from Athens to Locarno) pacific settl.ement of international disputes through a binding award on the basis of an undertaking voluntarily accepted is founded on the same principles as are to be found in the concept of Arbitrations in Municipal Law."}}, {"text": "Athens", "label": "GPE", "start_char": 41273, "end_char": 41279, "source": "ner", "metadata": {"in_sentence": "According to J. H. Rolston (International Arbitrations from Athens to Locarno) pacific settl.ement of international disputes through a binding award on the basis of an undertaking voluntarily accepted is founded on the same principles as are to be found in the concept of Arbitrations in Municipal Law."}}, {"text": "Locarno", "label": "GPE", "start_char": 41283, "end_char": 41290, "source": "ner", "metadata": {"in_sentence": "According to J. H. Rolston (International Arbitrations from Athens to Locarno) pacific settl.ement of international disputes through a binding award on the basis of an undertaking voluntarily accepted is founded on the same principles as are to be found in the concept of Arbitrations in Municipal Law."}}, {"text": "Great Britain", "label": "GPE", "start_char": 41600, "end_char": 41613, "source": "ner", "metadata": {"in_sentence": "The history of such' arbitrations begins in modem times from the Jay Treaty between Great Britain and the United States of America of November 19, 1794 to settle the boundary disputes after Independence in 1776 through Mixed Commissions."}}, {"text": "November 19, 1794", "label": "DATE", "start_char": 41650, "end_char": 41667, "source": "ner", "metadata": {"in_sentence": "The history of such' arbitrations begins in modem times from the Jay Treaty between Great Britain and the United States of America of November 19, 1794 to settle the boundary disputes after Independence in 1776 through Mixed Commissions."}}, {"text": "Art. 37", "label": "PROVISION", "start_char": 42202, "end_char": 42209, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Moore", "label": "WITNESS", "start_char": 42486, "end_char": 42491, "source": "ner", "metadata": {"in_sentence": "Stuyt lists 407 between 1794 and 1938 and writers like Moore, La Fontaine, Lapradelle, Darby etc."}}, {"text": "La Fontaine", "label": "OTHER_PERSON", "start_char": 42493, "end_char": 42504, "source": "ner", "metadata": {"in_sentence": "Stuyt lists 407 between 1794 and 1938 and writers like Moore, La Fontaine, Lapradelle, Darby etc."}}, {"text": "Lapradelle", "label": "WITNESS", "start_char": 42506, "end_char": 42516, "source": "ner", "metadata": {"in_sentence": "Stuyt lists 407 between 1794 and 1938 and writers like Moore, La Fontaine, Lapradelle, Darby etc."}}, {"text": "Darby", "label": "WITNESS", "start_char": 42518, "end_char": 42523, "source": "ner", "metadata": {"in_sentence": "Stuyt lists 407 between 1794 and 1938 and writers like Moore, La Fontaine, Lapradelle, Darby etc."}}, {"text": "Moore", "label": "OTHER_PERSON", "start_char": 42586, "end_char": 42591, "source": "ner", "metadata": {"in_sentence": "have made other compilations, the most complete being by Moore."}}, {"text": "Nantwi", "label": "OTHER_PERSON", "start_char": 42594, "end_char": 42600, "source": "ner", "metadata": {"in_sentence": "Nantwi brings the list down to .1967 and also lists separately the awards which were not complied with."}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 43820, "end_char": 43827, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Madhu Limaye", "label": "LAWYER", "start_char": 44346, "end_char": 44358, "source": "ner", "metadata": {"in_sentence": "Mr. Madhu Limaye puts forward the supporting plea that he had attempted to penetrate this area to reconnoiire possibilities for settlement, but was turned back.", "canonical_name": "Madhu Limaye"}}, {"text": "Paktan", "label": "OTHER_PERSON", "start_char": 44922, "end_char": 44928, "source": "ner", "metadata": {"in_sentence": "Lastly, one of the parties puts forward the plea that he lives in the adjoining territory and thus has interest in the territories proposed to be ceded to Paktan."}}, {"text": "government of India", "label": "ORG", "start_char": 46306, "end_char": 46325, "source": "ner", "metadata": {"in_sentence": "The reply on behalf of the government of India is equally brief."}}, {"text": "France", "label": "GPE", "start_char": 47633, "end_char": 47639, "source": "ner", "metadata": {"in_sentence": "The prac- C tice of countries is different but the diverse possible approaches\n\nto the question appear from an examination of the practice obtaining in the United States, France, the United Kingdom and in British India."}}, {"text": "Article 52", "label": "PROVISION", "start_char": 49483, "end_char": 49493, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 53", "label": "PROVISION", "start_char": 49649, "end_char": 49659, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 55", "label": "PROVISION", "start_char": 50240, "end_char": 50250, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 54", "label": "PROVISION", "start_char": 50574, "end_char": 50584, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Blackstone", "label": "OTHER_PERSON", "start_char": 50919, "end_char": 50929, "source": "ner", "metadata": {"in_sentence": "Blackstone has the following remark :\n\n\"Whatever contracts he (the sovereign) engages in, no other power in the kingdom can legally delay, resist or annul.\""}}, {"text": "Kent", "label": "OTHER_PERSON", "start_char": 51076, "end_char": 51080, "source": "ner", "metadata": {"in_sentence": "Kent in his Commentaries (Vol."}}, {"text": "Forsyth", "label": "OTHER_PERSON", "start_char": 51241, "end_char": 51248, "source": "ner", "metadata": {"in_sentence": "Forsyth in his Opinions gives the reason that if the Nation bas .conferred upon its supreme executive without reserve the right of making tre<ities, the alienation is valid because."}}, {"text": "Channel Islands", "label": "GPE", "start_char": 52008, "end_char": 52023, "source": "ner", "metadata": {"in_sentence": "He observed \"I should doubt very much whether the Crown, without the auth<'rity of Parliament, would have the legal power to cede by treaty the Channel Islands to France, there having been no war, and the cession not being made as part of the adjustment of a quarrel between the two countries.\""}}, {"text": "ss. 3", "label": "PROVISION", "start_char": 52348, "end_char": 52353, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 224", "label": "PROVISION", "start_char": 52405, "end_char": 52411, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 260", "label": "PROVISION", "start_char": 52419, "end_char": 52425, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 52445, "end_char": 52450, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 261, 262", "label": "PROVISION", "start_char": 52481, "end_char": 52493, "source": "regex", "metadata": {"statute": null}}, {"text": "East Florida", "label": "GPE", "start_char": 52526, "end_char": 52538, "source": "ner", "metadata": {"in_sentence": "At the time of the cession of East Florida to Spain Lord Loughborough maintained that the Crown possessed no prerogative to cede British Territory to a foreign State without authority of Parliament but Lord Thurlow (Lord Chancellor) said that this was based on 'the lucubrations and fancies' of foreign writers which he rejected."}}, {"text": "Spain", "label": "GPE", "start_char": 52542, "end_char": 52547, "source": "ner", "metadata": {"in_sentence": "At the time of the cession of East Florida to Spain Lord Loughborough maintained that the Crown possessed no prerogative to cede British Territory to a foreign State without authority of Parliament but Lord Thurlow (Lord Chancellor) said that this was based on 'the lucubrations and fancies' of foreign writers which he rejected."}}, {"text": "Loughborough", "label": "OTHER_PERSON", "start_char": 52553, "end_char": 52565, "source": "ner", "metadata": {"in_sentence": "At the time of the cession of East Florida to Spain Lord Loughborough maintained that the Crown possessed no prerogative to cede British Territory to a foreign State without authority of Parliament but Lord Thurlow (Lord Chancellor) said that this was based on 'the lucubrations and fancies' of foreign writers which he rejected."}}, {"text": "Thurlow", "label": "OTHER_PERSON", "start_char": 52703, "end_char": 52710, "source": "ner", "metadata": {"in_sentence": "At the time of the cession of East Florida to Spain Lord Loughborough maintained that the Crown possessed no prerogative to cede British Territory to a foreign State without authority of Parliament but Lord Thurlow (Lord Chancellor) said that this was based on 'the lucubrations and fancies' of foreign writers which he rejected."}}, {"text": "Britain", "label": "GPE", "start_char": 52834, "end_char": 52841, "source": "ner", "metadata": {"in_sentence": "However Britain was then at war with Spain and the cession was under a treaty of peace."}}, {"text": "Palmerston", "label": "OTHER_PERSON", "start_char": 52988, "end_char": 52998, "source": "ner", "metadata": {"in_sentence": "Lord Palmerston observed :\n\n\"But with regard to cases of territory acquired by conquest during war, and not ceded by treaty, and which are not therefore British freehold, and all possessions that have been ceded by treaty and held as possessions of British Crown, there is no question that the Crown may make a treaty alienating such possession without the consent of Parliament.\""}}, {"text": "Senegal", "label": "GPE", "start_char": 53402, "end_char": 53409, "source": "ner", "metadata": {"in_sentence": "Lord Palmerston cited the examples of Senegal, Minorce, Florida\n\nand Isles of Banca. ("}}, {"text": "Minorce", "label": "GPE", "start_char": 53411, "end_char": 53418, "source": "ner", "metadata": {"in_sentence": "Lord Palmerston cited the examples of Senegal, Minorce, Florida\n\nand Isles of Banca. ("}}, {"text": "Florida", "label": "GPE", "start_char": 53420, "end_char": 53427, "source": "ner", "metadata": {"in_sentence": "Lord Palmerston cited the examples of Senegal, Minorce, Florida\n\nand Isles of Banca. ("}}, {"text": "Mc Nair", "label": "OTHER_PERSON", "start_char": 53580, "end_char": 53587, "source": "ner", "metadata": {"in_sentence": "Lord Mc Nair gives the settled law of modem times."}}, {"text": "Phillimore", "label": "OTHER_PERSON", "start_char": 54305, "end_char": 54315, "source": "ner", "metadata": {"in_sentence": "In this connection it is profitable to read what Lord Phillimore (then Sir Robert Phillimore) said in the Parliament Beige case(')."}}, {"text": "Robert Phillimore", "label": "JUDGE", "start_char": 54326, "end_char": 54343, "source": "ner", "metadata": {"in_sentence": "In this connection it is profitable to read what Lord Phillimore (then Sir Robert Phillimore) said in the Parliament Beige case(').", "canonical_name": "Robert Phillimore"}}, {"text": "Atkin", "label": "OTHER_PERSON", "start_char": 54507, "end_char": 54512, "source": "ner", "metadata": {"in_sentence": "As was observed by Lord Atkin in Attorney C!eneral for Canada v. Attorney General for Ontario(8 ) the position may be summed up thus : there is a distinction between ( 1) the ormation ad (2) the performance qf the obligation."}}, {"text": "Tanganiyika", "label": "GPE", "start_char": 56510, "end_char": 56521, "source": "ner", "metadata": {"in_sentence": "The protocol respecting the boundary between Tanganiyika territory and the Belgian mandated territory of Ruonda-ulandi, on August 5, 1924 involving a small territory was never enacted as a Jaw."}}, {"text": "Ruonda-ulandi", "label": "GPE", "start_char": 56570, "end_char": 56583, "source": "ner", "metadata": {"in_sentence": "The protocol respecting the boundary between Tanganiyika territory and the Belgian mandated territory of Ruonda-ulandi, on August 5, 1924 involving a small territory was never enacted as a Jaw."}}, {"text": "August 5, 1924", "label": "DATE", "start_char": 56588, "end_char": 56602, "source": "ner", "metadata": {"in_sentence": "The protocol respecting the boundary between Tanganiyika territory and the Belgian mandated territory of Ruonda-ulandi, on August 5, 1924 involving a small territory was never enacted as a Jaw."}}, {"text": "Netherlands", "label": "GPE", "start_char": 58026, "end_char": 58037, "source": "ner", "metadata": {"in_sentence": "In 1824 in treaty with Netherlands, Great Britain ceded\n\nSumatra and the settlement of Bencollen."}}, {"text": "Honduras", "label": "GPE", "start_char": 58148, "end_char": 58156, "source": "ner", "metadata": {"in_sentence": "In 1859-60 the Bay Islands were transferred to Honduras."}}, {"text": "Reyswick Hndson Bay", "label": "GPE", "start_char": 58324, "end_char": 58343, "source": "ner", "metadata": {"in_sentence": "Treaty of Reyswick Hndson Bay territory was given back to the French."}}, {"text": "Stockholm", "label": "GPE", "start_char": 58411, "end_char": 58420, "source": "ner", "metadata": {"in_sentence": "In 1813 by the Treaties of Stockholm the Island of Guadelope was ceded to Spain."}}, {"text": "Guadelope", "label": "GPE", "start_char": 58435, "end_char": 58444, "source": "ner", "metadata": {"in_sentence": "In 1813 by the Treaties of Stockholm the Island of Guadelope was ceded to Spain."}}, {"text": "Nicaragua", "label": "GPE", "start_char": 58506, "end_char": 58515, "source": "ner", "metadata": {"in_sentence": "A cession of Mosquito Shcire was made to Nicaragua."}}, {"text": "Hertslett", "label": "OTHER_PERSON", "start_char": 58595, "end_char": 58604, "source": "ner", "metadata": {"in_sentence": "All these were in time of peace and without any reference to Parliament : See Hertslett's Treaties ."}}, {"text": "section 113", "label": "PROVISION", "start_char": 58636, "end_char": 58647, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 58655, "end_char": 58674, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Broach", "label": "GPE", "start_char": 58853, "end_char": 58859, "source": "ner", "metadata": {"in_sentence": "1872 Scindia was given th.e pergannah of Broach.·"}}, {"text": "Pudokcittah State", "label": "GPE", "start_char": 58870, "end_char": 58887, "source": "ner", "metadata": {"in_sentence": "In 1803 Pudokcittah State wai ceded.the District of Kullanelly in Tanjore."}}, {"text": "Kullanelly", "label": "GPE", "start_char": 58914, "end_char": 58924, "source": "ner", "metadata": {"in_sentence": "In 1803 Pudokcittah State wai ceded.the District of Kullanelly in Tanjore."}}, {"text": "Tanjore", "label": "GPE", "start_char": 58928, "end_char": 58935, "source": "ner", "metadata": {"in_sentence": "In 1803 Pudokcittah State wai ceded.the District of Kullanelly in Tanjore."}}, {"text": "Nagpur", "label": "GPE", "start_char": 58987, "end_char": 58993, "source": "ner", "metadata": {"in_sentence": "In' 18.06 Sambalpur was given to the Maharaja of Nagpur and in\n\n1871 Scindia was given certain villages."}}, {"text": "Jhansi", "label": "GPE", "start_char": 59046, "end_char": 59052, "source": "ner", "metadata": {"in_sentence": "in Jhansi. ["}}, {"text": "High Court at Bombay", "label": "COURT", "start_char": 59642, "end_char": 59662, "source": "ner", "metadata": {"in_sentence": "In Damodar Gordhan v. Deoram Kanji(') it was laid down that \"the general and abstract doctrine laid down by the High Court at Bombay that it is beyond the power of the British Crown without the consent of the Imperial Parliament to make a cession of territory within the jurisdiction of any of the British Courts in India, in time of peace, to a foreign power, is erroneous.n\n\nThe question is one of domestic as well as International Law and we have been at pains to set down the practice of some count-· ries and that obtaining in British India ."}}, {"text": "Imperial Parliament", "label": "ORG", "start_char": 59739, "end_char": 59758, "source": "ner", "metadata": {"in_sentence": "In Damodar Gordhan v. Deoram Kanji(') it was laid down that \"the general and abstract doctrine laid down by the High Court at Bombay that it is beyond the power of the British Crown without the consent of the Imperial Parliament to make a cession of territory within the jurisdiction of any of the British Courts in India, in time of peace, to a foreign power, is erroneous.n\n\nThe question is one of domestic as well as International Law and we have been at pains to set down the practice of some count-· ries and that obtaining in British India ."}}, {"text": "Section 113", "label": "PROVISION", "start_char": 60826, "end_char": 60837, "source": "regex", "metadata": {"statute": null}}, {"text": "Burma lllld Ceylong", "label": "GPE", "start_char": 60968, "end_char": 60987, "source": "ner", "metadata": {"in_sentence": "That section is now obsolete and has been omitted in Burma lllld Ceylong but is still borne on our statute, although no longer required."}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 61469, "end_char": 61483, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 61649, "end_char": 61663, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 61958, "end_char": 61972, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 3", "label": "PROVISION", "start_char": 62028, "end_char": 62037, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 62289, "end_char": 62305, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 253", "label": "PROVISION", "start_char": 62586, "end_char": 62597, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 73", "label": "PROVISION", "start_char": 63582, "end_char": 63592, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Oppenheim", "label": "OTHER_PERSON", "start_char": 65146, "end_char": 65155, "source": "ner", "metadata": {"in_sentence": "The Federal Court\n\nrhed upon the statement of the law by Oppenheim. ("}}, {"text": "Farwell", "label": "JUDGE", "start_char": 65406, "end_char": 65413, "source": "ner", "metadata": {"in_sentence": "The Federal Court quoted with approval the dictum of Farwell, J. in Foster v.\n\nGlobe Venture Syndicate Ltd.(2 ) which reads:\n\n(l)\n\n[1949] F.C.R. 309."}}, {"text": "[1949] F.C.R. 309", "label": "CASE_CITATION", "start_char": 65484, "end_char": 65501, "source": "regex", "metadata": {}}, {"text": "Morocco", "label": "GPE", "start_char": 65767, "end_char": 65774, "source": "ner", "metadata": {"in_sentence": "Assuming that the Foreign Office have already satisfied themselves that the territory in question is within the dominion of Morocco, and have applied to the\n\nSultan of Morocco for redress in any given matter, it would surely be improper that I, sitting here as a Judge of the High Court, should, in the face of that act of Her Majesty, hold as a matter of fact that the territory in question was not within the dominion of the Sultan of Morocco."}}, {"text": "Sultan of Morocco", "label": "RESPONDENT", "start_char": 65801, "end_char": 65818, "source": "ner", "metadata": {"in_sentence": "Assuming that the Foreign Office have already satisfied themselves that the territory in question is within the dominion of Morocco, and have applied to the\n\nSultan of Morocco for redress in any given matter, it would surely be improper that I, sitting here as a Judge of the High Court, should, in the face of that act of Her Majesty, hold as a matter of fact that the territory in question was not within the dominion of the Sultan of Morocco."}}, {"text": "Viscount Finlay", "label": "OTHER_PERSON", "start_char": 66287, "end_char": 66302, "source": "ner", "metadata": {"in_sentence": "This statement of the law had the full approval of Viscount Finlay in Duff Development Co. v. Kalintan Government(') where con- ."}}, {"text": "Berubari Union", "label": "RESPONDENT", "start_char": 66593, "end_char": 66607, "source": "ner", "metadata": {"in_sentence": "A similar question like the p'resent arose In re : The Berubari Union and Exchange of Enclaves ( 2) on a reference by the Presi- ."}}, {"text": "August 12, 1947", "label": "DATE", "start_char": 66828, "end_char": 66843, "source": "ner", "metadata": {"in_sentence": "As a result of the Radcliffe, Award dated August 12, 1947 Berubari Union was included in West Bengal and was treated as such."}}, {"text": "Algot Bagge", "label": "JUDGE", "start_char": 67086, "end_char": 67097, "source": "ner", "metadata": {"in_sentence": "Certain boundary disputes having arisen from interpretation of the Ractcliffe award, the two Dominions referred the dispute to another Tribunal presided over by Lord Justice Algot Bagge for ."}}, {"text": "Bagge Tribunal", "label": "COURT", "start_char": 67118, "end_char": 67132, "source": "ner", "metadata": {"in_sentence": "The Bagge Tribunal gave its award on 26 January,\n\n1950."}}, {"text": "26 January,\n\n1950", "label": "DATE", "start_char": 67151, "end_char": 67168, "source": "ner", "metadata": {"in_sentence": "The Bagge Tribunal gave its award on 26 January,\n\n1950."}}, {"text": "September 10, 1958", "label": "DATE", "start_char": 67252, "end_char": 67270, "source": "ner", "metadata": {"in_sentence": "Subsequently the question of Berubari Union was raised by Pakistan in 1952 and on September 10, 1958 the Prime Ministers of India and Pakistan entered into an agreement between East and West Bengal, which involved transfer of Berubari Union to Pakistan."}}, {"text": "East and West Bengal", "label": "ORG", "start_char": 67347, "end_char": 67367, "source": "ner", "metadata": {"in_sentence": "Subsequently the question of Berubari Union was raised by Pakistan in 1952 and on September 10, 1958 the Prime Ministers of India and Pakistan entered into an agreement between East and West Bengal, which involved transfer of Berubari Union to Pakistan."}}, {"text": "Section 290", "label": "PROVISION", "start_char": 67544, "end_char": 67555, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act 1935", "label": "STATUTE", "start_char": 67563, "end_char": 67591, "source": "regex", "metadata": {}}, {"text": "article 368", "label": "PROVISION", "start_char": 68333, "end_char": 68344, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act 1935", "statute": "the Government of India Act 1935"}}, {"text": "article 3", "label": "PROVISION", "start_char": 68459, "end_char": 68468, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act 1935", "statute": "the Government of India Act 1935"}}, {"text": "article 368", "label": "PROVISION", "start_char": 68628, "end_char": 68639, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 68821, "end_char": 68827, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 368", "label": "PROVISION", "start_char": 68908, "end_char": 68916, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 368", "label": "PROVISION", "start_char": 69008, "end_char": 69016, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 69021, "end_char": 69027, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 69103, "end_char": 69109, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 368", "label": "PROVISION", "start_char": 69198, "end_char": 69206, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 69265, "end_char": 69271, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Berubari Union", "label": "GPE", "start_char": 69713, "end_char": 69727, "source": "ner", "metadata": {"in_sentence": "The exchange of enclaves was also described as a part of the general and broader agreement about Berubari Union and incidental to it."}}, {"text": "Mukherjee", "label": "JUDGE", "start_char": 69991, "end_char": 70000, "source": "ner", "metadata": {"in_sentence": "Reliance was placed on the observations of Mukherjee, C.J. in Rar Sahib Ram Jawaya Kapur v, The State o,' Punjab(') where dealing with the limits within which th: Executive Government can function, the learned Chief Justice said :\n\n• \"tat the execuve function comprised both the determ1i; iation o~ the.policy as well as the carrying it into execution."}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 71326, "end_char": 71340, "source": "regex", "metadata": {"statute": null}}, {"text": "December 28, 1960", "label": "DATE", "start_char": 71646, "end_char": 71663, "source": "ner", "metadata": {"in_sentence": "As a result the 9th Amendment to the Constitution was enacted from December 28, 1960."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 71858, "end_char": 71877, "source": "ner", "metadata": {"in_sentence": "It was a writ petition filed in the Calcutta High Court and the appeal was brought to this Court."}}, {"text": "Jalpaiguri", "label": "GPE", "start_char": 71970, "end_char": 71980, "source": "ner", "metadata": {"in_sentence": "It was filed by six residents of the District of Jalpaiguri."}}, {"text": "Chilhati", "label": "GPE", "start_char": 72020, "end_char": 72028, "source": "ner", "metadata": {"in_sentence": "The complaint was that the village of Chilhati (among others) was being tran5ferred to Pakistan as a result of the Agreement between India and Pakistan and the action was illegal."}}, {"text": "Debiga", "label": "GPE", "start_char": 72506, "end_char": 72512, "source": "ner", "metadata": {"in_sentence": "The case before the High Court and in this Court was that a part of Chilhati village situated in Debiga, nj Police Station was a part of Chilhati in Jalpaiguri District."}}, {"text": "Jalpaiguri District", "label": "GPE", "start_char": 72558, "end_char": 72577, "source": "ner", "metadata": {"in_sentence": "The case before the High Court and in this Court was that a part of Chilhati village situated in Debiga, nj Police Station was a part of Chilhati in Jalpaiguri District."}}, {"text": "Chilahati", "label": "GPE", "start_char": 72734, "end_char": 72743, "source": "ner", "metadata": {"in_sentence": "This Court observed :\n\n\"There is no doubt that if a small portion of land admeasuring about 512 acres which is being transferred to Pakistan is a part of Chilahati situated within the."}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 73763, "end_char": 73777, "source": "regex", "metadata": {"statute": null}}, {"text": "section 290", "label": "PROVISION", "start_char": 74515, "end_char": 74526, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act 1935", "label": "STATUTE", "start_char": 74536, "end_char": 74564, "source": "regex", "metadata": {}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 75902, "end_char": 75916, "source": "regex", "metadata": {"statute": null}}, {"text": "West Bengal", "label": "ORG", "start_char": 76667, "end_char": 76678, "source": "ner", "metadata": {"in_sentence": "The said clause is clearly and specifically intended to refer to territories which merged with the adjoining States at the crucial time, and so, it cannot include a part of Chilahati that was administered by West Bengal under the circumstance to which we have just referred."}}, {"text": "Muker.iee", "label": "OTHER_PERSON", "start_char": 76759, "end_char": 76768, "source": "ner", "metadata": {"in_sentence": "That is why we think Mr. Muker.iee is not right in contending that by reason of the fact that about 512 acres of Chilahati were not transterred to Pakistan and continued to be administered by the West Bengal Government, that area became a part of West Bengal within the meaning of Entry 13 Schedule I. The West Bengal Government knew all the time that it was an area whictt belonged to Pakistan and which had to be transferred to it."}}, {"text": "West Bengal Government", "label": "ORG", "start_char": 76930, "end_char": 76952, "source": "ner", "metadata": {"in_sentence": "That is why we think Mr. Muker.iee is not right in contending that by reason of the fact that about 512 acres of Chilahati were not transterred to Pakistan and continued to be administered by the West Bengal Government, that area became a part of West Bengal within the meaning of Entry 13 Schedule I. The West Bengal Government knew all the time that it was an area whictt belonged to Pakistan and which had to be transferred to it."}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 77024, "end_char": 77034, "source": "regex", "metadata": {"statute": null}}, {"text": "Australia", "label": "GPE", "start_char": 78371, "end_char": 78380, "source": "ner", "metadata": {"in_sentence": "Neither case dealt with a boundary dispute although in the first case the case from Australia was distinguished on •the ground that that case concerned the demarcation of boundaries pure and simple."}}, {"text": "Articles 1", "label": "PROVISION", "start_char": 78704, "end_char": 78714, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Schedule 7", "label": "PROVISION", "start_char": 78785, "end_char": 78795, "source": "regex", "metadata": {"statute": null}}, {"text": "Chilahati", "label": "OTHER_PERSON", "start_char": 79287, "end_char": 79296, "source": "ner", "metadata": {"in_sentence": "The Union Government claims that it is analogous to the case of Chilahati in the second Berubari Case."}}, {"text": "Dharabanni", "label": "GPE", "start_char": 81797, "end_char": 81807, "source": "ner", "metadata": {"in_sentence": "The argument on behalf of the petitioners is intended to prove that the areas of Kanjarkot, Dharabanni and Chhadbet and two inlets on either side of Nagar Parkar are Indian territory."}}, {"text": "Chhadbet", "label": "GPE", "start_char": 81812, "end_char": 81820, "source": "ner", "metadata": {"in_sentence": "The argument on behalf of the petitioners is intended to prove that the areas of Kanjarkot, Dharabanni and Chhadbet and two inlets on either side of Nagar Parkar are Indian territory."}}, {"text": "Article 1", "label": "PROVISION", "start_char": 82138, "end_char": 82147, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 82162, "end_char": 82176, "source": "regex", "metadata": {"statute": null}}, {"text": "section 290A", "label": "PROVISION", "start_char": 82354, "end_char": 82366, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 82374, "end_char": 82403, "source": "regex", "metadata": {}}, {"text": "State of Saurashtra", "label": "GPE", "start_char": 83607, "end_char": 83626, "source": "ner", "metadata": {"in_sentence": "In view of the geographical situation of the State and the potentialities of this area, the development of which will require a considerable amount of money as well as techmcal assistance, which neither the State by itself nor the State of Saurashtra with which it was possible to integrate the State could provide, it was decided that the best solution for 'this State would be to treat it as a Centrally adnUnistered unit."}}, {"text": "4th May, 1948", "label": "DATE", "start_char": 83870, "end_char": 83883, "source": "ner", "metadata": {"in_sentence": "An Agreement (Appendix XXIX) was accordingly signed by the Ruler on 4th May, 1948 ~~ the administration was taken over by a Chief Comm1ss10ner on behalf uf the Dominion Government on 1st June,\n\n1949.\""}}, {"text": "1st June,\n\n1949", "label": "DATE", "start_char": 83985, "end_char": 84000, "source": "ner", "metadata": {"in_sentence": "An Agreement (Appendix XXIX) was accordingly signed by the Ruler on 4th May, 1948 ~~ the administration was taken over by a Chief Comm1ss10ner on behalf uf the Dominion Government on 1st June,\n\n1949.\""}}, {"text": "May 4, 1948", "label": "DATE", "start_char": 84205, "end_char": 84216, "source": "ner", "metadata": {"in_sentence": "The Kutch Merger agreement is like any other merger agreement and was executed by the Maharao of Kutch on May 4, 1948."}}, {"text": "June 1, 1949", "label": "DATE", "start_char": 84355, "end_char": 84367, "source": "ner", "metadata": {"in_sentence": "Immediately after Kutch was taken over by Chief Commissioner on June 1, 1949."}}, {"text": "July 29, 1949", "label": "DATE", "start_char": 84372, "end_char": 84385, "source": "ner", "metadata": {"in_sentence": "On July 29, 1949 the States Merger (Chief Commissioner's Provinces) Order, 1949 was passed."}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 84537, "end_char": 84552, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Kutch", "label": "RESPONDENT", "start_char": 84792, "end_char": 84806, "source": "ner", "metadata": {"in_sentence": "The parts of States comprising Kutch were given as follows :\n\n\"(i) The State of Kutch, excluding the area known as Kutchigarh situate in Okhamandal.", "canonical_name": "State of Kutch"}}, {"text": "Kutchigarh", "label": "GPE", "start_char": 84836, "end_char": 84846, "source": "ner", "metadata": {"in_sentence": "The parts of States comprising Kutch were given as follows :\n\n\"(i) The State of Kutch, excluding the area known as Kutchigarh situate in Okhamandal."}}, {"text": "Okhamandal", "label": "GPE", "start_char": 84858, "end_char": 84868, "source": "ner", "metadata": {"in_sentence": "The parts of States comprising Kutch were given as follows :\n\n\"(i) The State of Kutch, excluding the area known as Kutchigarh situate in Okhamandal."}}, {"text": "United State of Saurashtra", "label": "GPE", "start_char": 84892, "end_char": 84918, "source": "ner", "metadata": {"in_sentence": "(ii) The part of the United State of Saurashtra which is comprised in the Adhoi Mahal of Morvi, consisting of the seven villages Adhoi, Dharna, Gamdan, Halara, Lakhpat, Rampur and Vasatava.\""}}, {"text": "Adhoi", "label": "GPE", "start_char": 84945, "end_char": 84950, "source": "ner", "metadata": {"in_sentence": "(ii) The part of the United State of Saurashtra which is comprised in the Adhoi Mahal of Morvi, consisting of the seven villages Adhoi, Dharna, Gamdan, Halara, Lakhpat, Rampur and Vasatava.\""}}, {"text": "Morvi", "label": "GPE", "start_char": 84960, "end_char": 84965, "source": "ner", "metadata": {"in_sentence": "(ii) The part of the United State of Saurashtra which is comprised in the Adhoi Mahal of Morvi, consisting of the seven villages Adhoi, Dharna, Gamdan, Halara, Lakhpat, Rampur and Vasatava.\""}}, {"text": "Dharna", "label": "GPE", "start_char": 85007, "end_char": 85013, "source": "ner", "metadata": {"in_sentence": "(ii) The part of the United State of Saurashtra which is comprised in the Adhoi Mahal of Morvi, consisting of the seven villages Adhoi, Dharna, Gamdan, Halara, Lakhpat, Rampur and Vasatava.\""}}, {"text": "Gamdan", "label": "GPE", "start_char": 85015, "end_char": 85021, "source": "ner", "metadata": {"in_sentence": "(ii) The part of the United State of Saurashtra which is comprised in the Adhoi Mahal of Morvi, consisting of the seven villages Adhoi, Dharna, Gamdan, Halara, Lakhpat, Rampur and Vasatava.\""}}, {"text": "Halara", "label": "GPE", "start_char": 85023, "end_char": 85029, "source": "ner", "metadata": {"in_sentence": "(ii) The part of the United State of Saurashtra which is comprised in the Adhoi Mahal of Morvi, consisting of the seven villages Adhoi, Dharna, Gamdan, Halara, Lakhpat, Rampur and Vasatava.\""}}, {"text": "Lakhpat", "label": "GPE", "start_char": 85031, "end_char": 85038, "source": "ner", "metadata": {"in_sentence": "(ii) The part of the United State of Saurashtra which is comprised in the Adhoi Mahal of Morvi, consisting of the seven villages Adhoi, Dharna, Gamdan, Halara, Lakhpat, Rampur and Vasatava.\""}}, {"text": "Rampur", "label": "GPE", "start_char": 85040, "end_char": 85046, "source": "ner", "metadata": {"in_sentence": "(ii) The part of the United State of Saurashtra which is comprised in the Adhoi Mahal of Morvi, consisting of the seven villages Adhoi, Dharna, Gamdan, Halara, Lakhpat, Rampur and Vasatava.\""}}, {"text": "Vasatava", "label": "GPE", "start_char": 85051, "end_char": 85059, "source": "ner", "metadata": {"in_sentence": "(ii) The part of the United State of Saurashtra which is comprised in the Adhoi Mahal of Morvi, consisting of the seven villages Adhoi, Dharna, Gamdan, Halara, Lakhpat, Rampur and Vasatava.\""}}, {"text": "November 1, 1956", "label": "DATE", "start_char": 85413, "end_char": 85429, "source": "ner", "metadata": {"in_sentence": "On November 1, 1956 Kutch became a part of Bombay State."}}, {"text": "Bombay State", "label": "GPE", "start_char": 85453, "end_char": 85465, "source": "ner", "metadata": {"in_sentence": "On November 1, 1956 Kutch became a part of Bombay State."}}, {"text": "May 1, 1960", "label": "DATE", "start_char": 85605, "end_char": 85616, "source": "ner", "metadata": {"in_sentence": "On May 1, 1960 the Bombay Reorganisation Act made the area known as Kutch a part of the State of Gujarat State."}}, {"text": "Bombay Reorganisation Act", "label": "STATUTE", "start_char": 85621, "end_char": 85646, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "State of Gujarat State", "label": "GPE", "start_char": 85690, "end_char": 85712, "source": "ner", "metadata": {"in_sentence": "On May 1, 1960 the Bombay Reorganisation Act made the area known as Kutch a part of the State of Gujarat State."}}, {"text": "Dhara Banni", "label": "GPE", "start_char": 85897, "end_char": 85908, "source": "ner", "metadata": {"in_sentence": "There is also no evidence of administration in Dhara Banni and Chhadbet."}}, {"text": "Chhadb.et", "label": "GPE", "start_char": 86245, "end_char": 86254, "source": "ner", "metadata": {"in_sentence": "The 1957 elections show that a polling station was located at Chhadb.et but the voters were the personnel of the Watch and Ward force."}}, {"text": "Pandit Jawaharlal Nehru", "label": "OTHER_PERSON", "start_char": 86597, "end_char": 86620, "source": "ner", "metadata": {"in_sentence": "Cl/69-20\n\nNo doubt, Pandit Jawaharlal Nehru on March 3, 1956 and Shri Lal Bahadur Shastri on May 11, 1965 asserted that the area belonged to India but that was only a statement and cannot be held to be of an evidentiary character."}}, {"text": "March 3, 1956", "label": "DATE", "start_char": 86624, "end_char": 86637, "source": "ner", "metadata": {"in_sentence": "Cl/69-20\n\nNo doubt, Pandit Jawaharlal Nehru on March 3, 1956 and Shri Lal Bahadur Shastri on May 11, 1965 asserted that the area belonged to India but that was only a statement and cannot be held to be of an evidentiary character."}}, {"text": "Lal Bahadur Shastri", "label": "OTHER_PERSON", "start_char": 86647, "end_char": 86666, "source": "ner", "metadata": {"in_sentence": "Cl/69-20\n\nNo doubt, Pandit Jawaharlal Nehru on March 3, 1956 and Shri Lal Bahadur Shastri on May 11, 1965 asserted that the area belonged to India but that was only a statement and cannot be held to be of an evidentiary character."}}, {"text": "May 11, 1965", "label": "DATE", "start_char": 86670, "end_char": 86682, "source": "ner", "metadata": {"in_sentence": "Cl/69-20\n\nNo doubt, Pandit Jawaharlal Nehru on March 3, 1956 and Shri Lal Bahadur Shastri on May 11, 1965 asserted that the area belonged to India but that was only a statement and cannot be held to be of an evidentiary character."}}, {"text": "Dhara Banni", "label": "OTHER_PERSON", "start_char": 87232, "end_char": 87243, "source": "ner", "metadata": {"in_sentence": "lt did not show whether Kanjarkot, Dhara Banni and Chhadbet were excluded from Sind altogether.", "canonical_name": "Dhara Banni"}}, {"text": "Ales Behler", "label": "JUDGE", "start_char": 87414, "end_char": 87425, "source": "ner", "metadata": {"in_sentence": "This index map was relied upon by Ambassador Ales Behler who gave opinion for us but was not accepted by the Chairman and Ambassador Nasrollah Entezam.", "canonical_name": "Ales Bebler"}}, {"text": "Government of Bombay", "label": "ORG", "start_char": 88333, "end_char": 88353, "source": "ner", "metadata": {"in_sentence": "Indeed the Government of Bombay continued to so regard it."}}, {"text": "Manjeet", "label": "GPE", "start_char": 90839, "end_char": 90846, "source": "ner", "metadata": {"in_sentence": "With regard to Dhara Banni and Chhadbet it is clear that Map A (the claim map of India) does not show the border from Manjeet where the boundary determined by the Tribunal leaves the mainland to a point just west of the point\n\nwhre the boundary determined by the Tribunal again joins the mainland."}}, {"text": "Dhara Banm", "label": "OTHER_PERSON", "start_char": 91347, "end_char": 91357, "source": "ner", "metadata": {"in_sentence": "Dhara Banm and Chhadbet are contiguous with the\n\nainland in some seasons although they are inundated at oth ltmest and be~OJe in?istinguishable from the Rann.", "canonical_name": "Dhara Banni"}}, {"text": "Dhara Banm", "label": "GPE", "start_char": 91586, "end_char": 91596, "source": "ner", "metadata": {"in_sentence": "e ocat1on of the boundary at the southern fringe of Dhara Banm."}}, {"text": "Huber", "label": "JUDGE", "start_char": 93198, "end_char": 93203, "source": "ner", "metadata": {"in_sentence": "As Judge Huber puts it in the Island of Pa/mas case :\n\n\"manifestations of territorial sovereignty assume, it is true, different forms, according to time and space."}}, {"text": "April 4, 1928", "label": "DATE", "start_char": 93659, "end_char": 93672, "source": "ner", "metadata": {"in_sentence": "The intermittance and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved ......... \" (Award dated April 4, 1928 : 2 INT.ARB."}}, {"text": "February 19, t 968", "label": "DATE", "start_char": 95453, "end_char": 95471, "source": "ner", "metadata": {"in_sentence": "The controversy raised in this group .of writ petitions and C appeals lies within a narrow compass Whether the award, dated February 19, t 968 of the Indo-Pakistan Western Boundary Case T/ibunal may be implemented by a constitutional amendment and not otherwise."}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 95789, "end_char": 95799, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian", "label": "GPE", "start_char": 95891, "end_char": 95897, "source": "ner", "metadata": {"in_sentence": "the relevant provisions in Schedule I to the Constitution, because D-- in giving effect to the award of the Tribunal, cession of Indian territory is involved, and the executive is incompetent to cede Indian territory without the authority of a constitutional amendment."}}, {"text": "Kuth", "label": "GPE", "start_char": 96382, "end_char": 96386, "source": "ner", "metadata": {"in_sentence": "The .Great Rann of Kuth lies between the mainland of Sind (wc~ IS now part of Pakistan) and the mainland of Kutch-\n\n."}}, {"text": "Kutch-", "label": "GPE", "start_char": 96471, "end_char": 96477, "source": "ner", "metadata": {"in_sentence": "The .Great Rann of Kuth lies between the mainland of Sind (wc~ IS now part of Pakistan) and the mainland of Kutch-\n\n."}}, {"text": "Charles Napier", "label": "OTHER_PERSON", "start_char": 97283, "end_char": 97297, "source": "ner", "metadata": {"in_sentence": "last .R bv the East ndia Comoany by the tre!tv m ; as I guarant~ Charles Napier annexed the territ f ."}}, {"text": "Maharao", "label": "RESPONDENT", "start_char": 97477, "end_char": 97484, "source": "ner", "metadata": {"in_sentence": "n J 843 Sir a Governor's Province hi h ory 0 Smd, and made it into of , the Provillce of Bi:;, c K:i~ ~~~~ tuedmed 1be'nto a Division\n\n nu to ruled by the\n\nMaharao, the British authorities having posted a Political Agent at the capital of the State.", "canonical_name": "Maharao"}}, {"text": "Department of Survey of India", "label": "ORG", "start_char": 97584, "end_char": 97613, "source": "ner", "metadata": {"in_sentence": "In 1855 the Department of Survey of India commenced a revenue and topographical survey of the Province of Sind."}}, {"text": "Kutch State", "label": "GPE", "start_char": 97975, "end_char": 97986, "source": "ner", "metadata": {"in_sentence": "It is not clear whether the southern boundaries of the Sind villages shown in the maps were village boundaries, or a boundary conterminous between the territory of Sind and Kutch State."}}, {"text": "C. F. Erskine", "label": "OTHER_PERSON", "start_char": 98375, "end_char": 98388, "source": "ner", "metadata": {"in_sentence": "Another survey of a parti of the boundary on the Sind side was undertaken in 1904-05 by C. F. Erskine."}}, {"text": "February 24, 1914", "label": "DATE", "start_char": 98840, "end_char": 98857, "source": "ner", "metadata": {"in_sentence": "The Government of India made an enquiry and a resolution, dated February 24, 1914, was issued by the Government of the Province of Bombay, of which Sind was ihen a Division."}}, {"text": "Government of the Province of Bombay", "label": "ORG", "start_char": 98877, "end_char": 98913, "source": "ner", "metadata": {"in_sentence": "The Government of India made an enquiry and a resolution, dated February 24, 1914, was issued by the Government of the Province of Bombay, of which Sind was ihen a Division."}}, {"text": "Maharao", "label": "RESPONDENT", "start_char": 99857, "end_char": 99864, "source": "ner", "metadata": {"in_sentence": "To the letter of the Secretary to the Government of Bombay, Political Department, consent to the rectification of the boundary was evidenced by a letter of the Maharao under his own signature.", "canonical_name": "Maharao"}}, {"text": "Tharparkar District", "label": "GPE", "start_char": 100878, "end_char": 100897, "source": "ner", "metadata": {"in_sentence": "c\n\nThe fourth survey-called the Onmaston Survey-was commenced in 1938-39 : it was intended to be a survey of the E:; istem part of the Tharparkar District."}}, {"text": "Western India", "label": "GPE", "start_char": 101035, "end_char": 101048, "source": "ner", "metadata": {"in_sentence": "This survey adopted the alignment of the Macdonald Survey in that region showing a conterminous boundary between Sind and the States of Western India (now within the State of Gujarat)."}}, {"text": "With the enactment of the Indian Independence Act", "label": "STATUTE", "start_char": 101085, "end_char": 101134, "source": "regex", "metadata": {}}, {"text": "s. 2", "label": "PROVISION", "start_char": 101323, "end_char": 101327, "source": "regex", "metadata": {"linked_statute_text": "With the enactment of the Indian Independence Act", "statute": "With the enactment of the Indian Independence Act"}}, {"text": "State of Kutch", "label": "PETITIONER", "start_char": 101539, "end_char": 101553, "source": "ner", "metadata": {"in_sentence": "By s. 2 ( 2) of the Act the territories of Pakistan were to be--\n\n\" (a)\n\n(~) the territories which, at the date of the passing of this Act, are included in the Province of Sind, ... , and\n\n(c) ,,\n\nF On May 4, 1948, the State of Kutch merged with the Dominion of India and by Artie!~ of the Areement of Merger the Maharao ceded to the Dollllmon of India fall and exclusive authority\n\nove~ the governance of the State.", "canonical_name": "State of Kutch"}}, {"text": "Dominion of India", "label": "ORG", "start_char": 101570, "end_char": 101587, "source": "ner", "metadata": {"in_sentence": "By s. 2 ( 2) of the Act the territories of Pakistan were to be--\n\n\" (a)\n\n(~) the territories which, at the date of the passing of this Act, are included in the Province of Sind, ... , and\n\n(c) ,,\n\nF On May 4, 1948, the State of Kutch merged with the Dominion of India and by Artie!~ of the Areement of Merger the Maharao ceded to the Dollllmon of India fall and exclusive authority\n\nove~ the governance of the State."}}, {"text": "June 1,.1949", "label": "DATE", "start_char": 101740, "end_char": 101752, "source": "ner", "metadata": {"in_sentence": "On June 1,.1949, the administrat!on was taken ver by."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 101892, "end_char": 101896, "source": "regex", "metadata": {"linked_statute_text": "With the enactment of the Indian Independence Act", "statute": "With the enactment of the Indian Independence Act"}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 102086, "end_char": 102096, "source": "regex", "metadata": {"linked_statute_text": "With the enactment of the Indian Independence Act", "statute": "With the enactment of the Indian Independence Act"}}, {"text": "s. 290A", "label": "PROVISION", "start_char": 102170, "end_char": 102177, "source": "regex", "metadata": {"statute": null}}, {"text": "India Act, 1935", "label": "STATUTE", "start_char": 102198, "end_char": 102213, "source": "regex", "metadata": {}}, {"text": "States Reorganisation Act, 1956", "label": "STATUTE", "start_char": 102391, "end_char": 102422, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bombay Reorganization Act, 1960", "label": "STATUTE", "start_char": 102574, "end_char": 102605, "source": "regex", "metadata": {}}, {"text": "Art. 1", "label": "PROVISION", "start_char": 103242, "end_char": 103248, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Reorganization Act, 1960", "statute": "the Bombay Reorganization Act, 1960"}}, {"text": "1 Juiy 1965", "label": "DATE", "start_char": 103324, "end_char": 103335, "source": "ner", "metadata": {"in_sentence": "1-\"There shall be an immediate cease-fire with effect from 0030 hours GMT on 1 Juiy 1965."}}, {"text": "Art. 2", "label": "PROVISION", "start_char": 103338, "end_char": 103344, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Reorganization Act, 1960", "statute": "the Bombay Reorganization Act, 1960"}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 103348, "end_char": 103354, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Reorganization Act, 1960", "statute": "the Bombay Reorganization Act, 1960"}}, {"text": "24 October 1959", "label": "DATE", "start_char": 104132, "end_char": 104147, "source": "ner", "metadata": {"in_sentence": "(ii) In the event of no agreement between the Ministers of the two Governments on the determination of the border being reached within two months of the cease-fire, the two Governments shall, as contemplated in the Joint Communique of 24 October 1959, have recourse to the Tribunal referred to in (iii.)"}}, {"text": "article 3(iii)", "label": "PROVISION", "start_char": 105647, "end_char": 105661, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "United Nations Organization", "label": "ORG", "start_char": 105797, "end_char": 105824, "source": "ner", "metadata": {"in_sentence": "A Tribunal of three members, one appointed by each State and the Chairman nominated by the Secretary-General of the United Nations Organization was set up."}}, {"text": "Government of the Union of E India", "label": "ORG", "start_char": 105963, "end_char": 105997, "source": "ner", "metadata": {"in_sentence": "The agreement between the two States was reached purely as an executive act, and no legislative sanction was obtained by the Government of the Union of E India to its implementation."}}, {"text": "Delhi", "label": "GPE", "start_char": 110016, "end_char": 110021, "source": "ner", "metadata": {"in_sentence": "The Representatives of the two Governments shall meet at Delhi not later than two weeks after the Award is rendered to discuss and decide upon the following matters:\n\n(i) The strength of the team. ("}}, {"text": "Nasrollah Entezam", "label": "LAWYER", "start_char": 112027, "end_char": 112044, "source": "ner", "metadata": {"in_sentence": "By the decision of the Cha1rman of the Tribunal (Judge Gunnar Lagergren) with whom Ambassador Nasrollah Entezam agreed and Ambassador.", "canonical_name": "Nasrollah Entczani"}}, {"text": "Ales Babier", "label": "LAWYER", "start_char": 112068, "end_char": 112079, "source": "ner", "metadata": {"in_sentence": "Ales Babier disagreed in part, the boundary was aligned from point W T to E T in Map 'C'.", "canonical_name": "Ales Bebler"}}, {"text": "Rahim ki Bazar", "label": "GPE", "start_char": 114343, "end_char": 114357, "source": "ner", "metadata": {"in_sentence": "refers to a marginal area south of Rahim ki Bazar, including Piro!"}}, {"text": "Piro! Valo Kun", "label": "GPE", "start_char": 114369, "end_char": 114383, "source": "ner", "metadata": {"in_sentence": "refers to a marginal area south of Rahim ki Bazar, including Piro!"}}, {"text": "Chhad Bet", "label": "GPE", "start_char": 114415, "end_char": 114424, "source": "ner", "metadata": {"in_sentence": "Valo Kun, as weli as to Dhara Banni and Chhad Bet, which on most maps appear as an extension of the mainland of Sind.\""}}, {"text": "Wade", "label": "OTHER_PERSON", "start_char": 115993, "end_char": 115997, "source": "ner", "metadata": {"in_sentence": "In Wade and Phillips' Constitutional Law, 7th Edn.,"}}, {"text": "Phillips", "label": "OTHER_PERSON", "start_char": 116002, "end_char": 116010, "source": "ner", "metadata": {"in_sentence": "In Wade and Phillips' Constitutional Law, 7th Edn.,"}}, {"text": "Robert Phillimore", "label": "JUDGE", "start_char": 116741, "end_char": 116758, "source": "ner", "metadata": {"in_sentence": "The statement made by Sir Robert Phillimore, Judge of the Admiralty Court in The Parlemcnt Beige(' )~(though the ultimate decision was revised by the Court of Appcal:'r>n another point [vide ( 1880) 5 P. D. 197] in dealing with the efi'ect of a \"Convention regulatinp Communications by Post\" signed and ratified in 1876 which purported to confer upon Belgian mail streamers immunity of foreign warships is appropriate :\n\n\"If the Crown had power without the authority of parliament by this treaty to order that the Parlement Beige should be entitled to all the privileges of a ship of war, then the warrant, which is prayed for against her as a wrong-doer on account of ~e collision, cannot issue, and the right of the subject, but for this order unquestionable, to recover damages for the injuries done to him by her is extinguished.", "canonical_name": "Robert Phillimore"}}, {"text": "Supreme Court of Newfoundland", "label": "COURT", "start_char": 117788, "end_char": 117817, "source": "ner", "metadata": {"in_sentence": "In Walker v. Baird(') the Judicial Committee, affirming the decision of the Supreme Court of Newfoundland, observed that the plea of act of State raised in an action for trespass against the Captain of a British fishery vessel who was authorised by the Commissioners of the Admiralty to superintend the execution of an agreement betwee!I the British Crown and the Republic of France, which provided that no new lobster factory shall be established on a certain part of the coast of Newfoundland could not be upheld."}}, {"text": "Republic of France", "label": "ORG", "start_char": 118076, "end_char": 118094, "source": "ner", "metadata": {"in_sentence": "In Walker v. Baird(') the Judicial Committee, affirming the decision of the Supreme Court of Newfoundland, observed that the plea of act of State raised in an action for trespass against the Captain of a British fishery vessel who was authorised by the Commissioners of the Admiralty to superintend the execution of an agreement betwee!I the British Crown and the Republic of France, which provided that no new lobster factory shall be established on a certain part of the coast of Newfoundland could not be upheld."}}, {"text": "British Empire", "label": "GPE", "start_char": 118689, "end_char": 118703, "source": "ner", "metadata": {"in_sentence": "Within the British Empire there is a well-established rule that the making of a treaty is an 'executive act, while the perfonnance of its obligations, if they entail alteration of the existing domestic law, requires legislative action."}}, {"text": "B '\n\nMAGANBHAI JI", "label": "DATE", "start_char": 119015, "end_char": 119032, "source": "ner", "metadata": {"in_sentence": "B '\n\nMAGANBHAI JI, UKION (Shah, /.)\n\nthe stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty ."}}, {"text": "Art. 73", "label": "PROVISION", "start_char": 119905, "end_char": 119912, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 120781, "end_char": 120797, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 253", "label": "PROVISION", "start_char": 121336, "end_char": 121344, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 253", "label": "PROVISION", "start_char": 121346, "end_char": 121357, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 245", "label": "PROVISION", "start_char": 121485, "end_char": 121493, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 246", "label": "PROVISION", "start_char": 121604, "end_char": 121612, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Articles 247, 249, 250, 252 and 253", "label": "PROVISION", "start_char": 121708, "end_char": 121743, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 246", "label": "PROVISION", "start_char": 121798, "end_char": 121806, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 253", "label": "PROVISION", "start_char": 121822, "end_char": 121830, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 246", "label": "PROVISION", "start_char": 122008, "end_char": 122016, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "cl. 3", "label": "PROVISION", "start_char": 122763, "end_char": 122768, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 253", "label": "PROVISION", "start_char": 123046, "end_char": 123054, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Nasrollah Entczani", "label": "LAWYER", "start_char": 123163, "end_char": 123181, "source": "ner", "metadata": {"in_sentence": "253 was not accepted, the award of the Tribunal by majority of two (Judge Gunnar Lagergren with whom Ambassador Nasrollah Entczani agreed) was binding upon the Government of India.", "canonical_name": "Nasrollah Entczani"}}, {"text": "Art. 19(l)(d)", "label": "PROVISION", "start_char": 124118, "end_char": 124131, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19(1 )(e)", "label": "PROVISION", "start_char": 124203, "end_char": 124217, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 124706, "end_char": 124713, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 125036, "end_char": 125043, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Limaye", "label": "PETITIONER", "start_char": 125208, "end_char": 125214, "source": "ner", "metadata": {"in_sentence": "Mr. Limaye petitioner in Writ Petition No."}}, {"text": "Art. 143", "label": "PROVISION", "start_char": 126510, "end_char": 126518, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Berubari Union and Exchange of Enclaves(1)", "label": "ORG", "start_char": 126534, "end_char": 126576, "source": "ner", "metadata": {"in_sentence": "143 in In Re : The Berubari Union and Exchange of Enclaves(1) this Couri was called upon .to determine the true nature of the agreement between the Prime Ministers of India and Pakistan-each Prime Minister acting on behalf of his Governinent-of September 10, 1958, for a division of the Berubari Union in the State 'of West Bengal and exchange of ce(lain enclave8 and whethefthe agreement may be 'implemented otherwise than by a constitutional amendment."}}, {"text": "(1960] 3 S.C.R. 250", "label": "CASE_CITATION", "start_char": 127731, "end_char": 127750, "source": "regex", "metadata": {}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 128000, "end_char": 128022, "source": "ner", "metadata": {"in_sentence": "Another matter arising out of those agreements between the two Prime Minlsters was brought before this Court by an appeal from an order passed by the High Court of Calcutta in a writ petition: Ram Kishore Sen & Ors."}}, {"text": "State of", "label": "GPE", "start_char": 128272, "end_char": 128280, "source": "ner", "metadata": {"in_sentence": "It was proposed pursuant to the Constitution (Ninth Amendment) , Act, 1960, to transfer, a_mong other territory, a part of the village of Chilahati in the occupation of the State of West Bngal in India."}}, {"text": "West Bngal", "label": "GPE", "start_char": 128281, "end_char": 128291, "source": "ner", "metadata": {"in_sentence": "It was proposed pursuant to the Constitution (Ninth Amendment) , Act, 1960, to transfer, a_mong other territory, a part of the village of Chilahati in the occupation of the State of West Bngal in India."}}, {"text": "Fourth Schedule", "label": "PROVISION", "start_char": 128984, "end_char": 128999, "source": "regex", "metadata": {"statute": null}}, {"text": "Ram Kishore Sen", "label": "OTHER_PERSON", "start_char": 129458, "end_char": 129473, "source": "ner", "metadata": {"in_sentence": "Ram Kishore Sen\n\n& Ors' case ( 1 ) which dealt, among others, with the cession of 500 acres of Chilahatl viUage related to transfer of territory which though temporarily under Indian administration had never become Indian territory."}}, {"text": "Piro! V alo Kun", "label": "GPE", "start_char": 131297, "end_char": 131312, "source": "ner", "metadata": {"in_sentence": "and further observed at p. 151 :\n\n\"In a sector bounded to the south by the southern limit of Piro!"}}, {"text": "Shakur", "label": "GPE", "start_char": 131563, "end_char": 131569, "source": "ner", "metadata": {"in_sentence": "V alo Kun, not only is there a total absence of effective Kutch activity, but there is a consistent exercise of sovereign rights and duties by Sind authorities, and activities of residents of Sind, in one instance, taking the form of a permanent settlement at Shakur.\""}}, {"text": "Ohara Banni", "label": "OTHER_PERSON", "start_char": 131902, "end_char": 131913, "source": "ner", "metadata": {"in_sentence": "About the Ohara Banni and Chhad Jkt Sector Judge Gunnar Lagergren observed (at p. 141) :\n\n\". . . .", "canonical_name": "Dhara Banni"}}, {"text": "Gunnar Lagergren", "label": "JUDGE", "start_char": 131941, "end_char": 131957, "source": "ner", "metadata": {"in_sentence": "About the Ohara Banni and Chhad Jkt Sector Judge Gunnar Lagergren observed (at p. 141) :\n\n\". . . .", "canonical_name": "Gunnar Lagergren"}}, {"text": "Ding", "label": "GPE", "start_char": 132325, "end_char": 132329, "source": "ner", "metadata": {"in_sentence": "on the evidence on record it may be taken as positively establish.ed that, in this century, prior to independence, outside Ohara Banni and Chhad Bet (which will be treated presently), the police and criminal jurisdiction of Sind authorities over disputed territory extended, in the sector between the eastern loop and phara Banni, to Ding, Vighokot and Biar Bet."}}, {"text": "Vighokot", "label": "GPE", "start_char": 132331, "end_char": 132339, "source": "ner", "metadata": {"in_sentence": "on the evidence on record it may be taken as positively establish.ed that, in this century, prior to independence, outside Ohara Banni and Chhad Bet (which will be treated presently), the police and criminal jurisdiction of Sind authorities over disputed territory extended, in the sector between the eastern loop and phara Banni, to Ding, Vighokot and Biar Bet."}}, {"text": "Biar Bet", "label": "GPE", "start_char": 132344, "end_char": 132352, "source": "ner", "metadata": {"in_sentence": "on the evidence on record it may be taken as positively establish.ed that, in this century, prior to independence, outside Ohara Banni and Chhad Bet (which will be treated presently), the police and criminal jurisdiction of Sind authorities over disputed territory extended, in the sector between the eastern loop and phara Banni, to Ding, Vighokot and Biar Bet."}}, {"text": "Diplo", "label": "GPE", "start_char": 133594, "end_char": 133599, "source": "ner", "metadata": {"in_sentence": "Thus, the births, deaths and epidemics occurring there were recorded by the ta/uka office in Diplo."}}, {"text": "Kutch", "label": "OTHER_PERSON", "start_char": 134066, "end_char": 134071, "source": "ner", "metadata": {"in_sentence": "As stated earlier, the activities undertaken by Kutch in these areas cannot be characterised as continuous and effective exercise of jurisdiction."}}, {"text": "Chhad Bet", "label": "OTHER_PERSON", "start_char": 134218, "end_char": 134227, "source": "ner", "metadata": {"in_sentence": "By contrast, the presence of Sind in Dhara Banni and Chhad Bet partakes of characteristics which, having regard to the topography of the territory and the desolate character of the adjacent inhabited region, come as close to effective peaceful occupation and display of Government authority as may reasonably be expected in the circumstances.", "canonical_name": "Chhad Bet"}}, {"text": "Sind authorities", "label": "ORG", "start_char": 134609, "end_char": 134625, "source": "ner", "metadata": {"in_sentence": "Both the inhabitants of Sind who openly used the grazing grounds for over cine hundred years and the Sind authorities must have acted on the basis that Dhara."}}, {"text": "Dhara. Banni", "label": "GPE", "start_char": 134660, "end_char": 134672, "source": "ner", "metadata": {"in_sentence": "Both the inhabitants of Sind who openly used the grazing grounds for over cine hundred years and the Sind authorities must have acted on the basis that Dhara."}}, {"text": "Pullan", "label": "OTHER_PERSON", "start_char": 135932, "end_char": 135938, "source": "ner", "metadata": {"in_sentence": "About Pullan's Survey it may be observed that Pullan himself stated that he had \"carefully abstained from laying down\" or suggesting a boundary\n\n(vi de Resolution of the Government of Bombay July 3 and August 7, 1885)."}}, {"text": "July 3 and August 7, 1885", "label": "DATE", "start_char": 136117, "end_char": 136142, "source": "ner", "metadata": {"in_sentence": "About Pullan's Survey it may be observed that Pullan himself stated that he had \"carefully abstained from laying down\" or suggesting a boundary\n\n(vi de Resolution of the Government of Bombay July 3 and August 7, 1885)."}}, {"text": "Sind Government", "label": "ORG", "start_char": 136437, "end_char": 136452, "source": "ner", "metadata": {"in_sentence": "Erskine's Survey also is opert to the criticism that as an officer of the Sind Government he made statements in his letter, dated November 23, 1905, disowning any intention to determine the boundary of the Rann of Kutch."}}, {"text": "November 23, 1905", "label": "DATE", "start_char": 136493, "end_char": 136510, "source": "ner", "metadata": {"in_sentence": "Erskine's Survey also is opert to the criticism that as an officer of the Sind Government he made statements in his letter, dated November 23, 1905, disowning any intention to determine the boundary of the Rann of Kutch."}}, {"text": "Dholakia", "label": "OTHER_PERSON", "start_char": 141054, "end_char": 141062, "source": "ner", "metadata": {"in_sentence": "MAGANBHAI v. UNION (Shah, J.) 307\n\nA It is stated in the affidavit of Mr. Dholakia that the area of the Kutch District was 16567 .3 square miles inclusive of 9000 square miles of Rann territory."}}, {"text": "Ohara Banm", "label": "OTHER_PERSON", "start_char": 141697, "end_char": 141707, "source": "ner", "metadata": {"in_sentence": "local population in Chhad Bet and Ohara Banm.", "canonical_name": "Dhara Banni"}}, {"text": "East India Company", "label": "ORG", "start_char": 144076, "end_char": 144094, "source": "ner", "metadata": {"in_sentence": "In the turbulent times which preceded the occupation of Sind by the East India Company in J 843 or even thereafter it is unlikely that any authority was exercised by the Maharao of Kutch over these inlets."}}, {"text": "Maharao of Kutch", "label": "ORG", "start_char": 144178, "end_char": 144194, "source": "ner", "metadata": {"in_sentence": "In the turbulent times which preceded the occupation of Sind by the East India Company in J 843 or even thereafter it is unlikely that any authority was exercised by the Maharao of Kutch over these inlets."}}]}
{"document_id": "1969_3_309_319_EN", "year": 1969, "text": "V ALLABHAI NA TIIABHAI\n\nBAI JIVI & ORS.\n\nJanuary 10, 1969\n\n[J. M. SHBLAT, V. BHAROAVA AND C. A. VAIDIALINGAM, JI.)\n\nBombay Tenancy and Agricultural Lands Act 51 of 1948, ••· 29(1) and 8.~Nature of remedies under-Remedies whether alternative.\n\nReapondent No. I waa owner of two numben situate in the Dilltriet of Panchmahals in Gujarst to which the Bombay Tenancy and\n\nAaricultural Lands Act 57 of 1948 was applicable.\n\nOn May IS, 1956 the appellant voluntarily handed over possession of the said lands to respondent 1.\n\nThe surrender was not, however, in writing and the procedure of inquiry and vorillcation required by 1. 1$ of the aforesaid Aet was not gone through. Respondent 1 thereafter personally cultivated the said lands.\n\nOn January 16, 1961 the appellant applied to the Deputy Collector under s. 84 of the Act for summary eviction of respondent 1.\n\nThe Deputy Colleetor dismissed the application holding that the tenant's remedy 1ay under s. 29(1) of the Aet. The Gujarat Revenue Tribunal, however, in a revision by the tenant held that s. 84 and not s. 29(1) applied. The High Court in a petition under s. 227 of the Constitution set aside the Tribunal's order holding that s. 84 did not apply. In appeal, by special leave, the question was as to the nature of the remedies under\n\nss. 29(1) and 84 and whether a tenant who had remedy under&. 29(1) could stilt apply to the Collector under s. 84.\n\nHELD : The appeal must be dismissed.\n\n(i) In the case of a surrender which is not valid and binding on the tenant there is no termination of tenancy, and thei'efore, the landlord is\n\nDOI entitled to retain the land even though possesoion thereof has been handed over to him or has been voluntarily taken by him. The Jl\"\"ilion in such a case is that the tenant has a right to apply to the Mamlatdar for restoration of possession to him claiming that there has been no termination of tenancy, that his possession continues to be protected by the provisions of the Aqt and that therefore, the possession should be restored to him. Such an application lies under s. 29(1) and, when so made, it becomes the duty of the Mamlatdar .under s. 70, ct. (o) read with s. 29 ( 1) to put the tenant in possession of tho land in question \"under the Aet\". In such a case the tenant is claiming possession unde'r the provision• of the Act and not on the strength of his own title as when he applies for possession ai:ainst a trespasser. [314 E-0] .\n\n(ii) The words \"any person unauthorisedly occupying or wl\"ongfully tn possession of any land\" in s. 84, no doubt, are words of wide import and would include a landlord who is in unauthorised occupation or is wrongfully in possession.\n\nBut then s. 84 in express terms limits its application to three types of cases only, namely, of a person unauthorisedly occupying or wrongfully in possession of the land (a) the transfer or acl!uisition of which etc. is invalid under the Act, or (b) the manament of which has been assumed under the Aet, cir ( c) to the use and occupation of which he is not entitled under the provisions of the Act and the said provisions do not provide for the eviction of such person. [314 H-315B] In the present case cl. (b) obviously could not apply as the land in question was not one, the management of which was assumed under the provisions of the Act. Clause (a) applies only to transfers or acquisitions\n\nSUPREME COURJ: REPORTS\n\n[1969] 3 S.C.R ..\n\nwhich are in breaq]J of the provisions of Ch. y and possession or occupat!OD whereof h£l:S been obtained under such invalid transfers and acquisitions.\n\nThat bemg the position, the instant case would fall only under\n\ncl. ( c) . and therefore the condition that s. 84 would only apply to cases for which there is no other remedy under any of . the provisions of the ~C! must apply to the present case, This Condition shows that while g1v1og drastic powers of summary eviction to an administrative officer the legislature was careful to restrict this power, firstly because the result otherwise would he to deprive the person evicted under s. 84 of his remedy of appeal before the Collector .which !>e would have if the order we're to be passed under s. 29(1) and secondly, bause it would enable a tenant to by-pass a judicial enquiry by the Mamlatdar under s. 29(1) by directly applying to the Collector under s. 84.\n\nSuch a result could not have been intended by the legislature.\n\nTherefore, the contention that ss. 29(1) and 84 provide _alternative remedies and a choice to the tenant cannot possibly be correct. [3 I 5D-3 l 6B]\n\nShankar Raoji v. Mahdu Go'vind, 57 Born. L.R. 65 Ddrgaben v. Bav/a 58 Bom. L. R. 451, Trambaklal v. Shankerbhal 62 Born.\n\nL. R. 261; Shanker/al v. Harfo V<Jgha, Sp!. C.A. No. 8161, decided by High Court of Gujarat on 22-8-1961 and Krishna Mahar v. Hussain Miya Sp!. C.A.\n\nNo. 20.711956, decided by Shah & Vyas, JJ. in the High Court of Bombay on June 19, 1956, considered.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 104 of 1966.\n\nAppeal by special leave from the judgment and order dated July 3, 8, 1964 of the Gujarat High Court in Special Civil Application No. 330 of 1962.\n\nM. C. Bhandare, Anja/i K. Verma, J. B. Dadachanji and\n\n0. C. Mathur, for the appellant.\n\nS. T. Desai, M. N. Shroff for /. N. Shroff, for respondent No. 1.\n\nThe Judgment of the Court was delivered by Shelat, J. The facts relevant to th.is\" appeal are short and no longer in dispute. Respondent I is the owner of Survey Nos. 974/2 and 975/4 situate in the village Delo! in districts Panchmahals and the appellant at the material time was the tenant thereof. On May 15, 1956 the appellant voluntarily handed over possession of the said lands to respondent. !. It is, however, an admitted fact that the said surrender was not in writing and the procedure of inquiry and verification required by s. 1 S of the Bombay . Tenancy and Agricultural Lands Act, 57 of 1948\n\n(hereinafter called the Act) was not gone thrqugh.\n\nThe surrender though volunltary thus was not in accordance with s. 15 and therefore was not valid and binding on the appe!Jant.\n\nIt is not in dispute that respondent l thereafter personally cultivated the said lands. On January 16, 1961 the appellant applied to the Deputy Collector. under s. 84 of the Act for summary eviction of respondent 1.\n\nThe Deputy Collector dismissed the application holding that the tenant's remedy lay under s. 29 (1)\n\nA of the Act.\n\nThe Gujarat Revenue Tribunal, however, in a. revision by the te, nant set aside that order holding that s. 84 an? not s. 29( 1) applied. Respondent 1 thereupon filed a wnt petition under Art. 227 in the High Court of Gujarat and the High Court held, on interpretation of ss. 29 (1) and 84, that s. 84 did not apply in such cases and set aside .the Trib~'s B order.\n\nWhat is the scope of s. 84 of the Act is the quesuon, therefore, arising in this appeal which is filed by the tenant after obtaining special leave front this Court.\n\nOn behalf of the appellant Mr. Bhandare raised the following contentions :\n\n!. that a surrender of tenancy contrary to s. 15 is an invalid surrender and does not terminate the tenancy;\n\n2. that on such invalid surrender, if the landlord takes possession such possession is wrongful and unauthorised and therefore the laind must be said to be in unauthorised occupation and wrongful possession of the landlord;\n\n3. that when the tenant on such dispossession files an application his right does not arise under any of the provisions ol the Act as he has given up possession in breach of his right and title;\n\n4. that in such a situation the tenant does uot seek to enforce a right arising under the provisiQlls of the Act but claims possession relying on his title as a tenant;\n\n5. that such an application therefore falls under s. 84 and not under s. 29 ( 1); and\n\n6. that s. 84 directed against a person who is in unauthorised occupation and wrongful possession and therefore there is no warrant for any distinction between unauthorised occupation or wrongful possession arisi.ng under an invalid surrender and that arising under an invalid sale or transfer.\n\nMr. Desai for the respondents supported, on the other hand the High Court's judgment and relied on certain decisions of ' the High Courts of Bombay and Gujarat on the interpretati<ll!I of ss. 29( I) and 84 of the Act. Before we proceed to examine these contentions it is necessary first to read the relevant sections.\n\nSection 15 reads as under :\n\n\"A tenant may terminate the tenancy in respect of a:ny land at any time by surrendering his interest therein in favour of the landlord;\n\nProvided that such surrender shall be in writing and verified before the Mamlatdar in the prescribed manner.\"\n\nThe relevant pait of s. 2 9 (1 ) reads as under :\n\n\"A tenant-entit;!ed to possession of any land- r any of the provisions of this Act may apply in wntmg for such possession to the Mamlatdar.\"\n\nSub-sectiqn 2 of s. 29 provides that no landlord shall obtain\n\npossession of any land held by a tenant except under an order of the Mamlatdar. Section 84 reads as under :\n\n\"Any person u!lauthorisedly occupying or wrong fully in possession of any land-\n\n( a) the transfer or acquisition of which either by the act of parties or by the operation of law is invalid under the proVJSions of this Act,\n\n(b) the management of which has assumed under the said provisions, or\n\n( c) to the use and occupation of which he is not entitled under the said provisions and the said provisions do not provide for the eviction of such persqns, may be summarily evicted by the Coilector.\"\n\nSection 15 (1) was inserted in the Act by s. 11 of Bombay Act 13 of 1956.\n\nEven before 1956 there was in the Acts. 5(3) the proviso of which required a surrender of tenancy by a teinant to be in writing and verified by the Mamlatdar. There is, howevec.\n\nno dispute before us that the proviso to s. 15 (1) applies to the. present case and that the surrender under which respondel)t l obtained, possession of the land in question was neither in writing nor was verified in any inquiry before the Mamlafdar.\n\nUnder s. 15 (1 ) a tenant, as defined by s. 2 ( 18) of the Act, can tenninate the tenancy in respect of. the land held by him as a tenant by surrendering his interest in favour of his landlords and as provided by sub-section 2 on such surrender of the tenancy the landlord becomes entitled to retain the land so surrendered by the tenant in the same manner as when the tenancy is terminated under ss. 31 and 31A of the Act. The tenancy on such surrender comes to an end and thereupon the relationship between them of a landlord and a tenant and the rights arising out of that relationship terminate. The legislature, however, was aware of the possibility of landlords taking advantage over the tenants and therefore to safeguard the tenants against such a possibility it laid down through the proviso that a\n\nsurrender by a tenant could only be valid apcl binding on him if it was in writing and was verified by the Mamlatdar. Belore\n\nthe Mamlatdar would verify such surrender it would be his duty to ascertain whether the surrender was voluntary and was not under pressure or unclue iinfiuence of the landlord.\n\nBut once the surrender satisfied these two conditions it bas the same effect as the termination of tenancy the tenancy comes to an end and the landlord becomes entitled to retain the land of which possession is delivered to him by the tenant surrendering his interest as a tenant therein. In cases, however, where the surrender has not satisfied the two conditions, even if it is voluntary, it is no surrender and therefore there is no termination of relatiO)IShip of a landlord and tenant. Consequently, even if the tenant has C voluntarily surrendered possessiO)l and the landlord has taken it over, since the tenancy still continues the tenant obviously is entitled to retain possession and therefore to its restoration.\n\nThough, therefore, s. 15 does not in so ma, ny words provide that in such a case the tenant is entitled to restoration of possession, there being no volid surrender where the two conditions arc not D satisfied, the tenancy co, dtinucs and the tenant can claim possession from the landlord as the tenant of tlre land in question, such claim being based on his right as such tenant to be in possession of such land and tlre landlord's disability to terminate the tenancy under the provisions of the Act. It is true tlrat s. 3 7 ex-\n\npressly provides for restoration of possession to the tenants in the eventuality provided therein while s. 15 does not so provide. But the right to restoration had to be provided for in s. 37 as there would be termination of tenaincy which becomes revived and on revival thereof tlre tenant becomes entitled to restoration of possession.\n\nIn a case under s. 15, however, if the surrender is not valid it i3 no surrender at all and tlrere is no question of termination of teny. The tenant continues to be entitled to jl09llmion and therefore there is no question of the section having to provide for restoration of possession.\n\nThere is, therefore, no force in the conte.ntion t!rat in the case of an invalid surrender the tenant is not entitled to possession under the provisions of the Act He is in fact entitled tc;> cl:aim back possession under s. 15 itself for under sub-section 2 of the landlord becomes entitled to retain the land only if the surrender is in accordance with the provisions of s. 15. .\n\nSection 29 ( 1) confers a right on a tenant to apply to the Mamlatdar for possession and s. 29(2) gives a right to a landlord to apply to the Mamlatdar to obtain possession of land held by a tenant. In both the cases it is the duty of the Mamlatdar to restore possession to the tenant or to the landlord, as the oose may be. It will be noticed that whereas sub-section 2 is confined to an application by a !andford for possession from his tenant,\n\nSU~REME COURT REPORTS\n\n[!969] 3 S; C.R.\n\nsub-seetion) is nt so confined. and therefore a tenaint can apply for possess10':1 amst any me. mclud:ing the landlord. .aut for such. an application the cond1r1QI1 is that he must 1;>e one who is\n\n\"enttl~ to possession\" of the land in question \"under any of the provmons of this Act\".\n\nThus, in all cases where a tenant is entitled to possession of land under any of the provisions of the Act he has a right under s. 29 ( 1) to apply to the Mamlatdar for restoration of possession against any one including the landlord and it is the duty of the Mamlatdar, if satisfied that the tenant is entitled to such possession uinder any of the provisions of the Act, to restore possession to him.\n\nCls. (b) and (n) of s. 70 lay down the duties and functions of the Mamlatdar in the following words:\n\n\"(b) to decide whether a person is a tenant or a protected tenant or a permanent tenant.\"\n\n\"(n) to take measures for putting the tenant .or landlord-into the possession of the land-under (his Act.\"\n\n.Section,74 provides for an appeal to the Collector against the D orders of the Mamlatdar in cases therein set out and cl. (m) provides such an appeal against an order passed by the Mamlatdat under s. 29.\n\nIn the case of a surrender which .is not valid and bindng on the tenant there is, as aforesaid, no termination of tenancy, and therefore, the landlord is not entitled to retain the land even E though possession thereof has been handed over to him or has . been voluntarily taken by him.\n\nThe position in such a case is that the tenant has a right to apply to the Marnlatdar for restoration of possession to him claiming that there has been no termination of te!llllncy, that his possession continues to be protected by the provisions of the Act and that, therefore, possession should be restored to him.\n\nSuch an application lies under s. 29 (I) and, when so made, it becomes the duty of the Mamlatdar under s. 70, Cl. (n) read withs. 29(1) to put the tenant in possession of the land in question \"under this Act\". In such a case the tenant is claiming possession under the provisions of the Act a'!ld not on the strength of his own title, as when he applies for possession against a trespasser. That clearly being the position, propositions 3, 4 and 5 of Mr. Bhandare cannot be sustained.\n\nThe question then is whether a tenant who has a remedy under s. 29 ( 1) can still apply to the Collector under s. 84.\n\nIn other words, whether the legislature has provided alternative remedies under both the sections to such a tenant ? The words \"any person unauthorisedly occupying or wrongfully in possession of any land\" in s. 84, no doubt, are words of wide import and would include a landlord who is in unauthorised occuptaion or is\n\nJi. wrongfully in possession. A landlord who under an invalid surren der is in possession of the land is, no doubt, a person in unauthorised occupation or is wrongfully in possession.\n\nBut then s. 84 in express terms limits its application to three types\n\nof cases only, namely, of a person unauthorisedly occupying or wrongfully in possession of the land (a) the transfer or acquisi- B tion of which etc. is invalid under the Act, or (b) the management of which has been assumed under the Act, or ( c) to the\n\nuse and occupation of which he is not entitled under the pro visions of the Act and the said provisions do not provide for the eviction of such person.\n\nc Mr. Bhandare's argument, however, was that the present case falls under els. (a) and (c) of s. 84, that the condition of the other provisioru; of the Act providing for eviction of such a person\n\napplie§ only to cases falling under cl. (c) and not to those falling under cl. (a).\n\nWe do not have to decide in the present case whether the sai<I condition of there being no other provision in the Act Jiroviding for eviction of a person in unauthorised occu- D pation or wrongful possession applies only to cases falling under\n\ncl. (c) or to all cases under els. (a), (b) or. (c), as in our opinion the present case is clearly one falling under cl. ( c) and not els. (a) or (b) of s. 84. Clause (b) obviously cannot apply as the land in question was not one, the managemem.t of which was assumed under the provisions of the Act, namely, ss. 44, 45\n\nand 61.\n\nSo far as cl. (a) is concerned, it applies to cases in respect of the land, the transfer or acquisition of which either by the act of parties or by operation of Jaw is invalid under the provisions of the Act. Clause (a) clearly refers to Ch. V of the Act which lays down certain restrictions on transfers of agricultural lands and acquisition of estates and lands. Sections 63, 64 and 65 in that chapter prohibit transfers of agricultural land to non-agriculturists and recognize only sales to persons and at prices specified therein.\n\nClause (a), therefore, applies to transfers or acquisitions which are in breach of the provisions of Ch. V and possession or occupation whereof has been obtained under such invalid transfers or acquisitions.\n\nThat being the position the instant case would fall only under cl. ( c) and not under\n\ncl. (a) as contended by Mr. Bhandare, and therefore, the cqn dition that s. 84 would only apply to cases for which there is no other remedy under any of the provisions of the Act must apply to the present case. This condition shows that while giving drastic powers of summary eviction to a.n administrative officer the legislature was careful to restrict this power firstly because the result otherwise would be to deprive the person evicted under H s. 84 of his remedy of appeal before the Collector which he would have if the order were fa be passed under s. 29 (1) and secondly, because it would enable a tenant to by-pass a judicial\n\ninquiry by the Mamlatdar under s. 29 (1) by directly applying A !O the Collector uner s. 84. Such a result could not have been mtended by the legislature. Therefore, the contention that ss. 29 ( 1) and 84 provide alternative remedies and a choice to the tenant cannot possibly be correct. '\n\nWe now tum to the decisions to which our attention was\n\ndawn by counsel. In Shankar Raoji v. Mahadu Gavind(') the Htgh Court of Bombay observed that s. 29 ( 1) gave a right to the tenant to obtain possession through the Mamlatdar in every case where he was entitled to possessiQn under any of the provisions of the Act and that the clear object of s. 29 ( 1) was that if the Mamlatdar was satisfied that the tenant was entitled w possession by reason ot his tenancy it was his duty to protect that possession and order any one who had dispossessed him to re8tore possession to him. Section 29 ( 1) thus assumed that the tenant must claim possessiOtDi as such under the provisions of the Act. In Durgaben\n\nv. Bav/a(2 ) the landlord obtained possession from the tenant under s. 29.(2) on the ground that the tenant had surrendered the lease.\n\nThe tenant applied under s. 84 alleging that notwithstanding the order of the Mamlatdar under s. 29 (2), he had continued in possession and that the landlord had forcibly dispossessed him.. It was held that the Collector had )1lO jurisdiction under s. 84 and that the remedy, if any, of the tenant was under s. 29(1).\n\nIn holding so, the High Court observed that it was only in the absence of a provision in the Act for eviction of an UillillUthorised person that the Collector had jurisdiction under s. 84 to order summary eviction. The High Court held that ss. 29 ( 1) and 84 did not provide alternative remedies to the tenant, for, under s. 29(1) he oould claim possession on his title as a tenant under the provisions of the Act and not under s. 84. The High Court also further observed $at if it were to construe the two sections as providing alternative remedies, such a construction would result in a curious consequence, viz., that in a case where a landlord has obtained possession after obtaining an order from the Mamlatdar such possession would obviously be under a title. If the tenant in such a case were to allege that the landlord's possssion was unauthorised or wrongful and were to apply under s. 84, the Collector would have to decide the question whether the landlord's possession was wrongful or Ulllauthorised or not.\n\nBut in that case the Collector would decide it and set aside the Mamlatdar's order under his original jurisdiction under s. 84 and not under his appellate jurisdiction under s. 7 4 and s. 7 4 would thus be rendered superfluous. In Trambaklal v. Shankerbhai(') the High Court of Bombay held that in order that there may be a valid\n\n(I) 57 Born. L.R. 65.\n\n(2) 58 Born. L.R. 451\n\n(3) 62 Born. L.R. 261.\n\nNATHABHA! v. BAI J!VI (Shelat, J.) 317\n\nA trfer or acquisition through surrender, such surrender must be a lawful one and made in accordance with the provisions of the Act. If such a surrender was not verified and recognised under s. 15 there would be llO cessation of tenancy right and therefore if the la:ndlord had obtained possession under such an invalid surrender the tenant retained the right to restoration B of possession under the Act. It is clear that these decisions do not lay down anything contrary to what we have said above and therefore would not assist the appellant.\n\nThere are two unreported decisions, one by the High Court of Gujarat and the other by the High Court of Bombay to which also our attention was drawn. In Shanker/al v. Haria\n\nVagha ( 1 ) the facts were as follows : One Chandrasingh and his brothers owned Survey Nos. 23/2, 23/3 and 26/5. In 1956-57 opponent 2 surrendered these lands to Chandrasingh who personally cultivated them.\n\nUntil 1955-56 opponent 1 cultivated Survey No. 26/5. He thereafter surrendered that Survey number to Chandrasingh and his brothers who personally cultivated it thereafter.\n\nThe Mamlatdar admittedly had held no inquiry in respect of these surrenders under s. 15. On January 28, 1959 Chandrasingh and his brothers sold these lands to the petitioners and the petitioners thereafter cultivated them in 1959-60. In 1959 opponents 1 and 2 applied to the Collector under s. 84 and the Collector ordered restoration of possession to opponent 1 and 2. The Gujarat Revenue Tribunal rejected a revision applioation filed by the petitioners against the said order.\n\nIn a writ petition under Art. 227 the petitioners raised two cqntentions before the High Court : (1 ) that they were not in unauthorised occupation or wrongfolly in possession as they derive title from the owner, their vendors, and (2) that \\II any event the opponents had a remedy under s. 29 ( 1) and theref9re could F \\)101: have recourse to s. 84.\n\nAs regards the first contention the High Court held that the surrenders by opponents 1 and 2, not being in writing and unverified, were not binding on them, the relationship of tenant and landlord had not, therefore, termimtted and opponents 1 and 2 were entitled to possession of the lands.\n\nThat was the position which obtained on January 28, G 1959 when Chandrasingh and his brother purported to se11 the lands to .the petition_ers.\n\nThe petitioners, therefore, were in unauthonsed possession as Chandrasingh and his brothers were not entitled to possession and could not transfer possession to the petitioners. The High Court also held that the said sale was contrary to s. 64 and therefore invalid and did not create\n\nH any rights as to ownership or posse; sion in favour of the petitioners.\n\nThe possession of the petitioners, therefore was unauthorised and wrongful and s. 84 applied and the' first contention\n\n(1) Sp!. C.A. 8 of 1961, deed. by the High Court of Gujarat on August 22, 1961.\n\nLS Sup. CI/69---2\n\nfailed.\n\nAs to the second contention, the High Court held that under s. 29 ( 1) a tenant could apply to the Marnlatdar for possessioa but that required that the right to possession must arise \"under the provisions of .the Act\". If the tenant did not seek to enforce a right arising under any of the provision of the Act_ but claimed possession on his own title as a tenant, s. 29 ( 1) would not apply and his remedy would be under s. 84 only.\n\nThe High Court held that when a tenant claimed possession not refying upon any incident of his contract of tenancy nor on llill'Y provisions of the Act but on his own title to possession, that is, to protect his possession as a tqnant against a trespasser s. 84 and not s. 29(1) would apply even though the land the possession of which he claimed was the land of which he was a tenant and the trespasser was his landlord.\n\nWhat the tenant in such a case was seeking to do. was not to enforce his right as a tenant under the provisions of the Act but he was en.forcing his right against third parties, namely, the petitioners in that case who were in wrongful occupation.\n\nThe tenant was claiming possession not under the provisions qf the Act but on his own title, albeit as a tenant, against a person who had. no title to\n\now, neship or possession in the land and therefore s. 29 ( 1) did not apply to such a case.\n\nConsequently, s. 29 (1) was not another provision providing for eviction which opponents I and 2 could avail of.\n\nIn Krishna Mahar v. Hussan Miya(') the respondent was the owner of the 0land in question.\n\nHe applied under s. 29(2) to the Mamlatdar.\n\nThe Mamlatdar passed an order direciing the petitioner, the_ tenant, to hand over possession.\n\nThe petitioner appealed to the Collector under s. 7 4 of the Act who set aside the Mamlatdar' s order.\n\nBut before the Collector passed his said order the respondent executed the Mamlatdar's order and obtained possession. The petitioner then obtained possession in pursuance of tpe Collector's said order but the respondent forcibly dispossessed him and thereupon on January 10, 1952 the petitioner complained to the Mamlatdar.\n\nThe MamJatdar expressed his nability to assist him and thereupon the petitioner applied to the Collector under s. 84.\n\nThe Collector held that the respondent was in wrongful possession and passed an order of eviction.\n\nThe Revenue Tribunal however, set aside that order holding that the petitioalier's application was barred by limitation.\n\nAn application for condonation of delay was also rejected.\n\nThe petitioner, thereupon filed a petition under Art. 227. The High Court held that there was a clear distinction between an application under s. 29 ( 1) and one under s. 84. for, under s. 29(1) whereas the tenant would be claiming the right to possession under the provisions of the Act, under s. 84 he would be claiming the right to possession not under any\n\n(1) Sp!. C.A. No. 20ior 1956. deed. by Shah and Vyas, JJ. in the High Coutt of Bombay on June 19, 1956.\n\nA of the provisions of' the Act but on his own title to possession as a. tenant. Such an application could be even against a person who was ms landlord qua the land in question if such landlord was in unauthorised occupation or wrqngful possession.\n\nThese two decisions again do not lay down anything inconsistent to what we have said above on the scope and interpretaticm of B s. 29(1) and s. 84. We do not therefore see how either of these two decisions can be availed oi by Mr. Bhandare in support of hi• contentions.\n\nIn our view the High Court was correct in its interpretation of the two sections and the conclusion which it arrived at in holding on the facts of the present case that the Collector had no C jurisdiction under s. 84 to entertain the tenant's application. The result is that the appeal fails '8nd is dismissed with costs.\n\nG.C.\n\nAppeal dismissed.", "total_entities": 148, "entities": [{"text": "BAI JIVI & ORS", "label": "RESPONDENT", "start_char": 24, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "BAI JIVI & ORS", "offset_not_found": false}}, {"text": "January 10, 1969", "label": "DATE", "start_char": 41, "end_char": 57, "source": "ner", "metadata": {"in_sentence": "January 10, 1969\n\n[J. M. SHBLAT, V. BHAROAVA AND C. A. 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C. Bhandare", "label": "JUDGE", "start_char": 5133, "end_char": 5147, "source": "ner", "metadata": {"in_sentence": "M. C. Bhandare, Anja/i K. Verma, J. B. Dadachanji and\n\n0."}}, {"text": "K. Verma", "label": "JUDGE", "start_char": 5156, "end_char": 5164, "source": "ner", "metadata": {"in_sentence": "M. C. Bhandare, Anja/i K. Verma, J. B. Dadachanji and\n\n0."}}, {"text": "C. Mathur", "label": "LAWYER", "start_char": 5191, "end_char": 5200, "source": "ner", "metadata": {"in_sentence": "C. Mathur, for the appellant."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 5222, "end_char": 5233, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, M. N. Shroff for /. N. Shroff, for respondent No."}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 5235, "end_char": 5247, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, M. N. Shroff for /. N. Shroff, for respondent No."}}, {"text": "N. Shroff", "label": "LAWYER", "start_char": 5255, "end_char": 5264, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, M. N. Shroff for /. N. Shroff, for respondent No."}}, {"text": "Shelat", "label": "JUDGE", "start_char": 5332, "end_char": 5338, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shelat, J. The facts relevant to th.is\" appeal are short and no longer in dispute."}}, {"text": "Delo", "label": "GPE", "start_char": 5495, "end_char": 5499, "source": "ner", "metadata": {"in_sentence": "974/2 and 975/4 situate in the village Delo!"}}, {"text": "May 15, 1956", "label": "DATE", "start_char": 5592, "end_char": 5604, "source": "ner", "metadata": {"in_sentence": "On May 15, 1956 the appellant voluntarily handed over possession of the said lands to respondent. !."}}, {"text": "s. 1", "label": "PROVISION", "start_char": 5824, "end_char": 5828, "source": "regex", "metadata": {"statute": null}}, {"text": "Tenancy and Agricultural Lands Act", "label": "STATUTE", "start_char": 5847, "end_char": 5881, "source": "regex", "metadata": {}}, {"text": "s. 15", "label": "PROVISION", "start_char": 6011, "end_char": 6016, "source": "regex", "metadata": {"linked_statute_text": "Tenancy and Agricultural Lands Act", "statute": "Tenancy and Agricultural Lands Act"}}, {"text": "s. 84", "label": 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"label": "OTHER_PERSON", "start_char": 6972, "end_char": 6980, "source": "ner", "metadata": {"in_sentence": "On behalf of the appellant Mr. Bhandare raised the following contentions :\n\n!."}}, {"text": "s. 15", "label": "PROVISION", "start_char": 7060, "end_char": 7065, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 7768, "end_char": 7773, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 7788, "end_char": 7793, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 7813, "end_char": 7818, "source": "regex", "metadata": {"statute": null}}, {"text": "Desai", "label": "OTHER_PERSON", "start_char": 8105, "end_char": 8110, "source": "ner", "metadata": {"in_sentence": "Mr. Desai for the respondents supported, on the other hand the High Court's judgment and relied on certain decisions of ' the High Courts of Bombay and Gujarat on 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"label": "PROVISION", "start_char": 11924, "end_char": 11929, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 12424, "end_char": 12428, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15", "label": "PROVISION", "start_char": 12540, "end_char": 12545, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 37", "label": "PROVISION", "start_char": 12622, "end_char": 12627, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15", "label": "PROVISION", "start_char": 12791, "end_char": 12796, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15", "label": "PROVISION", "start_char": 13284, "end_char": 13289, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 13311, "end_char": 13320, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15", "label": "PROVISION", "start_char": 13435, "end_char": 13440, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 29", "label": "PROVISION", "start_char": 13445, "end_char": 13455, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29(2)", "label": "PROVISION", "start_char": 13534, "end_char": 13542, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 13806, "end_char": 13815, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 14349, "end_char": 14354, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 70", "label": "PROVISION", "start_char": 14644, "end_char": 14649, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 15123, "end_char": 15128, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 15767, "end_char": 15772, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 70", "label": "PROVISION", "start_char": 15839, "end_char": 15844, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 16283, "end_char": 16288, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 16333, "end_char": 16338, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 16549, "end_char": 16554, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 16855, "end_char": 16860, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 17419, "end_char": 17424, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 18005, "end_char": 18010, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 44, 45\n\nand 61", "label": "PROVISION", "start_char": 18161, "end_char": 18179, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 63, 64 and 65", "label": "PROVISION", "start_char": 18547, "end_char": 18569, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 19087, "end_char": 19092, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 19464, "end_char": 19469, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 19572, "end_char": 19577, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 19683, "end_char": 19688, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 19738, "end_char": 19743, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 29", "label": "PROVISION", "start_char": 19838, "end_char": 19844, "source": "regex", "metadata": {"statute": null}}, {"text": "Htgh Court of Bombay", "label": "COURT", "start_char": 20058, "end_char": 20078, "source": "ner", "metadata": {"in_sentence": "In Shankar Raoji v. Mahadu Gavind(') the Htgh Court of Bombay observed that s. 29 ( 1) gave a right to the tenant to obtain possession through the Mamlatdar in every case where he was entitled to possessiQn under any of the provisions of the Act and that the clear object of s. 29 ( 1) was that if the Mamlatdar was satisfied that the tenant was entitled w possession by reason ot his tenancy it was his duty to protect that possession and order any one who had dispossessed him to re8tore possession to him."}}, {"text": "s. 29", "label": "PROVISION", "start_char": 20093, "end_char": 20098, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 20292, "end_char": 20297, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 29", "label": "PROVISION", "start_char": 20526, "end_char": 20536, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 20717, "end_char": 20722, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 20810, "end_char": 20815, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 20879, "end_char": 20884, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 21034, "end_char": 21039, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29(1)", "label": "PROVISION", "start_char": 21093, "end_char": 21101, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 21286, "end_char": 21291, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 29", "label": "PROVISION", "start_char": 21344, "end_char": 21350, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29(1)", "label": "PROVISION", "start_char": 21426, "end_char": 21434, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 21532, "end_char": 21537, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 21997, "end_char": 22002, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 22247, "end_char": 22252, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 22300, "end_char": 22304, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 22311, "end_char": 22315, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15", "label": "PROVISION", "start_char": 22758, "end_char": 22763, "source": "regex", "metadata": {"statute": null}}, {"text": "Chandrasingh", "label": "OTHER_PERSON", "start_char": 23332, "end_char": 23344, "source": "ner", "metadata": {"in_sentence": "In Shanker/al v. Haria\n\nVagha ( 1 ) the facts were as follows : One Chandrasingh and his brothers owned Survey Nos."}}, {"text": "s. 15", "label": "PROVISION", "start_char": 23751, "end_char": 23756, "source": "regex", "metadata": {"statute": null}}, {"text": "January 28, 1959", "label": "DATE", "start_char": 23761, "end_char": 23777, "source": "ner", "metadata": {"in_sentence": "On January 28, 1959 Chandrasingh and his brothers sold these lands to the petitioners and the petitioners thereafter cultivated them in 1959-60."}}, {"text": "s. 84", "label": "PROVISION", "start_char": 23960, "end_char": 23965, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 227", "label": "PROVISION", "start_char": 24175, "end_char": 24183, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 24438, "end_char": 24443, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 24495, "end_char": 24500, "source": "regex", "metadata": {"statute": null}}, {"text": "January 28, G 1959", "label": "DATE", "start_char": 24836, "end_char": 24854, "source": "ner", "metadata": {"in_sentence": "That was the position which obtained on January 28, G 1959 when Chandrasingh and his brother purported to se11 the lands to .the petition_ers."}}, {"text": "s. 64", "label": "PROVISION", "start_char": 25178, "end_char": 25183, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 25380, "end_char": 25385, "source": "regex", "metadata": {"statute": null}}, {"text": "August 22, 1961", "label": "DATE", "start_char": 25484, "end_char": 25499, "source": "ner", "metadata": {"in_sentence": "by the High Court of Gujarat on August 22, 1961."}}, {"text": "s. 29", "label": "PROVISION", "start_char": 25590, "end_char": 25595, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 25895, "end_char": 25900, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 25952, "end_char": 25957, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 26221, "end_char": 26226, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29(1)", "label": "PROVISION", "start_char": 26235, "end_char": 26243, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 26840, "end_char": 26845, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 26896, "end_char": 26901, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29(2)", "label": "PROVISION", "start_char": 27104, "end_char": 27112, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 27274, "end_char": 27278, "source": "regex", "metadata": {"statute": null}}, {"text": "January 10, 1952", "label": "DATE", "start_char": 27594, "end_char": 27610, "source": "ner", "metadata": {"in_sentence": "The petitioner then obtained possession in pursuance of tpe Collector's said order but the respondent forcibly dispossessed him and thereupon on January 10, 1952 the petitioner complained to the Mamlatdar."}}, {"text": "s. 84", "label": "PROVISION", "start_char": 27767, "end_char": 27772, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 227", "label": "PROVISION", "start_char": 28106, "end_char": 28114, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 28200, "end_char": 28205, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 28225, "end_char": 28230, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29(1)", "label": "PROVISION", "start_char": 28243, "end_char": 28251, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 28352, "end_char": 28357, "source": "regex", "metadata": {"statute": null}}, {"text": "High Coutt of Bombay", "label": "COURT", "start_char": 28483, "end_char": 28503, "source": "ner", "metadata": {"in_sentence": "in the High Coutt of Bombay on June 19, 1956."}}, {"text": "June 19, 1956", "label": "DATE", "start_char": 28507, "end_char": 28520, "source": "ner", "metadata": {"in_sentence": "in the High Coutt of Bombay on June 19, 1956."}}, {"text": "s. 29(1)", "label": "PROVISION", "start_char": 28901, "end_char": 28909, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 28914, "end_char": 28919, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 29256, "end_char": 29261, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_320_340_EN", "year": 1969, "text": "STATE OF WEST BENGAL v.\n\nJUGAL KISHORE MORE & ANR.\n\nJanµary 10, 1969\n\nJ. C. SHAH, V. RAMASWAMI AND A, N. GROVER, JJ.J\n\nExtradition-Nture. of-:-Fugitive Offenders Act (44 & 45 Viet c. 69 o{ .1881)-Inapp/1cab1lity m Republic of India, if bar to obtain ntradton of fugitive offenders from another Commonwealth country-Extrad1110n Act (34 of 1962), effect of.\n\nAfter this Court held. in. Stote of Madras v. C. G. Menon, [1~51 1 S.C.R. 280 that the Fugitive Offenders Act 1881 was inconsistent with Art. 14 of the Constitution and was on th; t accont unenfOrceable after 26th January 1950, the Government of India, Ministry of External Affairs issued a notification on May 21, 1955 indicating the procedure for securing the presence of a fugitive offender in India from the United Kingdom and other Commonwealth countries.\n\nUnder the Notification, the Magistrate concerned is to issue a warrant of arrest of the fugitive offender under the Criminal Procedure Code, 1898, and the warrant is to be sent to the Government of India, Ministry of External Affair& through the concerned State Government.\n\nThereafter, the Ministry is to address the appropriate authority in the Commonwealth country through the High Commissioner for India for the surrender of the fugitive offender.\n\nIn 1962, the Indian Extradition Act was passed, but as Hon& Kong was not included in the First Schedule, that Act could not be resorted for the surrender of the respondent who was a fugitive offender residing in Hong Kong.\n\nAction was therefore taken in the present case, pursuant to the notification.\n\nThe Chief Presidency Magistrate Calcutta issued a warrant under the Criminal Procedure Code for the arrest of the respondent and the warrant was forwarded by the Government of West Bengal . to the Ministry of External Affairs, Government of India. The Ministry forwarded the warrant to the High Commissioner for India, Hong Kong,\n\nwho in his turn requested the Colonial Secretary, Hong Kong, for an order extraditing the respondent under the Fugitive Offenders Act 1881 (44 & 45 Viet Ch. 69). The Central Magistrate, Hong Kong, endorsed the warrant and directed the Hong Kong police to arrest the respondent referring to the Republic of India as a British possession to which the Fugitive Offenders Act was applicable.\n\nOn the questions : (I ) Whether the Chief Presidency Magistrate had no power to issue the warrant as it would have extr:i-tenitorial operation;\n\n(2) Whether the Fugitive Offenders Act, having ceased to be part of the Jaw of India, could be resorted to for obtaining extradition of fugitive offenders; (3) Whether the instructions of the Government of India for obtaining extradition are .. an invasion upon the authority of courts; a.n?\n\n( 4) Whether the Extrad11!6n Act, 1962, operates as a bar to the requlSltion made by the Ministry of External Affairs for the extradition of the respondent,\n\nHELD : (I) The Courts of the country which make a requisitio~ for surrender proceed upon prima facie proof of the offence .and leave it to the State to make a requisition upon the other State, in which the offender•\n\nhas taken refuge.\n\nUnder s. 82 of the Criminal Procedure Code. when a warrant is issued by a Magistrate in India, it can be executed anywhere\n\nWEST BENGAL V, JUGAL KISHORE 321\n\nin India and has no extra-territorial operation.\n\nBy making a requisition to another State, in pursuance of such a Wflrrant, for assistance in securing the presence of the offender, the warrant is not invested with extraterritorial operation. If the other State requested agrees to lend its aid to arrest the fugitive, the arrest is made by the issue of an independent warrant or endorsement or authentidation of the warrant of the court which issued it.\n\nBy such endorsement or authentication the State expresses its willingness to lend its assistance in implementation of treaties or international commitments to secure the arrest of the offender.\n\nThe offender arrested pursuant to the warrant or endorsement is brought before the Court of the country to which requisition is made and that cuort holds enquiry to determine whether the offender may be extradited. [326 F-\n\n327B]\n\nCourts in India have no authority to sit in judgment over the order passed by the Hong Kong Magistrate. He acted in accordance with the municipal law of Hong Kong and agreed to surrender the offender : his action cannot be challenged in this Court even if it is wrong. The invalidity of the arrest in Hong Kong, if any, cannot affect the jurisdiction of Indian Courts to try the respondent if and when he is brought here. [334 EJ Emperor\n\nv. Vinayak Damodar Savarkar, l.L.R. 35 Born. 225, approved ..\n\n(2) But, in fact the Colonial Secretary of Hong Kong was, according to the Jaw applicable in Hong Kong, competent to give effect to the warrant issued by the Chief Presidency Magistrate, Calcutta and the Central Magistrate, ong Kong had jurisdiction under the Fugitive Offenders Act to direct that the respondent may be surrendered to India. Whatever may be the position in India after it has become a Republic the United Kingdom and several Colonies have treated the Fugitive Offenders Act as applicable for the purpose of honouring the requisition made by the Republic of India.\n\nMerely because, for the purpose of the extradition procedure, in a statute passed before the attainment of independence by the former colonies and dependencies, certain territories dpntinue to be referred as 'British Possessions' the statute does not become inapplicable to those territories.\n\nThe expression 'British Possessions' in the old statutes me'rely. s1,.1rvives as an artificial mode of reference. Though it is not consistent with the political realities, it does not imply political depeo .. dence of the Governments of the territories referred to.\n\nThe order of surrender passed by the Magistrate in Hong Kong was vaJid according to.\n\nthe law in force in Hong Kong. [338 H; 3370)\n\nRe. Government of India and Mubarak A.Ii Ahmed, [!952] 1 All E.R. 1060, Re. Kweshi A.rm<h [1966) 2 All E.R. 1006, Zacharia v. Republic of Cyprus, [1962] 2 All. E.R. 438 and Halsbury's Laws of England 3rd Edn. Vol. 5 Art. 987, p. 433, referred to.\n\n(3) This Court, by holding in C. G. Menon's case that since India became a Republic the Fugitive Offenoers Act could not be enforced in this country, presented the Government of India with a problem which had to be resolved by devising a machinery for securing the presence of offenders \\Vho were fugitives from justice.\n\nThe notification was issued only in the nature of advice about the procedure to be followed and was\n\nnot in any manner intended as an affront to the Courts or to impose any executive will upon the courts in judicial matters. [339 E-FJ\n\nJn the present case, the Chief Presidency Magistrate, Calcutta, had power to. issue the warrant for the arrest of the respondent bCcause there was prfma facie evidence against him.\n\nIf the. warrant was to be success\n\nfully executed. against the. respondent, who was not in India, the assistallce of the execbtive government had to be obtained._ Therefort, the is.!ue of the warrant ad the procedure followed in transmitting it were not illegal and not even irregular .\n\n. ( 4) Extradition is the surrender by one Slate to anothe!' of a person desired to be dealt with for crimes of which he had been accused or convicted.\n\nSuch a surrender is a political act done in pursuance of a treaty or .\"!' ad hoc arrangement, and founded upon the pi'inciple that it is in the interest of all civilised communities that criminals should not go unpunished.\n\nWhile the law relating to extradition between independent States is based on treaties, whether an offender shoUid' be handed over pursuant to a requisition is determined by the domestic law of the State on which the requisition is made.\n\nTherefore, the fact that the Extradition Ac~, 1962, could not be availed of for securing the presence of the respondent for trial in India, did not operate as a bar' to the requisition made by the Ministry of External Affairs, Government of India, if t&ey were able to pursuade the Colonial Secretary; Hong Kong, to deliver\"the\n\nrespondent for trial in this country. If the Colonial Secretary was willing to do so, it cannot be said that the warrant issued by the Chief Presidency Magistrate; Calcutta, for the arrest of the respondent with the aid of the requisition for securing his presence from Hong Kong in India, was illegal.\n\n[325 H; 340 C-E]\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 14 of 1968.\n\nAppeal by special leave from the judgment and order dated April 20, 1967 of the Calcutta High Court in Criminal Revision No. 502 of 1966.\n\nB. Sen and P. K. Chakravarti, for the appellants.\n\nA. S. R. Chari, B. P. Maheshwari and Sobhag Mal Jain, for respondent No. I.\n\nThe Judgment of the Court was delivered by\n\nSbllk J.\n\nIn the course of investigation of offences under ss. 420, 467, 4 71 and 120 B.I.P. Code the Officer in charge of the investigation submitted an application before the Chief Presidency Magistrate, Calcutta, for an order that a warrant for the arrest of Jugal Kishore More and certain other named persons be is.sued and that the warrant be forwarded with the relevant records and evidence. to the Ministry of External Affairs, Government of India, for securing extradition of More who was then believed to be in Hong Kong. It was stated in the application that More and oth•!rs \"were parties to a criminal conspiracy in Calcutta between May 1961 and December 1962 to defraud the Government of India in respect of India's foreign exchange\", and thei& presence 'IVas req.uired for trial.\n\nThe Chief Presidency Magistrate held an enquiry and recorded an order on July 19, 1965, that on the materials placed before him, a prima facie case was made out of a criminal conspiracy,\n\nwas \"hatched in Calcutta\" within his jurisdiction, and More was one of the conspirators.\n\nHe accordingly directed that a nonbailable warrant in Form II Sch. V of the Code of Criminal Procedure be issued for the arrest of More, and that the warrant be sent to the Secretary Home (Political) Department, Government of West Bengal, with a request to take all necessary steps to ensure execution of the warrant. A copy of the warrant was sent to the Commissioner of Police, Calcutta, for information. In the warrant More was described as Manager, Premko Traders of 7, Wyndhan Street and 28, King's Road, Hong Kong. The Chief Presidency Magistrate forwarded to the Government of West Bengal, the warrant with attested copies of the evidence recorded at the enquiry and photostat copies of documents tendered by the prosecution in evidence \"in accordance with the procedure laid down in Government of India, Ministry of External Affairs, letter No. K/52/ 6131/41 dated 21st May,_ 1955\". The warrant was forwarded by the Government of West Bengal to the Ministry of External Affairs, Government of India. The Ministry of External Affairs D forwarded the warrant to the High Commissioner for India, Hong Kong, who in his tU!l)t, requested the Colonial Secretary, Hong Kong, for an order extraditing More under the Fugitive Offenders Act, 1881, (44 and 45 Viet., c. 69), to India for trial for offences described in the warrant. The Central Magistrate, HongKong, endorsed the warrant and directed the Hong Kong Police, \"pur\n\nsuant to section 13 of Part II and section 26 of Part N of the Fugitive Offenders Act, 1881\", to arrest More.\n\nThe order recited :\n\n\"WHEREAS I have perused this warrant for the apprehension of Jugal Kishore More, . . . accused of an offence punishable by law in Calcutta, Republic of India, which warrant purports to be signed by the Chief Presidency Magistrate, Calcutta, and is sealed with the seal of the Court of the said Magistrate, and, is attested by S. K. Chatterjee, Under Secretary in _the Ministry of External Affairs of the Republic of India and sealed with the seal of the said Ministry;\n\nAND WHEREAS I am satisfied that this warrant was issued by a person having lawful authority to issue the same; AND WHEREAS it has been represented to me that the said Jugal Kishore More . . . is suspected of being in the Colony; AND WHEREAS Order in Council S.R. and 0. No. 28 of 1918 by virtue of which Part II of the Fugitive Offenders Act, 1881, was made to apply to a group\n\nof Br, itish Possessions and Protective States including Hong Kong and British India, appears to remain in full force and effect so far as the law of Hong Kong is concerned.\n\nNow therefore under section 13 of the Fugitive Offenders Act, 1881, I hereby endorse this Warrant and all; thorise and command you in Her Majesty's name, forthwith to execute this Warant in the Colony to apprehend the said Jugal Kishore More, . . . wherever he may be found in the Colony and to bring him before a Magistrate of the said Colony to be further dealt with according to law.\"\n\nMore was arrested on November 24, 1965. By order dated April 4, 1966, the Central Magistrate, Hong Kong, over-ruled the objection raised on behalf of More that the Court had no jurisdiction to proceed in the matt.er under the Fugitive Offenders Act, 1881, since the Republic of India was no loneer a \"British P0ssession \",\n\nOn May 16, 1966, Hanuman Prasad-father of Moremoved in the High Court of Calcutta a petition under s. 439 of the Code of Criminal Procedure and Art. 227 of the Constitution for an order quashing the warrant of arrest issued against More and all proceedings taken pursuant thereto and restraining the Chief Presidency Magistrate and the Union of India from taking any further steps pursuant to the said warrant of arrest and causing More to be extradited from Hong Kong to India. The petition was heard before a Division Bench of the High Court.\n\nA. Roy, J., held that the warrant issued by the Chief Presidncy Magistrate was not illegal and the procedure followed for securing extradition of More was not irregular. In his view the assumption made by the Central Magistrate, Hong Kong, that for the purpose of the Fugitive Offenders Act, India was a \"British possession\" was irrelevant since that was only a view expressed by him according to the municipal law of Hong Kong, and by acceding to the requisition for extradition and surrender made upon that country by the Government of India in exercise of sovereign rights the status of the Republic of India was not affected.\n\nIn the view of Gupta, J., the warrant issued by the Chief Presidency Magistrate and the steps taken pursuant to the warrant were Without jurisdiction, that the request made to the Hong Kong Government by the Government of India was also without authority in the absence of a notified order under s. 3 of the Extradition Act, 1962, and the High Court could not ignore the \"laws of the land, even to support a gesture of comity to another nation,\" that\n\nA I I\n\nWEST BENGAL V, JUGAL K!SHORE (Shah, J.) 325\n\nwhat was done by the Hong Kong authorities pursuant to the request made for the surrender of More was \"not an instance of international comity but was regarded as the legal obligation under the Fugitive Offenders Act under which the Central Magistrate, Hong Kong, regarded India as a Colony or Possession of the British Commonwealth\".\n\nThe case was then posted for hearing before R. Mukherji, J. The learned Judge held that the Chief Presidency Magistrate had no power to issue the warrant of arrest .in the manner he had done,-a manner which in his view was \"unknown to the Code of Criminal Procedure\", since the Fugitive Offenders Act, 1881, had ceased, on the coming into force of the Constitution, to be part of the law of India and could not on that account be resorted to for obtaining extradition of offenders from another country; that the instructions issued by the Government of India by letter No. 3516-J dated June 14, 1955, laying down the procedure to the followed by the courts for securing extradition of offenders from the Commonwealth countries shouid have been ignored by the Chief Presidency Magistrate, and that the Extradition Act 34 of 1962 did not authorise the Chief Presidency Magistrate to issue a warrant and to send it to the Secretary, Home (Political) Department, Government of West Bengal; that there \"was no legal basis for the requisition made by the Central Government to Hong Kong\" for extradition or surrender of More or for the issue of the warrant by the Chief Presidency Magistrate; and that the demand made by the Government of India to the Government of Hong Kong by making a requisition to Hong Kong for. the arrest of More \"was not a political act beyond the purview of law and judicial scrutiny\" and being inconsistent with the law was liable to be rectified.\n\nHe observed that the Central Government had the power under s. 3 of the Extradition Act, 1962, to issue a notification for including Hong Kong in the list of countries from which offenders may be extradited, but since the Government had not issued any notification under that clause in exercise of the executive power, the Government could not attempt in violation of the statutory procedure seek extradition which the law of India did not permit.\n\nThe learned Judge accordingly• ordered that the warrant of arrest dated July 30, 1965, issued by the Chief Presidency Magistrate, Calcutta, against More and all subsequent proceedings taken by the Chief Presidency Magistrate and the other respondents be quashed.\n\nThe State of West Bengal has appealed to this Court with special leave .\n\n. Extradition is the surrender by one State to another of a person des1red to be dealt with for crimes of which he has been accused or convicted and which are justiciable in the courts of the other State. Surrender of a person within the State to another\n\nState-whr:ther a citizen or an alien-is a political act done in A , pursuance of a treaty or a~ arrangement ad hoc. It is founded on the broad principle that it is in the interest of civilized communities that crimes should not go unpunished, and on that account it is recognised as a part of the comity of nations that one State\n\nhould ordinarily afford to another State assistance towards bring- '.ng offenders to justice. The law relating to extradition between B mdependeiiit States is based on treaties. But the law has operationnationaJ as well as i.lltemational It governs international relationship between the sovereign States which is secured by treaty obligations. But whether an offender should be handed over pursuant to a requisition is determined by the domestic law of the State on which the requisition is made. . Though extradition c is granted in implementation of the international commitments of the State, the procedure to be followed by the Courts iai deciding whether extradition .shoulq be granted and on what terms, is determined by the l!lunicipal. law.\n\nAs observed in Wheaten's International Law, Vol. I, 6th Edn., p. 213 :\n\n\"The constitutional doctrine in England .is that the Crown may make treaties with foreign States for the extradition of criminals, but those treaties can only be carried into effect by Act of Parliament, for the executive has no. power, without statutory authority, to seize an alien here and deliver him to a foreign power.\"\n\nSanction behind an order of extradition is therefore the international commitment .of the State under which the Court functions, but Courts jealously seek to protect the right of the individuai by insisting upon strict compliance with the conditions precedent to surrender. The Courts of the country which make a requisition for surrender deal with the prima facie proof of the offence and leave it to the State to make a requisition upon the other State in which the offender has taken refuge.\n\nRequisition for surrender is not the function of the Courts but of the State. A warrant issued by a Court for an offence committed in a country frnm its very nature has no extra-territorial operation. It is only a command by the Court in the name of the sovereign to its officer to arrest an offender and to bring him before the Court.\n\nBy making a requisition in pursuance of a warrant issued by a Court of a State to another State for assistance in securing the presence of the offender, the warrant is not invested with extraterritorial operation. If the other State requested agrees to lend its aid to arrest the fugitive the arrest is made either by the issue of an independent warrant or endorsement or authentication of the warrant of the Court which issued it.\n\nBy endorsement or\n\n... --{\n\nauthentication of a warrant the country in which an offender has taken refuge signifies its w, illingness to lend its assistance, in implementation of the treaties or international commitments and to secure the arrest of the offender. The offender arrested pursuant to the warrant or endorsement is brought before the Court of the country to which the requisition is made, and the Court holds an inquiry to determine whether the offender may be extradited. International commitment or treaty will be effective only if the Court of a country in which the offender is arrested after enquiry is of the view that the offender should be surrendered.\n\nThe functions which the Courts in the two countries perform are therefore different.\n\nThe Court within whose jurisdiction the offence is committed decides whether there is prima facie evidence on which a requisition may be made to another country for surrender of the offender. When the State to which a requiition is made agrees consistently with its international commitments to lend its aid the requisition is transmitted to the Police author:ities, and the Courts of that country consider, according to their own laws whether the offender should be surrendered-the enquiry is in the absence of express provisions to the contrary relating to the prima facie evidence of the commission of the offence which is extraditable, the offence not being a political offence nor that the requisition being a subterfuge to secure custody for trial for a political offence.\n\nPrior to January 26, 1950, there was in force in India the Indian Extradition Act 15 of 1903, which as the preamble expressly enacted was intended to provide for the more convenient administration of the Extradition Acts of 1870 and 1873, and the Foreign Jurisdiction Act of 1881-both enacted by the British Parliament.\n\nThe Act enacted machinery in Ch. II for the surrender of fugitive criminals in case of Foreign States i.e .. States to which the Extradition Act of 1870 and 1873 applied and in Ch.\n\nII for surrender of fugitive offenders iill case of \"His Majesty's\n\nominions\". The Extradition Acts of 1870 and 1873 sought to give effect to arrangements made with foreign States with respect to !he surrender to such States of any fugitive criminals Her Ma1esty may by Order in Council, direct and to prescribe the procedure for extraditing fugitive offenders to such foreign states.\n\nAs observed in Halsbury's Laws of England Vol. 16, 3rd Edn., para 1161 at p. 567 :\n\n\"Whe_, n a tr.ety has been made with a foreign State and th~ Extrad1t10n Acts have been applied by Order in Council, one of Her Majesty's principal Secretaries of State may, upon a requisition made to him by some person recognized by him as a diplomatic representative nf\n\nthat foreign State, by order under his hand and seal, signify to a police magistrate that such a requisition has been made and require him to issue his warrant for the apprehension of the fugitive criminal if the criminal is in or is suspected of being in, the United Kingdom.\"\n\nThe warrant may then be issued by a police magistrate on receipt of the order of the Secretary of State and upon such evidence as would in his opinion justify the issue of the warrant if the crime had been committed or the criminal convicted in England.\n\nThe procedure for extradition of fugitive offenders from \"British possessions\" was less complicated. When the Extradition Act was applied by Order in Council unless it was otherwise provided by such Order, the Act extended to every \"British possession\" in the same llllliOOer as if throughout the Act the \"British\n\npossession\" were substituted for the United Kingdom, but with certain modifications in procedure.\n\nUnder Part I of the Fugitive Offenders Act 1881 a warrant issued in one part of the Crown's Dominion for apprehension of a fugitive offender, could be endorsed for execution in another Dominion.\n\nAfter the fugitive was apprehended he was brought before the Magistrate who heard the case in the same manner and had the same jurisdiction and powers as if the fugitive was charged with an offence committed within the Magistrate's jurisdiction. If the Magistrate was satisfied, after expiry of 15 days from the date on which the fugitive was committed to prison, he could make an order for surrender of the fugitive on the warrant issued by the Secretary of State or an appropriate officer. There was also provision for \"inter-colonial backing of warrants\" within groups of \"British possessions\" to which Part I of the Fugitive Offenders Act, 1881 has been applied by Order in Council. In such groups a more rapid procedure for the return of fugitive offenders between possessions of the same group was in force. Where in a \"British possession\", of a group to which Part II of the Act applied, a warrant was issued for the apprehension of a person accused of an offence punishable in that possession and such term is or was suspected of being, in or on the way to another British possession of the same group, a magistrate in the last-mentioned possession, if satisfied that the warrant was issued by a person having lawful authority to issue the same, _was bound to endorse tich warrant, and the warrant so endorsed was sufficient authority to apprehend,\n\nwithin the jurisdiction of the endorsing magistrate the person named in the warrant and to bring him before the endorsing magistate or some other magistrate in the same possession.\n\nIf . the magistrate before whom a person apprehen.ded was brougt was\n\nsatisfied that the warrant was duly authenticated and was 1ssed\n\nA by a persoo having !awful authority to jssue it, and the identity of the prisoner was establ, ished he could order the prisoner to be returned to the British possession in which the warrant was issued and for that purpose to deliver into the custody of the persons to whom the warrant was addressed or of any one or more of them, and to be held in custody and conveye<j to that possession, there to B be dealt with acco~ to Jaw as if he had been there apprehended.\n\nThis was in brief the procedure prior to January 2!l, 1950.\n\nThe President of India adapted the Extradition Act 1903, in certain particulars.\n\nThe Fugitive Offenders Act, 1881 and the Extradition Act, 1870, in their application to India were however not repealed by the Indian Parliament and to the extent they were consistent with the constitutional scheme they remained applicable.\n\nIn order to maintain the continued application of laws of the British Parliament, notwithstanding India becoming a Republic, the British Parliament enacted the India (Consequential Provision) Act 1949 which by s. 1 provided :\n\n\" ( 1) On and after the date of India's beconiing a republic, all exisg law, that is to say, all law which, whether being a rule of law or a proyision of an Act of Parliament or of any other enactment or instrument whatsoever, is in force on that date or has been passed or made before that date and comes into force thereafter, shall, until provision to the contrary is made by the authority having power to alter that law ancl subject to the provisions of sub-s. (3) of this section, have the same operation in relation to India, and to persons and things in any way belonging to or connected with India, as it would have had if India had not become a republic.\n\n( 3) His Majesty may by Order in Council make\n\nprvision. for such satisfaction of any existing law to which this Act extends as may appear to him to be necessary or expedient in view of India's becoming a republic while remaining a member of the Commonwealth, and sub-s. ( 1) of this section shall have effect in relation to any such law as modified by such an order in so far as the contrary intention appears in the order. An Order in Council under this section- ·\n\n(a) may be made either before or after India becomes a republic, and may be, revoked or varied by a subsequent Order in Council; and\n\n(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.\"\n\nIn 1954 this Court was called upon to C!ecide a case relating to extradition to Singapore, a British Colony, of a person alleged to be a fugitive offender The State of Madr¥S v. C. G. Menon and Another('). In that case Menon and his wife were apprehended and produced before the Chief Presidency Magistrate, Madras, pursuant to warrants of arrest issued under the provisions of the Fugitive Offenders Act, 1881. Arrests were made in pursuance of requisition made by the Colonial , Secretary of Singapore requesting the assistance of the Government of India to arrest and return to the Colony of Singapore Menons under warrants issued by the. Police Magistrate of Singapore.\n\nMenons pleaded that the Fugitive Offenders Act, 1881, under which the action was sought to be taken against them was repugnant to the Cons titution of India and was void and unenforceable.\n\nThe Chief Presidency Magistrate referred two questions of law for decision of the High Court of Madras :\n\n(1) Whether the Fugitive Offenders Act, 1881, applies to India after 26th J:i, nuary, 1950, when India became a Sovereign Democratic Republic and\n\n(2) Whether, even if it applied, it or any of its provisions, particularly Part II thereof, is repugnant to the Constitution of India and is therefore void and or inoperative.\n\nThe High Court held that the Fugitive Offenders Act was inconsistent with the fundamental right of equal protection of the laws guaranteed by Art. 14 of the Constitution and was void to that extent and unenforceable against the petitioners.\n\nIn appeal brought to this Court it was observed : • .F\n\n\"It is plain from the . . provisions of the Fugitive Offenders Act as well as from the Order\n\nin Council that British Possessions which were contiguous to one another and between whom there was frequent inter-communication were treated for purposes of the Fugitive Offenders Act as one integrated territory and a summary procedure was adopted for the purpose of extraditing persons who. had committed offences in these integrated territories. As the laws prevailing in those possessions were substantially the same. the requirem!)nt that no fugitive will be surrendered unless a prima facie case was made against him was dispensed with.\n\nUnder the Indian Extradition\n\n(\\) [\\955] 1 S.C.R. 280.\n\nAct, 1903, also a similar requirement is insisted upon before a person can be extradited.\n\nThe situation completely changed when India became a Sovereign Democratic Republic.\n\nAfter the achievement of independence and the coming into force of the new Constitution by no stretch of imagination could India be described as a British Possession and it could not be grouped by an Order in Council amongst those Possessions.\n\nTruly speaking, it became a foreign territory so far as other British Possessions are concerned and the extradition of persons taking asylum in India, having committed offences in British Possessions, could only be dealt wth by an arrangement between the Sovereign Democratic Republic of India and the British Government and given effect to by appropriate legislation. The Union Parliament has not so far enacted any law on the subject and it was not suggested that any arrangement has been arrived at between these two Governments. The Indian Extradition Act, 1903, has been adapted but the Fugitive Offenders Act, 1881, which was an Act of the British Parliament has been left severely alone. The provisions of that Act could only be made applicable to India by incorporating them with appropriate changes into an Act of the Indian Parliament and by enacting an Indian Fugi- 'tive Offenders Act. In the absence of any legislation on those lines, it seems difficult to hold that section 12 or section 14 of the Fugitive Offenders Act has force in India by reason of the provisions of article 3 72 of the Constitution. The whole basis for the applicability of Part II of the Fugitive Offenders Act has gone : India is no longer a British Possession and no Order in Council can be made to group it with other British Possessions. . . .\n\nThe political ba~ground and shape of things when Part ff of the Fug11Ive Offenders Act, 1881, was enacied\n\nn~ envisage~ by at Act hving completely changed, 11 1s not possible without radical legislative changes to adapt that Act to the changed conditions.\n\nThat being so, in our opinion, the tentative view expressed by the Presidency Magistrate was right. \"\n\nAfter this judgment was delivered, the Government of India Ministry of External Affairs, issued a notification on May 21' 1955, to all. State Goernments of Part A, B, C & D States. It was stated m the nollfication that :\n\n\" .... in a certain case of extradition of an offender, the Supreme Court of India recently ruled that in\n\nthe changed circumstances, the English Fugitive Offenders Act, 1881, is no longer applicable to India. There can therefore, be no question of issuing a warrant of arrest, addressed io a foreign police or a foreign court, in respect of persons who are residing outside India ex- cept in accordance with the Code of Criminal Proce- dure, 1898.\n\n2. In the circumstances, to obtain a fugitive offender from the United Kingdom and other Commonwealth countries, the following procedure may be adopied as long as the new Indian Extradition law is not enacted and the Commonwealth countries continue to honour our requests for the surrender of the fugitive offenders notwithstanding decisions of the Supreme Court;\n\n(a) The Magistrate concerned will issue a warrant for the arrest of the fugitive offender to Police officials of India in the usual form prescribed under the Code of Criminal Procedure, 1898.\n\n(b) The w0 rrant for arrest, accompanied by all such documents as would enable a prima facie case to be established , against the accused will be submitted by the Magistrate to the Government of India in the Ministry of External Affairs, through the State Government <:oncerned.\n\n3. This Ministry, in consultation with the Ministries .of Home Affairs, and Law, will make a requisition for the surrender of a fugitive offender in the form of a letter, requesting the Secretary of State (in the case of dominions, the appropriate authority in the dominion) to get the warrant endorsed in accordance with law.\n\nThis letter will be addressed to the Secretary of State\n\n(or other appropriate authority in case of Dominions) through the High Commissioner for India in the United Kingdom/Dominion concerned and will be accompanied by the warrant issued by the Magistrate at (a) of para 2 above and other documents received therewith.\"\n\nThe Chief Presidency Magistrate Calcutta made out the warrant for the arrest of More pursuant to that notification and sent the warrant to the Secretary, Home (Political) Department, Government of West Bengal. Validity of the steps taken in accordance with the notification by the Chief Presidency Magistrate is questioned in this appeal.\n\nTo complete the narrative, it is necessary to refer to the Extradition Act 34 of 1962. The Parliament has enacted Act 34\n\nof 1962 to consolidate and amend the law relating to the extradi tion •f fugitive criminals. It makes provisions by Ch. II for extradition of fugitive criminals to foreign States and to commonwealth countries to which Ch. III does not apply.\n\nChapter III deals with the return of fugitive criminals to commonwealth countries with extradition arrangements. By s. 12 it is provided :\n\n\"(I ) This Chapter shall apply only to any such. commonwealth country to which, by reason of an extradition arrangement entered into with that country, it may seem expedient to the Central Government to apply the same.\n\n(2) every such application shall be by notified order, and the Central Government may, by the same or any subsequent notified order, direct that this Chapter and Chapters I, IV and V shall, in relation to any such commonwealth country, apply subject to such modifications, exceptions, conditions and qualifications as it may think fit to specify in the order for the '\" ' 'e of imple menting the arrangement.\"\n\nSection 13 provides that the fugitive crimi:.:'L; from commonwealth countries may be apprehended and returned. Chapter IV deals with the surrender or return of accused or convicted persons from foreign States or commonwealth countries. By s. 19 it was provided that-\n\n( 1) A requisition for the surrender of a person accused or convicted of an extradition offence committed , in India and who is or is suspected to be, in any foreign State or a commonwealth country to which Chapter Ill does not apply, may be made by the Central Government-\n\n( a) to a diplomatic representative of that State or country at Delhi; or .\n\n(b) to th~ Gov7rnment of tat State or country through the d1plomatlc representative of India in that\n\nState or country;\n\nd if neither of thse modes is convenient, the requisition shall be made m such other mode as is settled by arrangement made by the Government of India with that State or country. ·\n\n(2) A wrrant issued by a magistrate in India for the aprehens10n of any person who is, or is suspected to be, m any commonwealth country to which Chapter III applies shall be in such form as may be prescribed.\" R Sup Cl/69-3\n\n334 ~:Ul'REME COURT REPORTS\n\n[1969] 3 S.C. R\n\nBy cl. (a) of s. 2 the expression \"commonwealth country\" means \"a commonwealth country specified in the First Schedule and such other commonwealth country as may be added to that Schedule by the Central Government by notification in the Official Gazette, and includes every constituent part, colony or dependency of any commonwealth country so specified or added : \".\n\nBut in the Schedule to the Act \"Hong Kong\" is not specified as one of the commonwealth country and no notification has been issued by the Government of India under s. 2(a) adding to the First Schedule \"Hong Kong\" as a commonwealth country.\n\nIt is common ground between the parties that the provisions of the Extradition Act, 1962, could not be resorted to for making the requisition for surrender of the fugitive offender from Hong Kong, and no attempt was made in that behalf.\n\nValidity of the action taken by the Chief Presidency Magistrate must therefore, be adjudged in the light of the action taken 'Pursuant to the notification issued by the Government of India on May 21, 1955. Counsel for the respondent More urged that the warrant issued by the Chief Presidency Magistrate was intended fo be and could in its very nature be a legal warrant enforceable within India : it had no extra-territorial operation, and could not be enforced outside India, and when the Central Magistrate Hong Kong, purported to endorse that warrant for enforcement within Hong Kong he had no authority to do so.\n\nBut this Court has no -authority to sit in judgment over the order passed by the Hong Kong Central Magistrate.\n\nThe Magistrate acted in accordance with the municipal law of Hong Kong and agreed to the surrender of the offender : his action cannot be challenged in this Court.\n\nIt may also be pointed out that Form II of the warrant prescribed in Sch. V of the Code of Criminal Procedure only issues a direction under the authority of the Magistrate_ to a Police Officer\n\nto arrest a named person and to produce him before the Court.\n\nIt does not state that the warrant shall be executed in any designated place or area. By s. 82 of the Code of Criminal Procedure a warrant of arrest may be executed at any place in India. That provision does noi impose any restriction upon the power of the Police Officer.\n\nThe section only declares in that every warrant issued by any Magistrate in India may be executed at any place in India, execution of the warrant is not restricted to the local limits of the jurisdiction of the Magistrate issuing the warrant or of the Court to which he is subordinate.\n\nIn Emperor v . .Vinayak Damodar Savarkar and Ors.(') the Bombay High Court considered the question whether a person who was brought to the country and was charged before a Magis-\n\n(I) I.LR. 35 Born. 225.\n\ntrate with an offence under the Indian Penal Code wa• entitled to challenge the manner in which he was brought into the country from a foreign country.\n\nSavarkar was charged with conspiracy under ss. 121, 121A., 122 and 123 of. the Indian Penal Code. He was arrested in the United Kingdom and brought to India after arrest under the Fugitive Offenders Act, 18 81.\n\nWhen the ship in which he was being brought to India was near French territory Savarkar escaped from police custody and set foot on French territory at Marseilles.\n\nHe was arrested by the police officers without reference to the French police authorities and brought to India. It was contended at the trial of Savarkar that he was not liable to be tried in India, since arrest by the Indian police officers in a foreign territory was without jurisdiction. Scott, C.J., who delivered the principal judgment of the Court rejected the contention.\n\nHe observed : \"Where a man is in the country and is charged before a Magistrate with an offence under the Penal Code it will not avail him to say that he was brought there illegally from a foreign country.\" It is true that Savarkar was produced before the Court and he raised an objection about the validity of the trial on the plea that he was illegally brought to India after unlawful arrest in foreign territory. In the present case we are concerned with a stage anterior to that. The respondent More though arrested in a foreign country lawfully by the order of the Central Magistrate, Hong Kong, had not been surrendered and the invalidity of the warrant issued by the Chief Presidency Magistrate is set up as a ground for refusing to obtain extradition of the offender. But on the principle of Vinayak Damodar Savarkar's case(') the contention about the invalidity of the arrest cannot affeci the jurisdiction of the Courts in India to try More if and when he is brought here.\n\nThe Indian Extradition Act 15 of 1903 which was enacted to provide for the more convenient administration of the English Extradition Act, 1870 & 1873 and the Fugitive Offenders Act. 1881, remained in operation. But after January 26, 1950, India\n\nis no longer a \"British Possession.\" Jn C. G. Menon's case( 2 ) it was decided by this Court that application of ss. 12 and 14 of the Fugitive Offenders Act, 18 81, for surrendering an offender to a Commonwealth country in pursuance of a requisition under the Fugitive Offenders Act, 1881, is inconsistent with the political status of India. It is somewhat unfortunate that the Court hearing that case was not invited to say anything about the operation of the India (Consequential Provision) Act, 1949.\n\nBut C. G. Menon's case(') was a reverse case, in that, the Colonial Secretary of Singapore had made a requisition for\n\n(1) I.LR. 35 Born. 225.\n\n(2) [1955j 1S.C.R.280.\n\nsurrender of the offender for trial for offences of criminal breach of trust in Singapore.\n\nWhether having regard to the political status of India since January 26, 1950, the Fugitive Offenders Act, 18 81, insofar as it purported to treat India as a \"British Possession\" imposed an obligation to deliver offenders in pursuance of the India (Consequential Provision) Act 1949 is a question on which it is not necessary to express an opinion. By the declaration of the status of India as a Republic, India has not ceased to be a part of the Commonwealth and the United Kingdom and several Colonies have treated the Fugitive Offenders Act, 1881, as applicable to them for the purpose of honouring the requisition made by the Republic of India from time to time.\n\nIn Re. Government of India and Mubarak Ali Ahmrd(') an attempt to resist in the High Court in England the requisition by the Republic of India to surrender an offender who had. committed offences in India and had fled justice failed.\n\nMubarak Ali a native of Pakistan was being tried in the Courts in India on charges of forgery and fraud. He broke his bail and fled to Pakistan and thereafter to England. He was arrested on a pro- , visional warrant issued by the London Metropolitan Magistrate on the application of the Government of India.\n\nAfter hearing legal submissions the Metropolitan Magistrate made an order under s. 5 of the Fugitive Offenders Act, 1881, for Mubarak Ali's detention in custody pending his return to India to answer the charges made against him.\n\nMubarak Ali then filed a petition for a writ of habeas corpus before the Queen's Bench of the High\n\nCourt. It was held that the Fugitive Offenders Act, 1881, was in force between India and Great Britain on January 26, 1950, when India become a republic and it was continued to apply by virtue of s. 1 (I ) of the India (Consequential Provision) Act, 1949, and, therefore, the Magistrate had jurisdiction to make the order for the applicant's return. Pursuant to the requisitions made by the Government of India, Mubarak Ali was surrendered by the British Government. Mubarak Ali was then brought to India and was tried and convicted. One of the offences for which he was tried resulted in his conviction and an appeal was brought to this Court iiil Mobarik Ali Ahmed v. The State of Bombay(').\n\nThere are other cases as well, in which orders were made by the British Courts complying with the requisitions made by the Governments of Republics within the Commonwealth, for extradition of offenders under the Fugitive Offenders Act, 1881.\n\nAn offender from Ghana was ordered to be extradited pursuant to the Ghana (Consequential Provision) Act, 1960, even after Ghana became a republic Re. Kwesi Armah('). On July 1, 1960, Ghana while remaining by virtue of the Ghana (Consequential\n\n(I) (1952] I All E.R: 1060.\n\n(3) (1966] 2 All E.R.1006.\n\n(2) (1958] S.C.R. 328.\n\nProvision) Act, 1960, a member of the Comonwealth became a Republic. Kwesi Armah who was a Minister in Ghana fled the country in 1966 and took refuge in the United Kingdom.\n\nHe was arrested under a provisional warrant issued under the Fugitive\n\nOffenders Act, 1881. The Metropolitan Magistrate being satisfied that the Act of 1881 still applied to Ghana and that a prima facie case had been made out against the applicant in respect of two alleged contraventions of the Ghana Criminal Code, 1960,\n\nby corruption and extortion when he was a public officer, committed K wesi Armah to prison pending his return to Ghana to undergo trial. A petition for a writ of habeas corpus before the Queen's Bench Division of the High Court was refused. Edmund Davies,' J., was of the view that the Act of 1881 applied to the Republic of Ghana, in its new form, just as it did before the coup d'etat of February 1966. The case was then carried to the House of Lords; Armah v. Government of Ghana and Another('). The questions decided by the House of Lords have no relevance in this case.\n\nBut it was not even argued that a fugitive offender from a republic which was a member of the Commonwealth could not be extradited. under the Fugitive Offenders Act, 1881.\n\nThere is yet another recent judgment of the House of Lords dealing with repatriation of a citizen of the Republic of Cyprus : Zacharia v. Republic of Cyprus and Anr.(2). Warrants were issued against Zacharia on charges before the Courts in Cyprus of offences of abduction, demanding money with menaces and murder.\n\nUnder the orders issued by a Bow Street Magistrate under s. 5 of the Fugitive Offenders Act, 1881, Zacharia was _ committed to prison pending his return to Cyprus. An application for a writ of habeas corpus on the ground that the offences alleged against him were political and that the application for the return of the fugitive was made out of motive for revenge was rejected by the Queen's Bench Division and it was ordered that Zacharia be repatriated. The order was confirmed in appeal to the House of Lords.\n\nMerely because for the purpose of the extradition procedure, in a statute passed before the attainment of independence by the former Colonies and dependencies, certain territories continue to be referred to as \"British Possessions\" the statute does not become inapplicable to those territories.\n\nThe expression \"Bijtish Possession\" in the old statutes merely survives an artificial mode of reference, undoubtedly not consistent with political realities, but does not imply for the purpose of the statute or otherwise political dependence of the Government of the territories referred to. It is not for the Courts of India to take umbrage at expressions used in statutes of other countries and to refuse to give effect to Indian laws which govern the problems arising before them.\n\n(1) [1966] 3 All E.R. 177.\n\n(2) [1962] 2 Ail E.R. 438.\n\nIt is interesting to note that by express enactment the Fugitive Offenders Act, 1881, remains in force as a part of the Republic of Ireland : , see Ireland Act, 1949 (12, 13 and 14 Geo. 6 c. 41).\n\nIn Halsbury s. Laws of England, 3rd Edn., Vol. 5 Art. 987, p. 433-m dealmg with the expression \"Her Majesty's Dominions\" m old statutes, it is observed :\n\n''The term 'Her Majesty's dominions' means all the territories under the sovereignty of the Crown and the\n\nterrit~)fial water~ ajacent thereto.\n\nIn. speciai cases it may mclude terntones under the protection of the Crowri and mandated and trust territories. References to Her Majesty's dominions cntained _in statutes passed before India became a republic are still to be construed as including !ndi~; it is _uual t.o name Jndia separately from Her Ma1esty s donumons m statute!. passed since India became a republic.\"\n\nIn foot-note ( 1) on p. 433 it is stated, British India, which included the whole of India except the princely States; and che Government of India Act, 1935 as amended by s. 8 of the India and Bunna (Miscellaneous Amendments) Act, 1940, fanned part of Her Majesty's dominions and was a British possession, although it was not included within the definition of \"colony\".\n\nThe territory comprised in British India was partitioned between the Dominions of India and Pakistan (Indian Independence Act, 1947), but the law relating to the definition of Her Majesty's dominions was not thereby changed, and it was continued in being by the India (Consequential Provision) Act, 1949 ( 12, 13 & 14 Geo. 6 c. 92), passed in contemplation of the adoption of a republican constitution by India. India is now a sovereign republic, but that by itself does not render the Fugitive Offenders Act, 1881, inapplicable to India.\n\nIf the question were a live question, we would have thought it necessary to refer the case to a larger Bench for considering the true effect of the judgment in C. G. Menon's case('). But by the Extradition Act 34 of 1962 the Extradition Act, 1870 and the latter Acts and also the Fugitive Offenders Act, 1881, have been repealed and the question about extradition by India of fugitive offenders under those Acts will not hereafter aris.e.\n\nWe are not called upon to consider whether in exercise of the power under the Fugitive Offenders Act a Magistrate in India may direct extradition of a fugitive offender .from a \"British Possession\". who has taken refuge in India. It is sufficient to observe that the Colonial Secretary of Hong Kong was according to the law applicable in Hong Kong competent to give effect to the warrant issued by the Chief Presidency Magistrate, Calcutta, and the Central\n\n(!) [1955] l S.C.R. 280.\n\nMagistrate, Hong Kong, had jurisdiction under the Fugitive Offenders Act, and, after holding inquiry, to direct that ore be sr\n\nrendered to India.\n\nThe order of surrender was valid according to the law in force in Hong Kong, and we are unable to appreciate the grounds on which invalidity can be attributed to the warrant issued by the Chief Presidency Magistrate, Calcutta, for the an:est of More. That the Chief Presidency Magistrate was competent to issue a warrant for the arrest of More agains~ whom there was prima facie evidence to show that he had committed an offence in India is not denied. If the Chief Presidency Magistrate had issued the warrant to the Commissioner of Police and the Commissioner of Police had approached the Ministry of External Affairs, Government of India, either through the local Government or directly with a view to secure the assistance of the Government of Hong Kong for facilitating extradition Qf More, no fault can be found.\n\nBut Gupta, J ., and Mukherjee, J ., thought that the notification issued by the Government of India setting out the procedure to be followed by a Magistrate, where the offender is not in Indian territory and his extradition is to be secured, amounted to an invasion on the authority of the Courts. We do not think that any such affront is intended by issuing the notification. The Fugitive Offenders Act, 1881. had not been expressly repealed even after January 26, 1950.\n\nIt had a limited operation: the other countries of the Commonwealth were apparently willing to honour the itntemational commitments which arose out of the provisions of that Act. But this Court on the view that since India had become a Republic, held that the Fugitive Offenders Act could not be enforced in this country, presented to the Government of India a problem which had to be resolved by devising machinery for securing the presence of offenders who were fugitives from justice.\n\nThe notification issued was only in the nature of advice about the procedure to be followed and did not in any manner seek to impose any executive will upon the Courts in matters judicial. Observations made by Mukhcrji, J., that the notification issued by the Central Government authorising the Chief Presidency Magistrate to issue the warrant in the manner he had done, came \"nowhere near the law\"\n\nand \"to a Court of law it is waste paper beneath its notice\" appear to proceed upon an incorrect view of the object of the notification.\n\nThe Chief Presidency Magistrate had the power to issue the warrant for the arrest of More, because there was prima facie evidence before him that More had committed certain offences which he was competent to try. The warrant was in Form TI of Sch. V of the Code of Criminal Procedure. If the warrant was to .be successfully executed against More who was not in India. aSSJStance of the executive Government had to be obtained. It is not an invasion upon the authority of the Courts when they are informed that certain procedure may be followed for obtaining\n\nthe assistance of the executive Department of the State in securing through diplomatic channels extradition of fugitive offenders. In pursuance of that warrant, on the endorsement made by the Central Magistrate, Hong Kong, More was arrested.\n\nThe warrant was issued with the knowledge that it could not be enforced within lndia and undoubtedly to secure the extradition of More.\n\nPursuant to the warrant the Ministry of External Affairs, Government of India, moved through diplomatic channels, and persuaded the Colonial Secretary of Hong Kong to arrest and deliver More.\n\nIssue of the. warrant and the procedure followed in transmitting the warrant were not illegal, not even irregular.\n\nOne more argument remains to be noticed.\n\nIt is true that under the Extradition Act 34 of 1962 no notification has been issued including Hong Kong in the list of the Commonwealth countries from which extradition of fugitives from justice may be secured.\n\nThe provisions of the Extradition Act, 1962, cannot be availed of for securing the presence of More for trial in India.\n\nBut that did not, in our judgment, operate as a bar to the requisition made by the Ministry of External Affairs, Government of India, if they were able to persuade the Colonial Secretary, Hong Kong, to deliver More for trial in this country. If the Colonial S--.cretary of Hong Kong was willing to hand over More for trial in this country, it cannot be said that the warrant issued by the Chief Presidency Magistrate for the arrest of More with the aid of which requisition for securing his presence from Hong Kong was to be made, was illegal.\n\nWe are unable to agree with the High Court that because of the enactment of the Extradition Act 34 of 1962 the Government of India is prohibited from securing through diplomatic channels the extradition of an offender for trial of an offence committed within India. There was, in our judgment, no illegality committed by the Chief Presidency Magistrate, Calcutta, in sending the warrant to the Secretary, Home (Political) Department, Government of West Bengal, for transmission to the Government of India, Ministry of External Affairs, for taking further steps for securing the presence of More in India to undergo trial.\n\nThe appeal must therefore be allowed and the order passed by the High Court set aside.\n\nThe writ petitioq filed by More must be dismissed.\n\nY.P.\n\nAppeal a/lwed.", "total_entities": 206, "entities": [{"text": "STATE OF WEST BENGAL", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "STATE OF WEST BENGAL", "offset_not_found": false}}, {"text": "JUGAL KISHORE MORE & ANR", "label": "RESPONDENT", "start_char": 25, "end_char": 49, "source": "metadata", "metadata": {"canonical_name": "JUGAL KISHORE MORE & ANR", "offset_not_found": false}}, {"text": "Janµary 10, 1969", "label": "DATE", "start_char": 52, "end_char": 68, "source": "ner", "metadata": {"in_sentence": "Janµary 10, 1969\n\nJ. C. SHAH, V. RAMASWAMI AND A, N. GROVER, JJ.J\n\nExtradition-Nture."}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 73, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 82, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "N. GROVER, JJ", "label": "JUDGE", "start_char": 102, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Fugitive Offenders Act", "label": "STATUTE", "start_char": 143, "end_char": 165, "source": "regex", "metadata": {}}, {"text": "Fugitive Offenders Act 1881", "label": "STATUTE", "start_char": 444, "end_char": 471, "source": "regex", "metadata": {}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 494, "end_char": 501, "source": "regex", "metadata": {"linked_statute_text": "the Fugitive Offenders Act 1881", "statute": "the Fugitive Offenders Act 1881"}}, {"text": "Government of India", "label": "ORG", "start_char": 589, "end_char": 608, "source": "ner", "metadata": {"in_sentence": "14 of the Constitution and was on th; t accont unenfOrceable after 26th January 1950, the Government of India, Ministry of External Affairs issued a notification on May 21, 1955 indicating the procedure for securing the presence of a fugitive offender in India from the United Kingdom and other Commonwealth countries."}}, {"text": "May 21, 1955", "label": "DATE", "start_char": 664, "end_char": 676, "source": "ner", "metadata": {"in_sentence": "14 of the Constitution and was on th; t accont unenfOrceable after 26th January 1950, the Government of India, Ministry of External Affairs issued a notification on May 21, 1955 indicating the procedure for securing the presence of a fugitive offender in India from the United Kingdom and other Commonwealth countries."}}, {"text": "India", "label": "GPE", "start_char": 754, "end_char": 759, "source": "ner", "metadata": {"in_sentence": "14 of the Constitution and was on th; t accont unenfOrceable after 26th January 1950, the Government of India, Ministry of External Affairs issued a notification on May 21, 1955 indicating the procedure for securing the presence of a fugitive offender in India from the United Kingdom and other Commonwealth countries."}}, {"text": "United Kingdom", "label": "GPE", "start_char": 769, "end_char": 783, "source": "ner", "metadata": {"in_sentence": "14 of the Constitution and was on th; t accont unenfOrceable after 26th January 1950, the Government of India, Ministry of External Affairs issued a notification on May 21, 1955 indicating the procedure for securing the presence of a fugitive offender in India from the United Kingdom and other Commonwealth countries."}}, {"text": "Extradition Act", "label": "STATUTE", "start_char": 1292, "end_char": 1307, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 1361, "end_char": 1375, "source": "regex", "metadata": {"linked_statute_text": "the Magistrate concerned is to issue a warrant of arrest of the fugitive offender under the Criminal Procedure Code, 1898", "statute": "the Magistrate concerned is to issue a warrant of arrest of the fugitive offender under the Criminal Procedure Code, 1898"}}, {"text": "Hong Kong", "label": "GPE", "start_char": 1484, "end_char": 1493, "source": "ner", "metadata": {"in_sentence": "In 1962, the Indian Extradition Act was passed, but as Hon& Kong was not included in the First Schedule, that Act could not be resorted for the surrender of the respondent who was a fugitive offender residing in Hong Kong."}}, {"text": "Chief Presidency Magistrate Calcutta", "label": "COURT", "start_char": 1579, "end_char": 1615, "source": "ner", "metadata": {"in_sentence": "The Chief Presidency Magistrate Calcutta issued a warrant under the Criminal Procedure Code for the arrest of the respondent and the warrant was forwarded by the Government of West Bengal ."}}, {"text": "Government of West Bengal", "label": "ORG", "start_char": 1737, "end_char": 1762, "source": "ner", "metadata": {"in_sentence": "The Chief Presidency Magistrate Calcutta issued a warrant under the Criminal Procedure Code for the arrest of the respondent and the warrant was forwarded by the Government of West Bengal ."}}, {"text": "Ministry of External Affairs, Government of India", "label": "ORG", "start_char": 1772, "end_char": 1821, "source": "ner", "metadata": {"in_sentence": "to the Ministry of External Affairs, Government of India."}}, {"text": "Fugitive Offenders Act 1881", "label": "STATUTE", "start_char": 2017, "end_char": 2044, "source": "regex", "metadata": {}}, {"text": "Central Magistrate, Hong Kong", "label": "COURT", "start_char": 2072, "end_char": 2101, "source": "ner", "metadata": {"in_sentence": "The Central Magistrate, Hong Kong, endorsed the warrant and directed the Hong Kong police to arrest the respondent referring to the Republic of India as a British possession to which the Fugitive Offenders Act was applicable."}}, {"text": "Hong Kong police", "label": "ORG", "start_char": 2141, "end_char": 2157, "source": "ner", "metadata": {"in_sentence": "The Central Magistrate, Hong Kong, endorsed the warrant and directed the Hong Kong police to arrest the respondent referring to the Republic of India as a British possession to which the Fugitive Offenders Act was applicable."}}, {"text": "Republic of India", "label": "GPE", "start_char": 2200, "end_char": 2217, "source": "ner", "metadata": {"in_sentence": "The Central Magistrate, Hong Kong, endorsed the warrant and directed the Hong Kong police to arrest the respondent referring to the Republic of India as a British possession to which the Fugitive Offenders Act was applicable."}}, {"text": "Chief Presidency Magistrate", "label": "COURT", "start_char": 2331, "end_char": 2358, "source": "ner", "metadata": {"in_sentence": "On the questions : (I ) Whether the Chief Presidency Magistrate had no power to issue the warrant as it would have extr:i-tenitorial operation;\n\n(2) Whether the Fugitive Offenders Act, having ceased to be part of the Jaw of India, could be resorted to for obtaining extradition of fugitive offenders; (3) Whether the instructions of the Government of India for obtaining extradition are .. an invasion upon the authority of courts; a.n?"}}, {"text": "Whether the Fugitive Offenders Act", "label": "STATUTE", "start_char": 2444, "end_char": 2478, "source": "regex", "metadata": {}}, {"text": "s. 82", "label": "PROVISION", "start_char": 3133, "end_char": 3138, "source": "regex", "metadata": {"linked_statute_text": "Whether the Fugitive Offenders Act", "statute": "Whether the Fugitive Offenders Act"}}, {"text": "Hong Kong Magistrate", "label": "COURT", "start_char": 4249, "end_char": 4269, "source": "ner", "metadata": {"in_sentence": "326 F-\n\n327B]\n\nCourts in India have no authority to sit in judgment over the order passed by the Hong Kong Magistrate."}}, {"text": "Chief Presidency Magistrate, Calcutta", "label": "COURT", "start_char": 4827, "end_char": 4864, "source": "ner", "metadata": {"in_sentence": "225, approved ..\n\n(2) But, in fact the Colonial Secretary of Hong Kong was, according to the Jaw applicable in Hong Kong, competent to give effect to the warrant issued by the Chief Presidency Magistrate, Calcutta and the Central Magistrate, ong Kong had jurisdiction under the Fugitive Offenders Act to direct that the respondent may be surrendered to India."}}, {"text": "Kong had jurisdiction under the Fugitive Offenders Act", "label": "STATUTE", "start_char": 4897, "end_char": 4951, "source": "regex", "metadata": {}}, {"text": "Republic of India", "label": "ORG", "start_char": 5231, "end_char": 5248, "source": "ner", "metadata": {"in_sentence": "Whatever may be the position in India after it has become a Republic the United Kingdom and several Colonies have treated the Fugitive Offenders Act as applicable for the purpose of honouring the requisition made by the Republic of India."}}, {"text": "s1", "label": "PROVISION", "start_char": 5611, "end_char": 5613, "source": "regex", "metadata": {"linked_statute_text": "Whatever may be the position in India after it has become a Republic the United Kingdom and several Colonies have treated the Fugitive Offenders Act", "statute": "Whatever may be the position in India after it has become a Republic the United Kingdom and several Colonies have treated the Fugitive Offenders Act"}}, {"text": "Art. 987", "label": "PROVISION", "start_char": 6160, "end_char": 6168, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "C. G. Menon", "label": "OTHER_PERSON", "start_char": 6222, "end_char": 6233, "source": "ner", "metadata": {"in_sentence": "(3) This Court, by holding in C. G. Menon's case that since India became a Republic the Fugitive Offenoers Act could not be enforced in this country, presented the Government of India with a problem which had to be resolved by devising a machinery for securing the presence of offenders \\Vho were fugitives from justice."}}, {"text": "India became a Republic the Fugitive Offenoers Act", "label": "STATUTE", "start_char": 6252, "end_char": 6302, "source": "regex", "metadata": {}}, {"text": "Chief Presidency Magistrate; Calcutta", "label": "COURT", "start_char": 8299, "end_char": 8336, "source": "ner", "metadata": {"in_sentence": "If the Colonial Secretary was willing to do so, it cannot be said that the warrant issued by the Chief Presidency Magistrate; Calcutta, for the arrest of the respondent with the aid of the requisition for securing his presence from Hong Kong in India, was illegal."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 8633, "end_char": 8652, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated April 20, 1967 of the Calcutta High Court in Criminal Revision No."}}, {"text": "B. Sen", "label": "LAWYER", "start_char": 8692, "end_char": 8698, "source": "ner", "metadata": {"in_sentence": "B. Sen and P. K. Chakravarti, for the appellants."}}, {"text": "P. K. Chakravarti", "label": "LAWYER", "start_char": 8703, "end_char": 8720, "source": "ner", "metadata": {"in_sentence": "B. Sen and P. K. Chakravarti, for the appellants."}}, {"text": "A. S. R. Chari", "label": "LAWYER", "start_char": 8743, "end_char": 8757, "source": "ner", "metadata": {"in_sentence": "A. S. R. Chari, B. P. Maheshwari and Sobhag Mal Jain, for respondent No."}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 8759, "end_char": 8775, "source": "ner", "metadata": {"in_sentence": "A. S. R. Chari, B. P. Maheshwari and Sobhag Mal Jain, for respondent No."}}, {"text": "Sobhag Mal Jain", "label": "LAWYER", "start_char": 8780, "end_char": 8795, "source": "ner", "metadata": {"in_sentence": "A. S. R. Chari, B. P. Maheshwari and Sobhag Mal Jain, for respondent No."}}, {"text": "Sbllk", "label": "JUDGE", "start_char": 8864, "end_char": 8869, "source": "ner", "metadata": {"in_sentence": "I.\n\nThe Judgment of the Court was delivered by\n\nSbllk J.\n\nIn the course of investigation of offences under ss."}}, {"text": "ss. 420, 467, 4", "label": "PROVISION", "start_char": 8923, "end_char": 8938, "source": "regex", "metadata": {"statute": null}}, {"text": "Jugal Kishore More", "label": "RESPONDENT", "start_char": 9126, "end_char": 9144, "source": "ner", "metadata": {"in_sentence": "420, 467, 4 71 and 120 B.I.P. Code the Officer in charge of the investigation submitted an application before the Chief Presidency Magistrate, Calcutta, for an order that a warrant for the arrest of Jugal Kishore More and certain other named persons be is.sued and that the warrant be forwarded with the relevant records and evidence.", "canonical_name": "JUGAL KISHORE MORE & ANR"}}, {"text": "More", "label": "PETITIONER", "start_char": 9348, "end_char": 9352, "source": "ner", "metadata": {"in_sentence": "to the Ministry of External Affairs, Government of India, for securing extradition of More who was then believed to be in Hong Kong.", "canonical_name": "More"}}, {"text": "Calcutta", "label": "GPE", "start_char": 9492, "end_char": 9500, "source": "ner", "metadata": {"in_sentence": "It was stated in the application that More and oth•!rs \"were parties to a criminal conspiracy in Calcutta between May 1961 and December 1962 to defraud the Government of India in respect of India's foreign exchange\", and thei& presence 'IVas req.uired for trial."}}, {"text": "July 19, 1965", "label": "DATE", "start_char": 9732, "end_char": 9745, "source": "ner", "metadata": {"in_sentence": "The Chief Presidency Magistrate held an enquiry and recorded an order on July 19, 1965, that on the materials placed before him, a prima facie case was made out of a criminal conspiracy,\n\nwas \"hatched in Calcutta\" within his jurisdiction, and More was one of the conspirators."}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 10013, "end_char": 10039, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "West Bengal", "label": "GPE", "start_char": 10163, "end_char": 10174, "source": "ner", "metadata": {"in_sentence": "V of the Code of Criminal Procedure be issued for the arrest of More, and that the warrant be sent to the Secretary Home (Political) Department, Government of West Bengal, with a request to take all necessary steps to ensure execution of the warrant."}}, {"text": "Premko Traders", "label": "ORG", "start_char": 10390, "end_char": 10404, "source": "ner", "metadata": {"in_sentence": "In the warrant More was described as Manager, Premko Traders of 7, Wyndhan Street and 28, King's Road, Hong Kong."}}, {"text": "Ministry of External Affairs", "label": "ORG", "start_char": 10749, "end_char": 10777, "source": "ner", "metadata": {"in_sentence": "The Chief Presidency Magistrate forwarded to the Government of West Bengal, the warrant with attested copies of the evidence recorded at the enquiry and photostat copies of documents tendered by the prosecution in evidence \"in accordance with the procedure laid down in Government of India, Ministry of External Affairs, letter No."}}, {"text": "21st May,_ 1955", "label": "DATE", "start_char": 10810, "end_char": 10825, "source": "ner", "metadata": {"in_sentence": "K/52/ 6131/41 dated 21st May,_ 1955\"."}}, {"text": "More under the Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 11138, "end_char": 11181, "source": "regex", "metadata": {}}, {"text": "Central Magistrate, HongKong", "label": "COURT", "start_char": 11271, "end_char": 11299, "source": "ner", "metadata": {"in_sentence": "The Central Magistrate, HongKong, endorsed the warrant and directed the Hong Kong Police, \"pur\n\nsuant to section 13 of Part II and section 26 of Part N of the Fugitive Offenders Act, 1881\", to arrest More."}}, {"text": "Hong Kong Police", "label": "ORG", "start_char": 11339, "end_char": 11355, "source": "ner", "metadata": {"in_sentence": "The Central Magistrate, HongKong, endorsed the warrant and directed the Hong Kong Police, \"pur\n\nsuant to section 13 of Part II and section 26 of Part N of the Fugitive Offenders Act, 1881\", to arrest More."}}, {"text": "section 13", "label": "PROVISION", "start_char": 11372, "end_char": 11382, "source": "regex", "metadata": {"linked_statute_text": "More under the Fugitive Offenders Act, 1881", "statute": "More under the Fugitive Offenders Act, 1881"}}, {"text": "section 26", "label": "PROVISION", "start_char": 11398, "end_char": 11408, "source": "regex", "metadata": {"linked_statute_text": "More under the Fugitive Offenders Act, 1881", "statute": "More under the Fugitive Offenders Act, 1881"}}, {"text": "Part N of the Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 11412, "end_char": 11454, "source": "regex", "metadata": {}}, {"text": "S. K. Chatterjee", "label": "OTHER_PERSON", "start_char": 11821, "end_char": 11837, "source": "ner", "metadata": {"in_sentence": "accused of an offence punishable by law in Calcutta, Republic of India, which warrant purports to be signed by the Chief Presidency Magistrate, Calcutta, and is sealed with the seal of the Court of the said Magistrate, and, is attested by S. K. Chatterjee, Under Secretary in _the Ministry of External Affairs of the Republic of India and sealed with the seal of the said Ministry;\n\nAND WHEREAS I am satisfied that this warrant was issued by a person having lawful authority to issue the same; AND WHEREAS it has been represented to me that the said Jugal Kishore More . . ."}}, {"text": "Ministry of External Affairs of the Republic of India", "label": "ORG", "start_char": 11863, "end_char": 11916, "source": "ner", "metadata": {"in_sentence": "accused of an offence punishable by law in Calcutta, Republic of India, which warrant purports to be signed by the Chief Presidency Magistrate, Calcutta, and is sealed with the seal of the Court of the said Magistrate, and, is attested by S. K. Chatterjee, Under Secretary in _the Ministry of External Affairs of the Republic of India and sealed with the seal of the said Ministry;\n\nAND WHEREAS I am satisfied that this warrant was issued by a person having lawful authority to issue the same; AND WHEREAS it has been represented to me that the said Jugal Kishore More . . ."}}, {"text": "Part II of the Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 12269, "end_char": 12312, "source": "regex", "metadata": {}}, {"text": "British India", "label": "GPE", "start_char": 12415, "end_char": 12428, "source": "ner", "metadata": {"in_sentence": "28 of 1918 by virtue of which Part II of the Fugitive Offenders Act, 1881, was made to apply to a group\n\nof Br, itish Possessions and Protective States including Hong Kong and British India, appears to remain in full force and effect so far as the law of Hong Kong is concerned."}}, {"text": "section 13", "label": "PROVISION", "start_char": 12539, "end_char": 12549, "source": "regex", "metadata": {"linked_statute_text": "Part II of the Fugitive Offenders Act, 1881", "statute": "Part II of the Fugitive Offenders Act, 1881"}}, {"text": "Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 12557, "end_char": 12585, "source": "regex", "metadata": {}}, {"text": "November 24, 1965", "label": "DATE", "start_char": 12929, "end_char": 12946, "source": "ner", "metadata": {"in_sentence": "More was arrested on November 24, 1965."}}, {"text": "Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 13134, "end_char": 13162, "source": "regex", "metadata": {}}, {"text": "of India", "label": "GPE", "start_char": 13183, "end_char": 13191, "source": "ner", "metadata": {"in_sentence": "By order dated April 4, 1966, the Central Magistrate, Hong Kong, over-ruled the objection raised on behalf of More that the Court had no jurisdiction to proceed in the matt.er under the Fugitive Offenders Act, 1881, since the Republic of India was no loneer a \"British P0ssession \",\n\nOn May 16, 1966, Hanuman Prasad-father of Moremoved in the High Court of Calcutta a petition under s. 439 of the Code of Criminal Procedure and Art."}}, {"text": "May 16, 1966", "label": "DATE", "start_char": 13235, "end_char": 13247, "source": "ner", "metadata": {"in_sentence": "By order dated April 4, 1966, the Central Magistrate, Hong Kong, over-ruled the objection raised on behalf of More that the Court had no jurisdiction to proceed in the matt.er under the Fugitive Offenders Act, 1881, since the Republic of India was no loneer a \"British P0ssession \",\n\nOn May 16, 1966, Hanuman Prasad-father of Moremoved in the High Court of Calcutta a petition under s. 439 of the Code of Criminal Procedure and Art."}}, {"text": "Hanuman Prasad", "label": "OTHER_PERSON", "start_char": 13249, "end_char": 13263, "source": "ner", "metadata": {"in_sentence": "By order dated April 4, 1966, the Central Magistrate, Hong Kong, over-ruled the objection raised on behalf of More that the Court had no jurisdiction to proceed in the matt.er under the Fugitive Offenders Act, 1881, since the Republic of India was no loneer a \"British P0ssession \",\n\nOn May 16, 1966, Hanuman Prasad-father of Moremoved in the High Court of Calcutta a petition under s. 439 of the Code of Criminal Procedure and Art."}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 13291, "end_char": 13313, "source": "ner", "metadata": {"in_sentence": "By order dated April 4, 1966, the Central Magistrate, Hong Kong, over-ruled the objection raised on behalf of More that the Court had no jurisdiction to proceed in the matt.er under the Fugitive Offenders Act, 1881, since the Republic of India was no loneer a \"British P0ssession \",\n\nOn May 16, 1966, Hanuman Prasad-father of Moremoved in the High Court of Calcutta a petition under s. 439 of the Code of Criminal Procedure and Art."}}, {"text": "s. 439", "label": "PROVISION", "start_char": 13331, "end_char": 13337, "source": "regex", "metadata": {"linked_statute_text": "the Fugitive Offenders Act, 1881", "statute": "the Fugitive Offenders Act, 1881"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 13345, "end_char": 13371, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 227", "label": "PROVISION", "start_char": 13376, "end_char": 13384, "source": "regex", "metadata": {"linked_statute_text": "the Fugitive Offenders Act, 1881", "statute": "the Fugitive Offenders Act, 1881"}}, {"text": "A. Roy", "label": "JUDGE", "start_char": 13778, "end_char": 13784, "source": "ner", "metadata": {"in_sentence": "A. Roy, J., held that the warrant issued by the Chief Presidncy Magistrate was not illegal and the procedure followed for securing extradition of More was not irregular."}}, {"text": "Gupta", "label": "JUDGE", "start_char": 14424, "end_char": 14429, "source": "ner", "metadata": {"in_sentence": "In the view of Gupta, J., the warrant issued by the Chief Presidency Magistrate and the steps taken pursuant to the warrant were Without jurisdiction, that the request made to the Hong Kong Government by the Government of India was also without authority in the absence of a notified order under s. 3 of the Extradition Act, 1962, and the High Court could not ignore the \"laws of the land, even to support a gesture of comity to another nation,\" that\n\nA I I\n\nWEST BENGAL V, JUGAL K!SHORE (Shah, J.) 325\n\nwhat was done by the Hong Kong authorities pursuant to the request made for the surrender of More was \"not an instance of international comity but was regarded as the legal obligation under the Fugitive Offenders Act under which the Central Magistrate, Hong Kong, regarded India as a Colony or Possession of the British Commonwealth\"."}}, {"text": "Hong Kong Government", "label": "ORG", "start_char": 14589, "end_char": 14609, "source": "ner", "metadata": {"in_sentence": "In the view of Gupta, J., the warrant issued by the Chief Presidency Magistrate and the steps taken pursuant to the warrant were Without jurisdiction, that the request made to the Hong Kong Government by the Government of India was also without authority in the absence of a notified order under s. 3 of the Extradition Act, 1962, and the High Court could not ignore the \"laws of the land, even to support a gesture of comity to another nation,\" that\n\nA I I\n\nWEST BENGAL V, JUGAL K!SHORE (Shah, J.) 325\n\nwhat was done by the Hong Kong authorities pursuant to the request made for the surrender of More was \"not an instance of international comity but was regarded as the legal obligation under the Fugitive Offenders Act under which the Central Magistrate, Hong Kong, regarded India as a Colony or Possession of the British Commonwealth\"."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 14705, "end_char": 14709, "source": "regex", "metadata": {"statute": null}}, {"text": "Extradition Act, 1962", "label": "STATUTE", "start_char": 14717, "end_char": 14738, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "I\n\nWEST BENGAL V,", "label": "JUDGE", "start_char": 14865, "end_char": 14882, "source": "ner", "metadata": {"in_sentence": "In the view of Gupta, J., the warrant issued by the Chief Presidency Magistrate and the steps taken pursuant to the warrant were Without jurisdiction, that the request made to the Hong Kong Government by the Government of India was also without authority in the absence of a notified order under s. 3 of the Extradition Act, 1962, and the High Court could not ignore the \"laws of the land, even to support a gesture of comity to another nation,\" that\n\nA I I\n\nWEST BENGAL V, JUGAL K!SHORE (Shah, J.) 325\n\nwhat was done by the Hong Kong authorities pursuant to the request made for the surrender of More was \"not an instance of international comity but was regarded as the legal obligation under the Fugitive Offenders Act under which the Central Magistrate, Hong Kong, regarded India as a Colony or Possession of the British Commonwealth\"."}}, {"text": "JUGAL K!SHORE", "label": "JUDGE", "start_char": 14883, "end_char": 14896, "source": "ner", "metadata": {"in_sentence": "In the view of Gupta, J., the warrant issued by the Chief Presidency Magistrate and the steps taken pursuant to the warrant were Without jurisdiction, that the request made to the Hong Kong Government by the Government of India was also without authority in the absence of a notified order under s. 3 of the Extradition Act, 1962, and the High Court could not ignore the \"laws of the land, even to support a gesture of comity to another nation,\" that\n\nA I I\n\nWEST BENGAL V, JUGAL K!SHORE (Shah, J.) 325\n\nwhat was done by the Hong Kong authorities pursuant to the request made for the surrender of More was \"not an instance of international comity but was regarded as the legal obligation under the Fugitive Offenders Act under which the Central Magistrate, Hong Kong, regarded India as a Colony or Possession of the British Commonwealth\".", "canonical_name": "JUGAL KISHORE MORE & ANR"}}, {"text": "Hong Kong authorities", "label": "ORG", "start_char": 14934, "end_char": 14955, "source": "ner", "metadata": {"in_sentence": "In the view of Gupta, J., the warrant issued by the Chief Presidency Magistrate and the steps taken pursuant to the warrant were Without jurisdiction, that the request made to the Hong Kong Government by the Government of India was also without authority in the absence of a notified order under s. 3 of the Extradition Act, 1962, and the High Court could not ignore the \"laws of the land, even to support a gesture of comity to another nation,\" that\n\nA I I\n\nWEST BENGAL V, JUGAL K!SHORE (Shah, J.) 325\n\nwhat was done by the Hong Kong authorities pursuant to the request made for the surrender of More was \"not an instance of international comity but was regarded as the legal obligation under the Fugitive Offenders Act under which the Central Magistrate, Hong Kong, regarded India as a Colony or Possession of the British Commonwealth\"."}}, {"text": "R. Mukherji", "label": "JUDGE", "start_char": 15293, "end_char": 15304, "source": "ner", "metadata": {"in_sentence": "The case was then posted for hearing before R. Mukherji, J. The learned Judge held that the Chief Presidency Magistrate had no power to issue the warrant of arrest .in the manner he had done,-a manner which in his view was \"unknown to the Code of Criminal Procedure\", since the Fugitive Offenders Act, 1881, had ceased, on the coming into force of the Constitution, to be part of the law of India and could not on that account be resorted to for obtaining extradition of offenders from another country; that the instructions issued by the Government of India by letter No."}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 15488, "end_char": 15514, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 15527, "end_char": 15555, "source": "regex", "metadata": {}}, {"text": "June 14, 1955", "label": "DATE", "start_char": 15835, "end_char": 15848, "source": "ner", "metadata": {"in_sentence": "3516-J dated June 14, 1955, laying down the procedure to the followed by the courts for securing extradition of offenders from the Commonwealth countries shouid have been ignored by the Chief Presidency Magistrate, and that the Extradition Act 34 of 1962 did not authorise the Chief Presidency Magistrate to issue a warrant and to send it to the Secretary, Home (Political) Department, Government of West Bengal; that there \"was no legal basis for the requisition made by the Central Government to Hong Kong\" for extradition or surrender of More or for the issue of the warrant by the Chief Presidency Magistrate; and that the demand made by the Government of India to the Government of Hong Kong by making a requisition to Hong Kong for."}}, {"text": "Extradition Act", "label": "STATUTE", "start_char": 16050, "end_char": 16065, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Central Government", "label": "ORG", "start_char": 16298, "end_char": 16316, "source": "ner", "metadata": {"in_sentence": "3516-J dated June 14, 1955, laying down the procedure to the followed by the courts for securing extradition of offenders from the Commonwealth countries shouid have been ignored by the Chief Presidency Magistrate, and that the Extradition Act 34 of 1962 did not authorise the Chief Presidency Magistrate to issue a warrant and to send it to the Secretary, Home (Political) Department, Government of West Bengal; that there \"was no legal basis for the requisition made by the Central Government to Hong Kong\" for extradition or surrender of More or for the issue of the warrant by the Chief Presidency Magistrate; and that the demand made by the Government of India to the Government of Hong Kong by making a requisition to Hong Kong for."}}, {"text": "Government of Hong Kong", "label": "ORG", "start_char": 16495, "end_char": 16518, "source": "ner", "metadata": {"in_sentence": "3516-J dated June 14, 1955, laying down the procedure to the followed by the courts for securing extradition of offenders from the Commonwealth countries shouid have been ignored by the Chief Presidency Magistrate, and that the Extradition Act 34 of 1962 did not authorise the Chief Presidency Magistrate to issue a warrant and to send it to the Secretary, Home (Political) Department, Government of West Bengal; that there \"was no legal basis for the requisition made by the Central Government to Hong Kong\" for extradition or surrender of More or for the issue of the warrant by the Chief Presidency Magistrate; and that the demand made by the Government of India to the Government of Hong Kong by making a requisition to Hong Kong for."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 16779, "end_char": 16783, "source": "regex", "metadata": {"statute": null}}, {"text": "Extradition Act, 1962", "label": "STATUTE", "start_char": 16791, "end_char": 16812, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "July 30, 1965", "label": "DATE", "start_char": 17240, "end_char": 17253, "source": "ner", "metadata": {"in_sentence": "The learned Judge accordingly• ordered that the warrant of arrest dated July 30, 1965, issued by the Chief Presidency Magistrate, Calcutta, against More and all subsequent proceedings taken by the Chief Presidency Magistrate and the other respondents be quashed."}}, {"text": "State of West Bengal", "label": "ORG", "start_char": 17436, "end_char": 17456, "source": "ner", "metadata": {"in_sentence": "The State of West Bengal has appealed to this Court with special leave ."}}, {"text": "Wheaten", "label": "OTHER_PERSON", "start_char": 18859, "end_char": 18866, "source": "ner", "metadata": {"in_sentence": "As observed in Wheaten's International Law, Vol."}}, {"text": "England", "label": "GPE", "start_char": 18948, "end_char": 18955, "source": "ner", "metadata": {"in_sentence": "p. 213 :\n\n\"The constitutional doctrine in England .is that the Crown may make treaties with foreign States for the extradition of criminals, but those treaties can only be carried into effect by Act of Parliament, for the executive has no."}}, {"text": "Parliament", "label": "ORG", "start_char": 19108, "end_char": 19118, "source": "ner", "metadata": {"in_sentence": "p. 213 :\n\n\"The constitutional doctrine in England .is that the Crown may make treaties with foreign States for the extradition of criminals, but those treaties can only be carried into effect by Act of Parliament, for the executive has no."}}, {"text": "January 26, 1950", "label": "DATE", "start_char": 22058, "end_char": 22074, "source": "ner", "metadata": {"in_sentence": "Prior to January 26, 1950, there was in force in India the Indian Extradition Act 15 of 1903, which as the preamble expressly enacted was intended to provide for the more convenient administration of the Extradition Acts of 1870 and 1873, and the Foreign Jurisdiction Act of 1881-both enacted by the British Parliament."}}, {"text": "India the Indian Extradition Act", "label": "STATUTE", "start_char": 22098, "end_char": 22130, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "British Parliament", "label": "ORG", "start_char": 22349, "end_char": 22367, "source": "ner", "metadata": {"in_sentence": "Prior to January 26, 1950, there was in force in India the Indian Extradition Act 15 of 1903, which as the preamble expressly enacted was intended to provide for the more convenient administration of the Extradition Acts of 1870 and 1873, and the Foreign Jurisdiction Act of 1881-both enacted by the British Parliament."}}, {"text": "States to which the Extradition Act", "label": "STATUTE", "start_char": 22479, "end_char": 22514, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Extradition Act", "label": "STATUTE", "start_char": 23939, "end_char": 23954, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Part I of the Fugitive Offenders Act 1881", "label": "STATUTE", "start_char": 24249, "end_char": 24290, "source": "regex", "metadata": {}}, {"text": "Part I of the Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 25045, "end_char": 25087, "source": "regex", "metadata": {}}, {"text": "Part II of the Act", "label": "STATUTE", "start_char": 25306, "end_char": 25324, "source": "regex", "metadata": {}}, {"text": "January 2!l, 1950", "label": "DATE", "start_char": 26623, "end_char": 26640, "source": "ner", "metadata": {"in_sentence": "This was in brief the procedure prior to January 2!l, 1950."}}, {"text": "President of India adapted the Extradition Act 1903", "label": "STATUTE", "start_char": 26647, "end_char": 26698, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 26729, "end_char": 26757, "source": "regex", "metadata": {}}, {"text": "Extradition Act, 1870", "label": "STATUTE", "start_char": 26766, "end_char": 26787, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Parliament", "label": "ORG", "start_char": 26852, "end_char": 26869, "source": "ner", "metadata": {"in_sentence": "The Fugitive Offenders Act, 1881 and the Extradition Act, 1870, in their application to India were however not repealed by the Indian Parliament and to the extent they were consistent with the constitutional scheme they remained applicable."}}, {"text": "s. 1", "label": "PROVISION", "start_char": 27177, "end_char": 27181, "source": "regex", "metadata": {"linked_statute_text": "the Extradition Act, 1870", "statute": "the Extradition Act, 1870"}}, {"text": "Singapore", "label": "GPE", "start_char": 28637, "end_char": 28646, "source": "ner", "metadata": {"in_sentence": "In 1954 this Court was called upon to C!ecide a case relating to extradition to Singapore, a British Colony, of a person alleged to be a fugitive offender The State of Madr¥S v. C. G. Menon and Another(')."}}, {"text": "Menon", "label": "OTHER_PERSON", "start_char": 28776, "end_char": 28781, "source": "ner", "metadata": {"in_sentence": "In that case Menon and his wife were apprehended and produced before the Chief Presidency Magistrate, Madras, pursuant to warrants of arrest issued under the provisions of the Fugitive Offenders Act, 1881."}}, {"text": "Chief Presidency Magistrate, Madras", "label": "COURT", "start_char": 28836, "end_char": 28871, "source": "ner", "metadata": {"in_sentence": "In that case Menon and his wife were apprehended and produced before the Chief Presidency Magistrate, Madras, pursuant to warrants of arrest issued under the provisions of the Fugitive Offenders Act, 1881."}}, {"text": "Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 28939, "end_char": 28967, "source": "regex", "metadata": {}}, {"text": "Menons pleaded that the Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 29232, "end_char": 29284, "source": "regex", "metadata": {}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 29504, "end_char": 29524, "source": "ner", "metadata": {"in_sentence": "The Chief Presidency Magistrate referred two questions of law for decision of the High Court of Madras :\n\n(1) Whether the Fugitive Offenders Act, 1881, applies to India after 26th J:i, nuary, 1950, when India became a Sovereign Democratic Republic and\n\n(2) Whether, even if it applied, it or any of its provisions, particularly Part II thereof, is repugnant to the Constitution of India and is therefore void and or inoperative."}}, {"text": "Whether the Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 29532, "end_char": 29572, "source": "regex", "metadata": {}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 29787, "end_char": 29808, "source": "regex", "metadata": {}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 29994, "end_char": 30001, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Sovereign Democratic Republic of India", "label": "ORG", "start_char": 31520, "end_char": 31558, "source": "ner", "metadata": {"in_sentence": "Truly speaking, it became a foreign territory so far as other British Possessions are concerned and the extradition of persons taking asylum in India, having committed offences in British Possessions, could only be dealt wth by an arrangement between the Sovereign Democratic Republic of India and the British Government and given effect to by appropriate legislation."}}, {"text": "British Government", "label": "ORG", "start_char": 31567, "end_char": 31585, "source": "ner", "metadata": {"in_sentence": "Truly speaking, it became a foreign territory so far as other British Possessions are concerned and the extradition of persons taking asylum in India, having committed offences in British Possessions, could only be dealt wth by an arrangement between the Sovereign Democratic Republic of India and the British Government and given effect to by appropriate legislation."}}, {"text": "Union Parliament", "label": "ORG", "start_char": 31638, "end_char": 31654, "source": "ner", "metadata": {"in_sentence": "The Union Parliament has not so far enacted any law on the subject and it was not suggested that any arrangement has been arrived at between these two Governments."}}, {"text": "Indian Extradition Act, 1903", "label": "STATUTE", "start_char": 31802, "end_char": 31830, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 31857, "end_char": 31885, "source": "regex", "metadata": {}}, {"text": "section 12", "label": "PROVISION", "start_char": 32245, "end_char": 32255, "source": "regex", "metadata": {"linked_statute_text": "the Fugitive Offenders Act, 1881", "statute": "the Fugitive Offenders Act, 1881"}}, {"text": "section 14", "label": "PROVISION", "start_char": 32259, "end_char": 32269, "source": "regex", "metadata": {"linked_statute_text": "the Fugitive Offenders Act, 1881", "statute": "the Fugitive Offenders Act, 1881"}}, {"text": "article 3", "label": "PROVISION", "start_char": 32350, "end_char": 32359, "source": "regex", "metadata": {"linked_statute_text": "the Fugitive Offenders Act, 1881", "statute": "the Fugitive Offenders Act, 1881"}}, {"text": "Ive Offenders Act, 1881", "label": "STATUTE", "start_char": 32670, "end_char": 32693, "source": "regex", "metadata": {}}, {"text": "Government of India Ministry of External Affairs", "label": "ORG", "start_char": 33000, "end_char": 33048, "source": "ner", "metadata": {"in_sentence": "After this judgment was delivered, the Government of India Ministry of External Affairs, issued a notification on May 21' 1955, to all."}}, {"text": "Supreme Court of India", "label": "COURT", "start_char": 33243, "end_char": 33265, "source": "ner", "metadata": {"in_sentence": "It was stated m the nollfication that :\n\n\" .... in a certain case of extradition of an offender, the Supreme Court of India recently ruled that in\n\nthe changed circumstances, the English Fugitive Offenders Act, 1881, is no longer applicable to India."}}, {"text": "English Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 33321, "end_char": 33357, "source": "regex", "metadata": {}}, {"text": "Code of Criminal Proce- dure, 1898", "label": "STATUTE", "start_char": 33596, "end_char": 33630, "source": "regex", "metadata": {}}, {"text": "Supreme Court", "label": "COURT", "start_char": 33982, "end_char": 33995, "source": "ner", "metadata": {"in_sentence": "In the circumstances, to obtain a fugitive offender from the United Kingdom and other Commonwealth countries, the following procedure may be adopied as long as the new Indian Extradition law is not enacted and the Commonwealth countries continue to honour our requests for the surrender of the fugitive offenders notwithstanding decisions of the Supreme Court;\n\n(a) The Magistrate concerned will issue a warrant for the arrest of the fugitive offender to Police officials of India in the usual form prescribed under the Code of Criminal Procedure, 1898."}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 34156, "end_char": 34188, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Extradition Act", "label": "STATUTE", "start_char": 35519, "end_char": 35534, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 12", "label": "PROVISION", "start_char": 35941, "end_char": 35946, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 13", "label": "PROVISION", "start_char": 36596, "end_char": 36606, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19", "label": "PROVISION", "start_char": 36835, "end_char": 36840, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government-", "label": "ORG", "start_char": 37118, "end_char": 37137, "source": "ner", "metadata": {"in_sentence": "By s. 19 it was provided that-\n\n( 1) A requisition for the surrender of a person accused or convicted of an extradition offence committed , in India and who is or is suspected to be, in any foreign State or a commonwealth country to which Chapter Ill does not apply, may be made by the Central Government-\n\n( a) to a diplomatic representative of that State or country at Delhi; or ."}}, {"text": "Delhi", "label": "GPE", "start_char": 37203, "end_char": 37208, "source": "ner", "metadata": {"in_sentence": "By s. 19 it was provided that-\n\n( 1) A requisition for the surrender of a person accused or convicted of an extradition offence committed , in India and who is or is suspected to be, in any foreign State or a commonwealth country to which Chapter Ill does not apply, may be made by the Central Government-\n\n( a) to a diplomatic representative of that State or country at Delhi; or ."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 37805, "end_char": 37809, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 37895, "end_char": 37909, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule to the Act", "label": "STATUTE", "start_char": 38171, "end_char": 38190, "source": "regex", "metadata": {}}, {"text": "s. 2(a)", "label": "PROVISION", "start_char": 38324, "end_char": 38331, "source": "regex", "metadata": {"linked_statute_text": "But in the Schedule to the Act", "statute": "But in the Schedule to the Act"}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 38346, "end_char": 38360, "source": "regex", "metadata": {"linked_statute_text": "But in the Schedule to the Act", "statute": "But in the Schedule to the Act"}}, {"text": "is common ground between the parties that the provisions of the Extradition Act, 1962", "label": "STATUTE", "start_char": 38404, "end_char": 38489, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Central Magistrate Hong Kong", "label": "COURT", "start_char": 39129, "end_char": 39157, "source": "ner", "metadata": {"in_sentence": "Counsel for the respondent More urged that the warrant issued by the Chief Presidency Magistrate was intended fo be and could in its very nature be a legal warrant enforceable within India : it had no extra-territorial operation, and could not be enforced outside India, and when the Central Magistrate Hong Kong, purported to endorse that warrant for enforcement within Hong Kong he had no authority to do so."}}, {"text": "Hong Kong Central Magistrate", "label": "COURT", "start_char": 39338, "end_char": 39366, "source": "ner", "metadata": {"in_sentence": "But this Court has no -authority to sit in judgment over the order passed by the Hong Kong Central Magistrate."}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 39617, "end_char": 39643, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 82", "label": "PROVISION", "start_char": 39880, "end_char": 39885, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 39893, "end_char": 39919, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 40409, "end_char": 40426, "source": "ner", "metadata": {"in_sentence": "the Bombay High Court considered the question whether a person who was brought to the country and was charged before a Magis-\n\n(I) I.LR."}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 40589, "end_char": 40606, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Savarkar", "label": "OTHER_PERSON", "start_char": 40710, "end_char": 40718, "source": "ner", "metadata": {"in_sentence": "Savarkar was charged with conspiracy under ss."}}, {"text": "ss. 121, 121A", "label": "PROVISION", "start_char": 40753, "end_char": 40766, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 40789, "end_char": 40806, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Marseilles", "label": "GPE", "start_char": 41074, "end_char": 41084, "source": "ner", "metadata": {"in_sentence": "When the ship in which he was being brought to India was near French territory Savarkar escaped from police custody and set foot on French territory at Marseilles."}}, {"text": "Scott", "label": "JUDGE", "start_char": 41378, "end_char": 41383, "source": "ner", "metadata": {"in_sentence": "Scott, C.J., who delivered the principal judgment of the Court rejected the contention."}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 41573, "end_char": 41583, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Vinayak Damodar Savarkar", "label": "OTHER_PERSON", "start_char": 42267, "end_char": 42291, "source": "ner", "metadata": {"in_sentence": "But on the principle of Vinayak Damodar Savarkar's case(') the contention about the invalidity of the arrest cannot affeci the jurisdiction of the Courts in India to try More if and when he is brought here."}}, {"text": "Extradition Act", "label": "STATUTE", "start_char": 42462, "end_char": 42477, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "English Extradition Act, 1870", "label": "STATUTE", "start_char": 42564, "end_char": 42593, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 12 and 14", "label": "PROVISION", "start_char": 42810, "end_char": 42823, "source": "regex", "metadata": {"linked_statute_text": "the English Extradition Act, 1870", "statute": "the English Extradition Act, 1870"}}, {"text": "Commonwealth country in pursuance of a requisition under the Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 42896, "end_char": 42985, "source": "regex", "metadata": {}}, {"text": "Mubarak Ali Ahmrd", "label": "PETITIONER", "start_char": 44161, "end_char": 44178, "source": "ner", "metadata": {"in_sentence": "Government of India and Mubarak Ali Ahmrd(') an attempt to resist in the High Court in England the requisition by the Republic of India to surrender an offender who had.", "canonical_name": "Mubarak Ali Ahmrd"}}, {"text": "High Court in England", "label": "COURT", "start_char": 44210, "end_char": 44231, "source": "ner", "metadata": {"in_sentence": "Government of India and Mubarak Ali Ahmrd(') an attempt to resist in the High Court in England the requisition by the Republic of India to surrender an offender who had."}}, {"text": "Mubarak Ali", "label": "PETITIONER", "start_char": 44365, "end_char": 44376, "source": "ner", "metadata": {"in_sentence": "Mubarak Ali a native of Pakistan was being tried in the Courts in India on charges of forgery and fraud.", "canonical_name": "Mubarak Ali Ahmrd"}}, {"text": "Pakistan", "label": "GPE", "start_char": 44389, "end_char": 44397, "source": "ner", "metadata": {"in_sentence": "Mubarak Ali a native of Pakistan was being tried in the Courts in India on charges of forgery and fraud."}}, {"text": "London", "label": "GPE", "start_char": 44595, "end_char": 44601, "source": "ner", "metadata": {"in_sentence": "He was arrested on a pro- , visional warrant issued by the London Metropolitan Magistrate on the application of the Government of India."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 44754, "end_char": 44758, "source": "regex", "metadata": {"linked_statute_text": "India has not ceased to be a part of the Commonwealth and the United Kingdom and several Colonies have treated the Fugitive Offenders Act, 1881", "statute": "India has not ceased to be a part of the Commonwealth and the United Kingdom and several Colonies have treated the Fugitive Offenders Act, 1881"}}, {"text": "Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 44766, "end_char": 44794, "source": "regex", "metadata": {}}, {"text": "Mubarak Ali", "label": "PETITIONER", "start_char": 44800, "end_char": 44811, "source": "ner", "metadata": {"in_sentence": "After hearing legal submissions the Metropolitan Magistrate made an order under s. 5 of the Fugitive Offenders Act, 1881, for Mubarak Ali's detention in custody pending his return to India to answer the charges made against him.", "canonical_name": "Mubarak Ali Ahmrd"}}, {"text": "was held that the Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 45014, "end_char": 45060, "source": "regex", "metadata": {}}, {"text": "Great Britain", "label": "GPE", "start_char": 45093, "end_char": 45106, "source": "ner", "metadata": {"in_sentence": "It was held that the Fugitive Offenders Act, 1881, was in force between India and Great Britain on January 26, 1950, when India become a republic and it was continued to apply by virtue of s. 1 (I ) of the India (Consequential Provision) Act, 1949, and, therefore, the Magistrate had jurisdiction to make the order for the applicant's return."}}, {"text": "s. 1", "label": "PROVISION", "start_char": 45200, "end_char": 45204, "source": "regex", "metadata": {"linked_statute_text": "It was held that the Fugitive Offenders Act, 1881", "statute": "It was held that the Fugitive Offenders Act, 1881"}}, {"text": "Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 45911, "end_char": 45939, "source": "regex", "metadata": {}}, {"text": "Ghana", "label": "GPE", "start_char": 45959, "end_char": 45964, "source": "ner", "metadata": {"in_sentence": "An offender from Ghana was ordered to be extradited pursuant to the Ghana (Consequential Provision) Act, 1960, even after Ghana became a republic Re."}}, {"text": "Offenders Act, 1881", "label": "STATUTE", "start_char": 46512, "end_char": 46531, "source": "regex", "metadata": {}}, {"text": "K wesi Armah", "label": "OTHER_PERSON", "start_char": 46833, "end_char": 46845, "source": "ner", "metadata": {"in_sentence": "The Metropolitan Magistrate being satisfied that the Act of 1881 still applied to Ghana and that a prima facie case had been made out against the applicant in respect of two alleged contraventions of the Ghana Criminal Code, 1960,\n\nby corruption and extortion when he was a public officer, committed K wesi Armah to prison pending his return to Ghana to undergo trial."}}, {"text": "Edmund Davies", "label": "JUDGE", "start_char": 47006, "end_char": 47019, "source": "ner", "metadata": {"in_sentence": "Edmund Davies,' J., was of the view that the Act of 1881 applied to the Republic of Ghana, in its new form, just as it did before the coup d'etat of February 1966."}}, {"text": "Republic of Ghana", "label": "GPE", "start_char": 47078, "end_char": 47095, "source": "ner", "metadata": {"in_sentence": "Edmund Davies,' J., was of the view that the Act of 1881 applied to the Republic of Ghana, in its new form, just as it did before the coup d'etat of February 1966."}}, {"text": "Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 47483, "end_char": 47511, "source": "regex", "metadata": {}}, {"text": "Republic of Cyprus", "label": "GPE", "start_char": 47619, "end_char": 47637, "source": "ner", "metadata": {"in_sentence": "There is yet another recent judgment of the House of Lords dealing with repatriation of a citizen of the Republic of Cyprus : Zacharia v. Republic of Cyprus and Anr.(2)."}}, {"text": "Zacharia", "label": "OTHER_PERSON", "start_char": 47713, "end_char": 47721, "source": "ner", "metadata": {"in_sentence": "Warrants were issued against Zacharia on charges before the Courts in Cyprus of offences of abduction, demanding money with menaces and murder."}}, {"text": "Cyprus", "label": "GPE", "start_char": 47754, "end_char": 47760, "source": "ner", "metadata": {"in_sentence": "Warrants were issued against Zacharia on charges before the Courts in Cyprus of offences of abduction, demanding money with menaces and murder."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 47886, "end_char": 47890, "source": "regex", "metadata": {"linked_statute_text": "the Fugitive Offenders Act, 1881", "statute": "the Fugitive Offenders Act, 1881"}}, {"text": "Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 47898, "end_char": 47926, "source": "regex", "metadata": {}}, {"text": "is interesting to note that by express enactment the Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 49184, "end_char": 49265, "source": "regex", "metadata": {}}, {"text": "Republic of Ireland", "label": "GPE", "start_char": 49301, "end_char": 49320, "source": "ner", "metadata": {"in_sentence": "It is interesting to note that by express enactment the Fugitive Offenders Act, 1881, remains in force as a part of the Republic of Ireland : , see Ireland Act, 1949 (12, 13 and 14 Geo."}}, {"text": "Ireland Act, 1949", "label": "STATUTE", "start_char": 49329, "end_char": 49346, "source": "regex", "metadata": {}}, {"text": "Art. 987", "label": "PROVISION", "start_char": 49427, "end_char": 49435, "source": "regex", "metadata": {"linked_statute_text": "Ireland Act, 1949", "statute": "Ireland Act, 1949"}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 50180, "end_char": 50209, "source": "regex", "metadata": {}}, {"text": "s. 8", "label": "PROVISION", "start_char": 50224, "end_char": 50228, "source": "regex", "metadata": {"linked_statute_text": "Government of India Act, 1935", "statute": "Government of India Act, 1935"}}, {"text": "Indian Independence Act, 1947", "label": "STATUTE", "start_char": 50526, "end_char": 50555, "source": "regex", "metadata": {}}, {"text": "Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 50910, "end_char": 50938, "source": "regex", "metadata": {}}, {"text": "by the Extradition Act", "label": "STATUTE", "start_char": 51151, "end_char": 51173, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Extradition Act, 1870", "label": "STATUTE", "start_char": 51189, "end_char": 51210, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Acts and also the Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 51226, "end_char": 51272, "source": "regex", "metadata": {}}, {"text": "are not called upon to consider whether in exercise of the power under the Fugitive Offenders Act", "label": "STATUTE", "start_char": 51407, "end_char": 51504, "source": "regex", "metadata": {}}, {"text": "Mukherjee", "label": "JUDGE", "start_char": 52876, "end_char": 52885, "source": "ner", "metadata": {"in_sentence": "and Mukherjee, J .,"}}, {"text": "Fugitive Offenders Act, 1881", "label": "STATUTE", "start_char": 53237, "end_char": 53265, "source": "regex", "metadata": {}}, {"text": "Mukhcrji", "label": "JUDGE", "start_char": 54028, "end_char": 54036, "source": "ner", "metadata": {"in_sentence": "Observations made by Mukhcrji, J., that the notification issued by the Central Government authorising the Chief Presidency Magistrate to issue the warrant in the manner he had done, came \"nowhere near the law\"\n\nand \"to a Court of law it is waste paper beneath its notice\" appear to proceed upon an incorrect view of the object of the notification."}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 54613, "end_char": 54639, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Extradition Act", "label": "STATUTE", "start_char": 55672, "end_char": 55687, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "provisions of the Extradition Act, 1962", "label": "STATUTE", "start_char": 55863, "end_char": 55902, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "are unable to agree with the High Court that because of the enactment of the Extradition Act", "label": "STATUTE", "start_char": 56528, "end_char": 56620, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "More", "label": "PETITIONER", "start_char": 57263, "end_char": 57267, "source": "ner", "metadata": {"in_sentence": "The writ petitioq filed by More must be dismissed.", "canonical_name": "More"}}]}
{"document_id": "1969_3_341_373_EN", "year": 1969, "text": "D '\n\nG '\n\nSTATE OF GUJARAT\n\nSURI SHANTILAL MANGALDAS & ORS.\n\nJanuary 13, 1969\n\n[M. HIDAYATULLAH, C.J.,\n\nJ. C. SHAH,\n\nV. RAMASWAMI,\n\nG. K. MITTER AND A. N. GROVER, JJ.J\n\nBombay Town Planning Act (27 of 1955), ss. 53 and 61-Compensation at market value on a date many years before the date of extinction o/ ownerS' title-If violative of Art. 31(2) of Constitution after Fourth Amendment-Acquisition for town plcnning----lf protected by Art. 31(5) (b)(ii).\n\nBy a resolution dated April 18, 1927, the Borough Municipality of Abmedabad declared its intention of making a town-planning scheme JJDder the Bombay Town Planning Act, 1915. A plot of land measuring\n\n18,219 sq. yards belonging to the first respondent was covered by the scheme.\n\nIn the draft scheme the plot was reconstituted into two plotsone plot measuring 15,403 sq. yards reserved for the first respondent and the other, measuring 2,817 sq. yards reserved for the Municipality. The arbitrators were appointed to decide various matters made little progress.\n\nIn 1955, the 1915-Act was repealed by the Bombay Town Planning Act. 1955 which received the assent of President on August 1, 1955, and came into force on April 1, 1957.\n\nBy s. 90(2) of the 1955 Act, the proceedings preparing a scheme commenced under the repealed Act was continued.\n\nUnder the 1955 Act, on the coming into forc.e of the scheme all lands which are required by the local authority, unless otherwise determined in the scheme, by the operation of s. 53(a) vest absolutely therein free from all encumbrances.\n\nBy cl. (b), ownership in a plot belonging to a person is substituted by the owne'rship in the reconstituted plot, his ownership in the original plot is extinguished and simultaneously therewith he becomes the owner of a reconstituted plot subject to the rights settled by the Town Planning Officer. The reconstituted plots, having regard to the .exigencies of the scheme need not be of the same dimensions as the original land and are generally smaller. Section 67 provides that the difference between the market value df the plot with all the buildings and works thereon at the date of the declaration of the intention to make a scheme and the market value of the plot as reconstituted on the same date and without reference to the improvements contemplated in the scheme is to be the compensation due to the owner. Section 71, which is a corollary to s. 67, provides, inter alio that if the owner of the origina1 land is not allotted a plot at all, he shall be paid the value of the original plot at the date of the declaration of intention to make a scheme.\n\nThe Town Planning Officer informed the first respondent that Rs. 25,411 were awarderi to him as compensation. He filed a petition in the High Court, challenging the validity of the Act on the ground that it violated Art. 31 (2) of the Constitution. The High Court declared ss. 53 and 67 of the Act ultra vires and declared the town planning scheme invalid as a coronary.\n\nIn appeal to this Court on the questions, (I) whether the Act was exempt from the operation of Art. 31(2), because its object was promotion of public health and fell within the terms of Art. 31 (5)(b) (ii), and\n\n(2) whether the Act specifies the 'principles on which compensation is to be determined and the guarantee under Art. 31 (2) is on that account not infringed,\n\n. HELD: (I) Section 53(a) of the Act is a law for compulsory acquisi- A tlon of land;. 1t cannot. be said .tht because the object of the Act is to promore J?Ubhc health 1t falls w1th1D the exception of Art. 31(5)(b)(iiJ.\n\nThe prmc1pal objects of town planning legislation no doubt are to provide for planned and controlled development and use of land in urban areas\n\nith special 're&:a.r~ to requirements of better living conditions and sanitation; but acqu1s1t1on of property for such purposes could not be made under laws coming within the purview of Art. 3!(5)(b)(ii) without payment of compensation.\n\n[354 F, G] B\n\nDy. Com111issioner and Collector, Kamrup v.\n\nDurga Nath Sarma, [1968] I S.C.R. 561, followed.\n\n(2) The legislature specified in the 1955 Act, principles for determination of compensation.\n\nThe principles for determination of compen- sation cannot be said to be irrelevant, nor can the compensation determined, be said to be illusory.\n\nBeing a principle relating to compensation, C a challenge to that principle, on the ground that a just equivalent of what the owner was deprived of is not provided, is excluded by Art. 31(2) after the Constitution Fourth Amendment Act. [370 DJ\n\n(a) It was not necessary to provide for compensation for the entire land of which a person is deprived, because, the concept that the lands ve•t in the local authority when the inrention to make a scheme is notified is against the plain inrendment of the Act.\n\nA part of the plot or even the D whole plot belonging to an owner may go to form a reconstituted plot which may be allotted to another person or may be appropriated to public purposes under the scheme. No process actual or notional of transfer is contemplated in that appropriation. The lands covered by the scheme are subjected by the Act to the power of local authority to re-adjust titles, but no reconstituted plot vests at any stage in the local authority un1e.ss it is needed for a purpose of the authority; and when land is so required on the coming into force of the scheme, compensation is paid to the E owner of the land.\n\n[356B, F-H]\n\n( b) The Act specifies the principles on which the compensation is tc be determined and given.\n\nSpecification of principles means laying down general guiding rules applicable to all pe'rsons or transactions governed the'reby. Compensation determined on the basis of market value prevailing on a date anterior to the date of extinction of interest is still determined on a principle specified. Whether an owner of land is given a reconstituted plot or not. the rule fdr determining what is to be given as recompense remains the same.\n\nIt is a principle applicable to all cases in which by virtue of the oration of the Town Planning Act a person is deprived of land whether in whole or in part.\n\n[357H-358B]\n\n(c) By Art. 31(2) as it originally stood, exercise of the power to legislate for compulsory acquisition was subject to the condition that the law for compulsory acquisition for public purposes eiter fixed the amount o'f the compensation or specified the principles on which, and the manner in which, the compensation was to be determined and given.\n\nThis Court in Bela Banerjee'.• case [1954] S.C.R. 558 and Subodh Gopa/'s case,\n\nfl 954] S.C.R. 587. held that 'compensation' meant a 'just equivalent'.\n\nBut after the Fourth Amendment Act, adequacy of compensation fixed b}' the Legislature or awa'rded according to the principles specified by the legislature for determination is ot justiciable.\n\nI~ ds not me3.!1. howve~, H that something fixed or determined by the apphcatton of specified prnc1ples which is illusory or can in no sense be regarded as compensation must be upheld by the courts, for to do so, would be to grant a charter of arbitrariness, and permit a device to defeat a constitutional guarantee.\n\n/f>\n\nGUJARAT v. SHANT!LAL 343\n\nBut compenstion fixed or determined on principles specified by the Legis lature cannot be permitted to be challenged on the indefinite plea that it is not a \"just or fair' equivalent.\n\nPrinciples may be challenged on the ground that they are irrelevant to the determination of compensation, but not on the plea that what is awarded as a result of the application of those principles is not just or fair compensation.\n\nSuch a challenge will be in clear violation of the constitutional decla'ration that adequacy of compensation provided is not justiciable. [366 A-DJ\n\nObservations contra in P. Vajravelu Mudaliar v. The Special Deputy Collector, Madras, [1965] I S.C.R. 614, obiter.\n\nUnion of India v. Metal Corporation of India Ltd.\n\n[1967] I S.C.R. 255 overruled, because (i) Parliament had specified in the Metal Corporation of India (Acquisition of Undertaking) Act, 1965, the principles for determining compensation of the undertaking, (ii) those principles expressly related to the determination of compensation payable, (iii) they were not irrelevant to the determination of compensation, and (iv) the compensation was not illusory.\n\n[370C] ( d) The statute which permits the property of an. owner to be compulsorily acquired by payment of market value at a date which is many years before the date on which the title of the owner is extinguished cannot be attacked on the ground of unreasonableness, because, a law made under Art. 31(2) is not liable to challenge on the ground that it violates Art. 19(1 )(f). [370 HJ\n\nSmt. Sitabati Dehi v. State of West Bengal, [1967]\n\n2 S.C.R. 749. followed.\n\n(e) The validity of the statute cannot depend upon whether in a given case it Dperates harshly.\n\nIf the scheme came into force within a rca!lonable time from the date on which the declaration of intention to make the scheme was notified, it could not he contended that fixation of compensation according to s. 67 i would make the seheme invalid.\n\nThe fact that con<; iderable time elapsed cannot be a ground for declaring the\n\nsection ultra iires. f371 B]\n\n(f) If s. 71 read with s. 67 lays down a principle of valuation, it cannot be st'ruck down on the ground that, because of the exigencies of the scheme, it is not possible to allot a reconstituted plot to an O\\vner of land covered by the scheme.\n\n[371 D]\n\n(g) The n1ethod of determining compensation in respect of lands which are subject to the town planning scheme is prescribed in the Town Planning Act nnd when power is given under the statute to do a certain thing in a certain way, it must be done in that way or not at all. Therefore, unlike Va; rc; velu Mudaliar's case, where the State Government could\n\nre•ort to one of two methods-the Land Acquisition Act, 1894 or the Land Acquisition (Madras Amendment) Act, 1961,-and therefore arbitrarily, 1n the present case, the local authority can only act under the Town Planning Act for purposes of town planning, and the'refore does not violate Art. 14.\n\n[372 D-E. HJ Taylar v. Taylor, [1875] I Ch. D. 426, applied.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1377 of 1968. .\n\nAppeal from the judgment and order dated January 24, 1968 of the Gujarat High Court in Special Civil Application No. 837 of 1960.\n\nN. S. Bindra, S. K. Dholakia and S. P. Nayar, for the appellant.\n\nM. C. Chagla and /. N. Shroff, for respondent Nos. 1 to 3.\n\nHIDAYATULLAH, C. J., delivered a Separate Opinion.\n\nThe Judgment of SHAH, RAMASWAMI, MITTER and GROVER JJ was delivered by SHAH, J. ' .\n\nHidayatullah,\n\nC.J.\n\nI have read the weighty judgment proposed to be delivered by my brother Shah and I find myself so much in agreement with it that I consider it unnecessary for me to express myself. However, it is proper for me to say a few words in explanation since I was a party to P. Vajravelu Mudaliar's case(') and the obiter pronouncement of some opinions there. That case was heard with N. B. Jeejeebhoy's case(').\n\nOne was a post- Constitution (Fourth Amendment) case and the other a pre- Constitution case. The judgment in the two cases were delivered on the same day. It appears that the reasoning in the two cases was not kept separate and the whole of the matter was discussed in a case in which it was not n.cessary for the ultimate conclusion.\n\nBecause of the close ; iroximity of. the decisions, it escaped me that the discussion was in the wrong case and the other merely followed it. My brother Shah has not made the two cases to fall in their proper places. It is certainly out of the question that the adequacy of compensation (apart from compensation which is illusory or proceeds upon principles irrelevant to its determination) should be questioned after the Amendment of the Constitution. The Amendment was expressly made to get over the effect of the earlier cases. which had defined compensation as _just equivalent. Such a question could not arise after the amendment. I am in agreement that the remarks in P. Vajravelu's case(') must be treated as obiter and not binding on us.\n\nI am also of the opinion that the Metal Corporation case(') was wrongly decided and should be overruled.\n\nShah, J.\n\nIn a writ petition field by the first respondent Shantilal Mangaldas the High Court of Gujarat has declared ss. 53 and 67 of the Bombay Town Planning Act 27 of 1955, ultra vires, insofar as they authorise the local authority, 2nd respondent in this appeal, to acquire lands under a town-planning scheme, and as a corollary to that view has declared invalid the City Wall Improvement Town Planning Scheme No. 5 framed in exercise of the powers conferred under the Act.\n\nBy Resolution dated April 18, 1927, the.Borough Municipality Qf Ahmedabad which was a local authority under the Bombay Town Planning Act 1 of 1915 declared its intention to make a town-planning scheme known as \"The City Wall Improvement\n\n (1) [1965] 1 S.C.R. 614.\n\n(2) (1965] lS.C.R. 636.\n\n(3) (1967] I S.C.R. 255.\n\nA ,.\n\n.~. ·;- c\n\nTown Planning Scheme\" in respect of a specified area. A plot of land No. 221 measuring 18,219 square yards belonging to the first respondent was covered by the scheme.\n\nThe Provincial Government sanctioned the intention to make the scheme, and a draft scheme was then prepared under which the area of plot No. 221 was reconstituted into two plots--Plot No. 176 measuring\n\n15,403 square yards reserved for the first respondent and Plot No. 178 measuring 2,816 square yartls reserved for the local authority for constructing quarters for municipal employees. The draft scheme was sanctioned by the Government of Bombay on August 7, 1942.\n\nOn August 13, 1942, the Government of Bombay appointed an arbitrator under Act 1 of 1915 to decide matters set out in s. 30 of the Act. From time to time several arbitrators were appointed, but apparently little progress was made in the adjudication of matters to be decided by them under the act.\n\nThe Bombay Town Planning Act 1 of 1915 was repealed by s. 90 of the Bombay Town Planning Act 27 of 1955 with effect from April l, 1957.\n\nBy s. 90(2) making of any scheme commenced under the repealed Act was to be continued and the provisions of thd new Act were to have effect in relation to the publication, declaration of intention, draft scheme, final scheme, sanction, variation, restriction, proceedings, suspension and recovery to be made or compensation to be given. The arbitrator appointed under Act 1 of 1915 was designated \"Town Planning Officer\" under Act 27 of 1955, and the proceedings under the City Wall Improvement Town Planning Scheme were continued before him.\n\nOn August 23, 1957, the Town Planning Officer informed the first respondent that Rs. 25,411 were awarded to him as compensation for plot No. 178.\n\nThe first respondent then filed a petition in the High Court of Gujarat (which bad jurisdiction after reorganization of the State of Bombay) challenging the validity of Act 27 of 1955 and acquisition of plot No. 178 on the plea that the Act infringed the fundamental right of the first respondent guaranteed by Art. 31 (2) of the Constitution.\n\nThe scheme was sanctioned by the Government of Gujarat on July 21, 1965, and the final scheme came into operation on September 1, 1965. The High Court entered upon an elaborate analysis of the provisions of the Act and held :\n\n\"Section 53 read with section 67 in so far as it authorises acquisition of land by the local authority under pending schemes continued under section 90 of the new Act must, therefore, be held to be violative of Article 31 (2) and the acquisition of petitioners' lands in the\n\nvarious petitions under the City Wall Improvement Town Planning Scheme No. 5 must be held to be invalid.\",\n\nand on that view the High Court did not consider the other contentions raised on behalf of the first respondent.\n\nWith certificate granted by the High Court, this appeal is preferred by the State of Gujarat.\n\nThe declaration of intention, preparation of the draft scheme and proceeding for preparation of the final scheme , were made under Act 1 of 1915. Intimation of the amount of compensation determined to be payable to the first respondent was however given under Bombay Ad 7.7 of 1955 and the scheme was also sanctioned ..\n\nBut bys. 90 of the .kt as amended by Gujarat Act 52 of 1963, continuity of the operations for making and implementing the Town Planning Scheme is maintained.\n\nThe principal objects of the towin planning legislation are to provide for lanned and controlled development and use of land in urban areas. Introduction of the factory system into methods of manufacture, brought about a great exodus of population from the village into the manufacturing centres leading to congestion and overcrowding, and cheap and insanitary dwellings were hurriedly erected often in the vicinity of the factories. Erection of these dwelJings was generally subject to little supervision or control by local authorities, and the nev.; dwellings were built in close and unregulated proximity with little or no regard to the requirements of ventilation and sanitation. Necessity to make a planned development of these new colonies for housing the influx of population in sanitary surroundings was soon felt. The Bombay Legislature enacted Act 1 of 1915 with a view to remedy the situation.\n\nThe Bombay Town Planning Act 27 of 1955 is modelled on the same pattern as Act 1 of 1915, but with one important variation. By Ch. II of the new Act it is made obligatory upon every local authority to carry out a survey of the area within its jurisdiction and to prepare and publish in the prescribed manner a development plan and submit it to the Government for sanction.\n\nA development plan is intended to lay down in advance the manner in which the development and improvement of the entire area within the jurisdiction of the local authority are to be carried out and regulated, with particular reference to-\n\n(a) proposals for desigr.ating the use of the land, for the purposes such as (1) residential, (2) industries\n\n(3) commercial, and ( 4) agricultural;\n\n(b) proposals for designation ofland for public purposes such as parks, play-grounds, recreation grounds, open spaces, schools, markets or medical, public health of physical culture institutions;\n\n( c) proposals for roads and highways;\n\n(d) proposals for the reservation of land for the purpose of the Union, any State, any local authority or any other authority established by Jaw in India; and\n\n(e) such other proposals for public or other purposes as may from time to time be approved by a local authority or directed by the State Government in that behalf.\n\nBy making it obligatory upon a local authority to prepare a development plan under Bombay Act 27 of 1955 it was clearly intended that the Town Planning Schemes should form part of a single cohesive pattern for development of the entire area over which the local authority had jurisdiction.\n\nChapter m of Bombay Act 27 of 1955 relates to the making of the Town Planning Scheme.\n\nChapter JV deals with the declaration of intention to make a scheme and making of a draft scheme.\n\nChapter V deals with the appointment of Town Planning Officers and the Board of Appeal and their powers. Chapter VI deals with the splitting up of schemes into sections and preliminary schemes. Chapter VII deals with Joint Town Planning Schemes and Ch. Vill with finance.\n\nUnder Bombay Act 27 of 1955 after a development plan is sanctioned, the local authority makes a declaration of its intention to make a scheme and then prepares a draft scheme setting out the size and shape of every reconstituted plot, so far as may be, to render it suitable for building purposes and where the plot is already built upon, to ensure that the building as far as possible complies with the provisions of the scheme as regards open space.\n\nThe scheme may also make provision for lay out of lands; filling up or reclamation of lands, lay out of new streets, roads, construction, diversion, extension, alteration, improvement ana stopping up of streets, roads and communications; construction, alteration and removal of buildings, bridges and other structures; allotment or reservation of lands for roads, open spaces, gardens, recreation grounds, schools, markets, green belts, dairies, transport facilities, and public purposes of all kinds; drainage, lighting; water-supply; preservation of objects of historical or national interest or beauty and of buildings used for religious purposes; imposition of conditions relating to constructions and other matters not inconsistent with the object of the Act as may be prescribed. The\n\ndraft scheme is published afte~ it receives the sanction of the State Government The State Government then appoints Town Planning Officer to perform the duties specified in s. 32 of the Act.\n\nAn appeal lies to a Board of Appeal against certain decisions which the Town Planning Officer may make. After the Town Planning Officer has dealt with the various matters relating to the draft scheme, and the appeals against his orders have been disposed of, the State Government may sanction the scheme, and on and after the date fixed in the notification sanctioning the scheme, the townplanning scheme has effect as if it were enacted in the Act.\n\nIn making a town-planning scheme the lands of all persons covered by the scheme are treated as if they are put in a pool.\n\nThe Town Planning Officer then proceeds to reconstitute the plots for residential buildings and to reserve lands for public purposes.\n\nReconstituted plots are allotted to the landholders.\n\nThe reconstituted plots having regard to the exigencies of the scheme need not re of the same dimensions as the original land. Their shape, and size may be altered and even the site of the reconstituted plot allotted to an owner may be shifted. The Town Planning Officer may lay out new roads, divert or close existing roads, reserve lands for recreation grounds, schools, markets, green belts and similar public purposes, and provide for drainage, lighting, water-supply, filling up or reclamation of low-lying, swamp or unhealthy areas or levelling up of land so that the total area included in the scheme may conduce to the health and well-being of the residents. Since the town-planning scheme is intended to improve the sanitary conditions prevailing in a locality, the owners of plots are required to maintain land open around their buildings. The object of the scheme being to provide amenities for the benefit of the residents generally, the area in the occupation of the individual holders of land is generally reduced, for they have to contribute out of their plots, areas which are required for maintaining the services beneficial to the community.\n\nl!nder the Act the cost of the scheme is to be met wholly or in part by contributions to be levied by the local authority on each plot included iQ the final scheme calculated in proportion to the increment which is estimated to accrue in respect of each plot.\n\nTo ensure that no undue hardship is caused and owners of plots have an opportunity of raising objections to the provisions of the scheme including its financial provisions, power is conferred upon the Town Planning Officer to entertain and hear objections against the recO'llstitution of the plots and relating to matters specified in s. 32 i.e. the physical, legal lliOld financial provisions of the scheme. Only after the objections have been heard and disposed of, the scheme is published and becomes final.\n\nThe relation between ss. 53 and 67 which have been declared ultra vires by the High Court and the other related provisions may now be determined. Section 53 of the Act provides :\n\n\"On the day on which the final scheme comes into force,-\n\n(a) all lands required by the local authority shall, unless it is otherwise determined in such scheme, vest absolutely in the local authority free from all encumbrances;\n\n(b) all rights in the original plots which have tie.!n re-constituted shall determine and the re-constituted plots shall become subject to the rights settled by the Town Planning Officer.\"\n\nTh~ expression \"re-constituted plot\" is defined in s. 2(9) as meaning a plot which is in any way a)tered by the making of a town planning scheme, and by the Explanation the word \"altered\" includes alteration of ownership. By cl. (b) of s. 53 ownership in a plot belonging to a person is substituted by the ownership in the reconstituted plot his ownership in the original plot is extinguished and simultaneously therewith he becomes the owner of a reconstituted plot subject to the rights settled by the Town Planning Officer. On the coming into force of the scheme all lands which are required by the local authority, unless otherwise determined in the scheme, by the operation of s. 53(a), vest absolutely there- ; n free from all encumbrances. The result is that there is a complete shuffling up of plots of land, roads, means of communication, and rearrangement thereof.\n\nThe original plots are ron stituted, their shapes are altered. portions out of plots are separated. lands belonging to two or more owners are combined into a ; ingle plot, new roads are laid out, old roads are diverted or closed up, and lands originally belonging to private owners are used for public purposes i.e. for providing open spaces, green belts dairies etc.\n\nIn this process the whole or part of a land of one person, may go to make a reconstituted plot, and the plot so reconstructed may be allotted to another person; and the lands needed for public purposes may be earmarked for those purposes.\n\nThe re-arrangement of titles in the various plots and reservation of lands for public purposes require financial adjustments to be made. The owner who is deprived of his land has to be compensated, and the owner who obtains a re-constituted plot in surroundings which are conducive to better sanitary living conditions has to contribute towards the expenses of the scheme.\n\nThis is because on the making of a town planning scheme the value of the plot rises and a part of the benefit which arises out of the un-\n\nL8Sup.C.l/u9--4\n\nearned rise in prices is directed to be contributed towards financing of the scheme which enables the residents in that area to more amenities, better facilities and healthier living conditions. For that purpose provision is made in s. 65 that the increment shall be deemed to be the amount by which at the date of the declaration of intention to make a scheme, the market value of a plot included in the final scheme, estimated on the assumption that the scheme has been completed, would exceed at that, the market value of the same plot estimated without reference to improvements contemplated by the scheme. By s. 66 the cost of the scheme is required to be met wholly or in part by contributions to be levied by the local authority on each plot included in the final scheme calculated in proportion to the increment which is estimated to accrue in respect of such plot by the Town Planning Officer. Section 67 provi des:\n\n\"The amount by which the total value of the plots included in the final scheme with all the buildings and works thereon allotted to a person falls short of or exceeds the total value of the original plots with all the buildings and works thereon of such person shall be deducted from or added to, as the case may be, tha contributions leviable from such persons, each of such riots being estimated at its market value at the date o the declaration of intention to make a scheme or the date of a notification under sub-section (1) of section 24 and without reference to improvements due to the alteration of its boundaries.\" ~·\n\nSection 67, it will clearly appear, is intended to make adjustments between the right to compensation for loss of land suffered by the owner, and the liability to make contribution to the finances of the scheme; and s. 71 is a corollary to s. 67. Section 71 provides :\n\n\"If the owner of an original plot is not erovided with a plot in the final scheme or if the contribution to be levied from him under section 66 is less than the total amount to be deducted therefrom under any of the provisions of this Act, the net amount of his loss shall be payable to him by the local authority in cash or in such other way as may be agreed upon by the parties.\"\n\nThe provision~ relating to payment of compensation and recovery of contributions are vital to the successful implementation of the scheme. The owner of the reconstituted plot who gets the benefit of the scheme must make contribution towards the expenses of the scheme; the owner who loses his property must similarly be compensated. For the purpose of determining the compensation, the Legislature has adopted the basis of market value of land expropriated, but the land is valued not on the date of ex-\n\nD .\n\ntinction of the owner's interest, but on the date of the declaration of intention to make the scheme.\n\nIn the view of the High Court this pattern of computing compensation infringes the fundamental right guaranteed under Art. 31 (2), of the Constitution. Since the Act authorises comjlulsory transfer of ownership in land to the local authority for pubhc purposes the High Court held it clearly falls within the terms of Art. 31(2A) of the Constitution, and on that account there is acquisition of land within the meaning of Art. 31(2) of the Constitution, and the Act is not protected by Art. 31(5)(b)(ii). The High Court further held that in determining the compensation payable to the owner of the land which is appropriated to public purposes, the increase in the value of the reconstituted plot allotted cannot be taken into account, because it is not attributable or relateable to the acquisition of their plots, but is a benefit which they share in common with the other members of the community as a result of the scheme, \"quite irrespective whether their, plots are acquired or not\", aod it is, therefore, not liable to be-ciken into account in determining whether the compensation received by them for acquisition of their plots was adequate, that in any event the increment in the value of the plot allotted to the owner is uncertain as well as irreleyant as a principle for determining compensation, since it is quite possible that no plot may be allotted to an owner of land in a Town Planning Scheme. Further, observed the High Court, compensation for loss of land being determined under s. 67 of the Act only on the basis of the market value at the date of declaration of intention to make the scheme and not the market value at the date on which the scheme comes into force, the Act dues not give for the original plot of land of the owner a reconstituted plot together with compensation for loss of the difference in the area between the original and reconstituted plot. The High Court further observed that a provision for awarding compensation on the basis of market value under s. 67 of the Act is a sufficient specification of a principle of compensation within the meaning of Art. 31 (2), but the Act was still not saved for two reasons-\n\n(1) that there was no principle for compensating' an owner of land to whom no reconstituted plot was allotted; and (2) that payment provided by the Act in satisfaction of the claim to land statutorily exprnpriated based on the market.valu_e of the land at the date of the declaration of intention to make a scheme was not payment of compensation guaranteed by Art. 31(2). The High Court was of the view that compensation based on the market value may be sufficient specification of principle of compensation within Art. 31 (2) only if it is a just equivalent of the land expropriated and payment. computed on the market value at a date many years before the date on which the land was acquired is inconsistent with the C<mstitutional a:uarantee under Art. 31 (2). fhe High Court in\n\ncoming to that conclusion felt itself bound by the observations made in the judgments of this Court n P. Vajravelu Mudaliar v.\n\nThe Special Deputy Collector, Madras('), The State of West Bengal v. Mrs. Bela Banerjee and Others('); N. B. Jeejeebhoy v.\n\nAssistant Collector, Thana Prant, Thana( 3 ); and Union of India\n\nv. Metal e:orporation of India Ltd. and Another(').\n\nThe view taken by the High Court was that the Town Planning Act insofar as it provides for transfer of private rights of ownership to a local authority under s. 53(a) is a jaw relating to acquisition of lands which attracts the protection of Art. 31 (2), and since the Act by s. 67 provides for compensation which is not a just equivalent in tem1s of money of the property expropriated it could not be upheld under Art. 31 (2) of the Constitution.\n\nMr. Bindra appearing on behalf of the State of Gujarat contends that Bombay Act 27 of 1955 is not a law relating to acquisition of lands, but it is a law dealing with health lll)d public sanitation for it is enacted with the object of promotion of public health and on that account falls within the terms of Art. 31(5)\n\n(ii) of the Constitution, and is exempt from the operation of cl.\n\n(2) of Art. 31.\n\nAlternatively, Mr. Bindra contends that the Act specifies the principles on which compensation is to be determined and the guarantee under Art. 31 (2) is on that account not infringed.\n\nCounsel urges that the object of the Town Planning Act in pith and ·ubstance is to facilitate planned development, to ensure healthy surroundings to the people living in congested localities and.to provide them with sanitation andl other urban facilities conducive to healthy living and on that account is an Act falling within Entry 6 of List II of the Seventh Schedule-\"Public health and sanitation\", and Entry 20 of List III-\"Economic and social planning\". But the competence of the Legilature to enact legislation on the subject matter of the Act and for the object intended to be served thereby are irrelevant in determining whether any fundamental right of a person is infringed by the impugned Act. The doctrine of pith and substance is applicable in determining whether a statute is within the competence of the legislative body, especially in a federal set up, where there is division of legislative powers : it is wholly irrelevant in determining whether the statute infringes any fundamental right.\n\nFor a clearer appreciation of the alternative argument it may be useful to set out the terms of Art. 31 of the Ccmstitution as amended by the Constitution (Fourth Amendment) Act,, 1955 :\n\n\"(!) No person shall be deprived of his property save by authority of law.\n\n(I) 11965] 1 S.C.R. 614.\n\n(3) (196511S.C.R.636.\n\n(2) (1954] S.C.R. 558.\n\n(4) (1967] I S.C.R. 255.\n\n(2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by Juthority of a law which provides for compensation for the property so acquired or requisitioned and either fixes :he amount of the compensation or specifies the princi pies on which, and the manner in which, the compensation is to be determined and given; and no such law shall be \"\"lied in question in any court on the ground that the compensation provided by that Jaw is not adequate.\n\n(2A) Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property.\n\n(3) No such law as is referred to in clause (2) made by the Legislature of a State shall have effect unless such Jaw, having been reserved for the consideration of the\n\nPrsident, has received his assent. (4) ( 5) Nothing in clause ( 2) shall affect-\n\n( a)\n\n( b) the provisions of any law which the State may\n\nhereafter make-\n\n( i)\n\n(ii) for the promotion of public health or the prevention of danger to life or property, or\n\n(iii)\n\n(6) \"\n\nIt is settled law that clauses (I) and (2) under the amended A1ticle gu\"rantcc different rights to owners of property. Clause (1) ope rates as a protection against deprivation of property save by authority of law, which, it is beyond question, must be a valid law, i.e. it must be withiin the legislative competence of the State Legislature, and must not infringe any other fundamental right. Clause\n\n(2) guarantees that property shall not be acquired or requisitioned (except in cases provided by cl. (5)) save by authority of law\n\nprovidmg for compulsory acquisition or requisition and further 1iroviding for compensation for the property so acquired or requisitioned and either fixes the amount of compensation or specifies the principles on which, and the manner in which, the compensation is to he determined and given. If the conditions for compulsory acquis_ition or requisition are fulfilled, the law is not liable\n\nto be called in question before the courts on the ground that the compensation provided by the law is not adequate. Clause (2A) is in substance a definition clause : a law which does not provide for the transfer of tlie ownership or right to possession of any property to the State or to a corporation owned or controlled by the State is not to be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property.\n\nThe following principles emerge from an analysis of clauses\n\n(2) and (2A): compulsory acquisition or requisition may be made for a public purpose alone, and must be made by authority of law.\n\nLaw which deprives a person of property but does not transfer ownership of the property or right to possession of the property to the State or a corporation owned or controlled by the State is not a law for compulsory acquisition or requisition. .The law, under the authority of which property is compulsorily acquired or. requisitioned, must either fix the amount of compensation or specify the principles on which, and the manner in which, the compensation is to be determined and given. If these conditions are fulfilled the validity of the law cannot be questioned on the plea that it does not provide adequate compensation to the owner.\n\nJt is common ground that a law for compulsory acquisition of property by a local authority for public purposes is a law for acquisition of property by the State within the meaning of that expression as defined in Art. 12. The Act was reserved for the consideration of the President and received his assent on August 1, 1955, and since it provides expressly by s. 53(a) that on the coming into force of the scheme the ownership in the lands required by the local authority for public purposes shall, unless. it is otherwise determined in such scheme, vest absolutely in the local authority free from all encumbrances, tae clause contemplates transfer of ownership by law from private owners to the local authority.\n\nThe Act is, therefore a law for compulsory acquisition of land.\n\nWe are also unable to agree with counsel for the State that because the object of the Act is intended to promote public health, it falls within the exception in Art. 31(5)(b)(ii). The question is now settled by a recent judgment of this Court; Deputy Commissioner & Collector, Kamrup ~Others v. Durga Nath Sharma(').\n\nThis Court held in Durga Nath Sharma's case(') that the Assam Acquisition of Land for Flood Control and Prevention of Erosion Act 6 of 1955 which provided for the acquisition of land on oaymen t of compensation in accordance with the principles in s. 6 of that Act was a purE)ly exproprietary measure, and being a Jaw for acquisition of land, though for prevention of danger to\n\n\nGUJARAT V. SHANTJLAL (Shah,/.) 355\n\nlife and property, was not protected by Art. 31(5)(b)(ii). It was observed at p. 574 :\n\n\"A law authorising the abatement of a public menace by . destroying or taking temporary possession of private properties if the peril cannot be abated in some other way can be regarded as a law for promotion of public health or prevention of danger to life or property within the purview of cl. (S)(b}(ii). But it is not possible to say that a law for permanent acquisition of property is such a law.\n\nThe object of the acquisition may be the opening of a public park for the improvement of public health or the erection of an embankment to prevent danger to life or property from flood. Whatever the object of the \"acquisition may be, the acquired property belongs to the State. . . . . .\n\nClause (5)(b)(ii) was inteno'ed to be an exception to cl\n\n(2) and must be strictly construed. Acquisition of property for the opening of a public park or for the erection of dams and embankments were always made under the Land Acquisition Act, and it could not have been intended that such acquisition could be made under laws corning within the purview of cl. (5)(b)(ii) without payment of compeation.\" The first contention urged by Mr. Bindra cannot, therefore, be accepted. But, in our judgment, the contention urged by Mr.\n\nBindra for the State of Gujarat that ss. 53 and 67 of the Act regarded as law for acquisition of land for public purposes do not infringe the fundamental right under Art. 31 (2) of the Constitution is acceptable, because the Act specifies the principles on which compensation is to be determined and given.\n\nArticle 31 guarantees that the law providing for compulsory acquisition must provide for determining and giving compensation for the property acquired.\n\nThe expression \"compe:1sation\" is not defined in the Constitution. Under the Land Acquisition Act compensation is always paid in terms of money. But that is no reason for holding that compensation which is guaranteed by Art. 31 (2) for compulsory acquisition must be paid in terms of\n\nmony alone.\n\nA law which provides for making satisfaction to an expropriated owner by allotment of other property may be deemed to be a law providing for compensation. In ordinary parlance the expression \"compensation\" means any thing given to make things equivalent; a thing given to or to make amends for loss, recompense, remuneration or pay; it need not therefore necessarily be in terms of money.\n\nThe phraseology of the constitutional provision also indicates that compensation need not necessarily be in terms of money, because it expressly provides that the law may spedfy the principles on which, and the manner in which,\n\ncompensation is to be detennined and \"given\". If it were to be in terms of money alone, the expression \"paid\" would have been more appropriate.\n\nTne principal argument which found favour with the High Court in holding s. 53 ultra vires is that when a plot is reconstituted and out of that plot a smaller area is given to the owner and the remaining area is utilised for public purpose, the area so utilised vests in the local authority for a public purpose, and since the Act does not provide for giving compensation which is a just equivalent of the land expropriated at the date of extinction of interest, the guaranteed right under Art. :;1(2) is infringed. While adopting that reasoning counsel for the first respondent adopted another line of approach also. Counsel contended that under the scheme of the Act the entire area of the land belonging to the owner vests in the local authority, and whw the final scheme is framed, in lieu of the ownership of the original plot, the owner is given a reconstituted plot by the local authority, and compensation in money is determined in respect of the land appropriated to public purposes according to the rules contained in ss. 67 & 7 l of the Act.\n\nSuch a scheme for compensation is, it was urged, inconsistent with the guarantee under Art. 31(2) for two reasons--\n\n(l) that compensation for the entire land is not provided; and (2) that payment of compensation in money is not provided evn in respect of land appropriated to public use.\n\nThe second branch ot the argument is not sustainable for reasons already set out, and the first branch of the argument is wholly without substance.\n\nSection 53 does not provide that the reconstituted plot is transferred cr is to be deemed to be transferred from the local authority to the owner of the original plot. In terms s. 53 provides for :; tatutory re-adjustment of the rights of the owners of the original plots of land. When the scheme comes into force all rights in the original plots are extinguished and simultaneously therewith ownership springs in the reconstituted plot~. There is no vesting of the original plots in the local authority nor transfer of the rights of the local authority in the reconstituted plots. A part or even the whole plot belonging to an owner may go to form a reconstituted plot which may be allotted to another person, or may be appropriated to public purposes under the scheme. The source of the power to appropriate the whole or a part of the original plot in forming a reconstituted plot is statutory. It does not predicate ownership of the plot in the local authority, and no processactm.1 or notional--0f transfer is contemplated in that appropriation. The lands covered by the scheme are subjected by the Act to the power of the local authority to readjust titles, but no recoastituted plot vests at any stage in the local authority unless it is needed for a purpose of the authority.\n\nEven under cl. (a) of s. 53 the vesting in a local authority of land required by it is on the\n\ncoming into force of the scheme.\n\nThe concept that lands vest in the local autharity when the intention to make a scheme is notified is against the plain intendment of the Act.\n\nThe object of s. 67 is to set out the method of adjustment of contribution against compensation receivable by an owner of land.\n\nBy that :; cction the difference between the total value of the plots included in the final scheme with all the buildings and works thereon allotted to a person and the total value of the original plot with all the buildings nd works thereon must be estimated on the basis of the market~ value at the date of the declaration of intention to make a scheme, and the difference between the two must be adjuoted towards contribution payable by the owner of the plot included 1n the scheme.\n\nIn other words, s. 67 provides that the difference between the market value of the plot with all the buildings and works thereon at the date of the declaration of intention to mae a scheme and the market value of the plot as reconstituted on the same date and without reference to the improvements contemphltcd in the scheme is to be the compensation due to the owner.\n\nSection 71 which is a corollary to s. 67 provides, inter a/ia, that if the owner of the original land is not allotted a plot at alL he shall be paid the value of the original plot at the date of the declaration of intention to make a scheme.\n\nThe question that falls then to be considered is whether the scheme of the Act which provides for adjustment of the market value of land at the date of the declaration of intention of making a scheme against market value of the land which goes to form the reconstituted plot, if any.' specifies a principle for determination of compensation to be given within the meaning of Art. 31 (2).\n\nTl'.'O arguments were urged on behalf or the first respondent-{I) that the Act specifies no principles on which the compensation is to be determined and given: and (2) that the scheme for recompense for loss is not a scheme providing for compensation. It is true that under the Act the market value of the land at the date of declaration of intention to make a scheme determines the amount to be ad.justed, and that is the guiding rule in respect of all lands covered by the scheme.\n\nThe High Court was, in our judgment, right in holding that enactment of a rule determining payment or adjustment of price of Jane\\ of which the owner was deprived by the scheme estimated on the market value on the date of declaration of the intention to make a scheme amounted to specification of a principle of compensation within the meaning of Art. 31 (2).\n\nSpecification of principles means la yin a down general guiding rules applicable to all persons or tranactions governed thereby.\n\nUnder the Land Acquisition Act compensation is determined on the basis of \"market value\" of the land on the date of the notification under s. 4(1) of that Act.\n\nThat is a\n\nspecification of°principle. Compensation determined on the basis of market value prevailing on a date anterior to the date of extinction of interest is still determined 011 a principle specified~ Whether an owner of land is given a reconstituted plot or not, the rule for determining what is to be given as recompense remains t~ same.\n\nJt is a principle applicable to all cases in which by vu:iue of th.e operation of te Town Planning Act a person is depnved of his land whether m whole or in part.\n\nOn the second branch of the argument it was urged that a provision for giving the value of land, not on the date of extinction of interest of the owner, but on the footing of the value prevailing at the date of the declaration of the intention to make a scheme, is not a provision for payment of compensation.\n\nWith special reference to the facts of the present case, it was said, thar whereas the declaration of intention to make a scheme was made in 1927, the final scheme was published in 1957, and a provision for payment of market value prevailing in the year 1927 is not a provision for compensation. It is perhaps right to say that compensation cases should not be allowed to drag on for a long time, because then the compensation paid has no relevance to the exact point of time when the extinction actually takes place. But the validity of an Act cannot ordinarily be judged in the light of the facts in a given case.\n\nIn support of the argument that the value of land determined by reference to a date far removed from the date on which the title of the land is extinguished, though determined according to a: guiding rule, is not compensation, because it is not a just equivalent of the land expropriated, strong reliance was placed upon certain observations made by this Court in P. Va; ravelu M uda/iar' s case(') and in the Metal Corporation of India Ltd.'s case(2 ). If the argument that for compulsory acquisition of property an owner is by the Constitution guaranteed a \"just equivalent\" of the property of which he is deprived at the date of acquisition, the plea that what is provided as compensation by ss. 67 and 71 as the value to be adjusted against the amount of contribution, if any, infringes the guarantee o_f Art. 31 (2), would be unassailable.\n\nThe argument raised by counsel for the first respondent raises a question of importance as to the true effect of Art. 31 of the Constitution and requires careful consideration in the light of the historical development of the principles governing payment of compensation by the State for compulsory acquisition of property.\n\nSection 299 of the Government of India Act, 1935, insofar as it is material, provided :-\n\n\"(!) No person shall be deprived of his property save by authority of law.\n\n(I) [1965] l S.C.R. 614.\n\n(2) [1967]1S.C.R.255.\n\nt lf'\n\n(2) Neitherthe Federal or a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest in, or in any company owning, any commercial or industrial undertaking, unless the law provides for the payment of compensation for the property acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, it is to be determined.\"\n\nArticle 31 as originally enacted in the Constitution was substantially in the same terms as s. 299.\n\nClause (1) of Art. 31 was enacted verbatim in the same terms as cl. ( 1) of s 299.\n\nClause\n\n(2) of Art. 31 reproduced with some variation the principle of s. 299(2). It was thereby enacted :\n\n\"No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any Jaw authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compen.a\n\ntion is to be determined and given.\n\nShortly after the coming into force of the Constitution, disputes were raised about the validity of laws which abolished the Zamindari rights of landholders in the State of Bihar. In Kameshwar Singh v. State of Bihar(') the Patna High Court held that the Bihar Land Reforms Act, 1951, contravened Art. 14 in that it accorded differential treatment to landowners in the matter of compensation.\n\nSimilar challenge raised to the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, was rejected\n\nby the High Court of Allahabad: Surya Pal v. State of U.P.(').\n\nA group of petitions challenging the validity of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act 1951 was moved in this Court: Visheswar v. State of Madhya Pradesh('), but before these petitions could be disposed of, the Constitution (First Amendment) Act, 1951, was enacted with a view to eliminate all litigation.challenging the validity of legislation for the abolition of proprietary and intermediary interests in agricultural lands on the ground of contravention of the fundamental rights contained in Part m of the Constitution.\n\nTo effectuate this purpose, Art. 3 lA was incorporated in the\n\n(I) 1.L.R. 3QPat. 454.\n\n(2) l.L.R. [1952] 2 All. 46.\n\n(3) [19521 S.C.R. 1020.\n\nConstitution with retrospective effect, and Art. 3!B and the Ninth Schedule were added placing certain Acts and Regulations beyond the challenge that they were inconsistent with, or took away or abridged any of the rights conferred by any provision of Part III. But the amendments made by the Constitution (First Amendment) Act were inadequate to deal with questions relating to payment of compensation to an owner of property (not covered by legislation falling within Arts. 3 I A and 31 B) who was deprived of it by compulsory acquisition.\n\nTwo cases decided by this Court in the month of December 1953 require to be noticed : In Mrs. Bela Banerjee's case(') validity of the West Bengal Land Development and Planning Act, J 948, which was enacted primarily for acquisition of land for setting migrants from East Bengal on account of communal disturbances, fell to be determined.\n\nCompensation payable for compulsory aquisition of land needed for fhe purposes specified was under the Act was not to exceed the market value of the land on December 31, 1946. The Calcutta High Court declared the provisions of s. 8 ultra vires, and this Court confirmed that decision. It was observed by this Court that Entry 42 of List Ill of the Seventh Schedule conferred on the Legislature the discretionary power of laying down the principles which govern the detennination of the amount to be given to the owner of the property acquired and Art. 31 ( 2) required that such principles must ensure that what is determined as payable is compensation, that is, a just equivalent of what the owner has been deprived.\n\nJn tldiverin~ the jud,!'ment of the Court Patanjali Sastri, C.J. observed :\n\n\"While it is true that the legislature is given the discretionary power of laying down the principles which should govern the determination of the amount to be given to the owner for the property appropriated, such principles must ensure that what is determined as payable must be compensation, that is, a just equivalent of what the owner has been deprived of.\n\nWithin the limits of this basic requirement of full indemnification of the expropriated owner, the Constitution allows free play to the legislative judgment as to what principles should guide the determination of the amount payable.\n\nWhether such priciples take into account all the elements which make up the true value of the property appropriated and exclude matters which are to be neglected, is a justiciable issue to be adjudicated by the Court.\" The other case decided on December 17 1963 but not unanimously, was the State of We.vt Bengal v. Subodh Gopal Bose arvl OrheH('). In that case it was held by a majority of the Court -----\n\n(I) [1954] S.C.R. 558.\n\n(2) [19541 S.C.R. 587.\n\nthat Art. 31 protects the right to property by defiing !imitations on the power of the State to lake away property without the consent of the owner : that clauses ( l) and (2) of Art. 31 are not mutually exclusive in scope and content, but should be read together and understood as dealing with the same subject, namdy,\n\nthe protection of the right to property by placing limitations on the power of the State to take away the property, the deprivation contemplated by cl. (I) being no other than the acquisition or taking possession of the property referred to in cl. (2) : and that the words \"taking of .... possession or. ... acquisition\" in Art. 31 (2). and the words \"acquisition or requisitioning\" in Entry 33 of List 1 aHJ Entry 36 of List ll as also the words \"acquired or requi•itioned\" in Entry 42 of List 11!. are different expressions connoting the same concept and instances of different kinds of deprivation of property within the meaning of Art. 31 ( l) of the Constitution.\n\nThe result of the two .decbions was to declare that els. (I) and (2 J dealt with the States' power of, what the American lawyers call, eminent domain: that powe;· could only be exercised by giving a just equivalent of what the owner has been deprived; and that whether the law made in exercise of power under Entry 42 of List Ill laid down principles which took into account the elements which made up the true value of the property appropriated. and excluded such matters which are to be neglected, was a justiciable issue.\n\nThe power to legislate for compulsory acquisition of property was originally distributed under three entries.\n\nEntry 33 List !- \"Acquisition or requisitioning of property for the purposes of the\n\nUnion\": Entry 36 of List 11-\"Acquisition or requisitioning of property, except for the purposes of the Union, subject to the pro.\n\nvisions of Entry 42 of List lll\"; and Entry 42 of List IIl-\"Prin- :iples on which compensation for property acquired or requisitioned for the purposes of the Union or of a State or for anv other public purpose is to be determined, and the form and the manner in which such compensation is to be given\". By cl. (2) of Art. 31 exercise of the power to legislate for' compulsory acquisition of property was subject to the condition that the law for compulsory acquisition for public purposes either fixed the amount of the compensation or specified the principles on which. and the manner in which the compensation was to be. determined and given.\n\nThe expression \"compensation\" according to this Court in~ Mr.,.\n\nBela Baneriee's case(') meant a just equivalent or full indemnificatfon of the exproprited owne~. and the expression \"deprived\" had the same connotation as takmg possession of or acquisition.\n\nAccr?i.ng to Su?od~ Gop.al's case(' l. the law providing for acqms1hon or extmction of rnterest of pnvate owners in properties\n\n(1) [19541S.C.R.558.\n\n(2) [19541 S.C.R. 587.\n\nnot governed by Art. 3 lA and Art. 3 lB read with the Ninth A Schedule, was liable to be struck down unless the law provided for payment to the expropriated owner compensation which was a just equivalent.\n\nThe two cases raised more problems than they solved.\n\nThe Court did not indicate the meaning of the expression \"just equivalent\", nor the date with reference to which the just equivalent was referable.\n\nIt was also not stated whether compensation was to be the \"market value\" determined on principles set out in the Land Acquisition Act inclusive of the potential value as decided by the Judicial Committee in Raja Vyricherla Narayana Gajapatiraju v. The Revenue Divisional Officer('), or the value of mere existing advantages, apart from the potentialities was to be given.\n\nIt was easier to state what was not a \"just equivalent\" than to define what the \"just equivalent\" was. The decisions did not indicate the limits on the power of the State to fix by Jaw the amount of compensation, which by the express words used in Art.\n\n31 ( 2) the Legislature possessed.\n\nBot according to the judgment in Mrs. Bela Banerjee's case(') the principles specified by the .D Legislature for determining compensation were open to judicial review. The Court in effect decided that a statute was liable to be struck down as infringing a guaranteed fundamental right on the ground that the compensation provided thereby was inadequate.\n\nIt n.eeds to be emphasized that compensation payable for compulsory deprivation of property is not by the application of any principles,' determinable as a precise sum; and by calling it just or fair equivalent, no definiteness can be attached thereto. Rules enunciated by the Courts for determining compensation for compulsory acquisition under the Land Acquisition Act vary according to the nature of the land acquired. For properties which are not marketable. commodities, such as lands buildings and incoI'- poreal rights, valuation has to be made on the application of different rules.\n\nPrinciple of capitalisation of net rent at the current market rate on guilt-edged securities, principle of reinstatement, principle of determination of original value less depreciation, determination of brealc-up value in certain types of property which have outgrown their utility, and a host of other so-called principles are employed for determination of compensation payable for acquisition of lands. houses, incorporeal rights, etc. In determining compensation payable under the Land Acquisition Act, special adaptability to schemes of development and potentialties. but not the urgent need of the acquiror and the disinclination of the vendor, have to be taken into account.\n\nThe Land Acquisition Act provides for determination of compensation by\n\n(1) L.R. 66 I.A. 104.\n\n(2) [!954! S.C.R. 558.\n\nreference to the market value subject to certain matters being tak.en into account and some others being excluded as set out jn ss. 23 and 24 of that Act. The rules relating to determination of value in regard to the agricultural and non-agricultural lands, house-sites, buildings, machinery and other properties, greatly vary and the value in respect of the same item of property by the application of different rules may lead to vast disparities.\n\nRight to compensation, in the view of this Court, was intended by the Constitution to be a right to a just equivalent of the property of which a person was deprived. But the just equivalent was not capable of precise determination by the application of any recognized rules.\n\nThe decisions of this Court in the two cases-Mrs. Bela Banerjee's case(') and Subodh Gopal Bose's case(') were therefore likely to give rise to formidable problems, when the principles specified by the Legislature as well as the amounts determined by the application of those principles, were declared justiciable. By qualifying \"equivalent\" by the adjective \"just'', the enquiry was made more controversial; and apart from the practical difficulties, the law declared by this Court also placed serious obstacles in giving effect to the directive principles of State policy incorporated in Art. 39.\n\nThe Constitution was, in that state of the law declared by this Court, amended by the Constitution (Fourth Amendment) Act, 1955, which came into force on April 27, 1955. Thereby Clause\n\n(2) of Art. 31 was substituted by new els.\n\n(2) and\n\n(2A).\n\nArticle 3 IA was amended with retrospective effect; seven more Acts were added to the Ninth Schedule including the West Bengal Land Development and Planning Act, 1948, of which s. 8 was declared ultra vires by this Court in Subodh Gopal Bose's case('), and certain consequential provisions were made by substitution of an amended Art. 305 in place of the original Art. 305.\n\nThe principal effect of this amendment, in so far as that is relevant in this ap]>eal, was to snap the link which, according to this Court, existed between els.\n\n(1) and (2)-that was achieved by enacting cl. ( 2A) ; greater clarity was secured by enacting in\n\ncl. (2) that property shall be compulsorily acquired only for a public purpose, and by authority of law which provides for compensat!on: and either .fixes the amount of compensation or specifies !he pnnctples n which ll?d the manner in which, compensation 1s to.~. determmed and given; ll?d that !he law for acquisition or reqms1tion shall not be called m questmn in any court on the ground that the compensation provided thereby is not adequate.\n\nBy the amendment made in Art. 31 A oertain classes of statutes were placed with retrospective effect outside the purview of attack\n\n(I) [1954 S.C.R. 558.\n\n(2) [1954) S.C.R, 587.\n\nbefore the Courts on the ground of infringement of the fundamental rights under Art. 14, 19 and 31, and by the addition of certain Acts in the Ninth Schedule a challenge to those Acts that they infringed any fundamental rights in Part III could not be entertained.\n\nBut the amendments made in Art. 31 were not given any retrospective operation. The result was that in cases where acquisition was made pursuant to the statutes enacted before April 27, 1955, the law declared in Mrs. Bela Banerjee's case(') and Subodh Gopal Bose's case(') continued to apply.\n\nln State of Madi<as v. D. Namasivaya Mudaliar and Others(\") this Court held that the Madras Lignite (Acquisition of Land) Act 1953, which came into force on August 20, 1953 in so far as it purported to provide for award of compensation for compulsory acquisition of land, which was not to include any rise . in value between a fixed date and the date of issue of the notification under s. 4( 1) of the Land Acquisition Act and denied compensation for the value of non-agricultural improvements since that fixed date, was invalid as infringing the guarantee under Art. 31(2) of the Constitution before it was amended.\n\nIn N. B.\n\nJeejeebhoy's case(') this Court held that ascertainment of compensation on the basis of the value of the lands acquired as on January l, 1948, and not as on the date on which the notification under s. 4 of the Land Acquisition Act was issued under the provisions of the Land Acquisition !Bombay Amendment) Act, 1948, was arbitrary and violated s. 299(2) of the Government of India Act, 1935. relating to compensation.\n\nIn N. B. Jeejeebhoy's case( 4 ) the Court was dealing with a pre-Constitution statute and it was held that the principle on which compensation was to be paid under s. 299(2) of the Government of India Act, 1935. and Art. 31 (2) of the Constitution, were the same, and a different interpretation giving a more restricted meaning to s. 299(2) of the Government of India Act, 1935. could not be given.\n\nIn Union of India v. Kamlabai Harjiwandas Pareskh and others(\") it was again held by this Court that compensation admissible under the Requisitioning and Acquisition of Immovable Property Act, 1952, enacted on March 14, 1952, at the market value of the property at the date of acquisition or twice the market value of the property at the time of requisitioning of that property under r. 75-A(l) of the Defence of India Rules, whichever was less, was void as infringing Art. 31 (2) of the Constitution.\n\nThese three cases were decided, following the principle of Mrs. Bela 'Banerjee's case('). in respect of the Acts enacted before the Constitution (Fourth Amendment) Act, 1955.\n\n(I) [1964] S.C.R. 558\n\n\n(5\\ [1968] I S.C.R.463.\n\n(2) [l954]S.C.R. 587.\n\n(4) rt965] I S.C.R. 636.\n\n.- A Counsel for the respondent urged that the arnendinent to the Constitution has by the (Fourth Amendment) Act made no substantial difference in the concept of compensation as a just equivalent or just recompense for the property of which the owner is deprived, and any scheme or principle of payment of compensation to a person deprived of property which does not adequately a compensate him for the Joss of property by awarding to him a just recompense at the date of expropriation must be deemed void.\n\nBefore considering this part of the argument, it is necessary to refer to one other Constitutional Amendment. By the Constitution (Seventh Amendment) Act, 1956, which came into force on November 1, 1956, Entries 33 of List I and 36 of List II were deleted from the Seventh Schedule and Entry 42 of List III was amended and now reads--\"Acquisition and requisitioning of property\".\n\nThe effect of that amendment is that the power of acquisition and requisitioning of property falls in the concurrent list and it makes no reference to the principles on which compensation for acquisition or requisitioning is to be determined.\n\nReverting to the amendment made in cl. (2) of Art. 31 by the Constitution (Fourth Amendment) Act, 1955, it is clear that adequacy of compensation fixed by the Legislature or awarded according to the principles specified by the legislature for determination is not justiciable. It clearly follows from the terms of E Art. 31 ( 2) as amended that the amount of compensation payable, if fixed by the Legislature, is not justiciable, because the challenge in such a case, apart from a plea of abuse of legislative power, would be only _a challenge to the adequacy of compensation. If compensation fixed by the Legislature-and by the use of the expression \"compensation\" we mean what the Legislature justly regards as proper and fair recompense for compulsory expropria-\n\n. F tion of property and not something which by abuse of legislative power though called compensation is not a recompense at all or is something illusory-is not justiciable, on the plea that it is not\n\na just equivalent of the property compulsorily acquired, is it open to the Courts to enter upon an enquiry whether the principles which are specified by the Legislature for determining compen- G sation do not award to the expropriated owner a just equivalent ?\n\nIn our view, such an enquiry is not open to the Courts under the statutes enacted after the amendments made in the Constitution by the Constitution (Fourth Amendment) Act. If the quantum . of compensation fixed by the Legislature is not liable to be canvassed before the Court on the ground that it is not a just equiva- H lent, the principles specified for determination of compensation will also not be open to challenge on the plea that the compensation determined by the application of those principles is not a:\n\njust equivalent.\n\nThe right declared by the _Constitution guaran- L 7 Sup CI/69-5 '\n\ntees that compensation shall be given before a person is compulsorily expropriated of his property for a public purpose. What is\n\nfix~ as compensation by statute, or by the' application of principles specified for determination of compensation is guaranteed : it does not mean however that something fixed or determined by the application of specified principles which is illusory or can in no sense be regarded as compensation must be upheld by the Courts, for, to do so, would be to grant a charter of arbitrariness, and permit a device to defeat the constitutional guarantee. But compensation fixed or d.termined on principles specified by the Legislature cannot be permitted to be challenged on the somewhat indefinite plea that it is not a just or fair equivalent. Principles may be challenged on the ground that they are irrelevant to the determination of compensation, but not on the plea that what is awarded as a result of the application of those principles is not just or fair compensation.\n\nA challenge to a statute that the principles specified by it do not award a just equivalent will be in clear violation of the constitutional declaration that inadequacy of compensation provided is not justiciable.\n\nThe true effect of the amended Art. 31 ( 2) fell to be detr mined for the first time before this Court in P. Vajravelu Mudaliar's case('). In that case lands belonging to a person were notified for acquisition for the purpose of housing schemes and proceedings in respect of compensation payable to him in accordance with the provisions of the Land Acquisition (Madras Amendment) Act. 1961, were pending. The owner challenged the vires of the Land Acquisition (Madras Amendment) Act, 1961, on the ground that .it infringed the fundamental rights under Arts. 14, 19 and 31 (2) of the Constitution.\n\nThe Act made provisions which departed from the Land Acquisition Act, 1894, in determining compensation in three respects:' ( l) compensation was to be determined on the basis of average market value of the land during five years immediately preceding the date of the notification under s. 4(1) of the Land Acquisition Act or the market value on the date of the notification whichever was less; (2) the solatium payable to the\n\nown.r for compulsory acquisition was to be 5 % of the market value; and (3) that the owner was not to get any compensation for the suitability of the land for use other than the use to which it was put on the date of publication of the notification i.e. potentiality of the land was to be discarded. This Court held that in making this three-fold modification in the application of the Land Acquisition Act for determining compensation payable the statute did not infringe the guarantee contained in Art. 31 (2). It only sneciti.ed certain principles for determination of compensation.\n\nThose principles may result in inadequacy of compensation, but did not constitute fraud on power and therefore the Amending\n\n(ll [1965] I S.C.R. 614.\n\nAct did not offered Art. 31 (2) of the Constitution. But Subba Rao, J., in delivering the judgmenr of the Coun observed :\n\n\"If the definition of \"compensation\" and the question of justiciability are kept distinct; much of the cloud raised will be dispelled.\n\nEven after the amendment, provision for compensation or laying down of the principles for determining the compensation is a condition for the making of a law of acquisition or requisition. . . The fact that Parliament used the same expressions namely, \"compensation\" and \"principles\" as were found in An. 31 before the Amendment is a clear indication that it accepted the meaning given by this Coun to those expression in Mrs. Bela Banerjee's case.\n\nIt follows that a Legislature in making a Jaw of acquisition or requisition shall provide for a just equivalent of what the owner has been deprived of or specify the principles J:or-_Jhe purpose of ascertaining. the \"just equiva- ~<:iiwhat the owner has been depnved of. . . . . . . . . It will be noticed that the law of acquisition or requisition is not wholly immune from scrutiny by the court.\n\nBut what is excluded from the court's jurisdiction is that the . . . . . law cannot be questioned on the ground that the compensation provided by that law is not adequate. It will further be noticed that the clause excluding the jurisdiction of the court also used the word \"compensation\" indicating thereby that what is excluded from the court's jurisdiction is the adequacy of the compensation fixed by the Legislature ..... a more reasonable interpretation is that neither the principles prescribing the \"just equivalent\" nor the \"just equivalent\" can be questioned by the court on the ground of inadequacy of the compensation fixed 1>r arrived at by the working of the principles.\" At p. 629, he summarised the legal position as follows :\n\n\"If the question pertains to the adequacy of compensation, it is not justiciable; if the compensation fixed or the principles evolved for fixing it disclose that the legislature made the law in fraud of powers in the sense we have explained, the question is within the jurisdiction of the Court.\" These observations were, however, not necessary for the purpose of the decision in P. Vajravelu Mudaliar's case('). -The Court held that. e Amending Act did in fact eecify principles for ascertaunng the value of thi: property acquired and the principles were not irrelevant in the detennination of' compensation;\n\n(I) (18651 I S.C.R. 614.\n\nif there was inadequacy in the compensation awarded by the application of those principles it was not open to question in view of the express provision made in the last clause of Art. 31 (2).\n\nIn our judgment. the observation made by the Court that Art. 31 ( 2) as amended means that \"neither the principles prescribing the 'just equivalent' nor the 'just equivalent' can be questioned by the Courts on the ground of inadequacy of the compensation\n\nfixed or arrived at by the working of the principles\" needs to be clarified. If bv that observation it is intended that the attack on the principles specified for determining compensation is excluded only when it is founded on a plea of inadequacy of compensation. a restricted meaning is given to Art. 31 (2) which practically nullifies the amendment.\n\nWhatever may have been the meaning of the expression \"compensation\" under the unamended article 31 ( 2), when the Parliament has expressly enacted under the amended clause that \"no such law shall be called in question in anv court on the ground that the compensation provided by that Jaw is not adequate\". it was intended clearly to exclude from the jurisdiction of the Court an enquiry that what is fixed or determined by the application of the principles specified as compensation does not award to the owner a just equivalent of what he is de prived.\n\nAny other view is contrary to the plain words of the amendment: it is also contrary to the ultimate decision of the Court in P. Vajrave/11 Mudaliar's case(') that the principles specified by the Court which did not award what may be called a just equivalent were still not open to question. ·\n\nIn our view, Art. 31 (2) as amended is clear in its purport.\n\nIf what is fixed or is determined by the application of specified principles is compensation for compulsory acquisition of property. the Courts cannot be invited to determine whether it is a just equivalent of the value of the property expropriated. In P.\n\nVajrave/11 Muda/iar's case(') the Court held that the principles bid down by the impugned statute were not open to question.\n\nThat was sufficient for the purpose of the decision of the case and the other observations were not necessaiy for deciding that case. and cannot be regarded as a bindinir decision.\n\nIn the Metal Corporation Ltd.'s case(') the facts were that the Metal Corporation of India (Acquisition of Undertakin~) Act. 1965. was enacted for acquiring in the public interest. the undertaking of the Metal Corporation of India. The Act provided that the Corporation was to vest in the Central Government on the commencement of the Act: and that in the absence of an H agreement between thP. Government and the Corporation, com-\n\n(tl [l 965] I S.C.R. 614.\n\n\nF .•\n\npensation payable to the Corporation was to be an amount equ2l to the sum total of the value of the properties and assets of the Corporation on the date of the commencement of the Act calculated in accordance with the provisions of Paragraph II of tire Schedule to the Act, less the liabilities on the said date, calculated in accordance with the provisions of Paragraph III of the Schedule.\n\nOne of the clauses laying down principles of compensation, vi~ .. clause ( b) of Paragraph II was in two parts. The first part provided for the valuation of plant, machinery or other equipment which had not been worked or used and was in good condition, and the second part provided for the valuation of any other plant, machinery or equipment. The former, according to the Schedule, had to be valued at the actual cost incurred by the Corporation in acquiring them, and the latter at the written down value determin.d in accordance with the provisions of the Income-tax Act. 1961.\n\nThe validity of the Act was challenged, and this Court held that the Act contravened Art. 31 (2) of the Constitution and was therefor.~ void.\n\nThe judgment of the Division Bench is open to review by this Court.\n\nThe Court after setting out the principles laid down by this Court in Mrs. Bela Banerjee's case('); D. Namasivaya Mudaliar's casee) and N. B. Jeejeebhoy's case ( 3 ) observed at p. 264 :\n\n\" .... the relevant aspect of the legal position evolved by the said decisions may be stated thus : Under Art. 31 (2) of the Constitution, no property shall be compulsorily acquired except under a Jaw which provides for compensation for the property acquired and either ; ixes the amount of compensation or specifies the principles on which, and the manner in which, compensation is to be determined and givon. The second limb of the provision says that no such law shall be called in question in any court on the ground that the compensation provided by the law is not adequate. If the two concepts, namely, \"compensation\" and the jurisdiction of the court are kept apart, the meaning of the provisions is clear.\n\nThe law to justify itself has to provide for the payment of a \"just equivalent\" to the land acquired or lav down principles which will lead to that result. If the' princiles laid down are r~Jevant to the fixation of compensation and are not arbitrary, the adequacy of th.~ resultant product cannot be questioned in a court of Jaw.\n\nThe validity of the principles, judcrcd by the above tests falls within judicial scrutiny, ad if they stand the tests: the adequacy of the product falls outside its jurisdiction.\" ·\n\nII) [1954] S.C.R. 558.\n\n\n(J) [1965} 1 S.C.R. 63G.\n\nThe Court then proceeded to hold that the two principles laid down in cl. (b) of Paragraph II of the Schedule to the Act-\n\n(i) that compensation was to be equal to the cost price in the case of unused machinery in good condition; and (ii) writtendown value as understood in the Income-tax law was to be the value of the used machinery, were irrelevant to the fixation of the value of the machinery as on the date of acquisition.\n\nWe are unable to agree with that part of the judgment. The Parliament had specified the principles for determining compensation of the undertaking of the company. The principles expressly related to the determination of compensation payable in respect of unused machinery in good cQJldition and used machinery.\n\nThe principles were set out avowedly for determination of compensation. The principles were not irrelevant to the determination of compensation and the compensation was not illusory. In our judgment, the Metal Corporation of India Ltd.'s case(1) was wrongly decided and must be overruled.\n\nTurning to the Bombay Town Planning Act, 1955, it was clear that the Legislature has specified principles for determination of compensation which has to be adjusted in determining the amount of contribution. The principle for determination of comsation cannot be said to be irrelevant, nor can the compensation determined be regarded as illusory. Being a principle relating to compensation, in our judgment, it was not liable to be challenged. If what is specified is a principle for determination of compensation, the challenge to that principle on the ground that a just equivalent of what the owner is deprived is not provided is excluded by the plain words of Art. 31 (2) of the Constitution.\n\nIt was urged that in any event the statute which permits the pn?Perty of an owner to be compulsorily acquired by payment of market value at a date which is many years before the date on which the title of the owner is extinguished is unreasonable.\n\nThis Court has, however held in Smt. Sitabati Debi and Anr. v.\n\nState of West Benga/(2 ) that a law made under cl. (2) of Art. 31 is not liable to be challenged on the ground that it imposes unreasonable restrictions upon the right to hold or dispose of pro-· perty within the meaning of Art. 19(1) (f) of the Constitution. In Smt. Sitabati Debi's case(2 ) an owner of land whose property wa'. requisitioned under the West Bengal Land (Requisition and Acquisition) Act, 1948, questioned the validity of the Act by a writ petition filed in the High Court of Calcutta on the plea that it offended Art. 19(1)(f) of the Constitution. This Court unanimously held that the validity of the Act relating to acquisi-\n\n(1) [1967! 1 S.C.R. 255.\n\n\nlion and requisition cannot be questioned on the ground that it offended Art. 19(l)(f) and cannot be decided by the criterion under Art. 19 ( 5). Again the validity of the statute cannot depend upon whether in a given case it operates harshly. If the scheme came into force within a reasonable distance of time from the date on which the declaration of intention to make a scheme was notified, it could not be contended that fixation of compensation according to the scheme of s. 67 per se made the scheme invalid.\n\nThe fact that considerable time has elapsed since the declaration of intention to make a scheme, cannot be a ground for declaring the section ultra vires. It is also contended that in cases where no reconstituted plot is allotted to a person and his land is wholly appropriated for a public purpose in a scheme, the owner would be entitled to the value of the land as prevailing many years before the extinction of interest without the benefit of the steep rise in prices which has taken place all over the country.\n\nBut if s. 71 read with s. 67 lays down a principle of valuation, it cannot be struck down on the ground that because of the exigencies of the scheme, it is not possible to allot a reconstituted plot to an owner of land covered by the scheme.\n\nOur attention was invited to ss. 81 and 84 of the Bombay Town Planning Act, 1955. Section 81 merely provides that the land needed for the purpose of a town planning scheme or development plan shall be deemed to be Jaine! needed for a public purpose within the meaning of the Land Acquisition Act, 1894.\n\nThis provision only declares what is implicit in the scheme of the Act.\n\nSection 84 only contemplates. a special class of cases in which the land which is included in a town planning scheme is needed by the State Government for a public purpose other than that for which it is included in the scheme. In such a case the State Government may make a declaration to that effect and the provisions of the Land Acquisition Act, 1894, as modified by the Schedule apply.\n\nWe are not concerned in this case with any such notification issued by the Government. nor bas it anv relevance to the question in issue. ·\n\nOne more contention which was apparently not raised on behalf of the first respondent before the High Court may be briefly referred to.\n\nCounsel contends that ss. 53 and 67 in any event infringe Art. 14 of the Constitution and were on that account void.\n\nCounsel relies principally upon that part of the judgment in P. Vajravelu Muda/iar's case(') which deals with the infringement of the equality clause of the Constitution by the impugned Madras Act. Counsel submits that it is always open to the State\n\n\nGovernment to 1acquire lands for a public purpose of a local authority and after acquiring the lands to vest them in the local authority. lf that be done, compensation will be payable under the Land Acquisition Act, 1894, but says counsel, when land is acquired for a public purpose of a local authority under the provisions of the Bombay Town Planning Act the compensation which is payable is determined at a rate prevailing many years before the date on which the notification under s. 4 of the Land Acquisition Act is issued.\n\nThe argument is based on no solid foundation. The method of determining compensation in respect of lands which are subject to the town-planning schemes is presnibed in the Town Planning Act.\n\nThere is no option under that Act to acquire the land either under the Land Acquisition Act or under the Town Planning Act.\n\nOnce the draft townplanning scheme is sanctioned, the land becomes su6ject to the provisions .. of the Town Planning Act, and the final town-planning scheme being sanctioned, by statutory operation the title of the various owners is readjusted and the lands needed for a public purpose vest in the local authority.\n\nLand required for any of the purposes of a town-planning scheme cannot be acquired otherwise than under the Act, for it is settled rule of interpret:i:tion of statutes that when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all: Taylor v. Taylor('). Again it cannot be said that because it is possible for the State, if so minded, to acquire lands for a public purpose of a local authority. the statutory effect given to a town-planning scheme results in discrimination between persons similarly circumstanced. In P. Vajravelu Muda!iar's case(\") the Court struck dow1n the acquisition on the ground that when the lands are acquired by the State Government for a housing scheme under the Madras Amending Act. the claimant gets much smaller compensation than the compensation he would get if the land or similar lands were acquired for the same public purpose under the Land Acquisition Act.\n\n1894. It was held that the discrimination between persons whose lands were acquired for housing schemes and those whose land>\n\nwere acquired for other public purposes could not be sustained on any principle of reasonable classification founded on intelli2iblc differentia which had a rational refation to the object sought to be achieved.\n\nOne broad ground of distinction between P. Vajrave/11 Mudaliar's case(') and this case is clear : the acquisition wa' struck down in P. Vajravelu Mudaliar's case(') because th,, State Government could resort to one of the two methods of acquisition-the Land Acquisition Act, 1894, and the Land Acquisition (Madras Amendment) Act. 1961-and no guidance ----- ·-c----··---\n\n(1) [1875] I Ch.D. 426.\n\n(2) [1965] I S.CR. 614.\n\n' E\n\nwas given by the Legislature about the statute which should be resorted to in a given case of acquisition for a housing scheme.\n\nPower to choose could, therefore, be exercised arbitrarily. Under the Bombay Town Planning Act 1955, there is no acquisition by the State Government of land needed for a town-planning scheme.\n\nWhn the Town Planning Scheme comes into operation the land needed by a local authority vests by vitrue of s. 53(a) and that vesting for purposes of the guara.ntee under Art. 31(2) is deemed compulsory acquisition for a public purpose. To lands which are subject to the scheme, the provisions of ss. 53 and 67 apply, -and the compensation is determined only in the manner prescribed by the Act.\n\nThere are therefore two separate provisions, one for acquisition by the State Government, and the other in which the statutory vesting of land operates as acquisition for the purpose of town-planning by the local authority.\n\nThe State Government can acquire the land under the Land Acquisition Act, and the local authority only under the Bombay Town Planning Act.\n\nThere is no option to the local authority to resort to one or the other of the alternative methods which result in acquisition.\n\nThe contention that the provisions of ss. 53 and 67 are invalid on the ground that they deny the equal protection of the laws or .:quality before the laws must, therefore, stand rejected.\n\nThe High Court has apparently .not considered the other arguments which were advanced at the Bar, and has observed that it was not necessary to consider those other contentions raised in the petition.\n\nAs the petition has not been heard by the High Court in .respect of the other contentions which the first respondent may choose to raise, we set aside the order passed by the High Court declaring s. 53 read with s. 67 insofar as it authorised acquisition of land by the local authority under a town-planning scheme, as violative of Art. 31 (2) of the Constitution, and the acquisition of the first respondent's land under the City Wall Improvement Town Planning Scheme No. 5 as invalid.\n\nThe appeal is allowed.\n\nThe case is remanded to the High Court with a direction that it be dealt with and disposed of according to law.\n\nThe order of costs passed by the High Court is set aside.\n\nThere will be no order as to costs in this Court.\n\nR.K.P.S.\n\nAppeal a/lmt ed.", "total_entities": 274, "entities": [{"text": "STATE OF GUJARAT", "label": "PETITIONER", "start_char": 10, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "STATE OF GUJARAT", "offset_not_found": false}}, {"text": "SHANTILAL MANGALDAS & ORS", "label": "RESPONDENT", "start_char": 33, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "SHANTILAL MANGALDAS & ORS", "offset_not_found": false}}, {"text": "January 13, 1969", "label": "DATE", "start_char": 61, "end_char": 77, "source": "ner", "metadata": {"in_sentence": "January 13, 1969\n\n[M. HIDAYATULLAH, C.J.,\n\nJ. C. SHAH,\n\nV. RAMASWAMI,\n\nG. K. MITTER AND A. N. GROVER, JJ.J\n\nBombay Town Planning Act (27 of 1955), ss."}}, {"text": "M. HIDAYATULLAH, C.J.", "label": "JUDGE", "start_char": 80, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 107, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 117, "end_char": 129, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "G. K. MITTER", "label": "JUDGE", "start_char": 132, "end_char": 144, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ", "label": "JUDGE", "start_char": 149, "end_char": 165, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Bombay Town Planning Act", "label": "STATUTE", "start_char": 169, "end_char": 193, "source": "regex", "metadata": {}}, {"text": "ss. 53 and 61", "label": "PROVISION", "start_char": 208, "end_char": 221, "source": "regex", "metadata": {"linked_statute_text": "Bombay Town Planning Act", "statute": "Bombay Town Planning Act"}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 335, "end_char": 345, "source": "regex", "metadata": {"linked_statute_text": "Bombay Town Planning Act", "statute": "Bombay Town Planning Act"}}, {"text": "Art. 31(5)", "label": "PROVISION", "start_char": 434, "end_char": 444, "source": "regex", "metadata": {"linked_statute_text": "Bombay Town Planning Act", "statute": "Bombay Town Planning Act"}}, {"text": "Act was repealed by the Bombay Town Planning Act", "label": "STATUTE", "start_char": 1036, "end_char": 1084, "source": "regex", "metadata": {}}, {"text": "August 1, 1955", "label": "DATE", "start_char": 1133, "end_char": 1147, "source": "ner", "metadata": {"in_sentence": "1955 which received the assent of President on August 1, 1955, and came into force on April 1, 1957."}}, {"text": "April 1, 1957", "label": "DATE", "start_char": 1172, "end_char": 1185, "source": "ner", "metadata": {"in_sentence": "1955 which received the assent of President on August 1, 1955, and came into force on April 1, 1957."}}, {"text": "s. 90(2)", "label": "PROVISION", "start_char": 1191, "end_char": 1199, "source": "regex", "metadata": {"linked_statute_text": "Act was repealed by the Bombay Town Planning Act", "statute": "Act was repealed by the Bombay Town Planning Act"}}, {"text": "s. 53(a)", "label": "PROVISION", "start_char": 1477, "end_char": 1485, "source": "regex", "metadata": {"linked_statute_text": "Act was repealed by the Bombay Town Planning Act", "statute": "Act was repealed by the Bombay Town Planning Act"}}, {"text": "Section 67", "label": "PROVISION", "start_char": 1993, "end_char": 2003, "source": "regex", "metadata": {"linked_statute_text": "Act was repealed by the Bombay Town Planning Act", "statute": "Act was repealed by the Bombay Town Planning Act"}}, {"text": "Section 71", "label": "PROVISION", "start_char": 2356, "end_char": 2366, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 67", "label": "PROVISION", "start_char": 2392, "end_char": 2397, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 2817, "end_char": 2824, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 53 and 67", "label": "PROVISION", "start_char": 2874, "end_char": 2887, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 3068, "end_char": 3078, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 3159, "end_char": 3166, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 3297, "end_char": 3304, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 53(a)", "label": "PROVISION", "start_char": 3356, "end_char": 3369, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 4478, "end_char": 4488, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 6164, "end_char": 6174, "source": "regex", "metadata": {"statute": null}}, {"text": "Bela Banerjee'.•", "label": "OTHER_PERSON", "start_char": 6521, "end_char": 6537, "source": "ner", "metadata": {"in_sentence": "This Court in Bela Banerjee'.• case [1954] S.C.R. 558 and Subodh Gopa/'s case,\n\nfl 954] S.C.R. 587.", "canonical_name": "Bela Banerjee'.•"}}, {"text": "Subodh Gopa/", "label": "OTHER_PERSON", "start_char": 6565, "end_char": 6577, "source": "ner", "metadata": {"in_sentence": "This Court in Bela Banerjee'.• case [1954] S.C.R. 558 and Subodh Gopa/'s case,\n\nfl 954] S.C.R. 587.", "canonical_name": "Subodh Gopal Bose"}}, {"text": "after the Fourth Amendment Act", "label": "STATUTE", "start_char": 6664, "end_char": 6694, "source": "regex", "metadata": {}}, {"text": "Parliament", "label": "ORG", "start_char": 7980, "end_char": 7990, "source": "ner", "metadata": {"in_sentence": "Union of India v. Metal Corporation of India Ltd.\n\n[1967] I S.C.R. 255 overruled, because (i) Parliament had specified in the Metal Corporation of India (Acquisition of Undertaking) Act, 1965, the principles for determining compensation of the undertaking, (ii) those principles expressly related to the determination of compensation payable, (iii) they were not irrelevant to the determination of compensation, and (iv) the compensation was not illusory."}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 8636, "end_char": 8646, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(1 )(f)", "label": "PROVISION", "start_char": 8705, "end_char": 8719, "source": "regex", "metadata": {"statute": null}}, {"text": "[1967]\n\n2 S.C.R. 749", "label": "CASE_CITATION", "start_char": 8774, "end_char": 8794, "source": "regex", "metadata": {}}, {"text": "s. 67", "label": "PROVISION", "start_char": 9114, "end_char": 9119, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 71", "label": "PROVISION", "start_char": 9271, "end_char": 9276, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 67", "label": "PROVISION", "start_char": 9287, "end_char": 9292, "source": "regex", "metadata": {"statute": null}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 9908, "end_char": 9934, "source": "regex", "metadata": {}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 10161, "end_char": 10168, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "S. Bindra", "label": "LAWYER", "start_char": 10431, "end_char": 10440, "source": "ner", "metadata": {"in_sentence": "N. S. Bindra, S. K. Dholakia and S. P. Nayar, for the appellant."}}, {"text": "S. K. Dholakia", "label": "LAWYER", "start_char": 10442, "end_char": 10456, "source": "ner", "metadata": {"in_sentence": "N. S. Bindra, S. K. Dholakia and S. P. Nayar, for the appellant."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 10461, "end_char": 10472, "source": "ner", "metadata": {"in_sentence": "N. S. Bindra, S. K. Dholakia and S. P. Nayar, for the appellant."}}, {"text": "M. C. Chagla", "label": "LAWYER", "start_char": 10494, "end_char": 10506, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla and /. N. Shroff, for respondent Nos."}}, {"text": "N. Shroff", "label": "LAWYER", "start_char": 10514, "end_char": 10523, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla and /. N. Shroff, for respondent Nos."}}, {"text": "HIDAYATULLAH", "label": "JUDGE", "start_char": 10554, "end_char": 10566, "source": "ner", "metadata": {"in_sentence": "HIDAYATULLAH, C. J., delivered a Separate Opinion.", "canonical_name": "HIDAYATULLAH"}}, {"text": "SHAH", "label": "JUDGE", "start_char": 10622, "end_char": 10626, "source": "ner", "metadata": {"in_sentence": "The Judgment of SHAH, RAMASWAMI, MITTER and GROVER JJ was delivered by SHAH, J. ' .", "canonical_name": "SHAH"}}, {"text": "RAMASWAMI", "label": "JUDGE", "start_char": 10628, "end_char": 10637, "source": "ner", "metadata": {"in_sentence": "The Judgment of SHAH, RAMASWAMI, MITTER and GROVER JJ was delivered by SHAH, J. ' .", "canonical_name": "V. RAMASWAMI"}}, {"text": "MITTER", "label": "JUDGE", "start_char": 10639, "end_char": 10645, "source": "ner", "metadata": {"in_sentence": "The Judgment of SHAH, RAMASWAMI, MITTER and GROVER JJ was delivered by SHAH, J. ' ."}}, {"text": "GROVER", "label": "JUDGE", "start_char": 10650, "end_char": 10656, "source": "ner", "metadata": {"in_sentence": "The Judgment of SHAH, RAMASWAMI, MITTER and GROVER JJ was delivered by SHAH, J. ' ."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 10691, "end_char": 10703, "source": "ner", "metadata": {"in_sentence": "Hidayatullah,\n\nC.J.\n\nI have read the weighty judgment proposed to be delivered by my brother Shah and I find myself so much in agreement with it that I consider it unnecessary for me to express myself.", "canonical_name": "HIDAYATULLAH"}}, {"text": "Shah", "label": "JUDGE", "start_char": 10784, "end_char": 10788, "source": "ner", "metadata": {"in_sentence": "Hidayatullah,\n\nC.J.\n\nI have read the weighty judgment proposed to be delivered by my brother Shah and I find myself so much in agreement with it that I consider it unnecessary for me to express myself.", "canonical_name": "SHAH"}}, {"text": "P. Vajravelu Mudaliar", "label": "OTHER_PERSON", "start_char": 10979, "end_char": 11000, "source": "ner", "metadata": {"in_sentence": "However, it is proper for me to say a few words in explanation since I was a party to P. Vajravelu Mudaliar's case(') and the obiter pronouncement of some opinions there.", "canonical_name": "P. Vajravelu Mudaliar"}}, {"text": "N. B. Jeejeebhoy", "label": "OTHER_PERSON", "start_char": 11089, "end_char": 11105, "source": "ner", "metadata": {"in_sentence": "That case was heard with N. B. Jeejeebhoy's case(').", "canonical_name": "N. B.\n\nJeejeebhoy"}}, {"text": "P. Vajravelu", "label": "OTHER_PERSON", "start_char": 12128, "end_char": 12140, "source": "ner", "metadata": {"in_sentence": "I am in agreement that the remarks in P. Vajravelu's case(') must be treated as obiter and not binding on us.", "canonical_name": "P. Vajravelu Mudaliar"}}, {"text": "Shah", "label": "JUDGE", "start_char": 12307, "end_char": 12311, "source": "ner", "metadata": {"in_sentence": "Shah, J.\n\nIn a writ petition field by the first respondent Shantilal Mangaldas the High Court of Gujarat has declared ss.", "canonical_name": "SHAH"}}, {"text": "Shantilal Mangaldas", "label": "RESPONDENT", "start_char": 12366, "end_char": 12385, "source": "ner", "metadata": {"in_sentence": "Shah, J.\n\nIn a writ petition field by the first respondent Shantilal Mangaldas the High Court of Gujarat has declared ss.", "canonical_name": "SHANTILAL MANGALDAS & ORS"}}, {"text": "High Court of Gujarat", "label": "COURT", "start_char": 12390, "end_char": 12411, "source": "ner", "metadata": {"in_sentence": "Shah, J.\n\nIn a writ petition field by the first respondent Shantilal Mangaldas the High Court of Gujarat has declared ss."}}, {"text": "ss. 53 and 67", "label": "PROVISION", "start_char": 12425, "end_char": 12438, "source": "regex", "metadata": {"statute": null}}, {"text": "Borough Municipality Qf Ahmedabad which was a local authority under the Bombay Town Planning Act", "label": "STATUTE", "start_char": 12826, "end_char": 12922, "source": "regex", "metadata": {}}, {"text": "[1965] 1 S.C.R. 614", "label": "CASE_CITATION", "start_char": 13029, "end_char": 13048, "source": "regex", "metadata": {}}, {"text": "Government of Bombay", "label": "ORG", "start_char": 13715, "end_char": 13735, "source": "ner", "metadata": {"in_sentence": "The draft scheme was sanctioned by the Government of Bombay on August 7, 1942."}}, {"text": "August 7, 1942", "label": "DATE", "start_char": 13739, "end_char": 13753, "source": "ner", "metadata": {"in_sentence": "The draft scheme was sanctioned by the Government of Bombay on August 7, 1942."}}, {"text": "August 13, 1942", "label": "DATE", "start_char": 13759, "end_char": 13774, "source": "ner", "metadata": {"in_sentence": "On August 13, 1942, the Government of Bombay appointed an arbitrator under Act 1 of 1915 to decide matters set out in s. 30 of the Act."}}, {"text": "s. 30", "label": "PROVISION", "start_char": 13874, "end_char": 13879, "source": "regex", "metadata": {"linked_statute_text": "Borough Municipality Qf Ahmedabad which was a local authority under the Bombay Town Planning Act", "statute": "Borough Municipality Qf Ahmedabad which was a local authority under the Bombay Town Planning Act"}}, {"text": "s. 90", "label": "PROVISION", "start_char": 14110, "end_char": 14115, "source": "regex", "metadata": {"statute": null}}, {"text": "April l, 1957", "label": "DATE", "start_char": 14176, "end_char": 14189, "source": "ner", "metadata": {"in_sentence": "The Bombay Town Planning Act 1 of 1915 was repealed by s. 90 of the Bombay Town Planning Act 27 of 1955 with effect from April l, 1957."}}, {"text": "s. 90(2)", "label": "PROVISION", "start_char": 14195, "end_char": 14203, "source": "regex", "metadata": {"statute": null}}, {"text": "August 23, 1957", "label": "DATE", "start_char": 14739, "end_char": 14754, "source": "ner", "metadata": {"in_sentence": "On August 23, 1957, the Town Planning Officer informed the first respondent that Rs."}}, {"text": "State of Bombay", "label": "GPE", "start_char": 15007, "end_char": 15022, "source": "ner", "metadata": {"in_sentence": "The first respondent then filed a petition in the High Court of Gujarat (which bad jurisdiction after reorganization of the State of Bombay) challenging the validity of Act 27 of 1955 and acquisition of plot No."}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 15194, "end_char": 15201, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of Gujarat", "label": "ORG", "start_char": 15261, "end_char": 15282, "source": "ner", "metadata": {"in_sentence": "The scheme was sanctioned by the Government of Gujarat on July 21, 1965, and the final scheme came into operation on September 1, 1965."}}, {"text": "July 21, 1965", "label": "DATE", "start_char": 15286, "end_char": 15299, "source": "ner", "metadata": {"in_sentence": "The scheme was sanctioned by the Government of Gujarat on July 21, 1965, and the final scheme came into operation on September 1, 1965."}}, {"text": "September 1, 1965", "label": "DATE", "start_char": 15345, "end_char": 15362, "source": "ner", "metadata": {"in_sentence": "The scheme was sanctioned by the Government of Gujarat on July 21, 1965, and the final scheme came into operation on September 1, 1965."}}, {"text": "Section 53", "label": "PROVISION", "start_char": 15456, "end_char": 15466, "source": "regex", "metadata": {"statute": null}}, {"text": "section 67", "label": "PROVISION", "start_char": 15477, "end_char": 15487, "source": "regex", "metadata": {"statute": null}}, {"text": "section 90", "label": "PROVISION", "start_char": 15596, "end_char": 15606, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 31", "label": "PROVISION", "start_char": 15666, "end_char": 15676, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Gujarat", "label": "ORG", "start_char": 16029, "end_char": 16045, "source": "ner", "metadata": {"in_sentence": "With certificate granted by the High Court, this appeal is preferred by the State of Gujarat."}}, {"text": "Bombay Legislature", "label": "ORG", "start_char": 17356, "end_char": 17374, "source": "ner", "metadata": {"in_sentence": "The Bombay Legislature enacted Act 1 of 1915 with a view to remedy the situation."}}, {"text": "India", "label": "GPE", "start_char": 18584, "end_char": 18589, "source": "ner", "metadata": {"in_sentence": "A development plan is intended to lay down in advance the manner in which the development and improvement of the entire area within the jurisdiction of the local authority are to be carried out and regulated, with particular reference to-\n\n(a) proposals for desigr.ating the use of the land, for the purposes such as (1) residential, (2) industries\n\n(3) commercial, and ( 4) agricultural;\n\n(b) proposals for designation ofland for public purposes such as parks, play-grounds, recreation grounds, open spaces, schools, markets or medical, public health of physical culture institutions;\n\n( c) proposals for roads and highways;\n\n(d) proposals for the reservation of land for the purpose of the Union, any State, any local authority or any other authority established by Jaw in India; and\n\n(e) such other proposals for public or other purposes as may from time to time be approved by a local authority or directed by the State Government in that behalf."}}, {"text": "Chapter m of Bombay Act", "label": "STATUTE", "start_char": 19052, "end_char": 19075, "source": "regex", "metadata": {}}, {"text": "s. 32", "label": "PROVISION", "start_char": 20928, "end_char": 20933, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 23467, "end_char": 23472, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 53 and 67", "label": "PROVISION", "start_char": 23665, "end_char": 23678, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 53", "label": "PROVISION", "start_char": 23790, "end_char": 23800, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(9)", "label": "PROVISION", "start_char": 24294, "end_char": 24301, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 53", "label": "PROVISION", "start_char": 24479, "end_char": 24484, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 53(a)", "label": "PROVISION", "start_char": 24925, "end_char": 24933, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 65", "label": "PROVISION", "start_char": 26491, "end_char": 26496, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 26872, "end_char": 26877, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 67", "label": "PROVISION", "start_char": 27161, "end_char": 27171, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24", "label": "PROVISION", "start_char": 27717, "end_char": 27727, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 67", "label": "PROVISION", "start_char": 27812, "end_char": 27822, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 71", "label": "PROVISION", "start_char": 28028, "end_char": 28033, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 67", "label": "PROVISION", "start_char": 28052, "end_char": 28057, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 71", "label": "PROVISION", "start_char": 28059, "end_char": 28069, "source": "regex", "metadata": {"statute": null}}, {"text": "section 66", "label": "PROVISION", "start_char": 28215, "end_char": 28225, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 29196, "end_char": 29203, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31(2A)", "label": "PROVISION", "start_char": 29396, "end_char": 29407, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 29500, "end_char": 29510, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31(5)(b)(ii)", "label": "PROVISION", "start_char": 29564, "end_char": 29581, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 67", "label": "PROVISION", "start_char": 30577, "end_char": 30582, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 67", "label": "PROVISION", "start_char": 31073, "end_char": 31078, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 31173, "end_char": 31180, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 31596, "end_char": 31606, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 31751, "end_char": 31758, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 31987, "end_char": 31994, "source": "regex", "metadata": {"statute": null}}, {"text": "Union of India", "label": "RESPONDENT", "start_char": 32321, "end_char": 32335, "source": "ner", "metadata": {"in_sentence": "fhe High Court in\n\ncoming to that conclusion felt itself bound by the observations made in the judgments of this Court n P. Vajravelu Mudaliar v.\n\nThe Special Deputy Collector, Madras('), The State of West Bengal v. Mrs. Bela Banerjee and Others('); N. B. Jeejeebhoy v.\n\nAssistant Collector, Thana Prant, Thana( 3 ); and Union of India\n\nv. Metal e:orporation of India Ltd. and Another(')."}}, {"text": "s. 53(a)", "label": "PROVISION", "start_char": 32548, "end_char": 32556, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 32632, "end_char": 32639, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 67", "label": "PROVISION", "start_char": 32666, "end_char": 32671, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 32805, "end_char": 32812, "source": "regex", "metadata": {"statute": null}}, {"text": "Bindra appearing on behalf of the State of Gujarat contends that Bombay Act", "label": "STATUTE", "start_char": 32843, "end_char": 32918, "source": "regex", "metadata": {}}, {"text": "Art. 31(5)", "label": "PROVISION", "start_char": 33147, "end_char": 33157, "source": "regex", "metadata": {"linked_statute_text": "Bindra appearing on behalf of the State of Gujarat contends that Bombay Act", "statute": "Bindra appearing on behalf of the State of Gujarat contends that Bombay Act"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 33233, "end_char": 33240, "source": "regex", "metadata": {"linked_statute_text": "Bindra appearing on behalf of the State of Gujarat contends that Bombay Act", "statute": "Bindra appearing on behalf of the State of Gujarat contends that Bombay Act"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 33382, "end_char": 33389, "source": "regex", "metadata": {"linked_statute_text": "Bindra appearing on behalf of the State of Gujarat contends that Bombay Act", "statute": "Bindra appearing on behalf of the State of Gujarat contends that Bombay Act"}}, {"text": "Counsel urges that the object of the Town Planning Act", "label": "STATUTE", "start_char": 33429, "end_char": 33483, "source": "regex", "metadata": {}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 33783, "end_char": 33799, "source": "regex", "metadata": {"linked_statute_text": "Counsel urges that the object of the Town Planning Act", "statute": "Counsel urges that the object of the Town Planning Act"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 34536, "end_char": 34543, "source": "regex", "metadata": {"statute": null}}, {"text": "1965] 1 S.C.R. 614", "label": "CASE_CITATION", "start_char": 34709, "end_char": 34727, "source": "regex", "metadata": {}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 38527, "end_char": 38534, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 53(a)", "label": "PROVISION", "start_char": 38674, "end_char": 38682, "source": "regex", "metadata": {"statute": null}}, {"text": "are also unable to agree with counsel for the State that because the object of the Act", "label": "STATUTE", "start_char": 39097, "end_char": 39183, "source": "regex", "metadata": {}}, {"text": "Art. 31(5)(b)(ii)", "label": "PROVISION", "start_char": 39255, "end_char": 39272, "source": "regex", "metadata": {"linked_statute_text": "We are also unable to agree with counsel for the State that because the object of the Act", "statute": "We are also unable to agree with counsel for the State that because the object of the Act"}}, {"text": "Durga Nath Sharma", "label": "OTHER_PERSON", "start_char": 39431, "end_char": 39448, "source": "ner", "metadata": {"in_sentence": "This Court held in Durga Nath Sharma's case(') that the Assam Acquisition of Land for Flood Control and Prevention of Erosion Act 6 of 1955 which provided for the acquisition of land on oaymen t of compensation in accordance with the principles in s. 6 of that Act was a purE)ly exproprietary measure, and being a Jaw for acquisition of land, though for prevention of danger to\n\nGUJARAT V. SHANTJLAL (Shah,/.) 355\n\nlife and property, was not protected by Art."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 39660, "end_char": 39664, "source": "regex", "metadata": {"linked_statute_text": "We are also unable to agree with counsel for the State that because the object of the Act", "statute": "We are also unable to agree with counsel for the State that because the object of the Act"}}, {"text": "Art. 31(5)(b)(ii)", "label": "PROVISION", "start_char": 39868, "end_char": 39885, "source": "regex", "metadata": {"linked_statute_text": "We are also unable to agree with counsel for the State that because the object of the Act", "statute": "We are also unable to agree with counsel for the State that because the object of the Act"}}, {"text": "State of Gujarat", "label": "GPE", "start_char": 41150, "end_char": 41166, "source": "ner", "metadata": {"in_sentence": "But, in our judgment, the contention urged by Mr.\n\nBindra for the State of Gujarat that ss."}}, {"text": "ss. 53 and 67", "label": "PROVISION", "start_char": 41172, "end_char": 41185, "source": "regex", "metadata": {"linked_statute_text": "Acquisition of property for the opening of a public park or for the erection of dams and embankments were always made under the Land Acquisition Act", "statute": "Acquisition of property for the opening of a public park or for the erection of dams and embankments were always made under the Land Acquisition Act"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 41301, "end_char": 41308, "source": "regex", "metadata": {"linked_statute_text": "Acquisition of property for the opening of a public park or for the erection of dams and embankments were always made under the Land Acquisition Act", "statute": "Acquisition of property for the opening of a public park or for the erection of dams and embankments were always made under the Land Acquisition Act"}}, {"text": "Article 31", "label": "PROVISION", "start_char": 41443, "end_char": 41453, "source": "regex", "metadata": {"linked_statute_text": "Acquisition of property for the opening of a public park or for the erection of dams and embankments were always made under the Land Acquisition Act", "statute": "Acquisition of property for the opening of a public park or for the erection of dams and embankments were always made under the Land Acquisition Act"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 41816, "end_char": 41823, "source": "regex", "metadata": {"linked_statute_text": "Acquisition of property for the opening of a public park or for the erection of dams and embankments were always made under the Land Acquisition Act", "statute": "Acquisition of property for the opening of a public park or for the erection of dams and embankments were always made under the Land Acquisition Act"}}, {"text": "s. 53", "label": "PROVISION", "start_char": 42731, "end_char": 42736, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 67 & 7", "label": "PROVISION", "start_char": 43686, "end_char": 43696, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 43799, "end_char": 43809, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 53", "label": "PROVISION", "start_char": 44151, "end_char": 44161, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 53", "label": "PROVISION", "start_char": 44328, "end_char": 44333, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 53", "label": "PROVISION", "start_char": 45457, "end_char": 45462, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 67", "label": "PROVISION", "start_char": 45722, "end_char": 45727, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 67", "label": "PROVISION", "start_char": 46340, "end_char": 46345, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 71", "label": "PROVISION", "start_char": 46694, "end_char": 46704, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 67", "label": "PROVISION", "start_char": 46729, "end_char": 46734, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 47312, "end_char": 47319, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 48157, "end_char": 48164, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 48440, "end_char": 48447, "source": "regex", "metadata": {"statute": null}}, {"text": "Town Planning Act", "label": "STATUTE", "start_char": 48894, "end_char": 48911, "source": "regex", "metadata": {}}, {"text": "Metal Corporation of India Ltd.", "label": "ORG", "start_char": 50311, "end_char": 50342, "source": "ner", "metadata": {"in_sentence": "In support of the argument that the value of land determined by reference to a date far removed from the date on which the title of the land is extinguished, though determined according to a: guiding rule, is not compensation, because it is not a just equivalent of the land expropriated, strong reliance was placed upon certain observations made by this Court in P. Va; ravelu M uda/iar' s case(') and in the Metal Corporation of India Ltd.'s case(2 )."}}, {"text": "ss. 67 and 71", "label": "PROVISION", "start_char": 50596, "end_char": 50609, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 50710, "end_char": 50717, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 50860, "end_char": 50867, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 299", "label": "PROVISION", "start_char": 51072, "end_char": 51083, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 51091, "end_char": 51120, "source": "regex", "metadata": {}}, {"text": "Article 31", "label": "PROVISION", "start_char": 51803, "end_char": 51813, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "s. 299", "label": "PROVISION", "start_char": 51895, "end_char": 51901, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 51918, "end_char": 51925, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "s 299", "label": "PROVISION", "start_char": 51980, "end_char": 51985, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 52003, "end_char": 52010, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "s. 299(2)", "label": "PROVISION", "start_char": 52059, "end_char": 52068, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Bihar", "label": "GPE", "start_char": 52791, "end_char": 52796, "source": "ner", "metadata": {"in_sentence": "Shortly after the coming into force of the Constitution, disputes were raised about the validity of laws which abolished the Zamindari rights of landholders in the State of Bihar."}}, {"text": "Patna High Court held that the Bihar Land Reforms Act, 1951", "label": "STATUTE", "start_char": 52842, "end_char": 52901, "source": "regex", "metadata": {}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 52915, "end_char": 52922, "source": "regex", "metadata": {"linked_statute_text": "the Patna High Court held that the Bihar Land Reforms Act, 1951", "statute": "the Patna High Court held that the Bihar Land Reforms Act, 1951"}}, {"text": "Similar challenge raised to the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950", "label": "STATUTE", "start_char": 53012, "end_char": 53104, "source": "regex", "metadata": {}}, {"text": "High Court of Allahabad", "label": "COURT", "start_char": 53127, "end_char": 53150, "source": "ner", "metadata": {"in_sentence": "Similar challenge raised to the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, was rejected\n\nby the High Court of Allahabad: Surya Pal v. State of U.P.(')."}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 53790, "end_char": 53796, "source": "regex", "metadata": {"linked_statute_text": "Similar challenge raised to the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950", "statute": "Similar challenge raised to the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950"}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 53948, "end_char": 53954, "source": "regex", "metadata": {"linked_statute_text": "Similar challenge raised to the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950", "statute": "Similar challenge raised to the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950"}}, {"text": "Ninth Schedule", "label": "PROVISION", "start_char": 53965, "end_char": 53979, "source": "regex", "metadata": {"linked_statute_text": "Similar challenge raised to the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950", "statute": "Similar challenge raised to the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950"}}, {"text": "Arts. 3", "label": "PROVISION", "start_char": 54374, "end_char": 54381, "source": "regex", "metadata": {"statute": null}}, {"text": "Bela Banerjee", "label": "OTHER_PERSON", "start_char": 54541, "end_char": 54554, "source": "ner", "metadata": {"in_sentence": "Two cases decided by this Court in the month of December 1953 require to be noticed : In Mrs. Bela Banerjee's case(') validity of the West Bengal Land Development and Planning Act, J 948, which was enacted primarily for acquisition of land for setting migrants from East Bengal on account of communal disturbances, fell to be determined.", "canonical_name": "Bela Banerjee'.•"}}, {"text": "East Bengal", "label": "GPE", "start_char": 54713, "end_char": 54724, "source": "ner", "metadata": {"in_sentence": "Two cases decided by this Court in the month of December 1953 require to be noticed : In Mrs. Bela Banerjee's case(') validity of the West Bengal Land Development and Planning Act, J 948, which was enacted primarily for acquisition of land for setting migrants from East Bengal on account of communal disturbances, fell to be determined."}}, {"text": "December 31, 1946", "label": "DATE", "start_char": 54943, "end_char": 54960, "source": "ner", "metadata": {"in_sentence": "Compensation payable for compulsory aquisition of land needed for fhe purposes specified was under the Act was not to exceed the market value of the land on December 31, 1946."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 54966, "end_char": 54985, "source": "ner", "metadata": {"in_sentence": "The Calcutta High Court declared the provisions of s. 8 ultra vires, and this Court confirmed that decision."}}, {"text": "s. 8", "label": "PROVISION", "start_char": 55013, "end_char": 55017, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 55134, "end_char": 55150, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 55333, "end_char": 55340, "source": "regex", "metadata": {"statute": null}}, {"text": "Patanjali Sastri", "label": "JUDGE", "start_char": 55547, "end_char": 55563, "source": "ner", "metadata": {"in_sentence": "Jn tldiverin~ the jud,!'ment of the Court Patanjali Sastri, C.J. observed :\n\n\"While it is true that the legislature is given the discretionary power of laying down the principles which should govern the determination of the amount to be given to the owner for the property appropriated, such principles must ensure that what is determined as payable must be compensation, that is, a just equivalent of what the owner has been deprived of."}}, {"text": "December 17 1963", "label": "DATE", "start_char": 56424, "end_char": 56440, "source": "ner", "metadata": {"in_sentence": "The other case decided on December 17 1963 but not unanimously, was the State of We.vt Bengal v. Subodh Gopal Bose arvl OrheH(')."}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 56640, "end_char": 56647, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 56814, "end_char": 56821, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 57280, "end_char": 57287, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 57591, "end_char": 57598, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 58796, "end_char": 58803, "source": "regex", "metadata": {"statute": null}}, {"text": "Bela Baneriee", "label": "OTHER_PERSON", "start_char": 59190, "end_char": 59203, "source": "ner", "metadata": {"in_sentence": "Bela Baneriee's case(') meant a just equivalent or full indemnificatfon of the exproprited owne~. and the expression \"deprived\" had the same connotation as takmg possession of or acquisition.", "canonical_name": "Bela Banerjee'.•"}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 59573, "end_char": 59579, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 59587, "end_char": 59593, "source": "regex", "metadata": {"statute": null}}, {"text": "Art.\n\n31", "label": "PROVISION", "start_char": 60587, "end_char": 60595, "source": "regex", "metadata": {"statute": null}}, {"text": "L.R. 66 I.A. 104", "label": "CASE_CITATION", "start_char": 62334, "end_char": 62350, "source": "regex", "metadata": {}}, {"text": "ss. 23 and 24", "label": "PROVISION", "start_char": 62505, "end_char": 62518, "source": "regex", "metadata": {"statute": null}}, {"text": "Subodh Gopal Bose", "label": "OTHER_PERSON", "start_char": 63181, "end_char": 63198, "source": "ner", "metadata": {"in_sentence": "The decisions of this Court in the two cases-Mrs. Bela Banerjee's case(') and Subodh Gopal Bose's case(') were therefore likely to give rise to formidable problems, when the principles specified by the Legislature as well as the amounts determined by the application of those principles, were declared justiciable.", "canonical_name": "Subodh Gopal Bose"}}, {"text": "Art. 39", "label": "PROVISION", "start_char": 63693, "end_char": 63700, "source": "regex", "metadata": {"statute": null}}, {"text": "April 27, 1955", "label": "DATE", "start_char": 63857, "end_char": 63871, "source": "ner", "metadata": {"in_sentence": "The Constitution was, in that state of the law declared by this Court, amended by the Constitution (Fourth Amendment) Act, 1955, which came into force on April 27, 1955."}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 63896, "end_char": 63903, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 3", "label": "PROVISION", "start_char": 63949, "end_char": 63958, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 64126, "end_char": 64130, "source": "regex", "metadata": {"linked_statute_text": "Acts were added to the Ninth Schedule including the West Bengal Land Development and Planning Act, 1948", "statute": "Acts were added to the Ninth Schedule including the West Bengal Land Development and Planning Act, 1948"}}, {"text": "Art. 305", "label": "PROVISION", "start_char": 64279, "end_char": 64287, "source": "regex", "metadata": {"linked_statute_text": "Acts were added to the Ninth Schedule including the West Bengal Land Development and Planning Act, 1948", "statute": "Acts were added to the Ninth Schedule including the West Bengal Land Development and Planning Act, 1948"}}, {"text": "Art. 305", "label": "PROVISION", "start_char": 64313, "end_char": 64321, "source": "regex", "metadata": {"linked_statute_text": "Acts were added to the Ninth Schedule including the West Bengal Land Development and Planning Act, 1948", "statute": "Acts were added to the Ninth Schedule including the West Bengal Land Development and Planning Act, 1948"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 65057, "end_char": 65064, "source": "regex", "metadata": {"linked_statute_text": "Acts were added to the Ninth Schedule including the West Bengal Land Development and Planning Act, 1948", "statute": "Acts were added to the Ninth Schedule including the West Bengal Land Development and Planning Act, 1948"}}, {"text": "Art. 14, 19 and 31", "label": "PROVISION", "start_char": 65291, "end_char": 65309, "source": "regex", "metadata": {"statute": null}}, {"text": "Acts in the Ninth Schedule a challenge to those Act", "label": "STATUTE", "start_char": 65342, "end_char": 65393, "source": "regex", "metadata": {}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 65504, "end_char": 65511, "source": "regex", "metadata": {"linked_statute_text": "Acts in the Ninth Schedule a challenge to those Act", "statute": "Acts in the Ninth Schedule a challenge to those Act"}}, {"text": "August 20, 1953", "label": "DATE", "start_char": 65927, "end_char": 65942, "source": "ner", "metadata": {"in_sentence": "ln State of Madi<as v. D. Namasivaya Mudaliar and Others(\") this Court held that the Madras Lignite (Acquisition of Land) Act 1953, which came into force on August 20, 1953 in so far as it purported to provide for award of compensation for compulsory acquisition of land, which was not to include any rise ."}}, {"text": "s. 4( 1)", "label": "PROVISION", "start_char": 66156, "end_char": 66164, "source": "regex", "metadata": {"linked_statute_text": "Acts in the Ninth Schedule a challenge to those Act", "statute": "Acts in the Ninth Schedule a challenge to those Act"}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 66333, "end_char": 66343, "source": "regex", "metadata": {"linked_statute_text": "Acts in the Ninth Schedule a challenge to those Act", "statute": "Acts in the Ninth Schedule a challenge to those Act"}}, {"text": "N. B.\n\nJeejeebhoy", "label": "OTHER_PERSON", "start_char": 66391, "end_char": 66408, "source": "ner", "metadata": {"in_sentence": "In N. B.\n\nJeejeebhoy's case(') this Court held that ascertainment of compensation on the basis of the value of the lands acquired as on January l, 1948, and not as on the date on which the notification under s. 4 of the Land Acquisition Act was issued under the provisions of the Land Acquisition !", "canonical_name": "N. B.\n\nJeejeebhoy"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 66596, "end_char": 66600, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 299(2)", "label": "PROVISION", "start_char": 66742, "end_char": 66751, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 66759, "end_char": 66788, "source": "regex", "metadata": {}}, {"text": "s. 299(2)", "label": "PROVISION", "start_char": 66981, "end_char": 66990, "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": 66998, "end_char": 67027, "source": "regex", "metadata": {}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 67033, "end_char": 67040, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "s. 299(2)", "label": "PROVISION", "start_char": 67148, "end_char": 67157, "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": 67165, "end_char": 67194, "source": "regex", "metadata": {}}, {"text": "Requisitioning and Acquisition of Immovable Property Act, 1952", "label": "STATUTE", "start_char": 67352, "end_char": 67414, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "March 14, 1952", "label": "DATE", "start_char": 67427, "end_char": 67441, "source": "ner", "metadata": {"in_sentence": "In Union of India v. Kamlabai Harjiwandas Pareskh and others(\") it was again held by this Court that compensation admissible under the Requisitioning and Acquisition of Immovable Property Act, 1952, enacted on March 14, 1952, at the market value of the property at the date of acquisition or twice the market value of the property at the time of requisitioning of that property under r. 75-A(l) of the Defence of India Rules, whichever was less, was void as infringing Art."}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 67686, "end_char": 67693, "source": "regex", "metadata": {"linked_statute_text": "Court that compensation admissible under the Requisitioning and Acquisition of Immovable Property Act, 1952", "statute": "Court that compensation admissible under the Requisitioning and Acquisition of Immovable Property Act, 1952"}}, {"text": "Bela 'Banerjee", "label": "OTHER_PERSON", "start_char": 67784, "end_char": 67798, "source": "ner", "metadata": {"in_sentence": "These three cases were decided, following the principle of Mrs. Bela 'Banerjee's case(').", "canonical_name": "Bela Banerjee'.•"}}, {"text": "November 1, 1956", "label": "DATE", "start_char": 68688, "end_char": 68704, "source": "ner", "metadata": {"in_sentence": "By the Constitution (Seventh Amendment) Act, 1956, which came into force on November 1, 1956, Entries 33 of List I and 36 of List II were deleted from the Seventh Schedule and Entry 42 of List III was amended and now reads--\"Acquisition and requisitioning of property\"."}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 68767, "end_char": 68783, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 69173, "end_char": 69180, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 69443, "end_char": 69450, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 72210, "end_char": 72217, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 14, 19 and 31", "label": "PROVISION", "start_char": 72731, "end_char": 72750, "source": "regex", "metadata": {"statute": null}}, {"text": "Act made provisions which departed from the Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 72781, "end_char": 72851, "source": "regex", "metadata": {}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 73064, "end_char": 73071, "source": "regex", "metadata": {"linked_statute_text": "The Act made provisions which departed from the Land Acquisition Act, 1894", "statute": "The Act made provisions which departed from the Land Acquisition Act, 1894"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 73705, "end_char": 73712, "source": "regex", "metadata": {"linked_statute_text": "The Act made provisions which departed from the Land Acquisition Act, 1894", "statute": "The Act made provisions which departed from the Land Acquisition Act, 1894"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 73963, "end_char": 73970, "source": "regex", "metadata": {"statute": null}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 74000, "end_char": 74009, "source": "ner", "metadata": {"in_sentence": "But Subba Rao, J., in delivering the judgmenr of the Coun observed :\n\n\"If the definition of \"compensation\" and the question of justiciability are kept distinct; much of the cloud raised will be dispelled."}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 76611, "end_char": 76618, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 76681, "end_char": 76688, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 77179, "end_char": 77186, "source": "regex", "metadata": {"statute": null}}, {"text": "article 31", "label": "PROVISION", "start_char": 77323, "end_char": 77333, "source": "regex", "metadata": {"statute": null}}, {"text": "P. Vajrave/11", "label": "OTHER_PERSON", "start_char": 77915, "end_char": 77928, "source": "ner", "metadata": {"in_sentence": "Any other view is contrary to the plain words of the amendment: it is also contrary to the ultimate decision of the Court in P. Vajrave/11 Mudaliar's case(') that the principles specified by the Court which did not award what may be called a just equivalent were still not open to question. ·", "canonical_name": "P. Vajravelu Mudaliar"}}, {"text": "Mudaliar", "label": "OTHER_PERSON", "start_char": 77929, "end_char": 77937, "source": "ner", "metadata": {"in_sentence": "Any other view is contrary to the plain words of the amendment: it is also contrary to the ultimate decision of the Court in P. Vajrave/11 Mudaliar's case(') that the principles specified by the Court which did not award what may be called a just equivalent were still not open to question. ·"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 78097, "end_char": 78104, "source": "regex", "metadata": {"statute": null}}, {"text": "Metal Corporation Ltd.", "label": "ORG", "start_char": 78718, "end_char": 78740, "source": "ner", "metadata": {"in_sentence": "In the Metal Corporation Ltd.'s case(') the facts were that the Metal Corporation of India (Acquisition of Undertakin~) Act."}}, {"text": "Metal Corporation of India", "label": "ORG", "start_char": 78915, "end_char": 78941, "source": "ner", "metadata": {"in_sentence": "the undertaking of the Metal Corporation of India."}}, {"text": "Central Government", "label": "ORG", "start_char": 79000, "end_char": 79018, "source": "ner", "metadata": {"in_sentence": "The Act provided that the Corporation was to vest in the Central Government on the commencement of the Act: and that in the absence of an H agreement between thP. Government and the Corporation, com-\n\n(tl [l 965] I S.C.R. 614."}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 80131, "end_char": 80145, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 80239, "end_char": 80246, "source": "regex", "metadata": {"statute": null}}, {"text": "D. Namasivaya Mudaliar", "label": "OTHER_PERSON", "start_char": 80466, "end_char": 80488, "source": "ner", "metadata": {"in_sentence": "The Court after setting out the principles laid down by this Court in Mrs. Bela Banerjee's case('); D. Namasivaya Mudaliar's casee) and N. B. Jeejeebhoy's case ( 3 ) observed at p. 264 :\n\n\" .... the relevant aspect of the legal position evolved by the said decisions may be stated thus : Under Art."}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 80660, "end_char": 80667, "source": "regex", "metadata": {"statute": null}}, {"text": "Paragraph II of the Schedule to the Act", "label": "STATUTE", "start_char": 81916, "end_char": 81955, "source": "regex", "metadata": {}}, {"text": "Turning to the Bombay Town Planning Act, 1955", "label": "STATUTE", "start_char": 82867, "end_char": 82912, "source": "regex", "metadata": {}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 83531, "end_char": 83538, "source": "regex", "metadata": {"linked_statute_text": "Turning to the Bombay Town Planning Act, 1955", "statute": "Turning to the Bombay Town Planning Act, 1955"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 83936, "end_char": 83943, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 84102, "end_char": 84112, "source": "regex", "metadata": {"statute": null}}, {"text": "Sitabati Debi", "label": "OTHER_PERSON", "start_char": 84146, "end_char": 84159, "source": "ner", "metadata": {"in_sentence": "Sitabati Debi's case(2 ) an owner of land whose property wa'."}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 84357, "end_char": 84379, "source": "ner", "metadata": {"in_sentence": "requisitioned under the West Bengal Land (Requisition and Acquisition) Act, 1948, questioned the validity of the Act by a writ petition filed in the High Court of Calcutta on the plea that it offended Art."}}, {"text": "Art. 19(1)(f)", "label": "PROVISION", "start_char": 84409, "end_char": 84422, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(l)(f)", "label": "PROVISION", "start_char": 84623, "end_char": 84636, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 84682, "end_char": 84689, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 67", "label": "PROVISION", "start_char": 85027, "end_char": 85032, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 71", "label": "PROVISION", "start_char": 85590, "end_char": 85595, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 67", "label": "PROVISION", "start_char": 85606, "end_char": 85611, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 81 and 84", "label": "PROVISION", "start_char": 85855, "end_char": 85868, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Town Planning Act, 1955", "label": "STATUTE", "start_char": 85876, "end_char": 85906, "source": "regex", "metadata": {}}, {"text": "Section 81", "label": "PROVISION", "start_char": 85908, "end_char": 85918, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Town Planning Act, 1955", "statute": "the Bombay Town Planning Act, 1955"}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 86101, "end_char": 86127, "source": "regex", "metadata": {}}, {"text": "Section 84", "label": "PROVISION", "start_char": 86203, "end_char": 86213, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "ss. 53 and 67", "label": "PROVISION", "start_char": 86895, "end_char": 86908, "source": "regex", "metadata": {"linked_statute_text": "In such a case the State Government may make a declaration to that effect and the provisions of the Land Acquisition Act, 1894", "statute": "In such a case the State Government may make a declaration to that effect and the provisions of the Land Acquisition Act, 1894"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 86931, "end_char": 86938, "source": "regex", "metadata": {"linked_statute_text": "In such a case the State Government may make a declaration to that effect and the provisions of the Land Acquisition Act, 1894", "statute": "In such a case the State Government may make a declaration to that effect and the provisions of the Land Acquisition Act, 1894"}}, {"text": "P. Vajravelu Muda", "label": "OTHER_PERSON", "start_char": 87052, "end_char": 87069, "source": "ner", "metadata": {"in_sentence": "Counsel relies principally upon that part of the judgment in P. Vajravelu Muda/iar's case(') which deals with the infringement of the equality clause of the Constitution by the impugned Madras Act.", "canonical_name": "P. Vajravelu Mudaliar"}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 87437, "end_char": 87463, "source": "regex", "metadata": {}}, {"text": "s. 4", "label": "PROVISION", "start_char": 87728, "end_char": 87732, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "P. Vajravelu Muda!iar", "label": "OTHER_PERSON", "start_char": 88989, "end_char": 89010, "source": "ner", "metadata": {"in_sentence": "In P. Vajravelu Muda!iar's case(\") the Court struck dow1n the acquisition on the ground that when the lands are acquired by the State Government for a housing scheme under the Madras Amending Act.", "canonical_name": "P. Vajravelu Mudaliar"}}, {"text": "Vajravelu Mudaliar", "label": "OTHER_PERSON", "start_char": 89842, "end_char": 89860, "source": "ner", "metadata": {"in_sentence": "One broad ground of distinction between P. Vajrave/11 Mudaliar's case(') and this case is clear : the acquisition wa' struck down in P. Vajravelu Mudaliar's case(') because th,, State Government could resort to one of the two methods of acquisition-the Land Acquisition Act, 1894, and the Land Acquisition (Madras Amendment) Act."}}, {"text": "Bombay Town Planning Act 1955", "label": "STATUTE", "start_char": 90331, "end_char": 90360, "source": "regex", "metadata": {}}, {"text": "s. 53(a)", "label": "PROVISION", "start_char": 90560, "end_char": 90568, "source": "regex", "metadata": {"linked_statute_text": "Under the Bombay Town Planning Act 1955", "statute": "Under the Bombay Town Planning Act 1955"}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 90623, "end_char": 90633, "source": "regex", "metadata": {"linked_statute_text": "Under the Bombay Town Planning Act 1955", "statute": "Under the Bombay Town Planning Act 1955"}}, {"text": "ss. 53 and 67", "label": "PROVISION", "start_char": 90749, "end_char": 90762, "source": "regex", "metadata": {"linked_statute_text": "Under the Bombay Town Planning Act 1955", "statute": "Under the Bombay Town Planning Act 1955"}}, {"text": "ss. 53 and 67", "label": "PROVISION", "start_char": 91381, "end_char": 91394, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 53", "label": "PROVISION", "start_char": 91930, "end_char": 91935, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 67", "label": "PROVISION", "start_char": 91946, "end_char": 91951, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 92066, "end_char": 92073, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_374_386_EN", "year": 1969, "text": "RASHBIHARI PANDA ETC.\n\nSTATE OF ORISSA\n\nJanuary 16, 1969\n\n(M. HIDAYATULLAH, C.J.,\n\nJ. C. SHAH,\n\nV. RAMASWAMI,\n\nG. K. MITTER AND A. N. GROVER, JJ.J\n\nOrissa Kendu Leaves (Control of Trade) Act (28 of 1961) s. 10- Scheme of Government for sale and disposal of leaves purchased by it- Contracts tvith. and invitation to offer, restricted to licencees of previous year-If violative of Arts. 14 c.nd 19(1)(g) of Constitution-Art. 19(6)\n\n(ii)-Mo1wpo/y of Government-Tests for validity-Bona fides of Governn1ent and error of judg111ent by Governrnent-1/ a defence to discri111inatio11.\n\nKendu tree is a wild growth and its Jeaf is used mainly in the manufacture of bidis.\n\nTo regulate trade in Kendu leaves and prevent exploitation of growers and pluckers the respondent-State adopted diverse measures.\n\nIn 1961, the Orissa Kendu I.eaves (Control of Trade) Act, 1961, was enacted. By s. 3 of the Act no person other than the Government, an authorised officer of the Government, or an agent appointed by the Government, shall purchase or transport Kendu leaves; and under s. 4 the Government is authorised to fix the price at which the leaves shall be purchased from the gro\\\\•ers by the officer or agent of the Government.\n\nSection JO provides that the Kendu leaves purchased shall be sold or disposed of iu such manner as the Government may direct, and under s. 11, at least one half of the net profits derived by the Government is to be\n\npaid to Sa111itis and Gram Panchayats. A growr of Kendu leaves chal lcnged ss. 3 and/4 and r. 7(5) made under the Act as infringing his fundamental rights under Arts. 14 and 19(1)(f) and (g). This Court, in Akudasi Padh<n v. State of Orissa, (1963] Supp. 2 S.C.R. 691, held that ss. 3 and 4 did not infringe Art. 19(6)(ii), but that the State was in competent to implement the provisions of the Act and give effect to its n1onopoly. because, the agents appointed \\vere not really agents of the Government but were autho'rised to carry on trade in the leaves purchased not on behalf of the Government but on their own account, and that it thus gave rise to a monopoly in favour of the agents which was not pro tectcd by Art. 19(6)(ii) since the law cannot be used by the State for the private benefit of agents.\n\nThereafter. the Statemade some changes in the implementotion of its monopoly.\n\nIn J 966, it inrited tenders from persons desirous of purchasing Kendu leaves purchased by the. officers and agents of the Government.\n\nDuring the years 1966 and 1967, the prices of Kendu leaves ruled very high and when sales \\Vere effected by public auction, prices .; onsiderably in excess of those at which tenders \\\\.'ere nccepted \\\\'ere realised.\n\nEarly in 1968, the State evolved another scheme under which. the State offered to renew the licences of those traders who in the State's view had worked Satisfactorily in the previous year_ and had paid the amounts due from them regularly. The scheme was objected to. and realising thJt, the scheme a'rbitrarily excluded many persons interested in the trade-. and hence was objectionable, the Government dec, ided to in\n\nvite offers for advance purchases of Kendu leaves but restricted the invitation to those individuals who had carried out the contracts in the previous year without default and to the satisfaction of the Government, that is, the existing contractors were given the exclusive right to make offers to\n\nF -\n\nA purchase Ke11du leaves.\n\nThis new method of offering to enter into agreements for advance purchases ot' Kendu leaves by private offers in preference to open competition, was challenged by writ petitions in the High Court as violative of the petitioner's fundamental rights under Arts.\n\n14 and l9(l)(g).\n\nThe High Court held that under s. JO of the Act the Government cpuld dispose of the leaves in such manner as it thought fit, that the only B question for the Court was whether in adopting the new scheme of offer:ing to enter into advance purchase contracts by private negotiation the Govern.ment had acted bona fide, and that the petitioners failed to sho\\v that in exercising its dbcrction the Government acted arbitrarily or without bona fir/es.\n\nIn appeal to this Court,\n\nHELD : The validity of a law by which the State assumed the monopoly to trade in a given commodity has to be judged by the test whether the entire benefit arising therefrom is to cnure to the State, and the monopoly is not used <ts a cloak for conferring private benefit upon a limited class of persons.\n\nThe monopoly of purchasing Kendu leaves under s. 3 may be held to be valid if, it be administered only for the benefit of the State.\n\nSimilarly, the right to sell or dispose of Kendu leaves by the State under s. 10, in such inanncr as the Government may direct, would be valid if it be exercised in public interest and not to serve the private interests of any person or c)ass of persons. The profit resulting from the sale must be for the public benefit and not for private gain.\n\nSection 11 also emphasises the concept that the machinery of sale or disposal of the leaves must also be geared to serve the public interest. _ If the scheme of disposal creates a class of middle men who could purchase from the Government at concessional rates and earn large profits disp'roportionatc to the nature of the service rendered or duty performed by them. it cannot clai111 the protection of Art. 19(6) (ii) as it is not open to the Government to create a monopoly in favour of third parties from its own monopoly.\n\n(383 D-G; 385A-B]\n\nIn the present ,,1ase, the right to make offers being open to a limited' class of persons it effectively shut out all other persons carrying on trade in Kendu leaves rs well as new entrants into the trade. Both the schemes, evolved by the Government, namely : the one of offering to enter into confracts with certain named liccncees, and the other of inviting tenders from liccncees who had in the previous year carried out their contracts satisfactorily gave rise to a monopoly in the trade in the leaves to certain\n\nraders and singled out other traders fo'r discriminating treatment. Theretore, they were violative of the fundamental right of the petitioners under Arts. 14 and 19(1) (g) and as the schemes were not 'integrally and essentia11y' connectedwith the creatiOn of the Jnonopolv they \\vere not protected by Art. 19(6)(ii). [384 E-H; 385 B-DJ ·\n\nla) 1f the only anxiety of the Government \\Vas to ensure due performance by those vlho submitted tenders. Government could devise adequate safeguards.\n\nBut the classification based on the circumstance that certain existing contractors had carried cut their obligation in the previous year regularly and to the satisfaction of the Government is not based on any real and substantial distinction, bearing a just and reasonable relation to the objects sought to be achieved namely, the effective execution of the monopoly in public interest, the prevention of exploitation of pluckers and\n\ngrowers of Kendu leaves, or the securing of the full benefit from the trade, to the State.\n\n[3840-H; 386B-DJ\n\n( b) The chemc could not be supported on the ground that it A imposed reasonable restrictions, within the meaning of Art. 19(6), on the fundamental rights o'f traders to carry on business in Kendu leaves. [385C-Dl\n\n( c) The plea that the action of the Government was bona fide cannot be an effective answer, because, the Government had not considered, the prevailing ptices of Kendu leaves about the time when offers were made, the estin1ated crop, the conditions in the market, offers of higher prices B and the likelihood of offerers of higher prices carrying out their obligations and whether it was in the interests of the State to invite tenders in the open ma'rket fron1 all persons irrespective of their having taken con\n\ntracts in the previous year.\n\n[385H; 386A-B]\n\n(d) lt could not also be said that the Government merely committeJ an error of judgment in adopting the impugned scheme.\n\nIt is not a case .of the Government erring in the exercise of its discretion, but the action C of the Government was itself not valid.\n\n[386 BD] CIVIL APPELLATE JURISDICTION : Civil Appeals Nos.· 1472 to 1474 of 1968.\n\nAppeals by special leave from the judgment and order dated May 8, 1968 of the Orissa High Court in O.J.C. Nos. 49, 52 and 132 of 1968.\n\n.1. B. Dadaclwnji, for the appellant (in C.As. Nos. 1472 and 1473 of 1968).\n\nA. S. R. Chari, Govind Das and J. B. Dadachanji, for the pncllant (in C.A. No. 1474 of 1968).\n\nC. K. Daphtary, Santosh Chatterjee and R. N. Sachthey, for the respondent (in all the appeals).\n\nThe .T udgment of the Court was delivered by Shah, J.\n\nThese appeals arise out of orders passed in petitions moved before the High Court of Orissa challenging the scheme adopted by the Government of Orissa for sale of Ke11d11 leaves in which the State has assumed a monopoly of trading. by the Orissa Kendu Leaves (Control of Trade) Act 28 ,, f 1961.\n\nKendu tree is a wild growth.\n\nIts leaf is used mainly in the manufacture of bidis. To regulate the trade in Kendu leaves the State of Orissa has adopted diverse executive and legislative measures.\n\nIn exercise of the powers conferred by s. 3 (1) of the Orissa Essential Articles Control and Requisitioning (Temporary Powers) Act, 1947 the Government of Orissa issued the O:issa\n\nKendu Leaves (Control and Distribution) Order, 1949, providing for the issue of licences to person trading in Kendu leave,.\n\nThe District Magistrates were authorised to fix the minimum -rates for purchase of Kendu leaves and the Order provided that 1he licensees shall purchase Kendu leaves from the pluckers or\n\nA owners of private trees and forests at rates not below the minimum prescribed. A trader in Kendu leaves challenged the validity of the Act and the Order before the High Court of Orissa\n\non the plea that the State Legislature was incompetent to enact the Act and that in any event the Act and the Order infringed the guarantee of fundamental freedom to carry on business under B Art. 19(1 )(g) of the Constitution.\n\nA Division Bench of the Orissa High Court upheld the validity of the Act : Jagdish Patel\n\nv. Patel Tobacco Company('). The Court observed that the main purpose of the Order was to prevent indiscriminate and unrestricted ompetition in the trade in Kendu leaves and to protect the growers and pluckers from exploitation.\n\nC The Order of 1949 was replaced by another Order issued in\n\n_I 960, but without any substantial changes in its principal provisions.\n\nThereafter the State Legislature enacted the Orissa Ken du Leaves (Control of Trade) Act 28 of 1961.\n\nBy s. 3 of the Act no person other than (a) the Government; (b) an officer of Government authorised in that behalf; ( c) an agent in D respect of the unit in which the leaves have grown shall purchase or transport Kendu leaves. By s. 4 it was enacted that the Government shall, after consultation with the Advisory Committee, fix the price at which Kendu leaves shall be purchased by any officer or agent from growers of Kendu leaves during any year.\n\nBy s. 8 the Government was. authorised to appoint E agents for different units to purchase Kendu leaves.\n\nSection 10 provided that :\n\n\"Kendu leaves purchased by Government or by their officers or agents under this Act shall be sold or otherwise disposed of in such manner as Government may direct.\"\n\nOut of the net profits derived by the Government. from the trade in Kendu leaves under the Act, by s. 11, an amount not less than one half was to be paid to Samitis and Grama Panchayats. Sections 14, 15 and 16 dealt with penalties, attempts and abetment of offences and procedure of courts.\n\nSection 18 conferred upon the Government power to make rules for carrying out the purposes of the Act.\n\nAgents were appointed by the Government of Orissa to purchase Kendu leaves.\n\nThe agents were authorised under the agreements to purchase the Kendu leaves and also to trade in the Kendu leaves purchased.\n\nH A grower of Kendu leaves moved a petition in this Court contending that the principal provisions of the Act infringed his\n\n(1) A.LR. 1952 Orissa 260.\n\n.fundamental rights under Arts. 19(1 )(f) & (g) and Art. 14.\n\nHe challenged ss. 3 and 4 and rule 7 ( 5) as infringing the .fundamental right under Art. 19(l)(f) and (g) of the Constitution, and ss. 5, 6 and 9 as contravening the equality clause of the Constitution. This Court held in Akadasi Padhan v. The .State of Orissa (') that the Orissa Kendu (Control of Trade) Act, 1961, was a valid piece oi legislation, and creation of a State monopoly in Kendu leaves was protected by Art. 19 ( 6) as amended by the Constitution (First Amendment) Act, 1951.\n\nIn the opinion of the Court, fixation of prices prescribed by s. 4 was. reasonable and in the interest of the general public both under Art. 19(5) and Art. 19(6) and s. 4 of the Act was on that account valid. The Court further held that section 3 which allowed the Government or an officer of the Government authorised in that behalf or an agent in respect of the unit in which the leaves were grown, to purchase or transport Kendu leaves for .and on behalf of the Government, was not open to attack .. But in the view of the Court the categories of persons mentioned in els. (b) & (c) of s. 3 i.e. officers of' the Government and agents were intended to work for the Government and all their actions and dealings in pursuance of the provisions of the Act had to be actions and dealings on behalf of and for the benefit of the Government, and since under the agreement obtained from the agent under r. 7(5) to work the monopoly of the State, the appointees were not made agents in the strict sense or the term, and were appointed to carry on trade on their own account, the agreements were invalid.\n\nThe Court accordingly held that the State Government was incompetent to implement the provisions of the Act through the Agents appointed under those agrrements.\n\nThereafter the Government of Orissa made some changes in the machinery for implementation of the monopoly and entered into agreements. of sale of Kendu leaves ater inviting tenders from traders.\n\nEven against this scheme objections were raised.\n\nIt was claimed by persons interested in the production and trade in Kendu leaves that the Government of Orissa merely resorted to adevice of introducing purchasers who were mere associates or nominees of the \"so called agents,\" and that the position remained practically the same as in the days before the judgment of this Court.\n\nOn February 2, 1966, the Government of orrssa invited tenders from persons desirous of purchasing Kendu leaves purchased or collected by Government or by their officers or Agents under the provisions of the Orissa Kendu Leaves (Control of\n\n(l) [1963] Supp. 2 S.C.R. 6~1. ·\n\nTrade) Act, 1961, in the units as constituted lll!der s. 5 of the Act. In the last paragraph of the tender notice it was stated :\n\n\"If the person appointed as Purchaser during the currency of his agreement in respect of any Unit duly observes and performs all the terms and conditions to the satisfaction of the Government and if the Government are satisfied that the Purchaser has been prompt in taking delivery of leaves and making payments, the Government may grant to the Purchaser a renewal of his appointment for one year on such terms and conditions as may be mutually agreed upon.\"\n\nDuring the years 1966 and 1967 the prices of Kendu leaves ruled very high and when sales were effected on behalf of the Government of Orissa in certain cases by public auctions, prices considerably in excess of those at which tenders were accepted were realized.\n\nEarly in 1968 letters were addressed to certain traders intimating that it had been decided by the-\"tiovernment of Orissa to renew \"leases of Kendu leaf Units\" held by them, for the year 1968 if they accepted the terms set out therein.\n\nUnder this scheme the Government pllered to those licensees who in their view had worked satisfactorily in the previous year and had paid the amounts due from them regularly to continue\n\ntheir licences with the added provision that the aents with whom they had been working in 1967 will also work during 1968.\n\nThe link between the agent and the purchaser which had been the subject-matter of agitation in previous years. it was claimed, was extended by the scheme.\n\nOn January 24, 1968, a petition was moved by Rashbihari Panda in the High Court of Orissa under Art .. 226 of the Constitution challenging the action of the Government.\n\nThe Government, it appears, had second thoughts and the oilers to renew the previous licenses were withdrawn and the licensees were informed that the Government had decided to invite oilers for advance-purchases from persons who had purchased Kendu leaves from individual units during the year 1967 and had not committed default in payment of the dues.\n\nOther writ petitions were filed challenging the legality of the new method adopted by the State Government of offering to enter into agreements for advance purchases of Kendu leaves by private oilers in preference to open competition.\n\nIt was urged on behalf of the petitioners that in seeking to enter into agreements for advance purchase contracts for Kendu\n\nleaves by private negotiation the State Government sought to support their party interests in preference to public benefit envisaged by the State monopoly, and that the so-called State\n\nmonopoly trade in Kendu leaves \"was a colourable device to make it appear constitutional and permissible under Art. 19(6)(ii) of the Constitution'', whereas in truth it was intended to benefit only the supporters of the party in power, and the scheme on that account '\\vas a fraud on the Constitution\". The new scheme, it was said, was devised for the purpose of increasing the party funds to the detriment of public revenue, and on that account the act of the State Government was ''ma/a fide and unconstitutional''.\n\nThe petitioners claimed that the Government of Orissa had classified the units into five sections raising the royalty or share of profit from the purchaser from Rs. 44 to a maximum amount of Rs. 64 whereas the offer of one of the petitioners who offered Rs. I 00 per bag in addition to the rates offered by the Government by a telegram early in January 1968 and followed by a confirmatory letter, was not accepted. It was further said that an offer made by a manufacturer of bidis to purchase the entire crop for a total amount of rupees three crores was also not accepted.\n\nOn behalf of the State it was submitted that till 1967 no rate was fixed for dried and processed leaves in the hands of the growers but when the new Ministry assumed office in 1967 the minimum price was fixed at Rs. 35 per bag of processed leaves in the hands of the growers, which was later raised to Rs. 45 per bag, and the remuneration payable to p!uckers was also raised under orders issued by the Government, and as a result thereof it was anticipated that the pluckers and growers would earn Rs. 47 lakhs in addition to the amount they had earned in 1967; that the scheme of making an offer to established licensees was evolved with a view to \"close the channels of corruption and the policy had eliminated all sorts of negotiations or personal approach in the matter of sale of Kendu leave> by the Government\", and after careful consideration. the Government determined the fair price that may be realized by selling Kendu leaves; that the dealers who were given contracts for two\n\nyears by the previous .Ministries had been offered options to purchase the leaves at rates higher than those obtaining during the last few years and that under the new policy the profits earned rose from Rs. 1,00,75,000 in 1962-63 to Rs. 1,91,00,000 in\n\n1968-69.\n\nIt was also submitted that under s. I 0 of the Kendu Leaves (Control of Trade) Act, the Government was authorised to dispose of the Kendu leaves in such manner as the Government may direct and thereby the authority vested in the Government t\\) use their discretion \"was not amenable to the writ jurisdictiorl of the High Court\", and that from the data furnished it was clear that the Government had acted in the best interests of the State and the \"figures showed their bona fides in the matter\".\n\nRASHDIHARI PANDA v. ORISSA (Shah, /.) 38f\n\nThe High Court was of the view that the State having assumed monopoly of trading in Kendu leaves was alone entitled to purchase the Kendu leaves from the primary producers, was by s. 10 authorised to dispose of the leaves \"in such manner as the Government may direct\". Section 10, in the view of the High Court, placed no restriction on the manner in which the B Government may sell Kendu foaves, and the only question which the Court had to consider was whether in adopting the new scheme of offering to enter into advance purchase contracts by private negotiations for selling Kendu leaves in 1968 the Government had acted bona fide.\n\nThe High Court observed :\n\n\" ...... we hold that the Government's exercise of the power or discretion under s. 10 cannot be said to be arbitrary as it is open to the Government to direct the sale or disposal of Kendu leaves in any manner they may direct--either by advance purchase contracts by private negotiations or by public auction or by tender; it is not a case where the State Government has exercised this power or discretion without jurisdiction.\n\nThe Court is not concerned with the propriety of the Government's action in adopting the particular manner of sale or disposal as it purported to direct. Evidently, the Government acted, as any prudent businessman would do, for the purpose of getting the maximum revenuer-net profits-from the trade in Kendu leaves.\n\nGovernment's direction, in exercise of the power of discretion conferred on them under s. 10, as to whether a particular manner of sale or disposal will be suitable in a particular year, will depend entirely on their subjective satisfaction, upon consideration of a number of factors which may vary from year to year.\n\nSuch direction by the State Government as to the particular manner of sale or disposal in a particular year, as dependent on the subjective satisfaction of the Government as aforesaid, is not justiciable. There is also nothing on record to show lack of bona {ides on the part of the State Government in adopting the manner it did private negotiations-in the matter of sale of Kendu leaves in 1968; nor have we been shoWn any material to hold that its action was capricious or arbitrary or in excess of its jurisdiction.\" Article 19(1)(f) guarantees the citizens the right to acquire, hold and dispose of property, and Art. 19(1)(g) guarantees the H right to practise any profession, or to carry on any occupation, trade or business. The right under cl. (f) is subject to reasonable restrictions which the State may impose on the exercise of the right in the interests of the general public or for the pro-\n\n11 Sul' C.1./69~\n\ntection of the interests of any scheduled tribe.\n\nClause ( 6) of Art. 19 which was amended by the Constitution (First Amendment) Act, 1951, sets out the restrictions which may be imposed upon the right to practise a profession or to carry on any occupation. trade or business.\n\nIt states : \"Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, - ( j)\n\n(ii) the carrying on by the State, or by a corporation owned or controlled by the Sta, te, of any trade, business, industry or service, whether to the exclusion, complete or partial. of c)tizens or otherwise.\" In A kadsi Padhan's case(') this Court beld that by the amendments in Art. 19(6) it was intended that the State monopoly in respect of any trade or business must be pr.esumed to be reasonable and in the interests of the .general public; that the expression \"law relating to\" occurring in cl. (ii) means \"essential ; ind basic provisions\" enacted to give effect to the monopoly i.e. provisions \"integrally and essentially connected with the creation of the monopoly\"; that the provisions which are incidental or subsidiary to the creation or operation of the monopoly must satisfy the test of the main clause, and that if the law infringes uny other fundamental right in cl. ( 1) of Art. 19 it must be tested under the appropriate provision governing it.\n\nThe Court accordingly held that ss. 3 and 4 of the Act were valid but declined in substance to give effect to the monopoly because the agents appointed were not agents of the Government merely for purchasing Kendu leaves but were authorised to carry on trade in leaves purchased on their own account. The operation of the State monopoly was in the view of the Court to give rise to a monopoly in favour 'of the agents which had not the protection of Art. 19 ( 6 )(ii). The Court observed that the appointee must be \"an agent of the Government strictly so-called\" acting for and on behalf of the Government and not on his own behalf. The Court while upholding the grant of monopoly by s. 3 of the Act to the Government to carry on the business of purchasinf! Kendu leaves was of the view that the law cannot be used by the State\n\nfor the private benefit of agents; it must only be administered\n\n(I) [1961] ~11op. 2 S.C.R. 601.\n\ntor the benefit of the general public, and any arrangement in which under the guise of a monopoly the State pennitted a set of persons to make profit for themselves by carrying on business in Kendu leaves on their own behalf was invalid.\n\nIt is urged by th~ appellants that the machinery devised by the Government for sale of Kendu leaves in which they had acquired a monopoly to trade was violative of the fundamental rights guaranteed under Arts. 14 and 19(l)(g) of the Constitution.\n\nIt is. said that the purchasers are merely nominees of th\\: agents.\n\nIt is also claimed that after this Court struck down a scheme under which the agents were to carry on business in Kendu leaves on their own account and to make profit for themselves. the Government with a view to help their party-men set up a body of persons who were to be purchasers to whom the monopoly sales were to be made at concessional rates and that the benefit which would have otherwise been earned by the State accrued to those purchasers.\n\nSection 10 of the Act is a counter-part of s. 3 and authorises the Government to sell or o!herwise dispose of Kendu leaves in such manner as the Government may direct. If the monopoly of purchasing Kendu leaves by s. 3 is valid, insofar as it is intended to be administered only for the benefit of the State, the sale or disposal of Kendu leaves by the Government must also be in the public interest and not to serve the private interests of any person or class of persons. lt is true that it is for the Government, having regard to all the circumstances, to act its a prudent business-man would, and to sell or otherwise dispose of Kendu leaves purchased under the monopoly acquired under s. 3, but the profit resulting from the sale must be for the public benefit and not for private gain. Section 11 which provides that out of the net profits derived by the Government from the trade in Kendu leaves an amount not less than one half is to be paid to the Samitis and Grama Panchayats emphasises the concept that the machinery of sale or disposal of Kendu leaves must also be geared to serve the public interest. lf the scheme of disposal creates a class of middle-men who would purchase from the Gov emment Kendu leaves at concessional rates I and would earn large profits disproportionate to the nature of the service rendered or duty perfonned by them, it cannot claim the protection of Art. 19(6)(ii).\n\nSection 10 leaves the method of sale or disposal of Kendu leaves to the Government as they think fit.\n\nTne action of the Government if conceived and executed in the interest of the general public is not open to judicial scrutiny.\n\nBut it is not given to the Government thereby to create a monopoly in favour of 'third parties from their own monopoly.\n\n\\ Jidity of the schemes adopted by the Government of Orissa for sate ot Kendu leaves must be adjudged in the light of Art. 19(1J (g) and Art. 14. lnstead of inviting tenders the Governme.u offered tu certain old contractors the optiQn to purchase Kendu leaves for the years 1968 on terms mentioned therein. ·;;, e reason suggested by the Government that thes< offers were made because the purchasers had carried out their obligations in the iJreviJus year to the satisfaction of th.o Gov ernment is not of any significance.\n\nFrom the affidavit filed by the State Government it appears that the price fetched at public auctions before and after January 1968 were much higher than the prices at which Kendu leaves were offered to the old con tractors.\n\nThe Government redised that the Scheme of offering to enter into contracts with the old licensees and to renew their terms was open to grave objection, since it sought arbitrarily to exclude many persons interested in the trade. The Government then decided to invite offers for advance purchases of Kendu leaves but restricted the invitation to those individuals who had carried out the contracts in the previous year without default and to the satisfaction of the Government.\n\nBy the new scheme instead of the Government making an offer, the existing contractors were given the exclusive right to make offers to purchase Kendu leaves.\n\nBut insofar as the right to make tenders for the purchase of Kendu leaves was restricted to those persons who had obtained contracts in the previous year the scheme was open to the same objection.\n\nThe right to make offers being open to a limited class of persons it effectively shut out all other persons carrying on trade in Kendu leaves and also new entrants into that business. It ws ex facie discriminatory, and imposed unreasonable restrictions upon the right of persons other than existing contractors to carry 011 business.\n\nIn our view, both the schemes evolved by the Government were violative of the fundamental right of the petitioners under Art. 19 ( 1 )( g) and Art. 14 because the schemes gave rise to a monopoly in the trade in Kendu leaves to certain traders, and singled out other traders for discriminatory treatment.\n\nThe classification based on the circumstance that certain existing contractors had carried out their obligations in the previous year regularly and to the satisfaction of the Government is not based on any real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved i.e .. effective execution of the monopoly in the public interest. ExchLsion of all persons interested in the trade, who were not in the previous year licensees is ex facie arbitrary : it had no direct relation to the object of preventing exploitation of pluckers and growers of Kendu leaves, nor had it any just or reasonable relation 10 the securing of the full benefit from the trade, to the State.\n\nRASHB!HARI PANDA v. OR!SSA (Shah, J.) 385\n\nValidity of the law by which the State assumed the monopoly to trade in a given commodity has to be judged by the test whether the entire benefit arising therefrom is to enure to the State, and the monopoly is. not used as a cloak for conferring private benefit upon a limited class of persons.\n\nThe scheme adopted by the Government first of offering to enter into contracts with certain named licensees, and later inviting tenders from licensees who had in the previous year carried out their contracts satisfactorily is liable to be adjudged void on the ground that it unreasonably excludes traders in Kendu leaves from carrying on their business.\n\nThe scheme of selling Kendu }eaves to selected purchasers or of accepting tenders only from a specified class of purchasers was not \"integrally and essentially\" connected with the creation of the monopoly and was not on the view taken by this Court in Akadasi Padhan's case(') protectei by Art. 19 ( 6 )(ii): it had therefore to satisfy the requirement of reasonableness u; nder the first pa; t of Art. 1 9 ( 6). No attempt was made to support the scheme on the ground that it imposed reasonable restrictions on the fundamental rights of the traders to carry on business in Kendu leaves.\n\nThe High Court also did not consider whether the restrictions imposed upon per- 'ons excluded from the benefit of trading satisfied the test of reasonableness under the first part of Art. 19 ( 6).\n\nThe High Court examined the problem from the angle whether the action of the State Government was vitiated on account of any oblique motive, and whether it was such as a prudent person carrying on business may adopt.\n\nNo explanation has been attempted on behalf of the State as to why an offer made by a well-known manufacturer of hidi< interested in the trade to purchase the entire crop of Kendu leaves for the year 1968 for rupees three crores was turned down. If the interests of the State alone were to be taken into consideration, the State stood to gain more than rupees one crore by accepting that offer.\n\nWe are not suggesting that merely because that offer was made, the Government was bound to accept it.\n\nThe Government had to consider, as a prudent businessman, whether, having regard to the circumstances, it should accep' the offer, especially in the light of the financial position of the offeror, the security which he was willing to give arui the effect which the acceptance of the offer may have on the other trader; and the general public interest.\n\nThe learned Judges of the High Court have observed that in their view the exercise of the discretion was not shown to be arbitrary, nor was the action shown to be Jacking in bona fides.\n\nBut that conclusion is open to criticism that the Government is not shown to have considered the prevailing prices of Kendu\n\n(I) [1963] Supp. 2 S.C.R. 691,\n\nleaves about the time when offers were made, the estimated crop of Kendu leaves, the conditions in the market and the likelihood of offerors at higher prices carrying out their obligations, 3nd whether it was in the interests of the State to invite tenders in the open market from all persons whether they had or had not taken contracts in the previous year. If the Government was anxious to ensure due. performance by those who submitted tenders for purchase of Kendu leaves, it was open to the Government to devise adequate safeguards in that behalf. In our judg, ment, the plea that the action of the Government was bona fide cannot be an effective answer to a claim made by a citiz.en that his fundamenJal rights were infringed by the action of the Government, nor can the claim of the petitioners be defeated on the plea that the Government in adopting the impugned scheme commited an error of judgment. The plea would have assisted the Government if the action was in law valid and the objection was that the Government erred in the exercise of. its discretion. It is unnecessary in the circumstances to consider whether the Government acted in the interest of their party-men and to increase party funds in devising the schemes for sale of Kendu lea, ves in 1968.\n\nDuring the pendency of these proceedings the entire year for which 'the contracts were given has expired.\n\nThe persons to wl)om the contracts were given are not before us, and we cannot declared the contracts which had ben entered into by the Government for thC\"sale of Kendu leaves for the year 1968 unlawful in these proceedings.\n\nCounsel for the appellants agree that it would be sufficient if it be directed that the tenders for purchase of Kendu leaves 'be invited bythe Government in the next season from all persons interested in the trade.\n\nWe trust that in accepting tenders, the State Government will act in the interest of the general public and not of any class of traders so that in the next season the State may get the entire benefit of the monopoly in the trade in Kendu leaves and no disproportionate share thereof may be diverted to any private agency. Subject to these observations we make no further order in the petitions out of which these appeals arise.\n\nThere will be no order as to CO!!ts in all these appeals throughout.\n\nV.P.S.\n\nScheme declared invalid:", "total_entities": 99, "entities": [{"text": "RASHBIHARI PANDA ETC", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "RASHBIHARI PANDA ETC", "offset_not_found": false}}, {"text": "STATE OF ORISSA", "label": "RESPONDENT", "start_char": 23, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "STATE OF ORISSA", "offset_not_found": false}}, {"text": "January 16, 1969", "label": "DATE", "start_char": 40, "end_char": 56, "source": "ner", "metadata": {"in_sentence": "STATE OF ORISSA\n\nJanuary 16, 1969\n\n(M. HIDAYATULLAH, C.J.,\n\nJ. C. SHAH,\n\nV. RAMASWAMI,\n\nG. K. MITTER AND A. N. GROVER, JJ.J\n\nOrissa Kendu Leaves (Control of Trade) Act (28 of 1961) s. 10- Scheme of Government for sale and disposal of leaves purchased by it- Contracts tvith."}}, {"text": "M. HIDAYATULLAH, C.J.", "label": "JUDGE", "start_char": 59, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 86, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 96, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "G. K. MITTER", "label": "JUDGE", "start_char": 111, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ", "label": "JUDGE", "start_char": 128, "end_char": 144, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "s. 10", "label": "PROVISION", "start_char": 204, "end_char": 209, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 14", "label": "PROVISION", "start_char": 380, "end_char": 388, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(6)", "label": "PROVISION", "start_char": 419, "end_char": 429, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 876, "end_char": 880, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 1063, "end_char": 1067, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 1352, "end_char": 1357, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 3", "label": "PROVISION", "start_char": 1507, "end_char": 1512, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 14 and 19(1)(f)", "label": "PROVISION", "start_char": 1593, "end_char": 1614, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 3 and 4", "label": "PROVISION", "start_char": 1711, "end_char": 1722, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(6)(ii)", "label": "PROVISION", "start_char": 1740, "end_char": 1754, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(6)(ii)", "label": "PROVISION", "start_char": 2151, "end_char": 2165, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts.\n\n14", "label": "PROVISION", "start_char": 3682, "end_char": 3691, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 4533, "end_char": 4537, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 4696, "end_char": 4701, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 11", "label": "PROVISION", "start_char": 4969, "end_char": 4979, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(6)", "label": "PROVISION", "start_char": 5372, "end_char": 5382, "source": "regex", "metadata": {"statute": null}}, {"text": "Kendu", "label": "GPE", "start_char": 5668, "end_char": 5673, "source": "ner", "metadata": {"in_sentence": "(383 D-G; 385A-B]\n\nIn the present ,,1ase, the right to make offers being open to a limited' class of persons it effectively shut out all other persons carrying on trade in Kendu leaves rs well as new entrants into the trade."}}, {"text": "Arts. 14 and 19(1)", "label": "PROVISION", "start_char": 6182, "end_char": 6200, "source": "regex", "metadata": {"statute": null}}, {"text": "Jnonopolv", "label": "OTHER_PERSON", "start_char": 6296, "end_char": 6305, "source": "ner", "metadata": {"in_sentence": "14 and 19(1) (g) and as the schemes were not 'integrally and essentia11y' connectedwith the creatiOn of the Jnonopolv they \\vere not protected by Art."}}, {"text": "Art. 19(6)(ii)", "label": "PROVISION", "start_char": 6334, "end_char": 6348, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(6)", "label": "PROVISION", "start_char": 7186, "end_char": 7196, "source": "regex", "metadata": {"statute": null}}, {"text": "Orissa High Court", "label": "COURT", "start_char": 8263, "end_char": 8280, "source": "ner", "metadata": {"in_sentence": "Appeals by special leave from the judgment and order dated May 8, 1968 of the Orissa High Court in O.J.C. Nos."}}, {"text": "B. Dadaclwnji", "label": "RESPONDENT", "start_char": 8325, "end_char": 8338, "source": "ner", "metadata": {"in_sentence": "B. Dadaclwnji, for the appellant (in C.As."}}, {"text": "A. S. R. Chari", "label": "LAWYER", "start_char": 8398, "end_char": 8412, "source": "ner", "metadata": {"in_sentence": "A. S. R. Chari, Govind Das and J. B. Dadachanji, for the pncllant (in C.A. No."}}, {"text": "Govind Das", "label": "LAWYER", "start_char": 8414, "end_char": 8424, "source": "ner", "metadata": {"in_sentence": "A. S. R. Chari, Govind Das and J. B. Dadachanji, for the pncllant (in C.A. No."}}, {"text": "J. B. Dadachanji", "label": "LAWYER", "start_char": 8429, "end_char": 8445, "source": "ner", "metadata": {"in_sentence": "A. S. R. Chari, Govind Das and J. B. Dadachanji, for the pncllant (in C.A. No."}}, {"text": "C. K. Daphtary", "label": "OTHER_PERSON", "start_char": 8493, "end_char": 8507, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Santosh Chatterjee and R. N. Sachthey, for the respondent (in all the appeals)."}}, {"text": "Santosh Chatterjee", "label": "OTHER_PERSON", "start_char": 8509, "end_char": 8527, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Santosh Chatterjee and R. N. Sachthey, for the respondent (in all the appeals)."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 8532, "end_char": 8546, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Santosh Chatterjee and R. N. Sachthey, for the respondent (in all the appeals)."}}, {"text": "Shah", "label": "JUDGE", "start_char": 8635, "end_char": 8639, "source": "ner", "metadata": {"in_sentence": "The .T udgment of the Court was delivered by Shah, J.\n\nThese appeals arise out of orders passed in petitions moved before the High Court of Orissa challenging the scheme adopted by the Government of Orissa for sale of Ke11d11 leaves in which the State has assumed a monopoly of trading."}}, {"text": "High Court of Orissa", "label": "COURT", "start_char": 8716, "end_char": 8736, "source": "ner", "metadata": {"in_sentence": "The .T udgment of the Court was delivered by Shah, J.\n\nThese appeals arise out of orders passed in petitions moved before the High Court of Orissa challenging the scheme adopted by the Government of Orissa for sale of Ke11d11 leaves in which the State has assumed a monopoly of trading."}}, {"text": "Government of Orissa", "label": "ORG", "start_char": 8775, "end_char": 8795, "source": "ner", "metadata": {"in_sentence": "The .T udgment of the Court was delivered by Shah, J.\n\nThese appeals arise out of orders passed in petitions moved before the High Court of Orissa challenging the scheme adopted by the Government of Orissa for sale of Ke11d11 leaves in which the State has assumed a monopoly of trading."}}, {"text": "State of Orissa", "label": "ORG", "start_char": 9067, "end_char": 9082, "source": "ner", "metadata": {"in_sentence": "To regulate the trade in Kendu leaves the State of Orissa has adopted diverse executive and legislative measures."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 9179, "end_char": 9183, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(1 )(g)", "label": "PROVISION", "start_char": 10014, "end_char": 10028, "source": "regex", "metadata": {"statute": null}}, {"text": "Division Bench of the Orissa High Court upheld the validity of the Act", "label": "STATUTE", "start_char": 10053, "end_char": 10123, "source": "regex", "metadata": {}}, {"text": "s. 3", "label": "PROVISION", "start_char": 10611, "end_char": 10615, "source": "regex", "metadata": {"linked_statute_text": "Division Bench of the Orissa High Court upheld the validity of the Act", "statute": "Division Bench of the Orissa High Court upheld the validity of the Act"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 10839, "end_char": 10843, "source": "regex", "metadata": {"linked_statute_text": "Division Bench of the Orissa High Court upheld the validity of the Act", "statute": "Division Bench of the Orissa High Court upheld the validity of the Act"}}, {"text": "s. 8", "label": "PROVISION", "start_char": 11063, "end_char": 11067, "source": "regex", "metadata": {"linked_statute_text": "Division Bench of the Orissa High Court upheld the validity of the Act", "statute": "Division Bench of the Orissa High Court upheld the validity of the Act"}}, {"text": "Section 10", "label": "PROVISION", "start_char": 11166, "end_char": 11176, "source": "regex", "metadata": {"statute": null}}, {"text": "Kendu leaves purchased by Government or by their officers or agents under this Act", "label": "STATUTE", "start_char": 11195, "end_char": 11277, "source": "regex", "metadata": {}}, {"text": "s. 11", "label": "PROVISION", "start_char": 11459, "end_char": 11464, "source": "regex", "metadata": {"linked_statute_text": "Kendu leaves purchased by Government or by their officers or agents under this Act", "statute": "Kendu leaves purchased by Government or by their officers or agents under this Act"}}, {"text": "Sections 14, 15 and 16", "label": "PROVISION", "start_char": 11547, "end_char": 11569, "source": "regex", "metadata": {"linked_statute_text": "Kendu leaves purchased by Government or by their officers or agents under this Act", "statute": "Kendu leaves purchased by Government or by their officers or agents under this Act"}}, {"text": "Section 18", "label": "PROVISION", "start_char": 11652, "end_char": 11662, "source": "regex", "metadata": {"linked_statute_text": "Kendu leaves purchased by Government or by their officers or agents under this Act", "statute": "Kendu leaves purchased by Government or by their officers or agents under this Act"}}, {"text": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act", "label": "STATUTE", "start_char": 11974, "end_char": 12069, "source": "regex", "metadata": {}}, {"text": "Arts. 19(1 )(f)", "label": "PROVISION", "start_char": 12139, "end_char": 12154, "source": "regex", "metadata": {"linked_statute_text": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act", "statute": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 12165, "end_char": 12172, "source": "regex", "metadata": {"linked_statute_text": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act", "statute": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act"}}, {"text": "ss. 3 and 4", "label": "PROVISION", "start_char": 12189, "end_char": 12200, "source": "regex", "metadata": {"linked_statute_text": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act", "statute": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act"}}, {"text": "Art. 19(l)(f)", "label": "PROVISION", "start_char": 12260, "end_char": 12273, "source": "regex", "metadata": {"linked_statute_text": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act", "statute": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act"}}, {"text": "ss. 5, 6 and 9", "label": "PROVISION", "start_char": 12307, "end_char": 12321, "source": "regex", "metadata": {"linked_statute_text": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act", "statute": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 12593, "end_char": 12600, "source": "regex", "metadata": {"linked_statute_text": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act", "statute": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 12729, "end_char": 12733, "source": "regex", "metadata": {"linked_statute_text": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act", "statute": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act"}}, {"text": "Art. 19(5)", "label": "PROVISION", "start_char": 12803, "end_char": 12813, "source": "regex", "metadata": {"linked_statute_text": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act", "statute": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act"}}, {"text": "Art. 19(6)", "label": "PROVISION", "start_char": 12818, "end_char": 12828, "source": "regex", "metadata": {"linked_statute_text": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act", "statute": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 12833, "end_char": 12837, "source": "regex", "metadata": {"linked_statute_text": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act", "statute": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act"}}, {"text": "section 3", "label": "PROVISION", "start_char": 12904, "end_char": 12913, "source": "regex", "metadata": {"linked_statute_text": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act", "statute": "Kendu leaves moved a petition in this Court contending that the principal provisions of the Act"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 13256, "end_char": 13260, "source": "regex", "metadata": {"statute": null}}, {"text": "February 2, 1966", "label": "DATE", "start_char": 14509, "end_char": 14525, "source": "ner", "metadata": {"in_sentence": "On February 2, 1966, the Government of orrssa invited tenders from persons desirous of purchasing Kendu leaves purchased or collected by Government or by their officers or Agents under the provisions of the Orissa Kendu Leaves (Control of\n\n(l) [1963] Supp."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 14834, "end_char": 14838, "source": "regex", "metadata": {"statute": null}}, {"text": "January 24, 1968", "label": "DATE", "start_char": 16342, "end_char": 16358, "source": "ner", "metadata": {"in_sentence": "On January 24, 1968, a petition was moved by Rashbihari Panda in the High Court of Orissa under Art .. 226 of the Constitution challenging the action of the Government."}}, {"text": "Rashbihari Panda", "label": "PETITIONER", "start_char": 16384, "end_char": 16400, "source": "ner", "metadata": {"in_sentence": "On January 24, 1968, a petition was moved by Rashbihari Panda in the High Court of Orissa under Art .. 226 of the Constitution challenging the action of the Government.", "canonical_name": "RASHBIHARI PANDA ETC"}}, {"text": "Art. 19(6)(ii)", "label": "PROVISION", "start_char": 17521, "end_char": 17535, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 20478, "end_char": 20483, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 10", "label": "PROVISION", "start_char": 20567, "end_char": 20577, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 21043, "end_char": 21048, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 21796, "end_char": 21801, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19(1)(f)", "label": "PROVISION", "start_char": 22549, "end_char": 22565, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(1)(g)", "label": "PROVISION", "start_char": 22646, "end_char": 22659, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 23018, "end_char": 23025, "source": "regex", "metadata": {"statute": null}}, {"text": "A kadsi Padhan", "label": "OTHER_PERSON", "start_char": 23940, "end_char": 23954, "source": "ner", "metadata": {"in_sentence": "In A kadsi Padhan's case(') this Court beld that by the amendments in Art."}}, {"text": "Art. 19(6)", "label": "PROVISION", "start_char": 24007, "end_char": 24017, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 24619, "end_char": 24626, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 3 and 4", "label": "PROVISION", "start_char": 24724, "end_char": 24735, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 25142, "end_char": 25149, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 25376, "end_char": 25380, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 14 and 19(l)(g)", "label": "PROVISION", "start_char": 26062, "end_char": 26083, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 10", "label": "PROVISION", "start_char": 26628, "end_char": 26638, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 26671, "end_char": 26675, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 26842, "end_char": 26846, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 27318, "end_char": 27322, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 11", "label": "PROVISION", "start_char": 27420, "end_char": 27430, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(6)(ii)", "label": "PROVISION", "start_char": 28019, "end_char": 28033, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 10", "label": "PROVISION", "start_char": 28036, "end_char": 28046, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(1J (g)", "label": "PROVISION", "start_char": 28506, "end_char": 28520, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 28525, "end_char": 28532, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 30430, "end_char": 30437, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 30452, "end_char": 30459, "source": "regex", "metadata": {"statute": null}}, {"text": "Akadasi Padhan", "label": "OTHER_PERSON", "start_char": 32277, "end_char": 32291, "source": "ner", "metadata": {"in_sentence": "The scheme of selling Kendu }eaves to selected purchasers or of accepting tenders only from a specified class of purchasers was not \"integrally and essentially\" connected with the creation of the monopoly and was not on the view taken by this Court in Akadasi Padhan's case(') protectei by Art."}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 32315, "end_char": 32322, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 1", "label": "PROVISION", "start_char": 32423, "end_char": 32429, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 32797, "end_char": 32804, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_387_391_EN", "year": 1969, "text": "MUNICIPAL BOARD, SITAPUR\n\nPRAYAG\n\nNARAIN\n\nSAIGAL\n\n& FIRM MOOSARAM'.\n\nBHAGWANDAS\n\nJanuary 16, 1969\n\n[S. M. SIKRI. R. S. BACHAWAT AND K. S. lIEGDE, JJ.]\n\nU.P. Municiplities Act, 1916 (U.P. Act 2 of 1916)-Levy of water rax-Non-comp/iance with provisions of SJ. 131(3), 132(2) and 94- Whether makes levy involid-E[Ject of' 135(3).\n\nThe Municipal Board Sitapur took various steps to levy water tax a~ authorised by s. 126(1)(x) of the U.P. Municipalities Act, 1916, and the special resolution imposing the tax with effect from October l, 1957 wa~ passed on April 23, 1957. The High Omrt held the levy to be invalid.\n\nIn appeal filed by the Municipal Board this O>urt had to consider the effect of (i) the omission to publish the preliminary p\\'opooal separately in the manner prescribed by s. 131(3) read with s. 94,\n\n(ii) the non publication of the modified proposal in accordance with s. 132(2) and\n\n(iii) the non-publication of the special resolution directing the impooition of the tax in accordance with s. 94.\n\nHELD : The High Court was in error in quashing the imposition ol the watertax.\n\n(i) Procedural defects in the imposition of the tax are cured by s. 135(3). Snch defects cannot be regarded as fundamental or as invalidating the imposition, if no substantial prejudice is caused thereby to thl.\".' inhabitants of the municipality.\n\nThe issue of the notification under s. 135(2) ts conclusive proof that all necessary steps for the imposition ol the tax. have been taken in accordance \\Vith the provisions of the Act.\n\n[J89E-F]\n\nMunicipal Board v. Raghuvendra, [19661 I S.C.R. 950. Buland Sugar\n\nv. Municipal Board, [1965) I S.C.R. 97(} and Berar Swade.ihi Vana.rpcthi\n\nv. Municipal Committee, Shegaon, [1962] 1 S.C.R. 596, applied.\n\n(ii) In the present case there was substanti::ll compliance with s. 131 (3).\n\nThe proposal was not separately published in the prescribed tonn but the 01nission to do so was a mere irregularity.\n\nThe object of the publication under s. 131(3) is to inform the inhabitants of !he proposal so that they can file their objeclions to it.\n\nThal object was fully achie.ved by the publication in the local newspaper.\n\n[39(} B-D]\n\n(ii!) The inh.abitants submitted all objections which they could possibly raise both with regard to the rate of tax and the exemption limit. No prejudice was caused by not inviting fresh objections to reduction of the\n\nrate of tax or !he exemption limit.\n\nTbe non-publication of the modified proposal was a mere irregularity and the defect was cured bys. 135(31.\n\n[390 E]\n\n(iv) Section 134(2) does not provide for the publication of the special re.olut1on passed under it.\n\nAssuming that it had to be published under the general provisions of s. 94, the non-publication was a mere irregularity cured by s. 135(3).\n\n[391 CJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 84 7 and 848 of 1966.\n\nAppeals by special leave from the judgment and order dated A January 20, 1965 of the Allahabad High Court, Lucknow Bench in Writ Petitions Nos. 108 and 109 of 1962.\n\nS. C. Manchantla and S. S. Shukla, for the appellant (in both the appeals).\n\nC. B. Agarwala and K. P. Gupta, for the respondents (in B both the appeals).\n\nThe Judgment of the Court was delivered by Bacbawat, J. These appeals are directed against orders of the Allahabad High Court (Lucknow Bench), quashing the imposition of a water rate imposed by the Municipal Board, Sitapur.\n\nSection 126(l){x) of the \"(J.P. Municipalities Act, 1916 ( U.P Act No. 2 of 1916) empowers the Board to impose a water tax on the annual value of buildings or lands or of both.\n\nSections 131 to 135 lay down the procedure for imposing the tax. The High Court held that the levy was invalid as the Bollfd did not comply with this procedure.\n\nA municipal board desiring to impose the tax is required by s. 131 sub-s. (1) to pass a ecial reso!\\1tion framing the preliminary proposal for the tax.\n\nThe Municipal Board, Sitapur. passed a special resolution on January 24, 1956 framing the proposal for the levy of water tax at the rate of 12 % per annum on the annual value of buildings and lands and exempting buildings and lands whose annual value was Rs. 24 or below.\n\nSection 131 sub.-s. (2) requires the Board to prepare a draft Of the rules in respect of the proposed tax.\n\nThe Board duly prepared the necessary draft rules.\n\nSection 131 sub-s. (3) requires the Board to publish in the manner prescribed in s. 94 the proposal and the draft rules along with a notice in the form setforth in Schedule III. The draft rules along with the notice was published in the Rashtra Sandesh, a local paper published in Hindi.\n\nThe proposal was not separately published. But the proposal was to be found in the: draft rules published in the local paper. Objections against the proposal were filed by the inhabitants of the municipality.\n\nThe Board duly considered the ob- .iections and passed orders thereon under s. 132 sub-s. (1).\n\nAfter considering the objections and the recommendations of the prescribed authority under s. 133 sub-s.\n\n(1) the Board decided to modify the original proposal by reducing the tax to !0% on the annual value and by exempting all lands and buildings whose annual value was Rs. 36 or below.\n\nSection 132 sub-s. (2) requires the Board to publish the modified proposal along with a notice indicating that it is iri modification of the original proposal. ands. 132 sub-s. (3) provides that the objecc\n\nMUNIC. BOARD v. P. N. SAIGAL (Bachawat, J.) 389\n\ntions to the modified proposal shall be dealt with in the manner prescribed by sub-s. ( 1). The modified proposal was not published as required by s. 132 sub-s. (2). The prescribed authority acting under s. 132 sub-s. (2) duly sanctioned the final proposal and mad~ the necessary rules in respect of the tax. It may be noted that the Commissioner, Lucknow Division, was the prescribed authority.\n\nOn receipt of the order of sanction and the copy of the rules, the Board acting under s. 134 sub-s. (2) passed a special resolution on April 23, 1957 directing the imposition of the tax with effect from October 1, 1957. This special resolution was not published in the manner prescribed by s. 94.\n\nOn receipt of the special resolution the prescribed authority acting under s. 135 sub-s. (2) notified in the official gazette dated August 3, 1957 the imposition of the tax from the appointed date.\n\nSection 135 sub-s. (3) provides that \"a notificatioa of the imposition of a tax under sub-section (2) shall be conclusive proof that the tax has been imposed in accordance with the provisions of this Act.\"\n\nThe respondents raised three objections against the validity of the imposition of the water tax : ( 1) omission to publish the preliminary proposal separately in the manner prescribed by s. 131 sub-s. (3) read with s. 94; (2) non-publication of the modified proposal in accordance withs. 132 sub-s. (2); and (3) non-publication of the special resolution directing the imposition of the tax in accordance with s. 94. The procedure laid down by the Act was not strictly complied with before imposing the tax.\n\nBut all the procedural defects in the imposition of the tax <ue cured by s. 135 sub-s. (3), where, as in this case, the Municipal Board has the power to levy the tax and has passed the special .resolution necessary for the imposition of the tax and the defects are not of a fundamental character. The procedural defects cannot be regarded as fundamental or as invalidating the imposition, if no substantial prejujdice is caused thereby to he inhabitants of the municipality.\n\nThe issue of the notificatton under s. 135 sub-s. (2) is conclusive proof that all necessary steps for the imposition of the tax have been taken in accordance with the provisions of the Act.\n\nIn Municipal B'>ard v. Raghuvendra( 1 ) the Court held that the deft of non-publication of the special resolution proposing the tax m a local Hindi paper and omission to publish the draft rules as required bys. 131 sub-s. (3) read withs. 94 sub-s. (3)\n\nwa~ .cured by .s. 135 sub-s. (3) and that the publication of the special resolution by affixing a copy of it on the notice board and by beat of drum was sufficient.\n\nIn Bland Sugar v. Muni cipal Board(') the Court held that the publication of the prorn[l966J I~ S.C.R. 950-. --·\n\n12) [!%5] I S.C.R. 970.\n\nposals and the draft rules in Hindi in a local Urdu paper was A sufficient compliance with s. 131 sub-s. ( 3). In Berar Swadeshi\n\nVanaspathi v. Municipal Committee, Shegaon,( 1 ) the Court held that in view of the similar provisions of s. 67 sub-s. (7) of the C.P. and Berar Municipal Act, 1922, the validity of imposition of the octroi tax could not be challenged on the ground that the objections were not considered on the merits.\n\nAs to the first objection we find that there was substantial compliance with s. 131 sub-s. ( 3). The draft rules were published in the Rashtra Sandesh.\n\nThey incorporated the preliminary proposal and mentioned the special resolution dated January 24, 1956 by which the proposal was framed.\n\nThere was thus sufficient publication of the proposal.\n\nThe. proposal was not separately published in the prescribed form, but the omission to do so was a mere irregularity.\n\nThe inhabitants of the municipality had due notice of the proposal. The object of the publication under s. 131 sub-s. ( 3) is to inform the inhabitants of the proposal so that they can file their objections to it. That object was fully achieved by the publication in the Rashtra Sandesh.\n\nAs to the second objection, we find that the original proposal was to levy water tax at the rate of 12% per annum on the annual value.\n\nThe inhabitants had full opportunity to raise objections to the rate of the tax and to submit whether the rate should be 12% or 10% or less.\n\nAfter considering their objections, the Board proposed to levy the tax at the reduced rate of 10%· per annum on the annual value.\n\nNo prejudice was caused by not inviting fresh objections to the modified proposal of levying the tax at the reduced rate. It is interesting to notice that the U.P. Municipalities (Amendment) Act, 1964 (U.P. Act No. XXVII of 1964) inserted in s. 132 sub-s. (2) the following proviso : \"Provided that no such publication shall be necessary where the modification is confined to reduction in the amount or rate of the tax originally proposed.'' This proviso was not in force on January 24, 1956. But it does indicate that i.t is unnecessary to publish a modified proposal reducing the rate of tax originally proposed.\n\nThe original proposal exempted all buildings and land> whose annual value was Rs. 24 or below.\n\nThe modified proposal raised the exemption limit and provided that all buildings and lands whose annual value was Rs. 36 or below would be exempted. The inhabitants of the municipali.ty had full opportunity to raise objections as to the exemption limits as originally proposed and to submit whether buildings and lands of the value of Rs. 24 or Rs. 36 or more should be exempted.\n\nNo prejudice was caused by not inviting fresh objections to the\n\n(1)(190211 S.C.R. 596.--\n\n)!IUNIC. BOARD v. P. N. SAIGAL (Bachawat, J.) 391\n\nmodified proposal raising the exemption limit.\n\nThe inhabitants submitted all objections which they could possibly raise bot, h with regard to the rate of tax and' the exemption limit. In our\n\nopinion, the non-publication of the modified proposal was a mere irregularity, and the defect was cured by s. 135 sub-s. (3).\n\nAs to the third objection it is to be observed that s. 134 sub. s. ( 2) does not provide for the publication of the special resolution passed under it. Assuming that this special resolution had to be published under the general provisions of s. 94, we think that the non-publication was a mere irregularity.\n\nThe inhabitants had no right to file any objections againstthe special resolution. They had clear notice of the im position of the tax from the notification published in the official gazette on August 3, 1957. The defect of the non-publication of the special resolution in the manner prescribed by s. 94 was cured by s. 135 sub-s. ( 3). The High Court was in error in quashing the imposition of the water tax.\n\nIn the result, the appeals are allowed with costs in this Court and in the High Court, the order of the High Court is set aside and the writ petitions are dismissed. There will be one hearing fee.\n\nG.C.\n\nAppeals allowed ..", "total_entities": 66, "entities": [{"text": "PRAYAG\n\nNARAIN\n\nSAIGAL\n\n& FIRM MOOSARAM'.\n\nBHAGWANDAS", "label": "RESPONDENT", "start_char": 26, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "PRAYAG NARAIN SAIGAL & FIRM MOOSARAM BHAGWANDAS", "offset_not_found": false}}, {"text": "January 16, 1969", "label": "DATE", "start_char": 81, "end_char": 97, "source": "ner", "metadata": {"in_sentence": "BHAGWANDAS\n\nJanuary 16, 1969\n\n[S. M. SIKRI."}}, {"text": "S. M. SIKRI. R. S. BACHAWAT", "label": "JUDGE", "start_char": 100, "end_char": 127, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "Municiplities Act, 1916", "label": "STATUTE", "start_char": 157, "end_char": 180, "source": "regex", "metadata": {}}, {"text": "The Municipal Board Sitapur", "label": "PETITIONER", "start_char": 328, "end_char": 355, "source": "metadata", "metadata": {"canonical_name": "MUNICIPAL BOARD, SITAPUR", "offset_not_found": false}}, {"text": "s. 126(1)(x)", "label": "PROVISION", "start_char": 410, "end_char": 422, "source": "regex", "metadata": {"linked_statute_text": "Municiplities Act, 1916", "statute": "Municiplities Act, 1916"}}, {"text": "Municipalities Act, 1916", "label": "STATUTE", "start_char": 435, "end_char": 459, "source": "regex", "metadata": {}}, {"text": "23, 1957", "label": "DATE", "start_char": 558, "end_char": 566, "source": "ner", "metadata": {"in_sentence": "The Municipal Board Sitapur took various steps to levy water tax a~ authorised by s. 126(1)(x) of the U.P. Municipalities Act, 1916, and the special resolution imposing the tax with effect from October l, 1957 wa~ passed on April 23, 1957."}}, {"text": "s. 131(3)", "label": "PROVISION", "start_char": 785, "end_char": 794, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1916", "statute": "Municipalities Act, 1916"}}, {"text": "s. 94", "label": "PROVISION", "start_char": 805, "end_char": 810, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1916", "statute": "Municipalities Act, 1916"}}, {"text": "s. 132(2)", "label": "PROVISION", "start_char": 882, "end_char": 891, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1916", "statute": "Municipalities Act, 1916"}}, {"text": "s. 94", "label": "PROVISION", "start_char": 1004, "end_char": 1009, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1916", "statute": "Municipalities Act, 1916"}}, {"text": "s. 135(3)", "label": "PROVISION", "start_char": 1157, "end_char": 1166, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1916", "statute": "Municipalities Act, 1916"}}, {"text": "s. 135(2)", "label": "PROVISION", "start_char": 1377, "end_char": 1386, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1916", "statute": "Municipalities Act, 1916"}}, {"text": "[1962] 1 S.C.R. 596", "label": "CASE_CITATION", "start_char": 1711, "end_char": 1730, "source": "regex", "metadata": {}}, {"text": "s. 131", "label": "PROVISION", "start_char": 1807, "end_char": 1813, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 131(3)", "label": "PROVISION", "start_char": 1974, "end_char": 1983, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 134(2)", "label": "PROVISION", "start_char": 2542, "end_char": 2556, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 94", "label": "PROVISION", "start_char": 2707, "end_char": 2712, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 135(3)", "label": "PROVISION", "start_char": 2767, "end_char": 2776, "source": "regex", "metadata": {"statute": null}}, {"text": "Allahabad High Court, Lucknow Bench", "label": "COURT", "start_char": 2946, "end_char": 2981, "source": "ner", "metadata": {"in_sentence": "Appeals by special leave from the judgment and order dated A January 20, 1965 of the Allahabad High Court, Lucknow Bench in Writ Petitions Nos."}}, {"text": "S. C. Manchantla", "label": "LAWYER", "start_char": 3027, "end_char": 3043, "source": "ner", "metadata": {"in_sentence": "S. C. Manchantla and S. S. Shukla, for the appellant (in both the appeals)."}}, {"text": "S. S. Shukla", "label": "LAWYER", "start_char": 3048, "end_char": 3060, "source": "ner", "metadata": {"in_sentence": "S. C. Manchantla and S. S. Shukla, for the appellant (in both the appeals)."}}, {"text": "C. B. Agarwala", "label": "LAWYER", "start_char": 3104, "end_char": 3118, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala and K. P. Gupta, for the respondents (in B both the appeals)."}}, {"text": "K. P. Gupta", "label": "LAWYER", "start_char": 3123, "end_char": 3134, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala and K. P. Gupta, for the respondents (in B both the appeals)."}}, {"text": "Bacbawat", "label": "JUDGE", "start_char": 3225, "end_char": 3233, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Bacbawat, J. These appeals are directed against orders of the Allahabad High Court (Lucknow Bench), quashing the imposition of a water rate imposed by the Municipal Board, Sitapur."}}, {"text": "Allahabad High Court (Lucknow Bench", "label": "COURT", "start_char": 3287, "end_char": 3322, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Bacbawat, J. These appeals are directed against orders of the Allahabad High Court (Lucknow Bench), quashing the imposition of a water rate imposed by the Municipal Board, Sitapur."}}, {"text": "Section 126(l)", "label": "PROVISION", "start_char": 3407, "end_char": 3421, "source": "regex", "metadata": {"statute": null}}, {"text": "Municipalities Act, 1916", "label": "STATUTE", "start_char": 3439, "end_char": 3463, "source": "regex", "metadata": {}}, {"text": "Sections 131 to 135", "label": "PROVISION", "start_char": 3585, "end_char": 3604, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1916", "statute": "Municipalities Act, 1916"}}, {"text": "s. 131", "label": "PROVISION", "start_char": 3807, "end_char": 3813, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1916", "statute": "Municipalities Act, 1916"}}, {"text": "Municipal Board, Sitapur", "label": "ORG", "start_char": 3904, "end_char": 3928, "source": "ner", "metadata": {"in_sentence": "The Municipal Board, Sitapur."}}, {"text": "January 24, 1956", "label": "DATE", "start_char": 3961, "end_char": 3977, "source": "ner", "metadata": {"in_sentence": "passed a special resolution on January 24, 1956 framing the proposal for the levy of water tax at the rate of 12 % per annum on the annual value of buildings and lands and exempting buildings and lands whose annual value was Rs."}}, {"text": "Section 131", "label": "PROVISION", "start_char": 4173, "end_char": 4184, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1916", "statute": "Municipalities Act, 1916"}}, {"text": "Section 131", "label": "PROVISION", "start_char": 4333, "end_char": 4344, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1916", "statute": "Municipalities Act, 1916"}}, {"text": "s. 94", "label": "PROVISION", "start_char": 4414, "end_char": 4419, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1916", "statute": "Municipalities Act, 1916"}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 4497, "end_char": 4509, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 132", "label": "PROVISION", "start_char": 4908, "end_char": 4914, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 133", "label": "PROVISION", "start_char": 5019, "end_char": 5025, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 132", "label": "PROVISION", "start_char": 5217, "end_char": 5228, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 132", "label": "PROVISION", "start_char": 5620, "end_char": 5626, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 132", "label": "PROVISION", "start_char": 5677, "end_char": 5683, "source": "regex", "metadata": {"statute": null}}, {"text": "Lucknow", "label": "GPE", "start_char": 5821, "end_char": 5828, "source": "ner", "metadata": {"in_sentence": "It may be noted that the Commissioner, Lucknow Division, was the prescribed authority."}}, {"text": "s. 134", "label": "PROVISION", "start_char": 5956, "end_char": 5962, "source": "regex", "metadata": {"statute": null}}, {"text": "April 23, 1957", "label": "DATE", "start_char": 6005, "end_char": 6019, "source": "ner", "metadata": {"in_sentence": "On receipt of the order of sanction and the copy of the rules, the Board acting under s. 134 sub-s. (2) passed a special resolution on April 23, 1957 directing the imposition of the tax with effect from October 1, 1957."}}, {"text": "s. 94", "label": "PROVISION", "start_char": 6160, "end_char": 6165, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 135", "label": "PROVISION", "start_char": 6243, "end_char": 6249, "source": "regex", "metadata": {"statute": null}}, {"text": "August 3, 1957", "label": "DATE", "start_char": 6300, "end_char": 6314, "source": "ner", "metadata": {"in_sentence": "On receipt of the special resolution the prescribed authority acting under s. 135 sub-s. (2) notified in the official gazette dated August 3, 1957 the imposition of the tax from the appointed date."}}, {"text": "Section 135", "label": "PROVISION", "start_char": 6367, "end_char": 6378, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 131", "label": "PROVISION", "start_char": 6761, "end_char": 6767, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 94", "label": "PROVISION", "start_char": 6789, "end_char": 6794, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 94", "label": "PROVISION", "start_char": 6983, "end_char": 6988, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 135", "label": "PROVISION", "start_char": 7155, "end_char": 7161, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 135", "label": "PROVISION", "start_char": 7594, "end_char": 7600, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 135", "label": "PROVISION", "start_char": 8018, "end_char": 8024, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 131", "label": "PROVISION", "start_char": 8399, "end_char": 8405, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 67", "label": "PROVISION", "start_char": 8544, "end_char": 8549, "source": "regex", "metadata": {"statute": null}}, {"text": "Berar Municipal Act, 1922", "label": "STATUTE", "start_char": 8577, "end_char": 8602, "source": "regex", "metadata": {}}, {"text": "s. 131", "label": "PROVISION", "start_char": 8820, "end_char": 8826, "source": "regex", "metadata": {"linked_statute_text": "Berar Municipal Act, 1922", "statute": "Berar Municipal Act, 1922"}}, {"text": "s. 131", "label": "PROVISION", "start_char": 9313, "end_char": 9319, "source": "regex", "metadata": {"linked_statute_text": "Berar Municipal Act, 1922", "statute": "Berar Municipal Act, 1922"}}, {"text": "s. 132", "label": "PROVISION", "start_char": 10149, "end_char": 10155, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 135", "label": "PROVISION", "start_char": 11442, "end_char": 11448, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 134", "label": "PROVISION", "start_char": 11514, "end_char": 11520, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 94", "label": "PROVISION", "start_char": 11704, "end_char": 11709, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 94", "label": "PROVISION", "start_char": 12069, "end_char": 12074, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 135", "label": "PROVISION", "start_char": 12088, "end_char": 12094, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_392_399_EN", "year": 1969, "text": "STATE OF UTTAR PRADESH & ORS.\n\nHARISH CHANDRA SINGH\n\nJanuary 17, 1969\n\n[S. M. Snou, R. s. BACHAWAT AND K. s. HEGDE, JJ.]\n\nConstitution of India Art. 311(1)--Consideration of past record- 01nission in show cause-Whether justifies lesser pena/v.\n\nPolice A.ct, 1861, ss. 7 and 29-Scope of-Prosecution under s. 29, need not precede charges under s. 7.\n\nThe respondent, was selected by the Deputy Inspector General of Police for admission to the Police Training College, and the result declar- C ing him successful was issued by the order of the Inspector General of Police, and bis appointment announced in the police gazette.\n\nWhile the respondent was serving as a Sub-Inspector of Police. charges were framed against him, under s. 7 of the Police Act, 1861. The Superintendent of Police gave a report mentioning his past record, and recommended his 'removal from service. Notice to show cause, enclosing the findings of the Superintendent of Police was served on the respondent.\n\nThe Deputy Inspector General, held the enquiry, and agreed with the findings of the D Superintendent of Police. The respondent filed an appeal to the !nspector- General of Police, which was rejected.\n\nIn their order, both the Deputy Inspector General and Inspector General, took into consideration the past record of the respondent.\n\nThe respondent filed a suit for a declaration th:1t his removal was illegal and ineffective.\n\nThe trial court dismissed the suit, but the High Court decreed the suit holding that no opportunity was given to the respondent to expl¥n his past record which \\Vas ta.ken into E consideration.\n\nIn appeal to this Court, the State contended that the respondent had notice that his past record would be taken into considerati-.:>n.\n\nand alternatively, if the past record was t~.kcn into consideration for imposing lesser oenalty, it was not necesary to mention in the show cause notice that the past record would be considered.\n\nThe respondent contended that there has been breach of Art. 311 ( 1) of the Constitution as he was appointed by the Inspector General of Police and removed by the Deputy Inspector General of Police and that he should have been tried under F s. 29 of the Police Act, before he was charged under s. 7.\n\nHELD : The suit must be dismi.sed.\n\n(i) The respondent had notice that his past record would be taken into consideration because the Superintendent of Police had mentioned it in hi!ri order, a copy of \\Vhich w:1s supplied to him.\n\nFurthe'r, on the charges against the respondent, he had been dealt with leniently and if the record was taken into consideration for the purpose of imposing a lesser\n\npunishment rind not for the pUrpose of increasing the quantum or nature of punishment. then it was not necessary that it should be stated in the sho\\v cause. notice that his past record would be taken into consideration.\n\n[397A; G-HJ\n\nState of M., sore v. K. Manche Gowda, [1964] 4 S.C.R. 540. 548, referred to.\n\n(ii) The first appellate court's conclusion that the respondent hh.d been appointed by the Deputy Inspector General of Police, was a finding of fact and was binding on this Court. But apart from that the \"';'IY doc; ument relied on by the respondent was the result sheet dec1anng him\n\nA successful ;1fter training and this had no relevance to his appointment as Sub-Inspector of Police.\n\n[398 A-OJ\n\n(iii) A Police Officer may also be liable to be prosecuted under s. Z9 of the Police Ac), but it i• not necessary that in every case which falls within s. 7 the Police Officer should first be prosecuted under s. 29 before he can be proceeded under s. 7. Section 7 deals with disciplinary proceed- B ings while s. 29 makes certain beaches criminal olfences. Section 29 does not in any way limit the operation of s. 7. [399 CJ\n\nC1v1L APPELLATE JuR1so1cTION: Civil Appeal No. 834 of 1966.\n\nAppeal by special leave from the judgment and order dated March 2. 1965 of the Allahabad High Court in Second Appeal C No. 1271of1962.\n\nC. P. A garwa/a and 0. P. Rana, for the appellan~:\n\nE. C. Agrawa/a, S. R. Agrawa/a and P. C. Agrawlllla, tor 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 Judicature at Allahabad diing the appeal filed by the State of Uttar Pradesh and Others, appellants before us, against the judgment and decree passed by the Additional District Judge, Varanasi, setting aside the judgment Jnd decree passed by the Trial Court and decreeing the plaintiff's suit.\n\nThe plaintiff, Harish Chandra Singh, had brought a suit against the State of Uttar Pradesh and some Police Officers tor a declaration that the order of removal of the plaintiff from the\n\nPolice Service was void, illegal, ineffective and inoperative, and that the plaintiff still CQ!ltinued to be in Uttar Pradesh Police Service as Station Officer-in-Charge of a Police Station and that he was entitled to his full pay and emoluments with increments as they fell due.\n\nHe had also prayed for recovery of Rs. 7,453 as full emoluments and salary from June 27, 1956 up to the date of the suit.\n\nIn order to appreciate the points raised before us it is necessary to set out the relevant facts.\n\nOn December 13, 1942, the plaintiff was appointed as Platoon Commander in the Civil Guards.\n\nJn 1945 there was a notification regarding the absorption of civil guards in the Police and on November 6, 1945, the plaintiff was\n\nelected by the Deputy Inspector General, Police Headquarters, Allahabad, for admission to the 1946 Session of the Police Training College, Moradabad.\n\nOn January 8, 1947, the result of the Civil Police Cadets for 1946 Session was announced, and in the extract of the Police Gazette it is stated in the last column\n\nunder the heading 'where posted', against the name of the plaintiff, 'Azamgarh'.\n\nThis result sheet was issued by order of the Inspector General of Police, United Provinces.\n\nWe have mentioned these facts because the learned counsel for the plaintiff contends that the plaintiff was in fact appointed by the Inspector General of Police and not by the Deputy Inspector General of Police.\n\nFollowing three charges were framed against the plaintiff under s. 7 of the Police Act, 1861 on February, 6. 1956:\n\n\"!. A case Cr. No. 92 u/s 324 !PC was registered at P. S. Mariahun which on receipt of the injury report on 6-11-55 at the P. S. was found to fall within the purview of section 326 !PC and yet this SJ. did not investigate the case in accordance with law and failed even to comply with the orders of the Dy. S.P. (then acting as S.P.) given .by him on 19-11-55.\n\n2. On 2 l-11-55 a written report of burglary was made over to him by one Lalji Singh r Io J amua who came to the P .S. alongwith Ramdeo anc1 Ganesh but he failed to record that report and register a case in contravention of the provision of paragraph 97 of the Police Regulations.\n\nA case Cr. No. 101 u/s 457 /380 IPC was, however, registered by him on 5-12-55 although he had been to the scene of occurrence on 27-11-55 and had conducted some investigation on that date. He did not prepare any case diary for the investigation carried out on 27-11-55 and even after the registration of the case on 5-12-55 he deferred proper investigation until 22-12-55.\n\n3. A report of burglary on the night of 17/18-10-55 was handed over to this S.I. personally by complainant Raj Bahadur Singh but no action was taken on that report nor any entry was made in the General Diary to this effect. On receipt of a complaint the C.I. was asked to enquire into the matter who directed him to register a case and accordingly a case was registered on Cr. No.\n\n100 u/s 457/380 T.P.C. on 2-12-55.\n\nEven after the registration o.f this case this S.I. deferred proper investigation until 17-12-55.\"\n\nThe Superintendent of Police gave a report on February 27, 1956, but the Inspector General ordered. a fresh enquiry on March 6, 1956.\n\nOn April 30, 1956. the Superintendent of Police gave his report.\n\nHe held the plaintiff guilty of the charoes framed H \"against him.\n\nTowards the cind of the report, the Suprintendcnt \"Jf Pohce observed :\n\n\"S.I. Harish. Chandra Singh is an enlistment of 29-1-4 7 when he seems to have started his service satisfactorily. In 1950 he was placed under suspension and was dismissed from service from 21-6-1951 while he was in district Azamgarh.\n\nOn subsequent consideration he was reinstated and he reported for service in January\n\nI 952. He was, however, reduced to the lowest scale of a S.I. for a period of three years. His character roll indicates that he was again placed under suspension from 20-8-54 but reinstated on 30-9-54. Soon after he was again placed under suspension with effect from 4-11-54 and was proceeded against u/s 7 of the Police Act as i:\n\nresult of which he was reduced from R>. 162 p.m. to Rs. 144 p.m. for a period of one year fn>m 8-2-55 and reinstated in service. Subseyuently he was awrded a misconduct entry for a non-registration of dacoity case while posted in district Basti.\n\nOn the other hand he has also earned some rewards and is at pre>ent posted as II Officer P.S. Mirganj. This record of service does not appear encouraging at all.\n\nIn respect of the various items of charge u/ s 7 of the Police Act framed against him he has been held guilty and considering the seriousness of these charges I do not think any leniency is called for in his favour. He has clearly disobeyed the lawful orders of his superior officers and has failed to comply with the mandatory provisions of law and Police Regulations.\n\nA S. I. acting in this manner is not in my opinion fit to discharge his responsibilities as a police officer.\n\nSince. however. no dishonesty has been attributed to him in the various items of the charge framed against him. I think it will meet the ends of justice if he is only removed from police service.\n\nAccordingly findin!! him guiltv u/s 7 of the Police Act I propose that he may be removed from the\n\nPolice Service and submit this finding to the\n\nD.T.G.\n\nEastern Range in accordance with paragraph 490 subparagraph 8 (a) of the Police Regulations.\"\n\nOn May 16. 1956, a show-cause notice was served on the plaintiff and a copy of the findings of the Superintendent of Police was enclosed.\n\nIn the show-cause notice it was stated that the plaintiff could send his written representation within I 0 days of the receipt of the show-cause notice and after checking his explanation he would be called to appear before the Deputy Inspector General of Police, E. Range.\n\nHe appeared before the Deputy Inspector General of Police and answered variom questions put by the D.T.G.\n\nTowards the end he stated that he had no complaint with regard to the departmental proceedings against him.\n\nThe Deputy Inspector General agreed with the findings of the Superintendent of Police, and at the end of his order he observed:\n\n\"S.I. Sri Harish Chandra Singh was enlisted on 29-1-194 7.\n\nIn 1950 he was placed under suspension and he was dismissed from service from 21-6-51. He was, however, later reinstated and joined his duty in January 1952. He was also reduced to lowest scale of S.l.s for a period of 3 years vide orders (torn) 'E' dated 25-4-51. In 1955 he was dealt with u/s 7 of the Police Act for having contracted illicit connection with Shrimati Mina Devi who was ultimately recovered from (torn) the C.I. and he was reduced for 2 years.\n\nHe (tom) entry in 1955 for having failed to (tom) o! dacoity.\n\nAgainst this black record, the (torn) 15 rewards and commendations. The party is indisciplined and unreliable and he does not deserve (tom) in the police service.\n\nThe charges proved against him (torn) very serious and there is no room for me to show him any (tom) in the award of punishment. Agreeing with the proposal of the S.I., I order that S.I. Harish Chandra Singh be removed from service with effect from the date that this order is communicated to him.\" The plaintiff then filed an appeal to the Inspector General of Police, who rejected the appeal, and after taking into consideration his previous record confirmed the order of removal. He observed:\n\n\"In fact the D.I.G. has taken a lenient view in (tom) removing him from service especially in view of his past\n\n(tom).\"\n\nThe High Court held that no opportunity was given to the plaintiff to offer any explanation on the question of his past record which was taken into consideration by the Deputy Inspector General of Police in arriving at his decision to remove the plaintiff from service.\n\nThe High Court relied on the following passage from the judgment of this Court in State of Mysore v.\n\nK. Manche Gowda(') :\n\n\"We, therefore, hold that it is incumbent upon the authority to .give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishment or his previous bad record, this should be included in the second notice so that he may be able to give an explanation.\"\n\n(t) (1964] 4 S.C.R. 540, 548.\n\n1:1\n\nThe learned counsel for the State contends that on the facts of this case it is clear that the plaintiff had notice that his record would be taken into consideration because the Superintendent of Police had mentioned it towards the end of his order, a copy of which was supplied to the plaintiff.\n\nIn the alternative he contends that if the record is taken into consideration for the purpose of imposing a lesser punishment and not for the purpose of increasing the quantum or nature of punishment, then it is not necessary that it should be stated in the show-cause notice that his past record would be taken into consideration.\n\nIt seems to us that the learned counsel is right on both the points. The concluding para of the report of the Superintendent of Police, which we have set out above, clearly gave an indication to the plaintiff that his record would be considered by the Deputy Inspector General of Police and we are unable to appreciate what more notice was required. There is also force in the second point urged by the learned counsel. In State of Mysore v.\n\nK. Manche Gowda(') the facts were that the Government servant was misled by the show-cause notice issued by the Government, and but for the previous record of the Government servant the Government might not have imposed the penalty of dismissal on him.\n\nThis is borne out by the following observations of Subba Rao, J., as he then was:\n\n\"In the present case the second show cause notice does not mention that the Government intended to take his previous punishments into consideration in proposing to dismiss him from service. On the contrary, the said notice put him on the wrong scent, for it told him that it was proposed to dismiss him from service as the charges proved against him were grave. But, a comparison of paragraphs 3 and 4 of the order of dismissal shows that but for the previous record of the Government servant, the Government might not have imposed the penalty of dismissal on him and might have accepted the recommendations of the Enquiry Officer and the Publilc Service Commission.\n\nThis order, therefore, indicates that !he show cause notice did not give the only reason which mfluenced the Government to dismiss the respondent from service.\" (p. 549)\n\nWe may mention that on the charges against the plaintiff, and as observed by the Inspector General of Police, the plaintiff had been dealt with leniently.\n\nThe learned counsel for the plaintiff, in reply urges before m that there has been breach of Art. 311 (1) ol the Constitution because although the plaintiff was appointed by tbt Inspector Gene-\n\nOJ (1964] 4 S.C.R. S40, 548~ SS up.C.l./69-7\n\nral of Police he had been removed by the Deputy Inspector General, Range E. The learned Additional District Judge, after examining the evidence and para 406 of the Police Regulaltions, came to the conclusion that the plaintiff had been appointed by the Deputy Inspector General of Police. This is a finding of fact and binding on us. But apart from that the only document relied on by the learned counsel for the plaintiff is the result sheet dated January 8, 1947. This has no relevance to the question of his appointment as Sub-Inspector. We must, therefore, overrule this contention.\n\nThe last point urged by the learned counsel for the plaintiff is that the plaintiff should have been tried under s. 29 of the Police Act before he was charged under s. 7. Sections 7 and 29 of the Police Act read thus:\n\n\"7. Subject to the provisions of article 311 of the Constitution, and to such rules as the State Government may from time to time make under this Act, the Inspector General, Deputy Inspector General, Assistanflnspectors General and District Superintendents of Police may at any time dismiss, suspended or reduce any police-officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same, or may award any one or more of the following punishments to any police-officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by ainy act of his own shall render himself unfit for the discharge thereof, namely:- {a) fine to any amount not exceeding one month's pay;\n\n-( b) confinement to quarters for a term not exceeding fifteen days with or without punishment-drill, extra guard, fatigue or other duty; { c) deprivation of good-conduct pay;\n\n-( d) removal from any office of distinction or special emolument.\n\nS. 29. Every police-officer who shall be guilty of any violation of duty or wllful breach or neglect of any rule or regulation or lawful order made by competent authority, or who shall withdraw from the duties of his office without permission, or without having given previous notice for the period of two months or who, being absent on leave, shall fail, without reasonable cause, to report himself for duty on the expiration of suc)l leave, or who shall engage without authority in any employment other than his police-duty, or who shall be guilty of\n\ncowardice, or who shall offer any unwarrantable personal violence to any person in his custody, shall be liable on conviction before a Magistrate to a penalty not exceeding three months' pay, or to imprisonment, with or without hard labour, for a period not exceeding three months, or to both.\"\n\nWe are unable to appreciate why it is necessary that a police officer should be prosecuted under s. 29 before departmental proceedings can be taken under s. 7 of the Police Act. It may be that a police-officer is also liable to be prosecuted under s. 29, but it is not necessary that in every case which falls within s. 7, the police-officer should first be prosecuted under s. 29 before he can be proceeded against under i. 7.\n\nSection 7 deals with disciplinary proceedings while s. 29 makes certain breaches criminal o!fences. Section 29 does not in any way limit the operation of s. 7.\n\nIn the result the appeal is allowed, judgments and decrees of the High Court and the Additional District Judge set aside and the suit dismissed with costs throughout.\n\nY.P.\n\nAppeal allowed.", "total_entities": 112, "entities": [{"text": "STATE OF UTTAR PRADESH & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "STATE OF UTTAR PRADESH & ORS", "offset_not_found": false}}, {"text": "HARISH CHANDRA SINGH", "label": "RESPONDENT", "start_char": 31, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "HARISH CHANDRA SINGH", "offset_not_found": false}}, {"text": "January 17, 1969", "label": "DATE", "start_char": 53, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "HARISH CHANDRA SINGH\n\nJanuary 17, 1969\n\n[S. M. Snou, R. s. BACHAWAT AND K. s. HEGDE, JJ.]"}}, {"text": "R. s. BACHAWAT", "label": "JUDGE", "start_char": 84, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "K. s. HEGDE, JJ.", "label": "JUDGE", "start_char": 103, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 122, "end_char": 143, "source": "regex", "metadata": {}}, {"text": "Art. 311(1)", "label": "PROVISION", "start_char": 144, "end_char": 155, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "ss. 7 and 29", "label": "PROVISION", "start_char": 264, "end_char": 276, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 29", "label": "PROVISION", "start_char": 304, "end_char": 309, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 342, "end_char": 346, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 726, "end_char": 730, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Police Act, 1861", "label": "STATUTE", "start_char": 738, "end_char": 754, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 1988, "end_char": 1996, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 29", "label": "PROVISION", "start_char": 2174, "end_char": 2179, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 2187, "end_char": 2197, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 7", "label": "PROVISION", "start_char": 2227, "end_char": 2231, "source": "regex", "metadata": {"statute": null}}, {"text": "[1964] 4 S.C.R. 540", "label": "CASE_CITATION", "start_char": 2905, "end_char": 2924, "source": "regex", "metadata": {}}, {"text": "s. 7", "label": "PROVISION", "start_char": 3496, "end_char": 3500, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 3553, "end_char": 3558, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 3592, "end_char": 3596, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 3598, "end_char": 3607, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 3654, "end_char": 3659, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 29", "label": "PROVISION", "start_char": 3701, "end_char": 3711, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 3755, "end_char": 3759, "source": "regex", "metadata": {"statute": null}}, {"text": "C. P. A garwa", "label": "PETITIONER", "start_char": 3967, "end_char": 3980, "source": "ner", "metadata": {"in_sentence": "C. P. A garwa/a and 0."}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 3990, "end_char": 3997, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the appellan~:\n\nE. C. Agrawa/a, S. R. Agrawa/a and P. C. Agrawlllla, tor the respondent."}}, {"text": "E. C. Agrawa", "label": "LAWYER", "start_char": 4019, "end_char": 4031, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the appellan~:\n\nE. C. Agrawa/a, S. R. Agrawa/a and P. C. Agrawlllla, tor the respondent."}}, {"text": "S. R. Agrawa", "label": "LAWYER", "start_char": 4035, "end_char": 4047, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the appellan~:\n\nE. C. Agrawa/a, S. R. Agrawa/a and P. C. Agrawlllla, tor the respondent."}}, {"text": "P. C. Agrawlllla", "label": "LAWYER", "start_char": 4054, "end_char": 4070, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the appellan~:\n\nE. C. Agrawa/a, S. R. Agrawa/a and P. C. Agrawlllla, tor the respondent."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 4136, "end_char": 4141, "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 Judicature at Allahabad diing the appeal filed by the State of Uttar Pradesh and Others, appellants before us, against the judgment and decree passed by the Additional District Judge, Varanasi, setting aside the judgment Jnd decree passed by the Trial Court and decreeing the plaintiff's suit."}}, {"text": "High Court of Judicature at Allahabad", "label": "COURT", "start_char": 4215, "end_char": 4252, "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 Judicature at Allahabad diing the appeal filed by the State of Uttar Pradesh and Others, appellants before us, against the judgment and decree passed by the Additional District Judge, Varanasi, setting aside the judgment Jnd decree passed by the Trial Court and decreeing the plaintiff's suit."}}, {"text": "State of Uttar Pradesh", "label": "PETITIONER", "start_char": 4283, "end_char": 4305, "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 Judicature at Allahabad diing the appeal filed by the State of Uttar Pradesh and Others, appellants before us, against the judgment and decree passed by the Additional District Judge, Varanasi, setting aside the judgment Jnd decree passed by the Trial Court and decreeing the plaintiff's suit.", "canonical_name": "STATE OF UTTAR PRADESH & ORS"}}, {"text": "Additional District Judge, Varanasi", "label": "COURT", "start_char": 4386, "end_char": 4421, "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 Judicature at Allahabad diing the appeal filed by the State of Uttar Pradesh and Others, appellants before us, against the judgment and decree passed by the Additional District Judge, Varanasi, setting aside the judgment Jnd decree passed by the Trial Court and decreeing the plaintiff's suit."}}, {"text": "Harish Chandra Singh", "label": "PETITIONER", "start_char": 4539, "end_char": 4559, "source": "ner", "metadata": {"in_sentence": "The plaintiff, Harish Chandra Singh, had brought a suit against the State of Uttar Pradesh and some Police Officers tor a declaration that the order of removal of the plaintiff from the\n\nPolice Service was void, illegal, ineffective and inoperative, and that the plaintiff still CQ!ltinued to be in Uttar Pradesh Police Service as Station Officer-in-Charge of a Police Station and that he was entitled to his full pay and emoluments with increments as they fell due.", "canonical_name": "HARISH CHANDRA SINGH"}}, {"text": "State of Uttar Pradesh", "label": "RESPONDENT", "start_char": 4592, "end_char": 4614, "source": "ner", "metadata": {"in_sentence": "The plaintiff, Harish Chandra Singh, had brought a suit against the State of Uttar Pradesh and some Police Officers tor a declaration that the order of removal of the plaintiff from the\n\nPolice Service was void, illegal, ineffective and inoperative, and that the plaintiff still CQ!ltinued to be in Uttar Pradesh Police Service as Station Officer-in-Charge of a Police Station and that he was entitled to his full pay and emoluments with increments as they fell due.", "canonical_name": "STATE OF UTTAR PRADESH & ORS"}}, {"text": "June 27, 1956", "label": "DATE", "start_char": 5072, "end_char": 5085, "source": "ner", "metadata": {"in_sentence": "7,453 as full emoluments and salary from June 27, 1956 up to the date of the suit."}}, {"text": "December 13, 1942", "label": "DATE", "start_char": 5217, "end_char": 5234, "source": "ner", "metadata": {"in_sentence": "On December 13, 1942, the plaintiff was appointed as Platoon Commander in the Civil Guards."}}, {"text": "November 6, 1945", "label": "DATE", "start_char": 5402, "end_char": 5418, "source": "ner", "metadata": {"in_sentence": "Jn 1945 there was a notification regarding the absorption of civil guards in the Police and on November 6, 1945, the plaintiff was\n\nelected by the Deputy Inspector General, Police Headquarters, Allahabad, for admission to the 1946 Session of the Police Training College, Moradabad."}}, {"text": "Allahabad", "label": "GPE", "start_char": 5501, "end_char": 5510, "source": "ner", "metadata": {"in_sentence": "Jn 1945 there was a notification regarding the absorption of civil guards in the Police and on November 6, 1945, the plaintiff was\n\nelected by the Deputy Inspector General, Police Headquarters, Allahabad, for admission to the 1946 Session of the Police Training College, Moradabad."}}, {"text": "January 8, 1947", "label": "DATE", "start_char": 5593, "end_char": 5608, "source": "ner", "metadata": {"in_sentence": "On January 8, 1947, the result of the Civil Police Cadets for 1946 Session was announced, and in the extract of the Police Gazette it is stated in the last column\n\nunder the heading 'where posted', against the name of the plaintiff, 'Azamgarh'."}}, {"text": "Azamgarh", "label": "RESPONDENT", "start_char": 5824, "end_char": 5832, "source": "ner", "metadata": {"in_sentence": "On January 8, 1947, the result of the Civil Police Cadets for 1946 Session was announced, and in the extract of the Police Gazette it is stated in the last column\n\nunder the heading 'where posted', against the name of the plaintiff, 'Azamgarh'."}}, {"text": "s. 7", "label": "PROVISION", "start_char": 6206, "end_char": 6210, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act, 1861", "label": "STATUTE", "start_char": 6218, "end_char": 6234, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "February, 6. 1956", "label": "DATE", "start_char": 6238, "end_char": 6255, "source": "ner", "metadata": {"in_sentence": "Following three charges were framed against the plaintiff under s. 7 of the Police Act, 1861 on February, 6."}}, {"text": "s 324", "label": "PROVISION", "start_char": 6282, "end_char": 6287, "source": "regex", "metadata": {"linked_statute_text": "the Police Act, 1861", "statute": "the Police Act, 1861"}}, {"text": "P. S. Mariahun", "label": "ORG", "start_char": 6310, "end_char": 6324, "source": "ner", "metadata": {"in_sentence": "PC was registered at P. S. Mariahun which on receipt of the injury report on 6-11-55 at the P. S. was found to fall within the purview of section 326 !"}}, {"text": "6-11-55", "label": "DATE", "start_char": 6366, "end_char": 6373, "source": "ner", "metadata": {"in_sentence": "PC was registered at P. S. Mariahun which on receipt of the injury report on 6-11-55 at the P. S. was found to fall within the purview of section 326 !"}}, {"text": "section 326", "label": "PROVISION", "start_char": 6427, "end_char": 6438, "source": "regex", "metadata": {"linked_statute_text": "the Police Act, 1861", "statute": "the Police Act, 1861"}}, {"text": "19-11-55", "label": "DATE", "start_char": 6609, "end_char": 6617, "source": "ner", "metadata": {"in_sentence": "S.P. (then acting as S.P.) given .by him on 19-11-55."}}, {"text": "2 l-11-55", "label": "DATE", "start_char": 6626, "end_char": 6635, "source": "ner", "metadata": {"in_sentence": "On 2 l-11-55 a written report of burglary was made over to him by one Lalji Singh r Io J amua who came to the P .S. alongwith Ramdeo anc1 Ganesh but he failed to record that report and register a case in contravention of the provision of paragraph 97 of the Police Regulations."}}, {"text": "Lalji Singh", "label": "OTHER_PERSON", "start_char": 6693, "end_char": 6704, "source": "ner", "metadata": {"in_sentence": "On 2 l-11-55 a written report of burglary was made over to him by one Lalji Singh r Io J amua who came to the P .S. alongwith Ramdeo anc1 Ganesh but he failed to record that report and register a case in contravention of the provision of paragraph 97 of the Police Regulations."}}, {"text": "Ramdeo", "label": "OTHER_PERSON", "start_char": 6749, "end_char": 6755, "source": "ner", "metadata": {"in_sentence": "On 2 l-11-55 a written report of burglary was made over to him by one Lalji Singh r Io J amua who came to the P .S. alongwith Ramdeo anc1 Ganesh but he failed to record that report and register a case in contravention of the provision of paragraph 97 of the Police Regulations."}}, {"text": "Ganesh", "label": "OTHER_PERSON", "start_char": 6761, "end_char": 6767, "source": "ner", "metadata": {"in_sentence": "On 2 l-11-55 a written report of burglary was made over to him by one Lalji Singh r Io J amua who came to the P .S. alongwith Ramdeo anc1 Ganesh but he failed to record that report and register a case in contravention of the provision of paragraph 97 of the Police Regulations."}}, {"text": "s 457", "label": "PROVISION", "start_char": 6923, "end_char": 6928, "source": "regex", "metadata": {"linked_statute_text": "the Police Act, 1861", "statute": "the Police Act, 1861"}}, {"text": "IPC", "label": "STATUTE", "start_char": 6934, "end_char": 6937, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "5-12-55", "label": "DATE", "start_char": 6973, "end_char": 6980, "source": "ner", "metadata": {"in_sentence": "101 u/s 457 /380 IPC was, however, registered by him on 5-12-55 although he had been to the scene of occurrence on 27-11-55 and had conducted some investigation on that date."}}, {"text": "27-11-55", "label": "DATE", "start_char": 7032, "end_char": 7040, "source": "ner", "metadata": {"in_sentence": "101 u/s 457 /380 IPC was, however, registered by him on 5-12-55 although he had been to the scene of occurrence on 27-11-55 and had conducted some investigation on that date."}}, {"text": "22-12-55", "label": "DATE", "start_char": 7266, "end_char": 7274, "source": "ner", "metadata": {"in_sentence": "He did not prepare any case diary for the investigation carried out on 27-11-55 and even after the registration of the case on 5-12-55 he deferred proper investigation until 22-12-55."}}, {"text": "17/18-10-55", "label": "DATE", "start_char": 7317, "end_char": 7328, "source": "ner", "metadata": {"in_sentence": "A report of burglary on the night of 17/18-10-55 was handed over to this S.I. personally by complainant Raj Bahadur Singh but no action was taken on that report nor any entry was made in the General Diary to this effect."}}, {"text": "Raj Bahadur Singh", "label": "OTHER_PERSON", "start_char": 7384, "end_char": 7401, "source": "ner", "metadata": {"in_sentence": "A report of burglary on the night of 17/18-10-55 was handed over to this S.I. personally by complainant Raj Bahadur Singh but no action was taken on that report nor any entry was made in the General Diary to this effect."}}, {"text": "s 457", "label": "PROVISION", "start_char": 7665, "end_char": 7670, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "2-12-55", "label": "DATE", "start_char": 7685, "end_char": 7692, "source": "ner", "metadata": {"in_sentence": "100 u/s 457/380 T.P.C. on 2-12-55."}}, {"text": "17-12-55", "label": "DATE", "start_char": 7783, "end_char": 7791, "source": "ner", "metadata": {"in_sentence": "Even after the registration o.f this case this S.I. deferred proper investigation until 17-12-55.\""}}, {"text": "February 27, 1956", "label": "DATE", "start_char": 7841, "end_char": 7858, "source": "ner", "metadata": {"in_sentence": "The Superintendent of Police gave a report on February 27, 1956, but the Inspector General ordered."}}, {"text": "March 6, 1956", "label": "DATE", "start_char": 7914, "end_char": 7927, "source": "ner", "metadata": {"in_sentence": "a fresh enquiry on March 6, 1956."}}, {"text": "April 30, 1956", "label": "DATE", "start_char": 7933, "end_char": 7947, "source": "ner", "metadata": {"in_sentence": "On April 30, 1956."}}, {"text": "Jf Pohce", "label": "JUDGE", "start_char": 8115, "end_char": 8123, "source": "ner", "metadata": {"in_sentence": "Towards the cind of the report, the Suprintendcnt \"Jf Pohce observed :\n\n\"S.I. Harish."}}, {"text": "S.I. Harish. Chandra Singh", "label": "PETITIONER", "start_char": 8137, "end_char": 8163, "source": "ner", "metadata": {"in_sentence": "Towards the cind of the report, the Suprintendcnt \"Jf Pohce observed :\n\n\"S.I. Harish."}}, {"text": "21-6-1951", "label": "DATE", "start_char": 8326, "end_char": 8335, "source": "ner", "metadata": {"in_sentence": "In 1950 he was placed under suspension and was dismissed from service from 21-6-1951 while he was in district Azamgarh."}}, {"text": "Azamgarh", "label": "GPE", "start_char": 8361, "end_char": 8369, "source": "ner", "metadata": {"in_sentence": "In 1950 he was placed under suspension and was dismissed from service from 21-6-1951 while he was in district Azamgarh."}}, {"text": "20-8-54", "label": "DATE", "start_char": 8625, "end_char": 8632, "source": "ner", "metadata": {"in_sentence": "His character roll indicates that he was again placed under suspension from 20-8-54 but reinstated on 30-9-54."}}, {"text": "30-9-54", "label": "DATE", "start_char": 8651, "end_char": 8658, "source": "ner", "metadata": {"in_sentence": "His character roll indicates that he was again placed under suspension from 20-8-54 but reinstated on 30-9-54."}}, {"text": "4-11-54", "label": "DATE", "start_char": 8725, "end_char": 8732, "source": "ner", "metadata": {"in_sentence": "Soon after he was again placed under suspension with effect from 4-11-54 and was proceeded against u/s 7 of the Police Act as i:\n\nresult of which he was reduced from R>."}}, {"text": "s 7", "label": "PROVISION", "start_char": 8761, "end_char": 8764, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 8772, "end_char": 8782, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "8-2-55", "label": "DATE", "start_char": 8885, "end_char": 8891, "source": "ner", "metadata": {"in_sentence": "144 p.m. for a period of one year fn>m 8-2-55 and reinstated in service."}}, {"text": "Basti", "label": "GPE", "start_char": 9029, "end_char": 9034, "source": "ner", "metadata": {"in_sentence": "Subseyuently he was awrded a misconduct entry for a non-registration of dacoity case while posted in district Basti."}}, {"text": "P.S. Mirganj", "label": "ORG", "start_char": 9126, "end_char": 9138, "source": "ner", "metadata": {"in_sentence": "On the other hand he has also earned some rewards and is at pre>ent posted as II Officer P.S. Mirganj."}}, {"text": "s 7", "label": "PROVISION", "start_char": 9245, "end_char": 9248, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 9256, "end_char": 9266, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s 7", "label": "PROVISION", "start_char": 9913, "end_char": 9916, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 9924, "end_char": 9934, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "May 16. 1956", "label": "DATE", "start_char": 10131, "end_char": 10143, "source": "ner", "metadata": {"in_sentence": "On May 16."}}, {"text": "Harish Chandra Singh", "label": "RESPONDENT", "start_char": 10896, "end_char": 10916, "source": "ner", "metadata": {"in_sentence": "The Deputy Inspector General agreed with the findings of the Superintendent of Police, and at the end of his order he observed:\n\n\"S.I. Sri Harish Chandra Singh was enlisted on 29-1-194 7.", "canonical_name": "HARISH CHANDRA SINGH"}}, {"text": "29-1-194 7", "label": "DATE", "start_char": 10933, "end_char": 10943, "source": "ner", "metadata": {"in_sentence": "The Deputy Inspector General agreed with the findings of the Superintendent of Police, and at the end of his order he observed:\n\n\"S.I. Sri Harish Chandra Singh was enlisted on 29-1-194 7."}}, {"text": "21-6-51", "label": "DATE", "start_char": 11024, "end_char": 11031, "source": "ner", "metadata": {"in_sentence": "In 1950 he was placed under suspension and he was dismissed from service from 21-6-51."}}, {"text": "25-4-51", "label": "DATE", "start_char": 11202, "end_char": 11209, "source": "ner", "metadata": {"in_sentence": "He was also reduced to lowest scale of S.l.s for a period of 3 years vide orders (torn) 'E' dated 25-4-51."}}, {"text": "s 7", "label": "PROVISION", "start_char": 11239, "end_char": 11242, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 11250, "end_char": 11260, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Shrimati Mina Devi", "label": "OTHER_PERSON", "start_char": 11307, "end_char": 11325, "source": "ner", "metadata": {"in_sentence": "In 1955 he was dealt with u/s 7 of the Police Act for having contracted illicit connection with Shrimati Mina Devi who was ultimately recovered from (torn) the C.I. and he was reduced for 2 years."}}, {"text": "(1964] 4 S.C.R. 540", "label": "CASE_CITATION", "start_char": 13029, "end_char": 13048, "source": "regex", "metadata": {}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 14440, "end_char": 14449, "source": "ner", "metadata": {"in_sentence": "This is borne out by the following observations of Subba Rao, J., as he then was:\n\n\"In the present case the second show cause notice does not mention that the Government intended to take his previous punishments into consideration in proposing to dismiss him from service."}}, {"text": "Publilc Service Commission", "label": "ORG", "start_char": 15111, "end_char": 15137, "source": "ner", "metadata": {"in_sentence": "But, a comparison of paragraphs 3 and 4 of the order of dismissal shows that but for the previous record of the Government servant, the Government might not have imposed the penalty of dismissal on him and might have accepted the recommendations of the Enquiry Officer and the Publilc Service Commission."}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 15560, "end_char": 15568, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "S40, 548", "label": "PROVISION", "start_char": 15681, "end_char": 15689, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 16409, "end_char": 16414, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 16422, "end_char": 16432, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 7", "label": "PROVISION", "start_char": 16461, "end_char": 16465, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 7 and 29", "label": "PROVISION", "start_char": 16467, "end_char": 16484, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 16492, "end_char": 16502, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "article 311", "label": "PROVISION", "start_char": 16548, "end_char": 16559, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "S. 29", "label": "PROVISION", "start_char": 17528, "end_char": 17533, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 18475, "end_char": 18480, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 18532, "end_char": 18536, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 18544, "end_char": 18554, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 29", "label": "PROVISION", "start_char": 18626, "end_char": 18631, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 18695, "end_char": 18699, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 18753, "end_char": 18758, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 18807, "end_char": 18816, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 18859, "end_char": 18864, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 29", "label": "PROVISION", "start_char": 18907, "end_char": 18917, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 18961, "end_char": 18965, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_400_416_EN", "year": 1969, "text": "KANTI PRASAD JAYSHANKER YAGNIK A v.\n\nPURSHOTTAMDAS RANCHHODDAS PATEL AND OTHERS\n\nJanuary 24, 1969\n\n[S. M. S!KRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.] B\n\nReprestltllltion of the People Act (43 of 1951), s. 123 (2) and (3 )-Appeal to voters to vote in the name of religion-If corrupt practice -Appetil to vote on the basis of candidate's caste-If corrupt practice- Statement that voting for a part.v would amount to the continuance of cow slaughter and consequent incurring of divine displeasure-If corrupt practice.\n\nEvidence Act (I of 1872), s. 160-Reports made from notes t<•ken down at meetin!lf-lf udmissible-Method of proof-Weight to be attachd to reports.\n\nThe poll for election to the Gujarat State Assembly from Mehsana State Assembly constituency was taken on February 21, 1967. 011 February 18, 1967 one S.M. addressed public meetings at various villages which were part of the constituency. The appellant, who was the successful candidate was present at those meetings and did not dissociate himself from any of the remarks in the speeches.\n\nPolice constables, under instructions of the Government, took down notes of the speeches and reported to their superior officers.\n\nThese police constables did not take down every word spoken by S.M. but whatever was taken down was spoken by S.M.; and in the reports, though the exact words were not reproduced the substance of the speeches was corretly reproduced. These reports showed that S.M. made the following statements in his speeches :-\n\n(i) He appealed to the Hindu voters as such not to vote for the Congress Party lest they might be betraying their religious leader (Jagadguru Sankaracharya of Puri), particularly when be had fasted for 73 days in the cause of preventing cow slaughter;\n\n(ii) He put forward an appeal to the electors not to vote for the Congress Party but to vote for the Swatantra Party in the name of religion;\n\n(iii) He said that a relationship of cause and effect existed between the slaughter of 33,000 bullocks every day and natural calamities like famine and flood;\n\n(iv) Re asked his voters to vote for the appellant because he was a Brahmin; and\n\n(v) He said that if the voters voted for the Congress who are responsible for 24 crore of cows being slaughtered then God will be displeased.\n\nOn the questions : (I) Whether the reports made by the police constables V.'ere admissible in evidence; (2) Whether any weight should be attached to them; and (3) Whether they showed that the appellant was gui!ty of corrupt practice within the meaning of s. 123(2) and (3) of the Representation of the People Act, 1951\n\nHELD (Per Sikri and Bachawat, JJ.) : (!) The reports were properly used under s. 160 of the Evid, nce Act, 1872, and were admissible in evidence.\n\n[406 C-D)\n\nJAYSHANKER V, RANCHHODDAS 401\n\nBefore a witness testifies to facts stated in a document, unde'r s. 160 of the Evidence Act, two conditions must be satisfied namely : (a) thut\n\nthe witness had no specific recollection of the facts themselves; and (b) the witness says that he is sure that the facJs were correctly recorded in the document.\n\nFor satisfying the conditions it is however not necessary that the witness should specifically state that he has no specific recollection of the facts and that he is sure that the facts were correctly recorded in tht.: document.\n\nIt is enough if it appears from the evidence of the witness that those conditions are established. [ 405 C-E)\n\nIn the present case, it could be implied from the circumstances that the conditions of s. 160 were satisfied.\n\nThe witnesses were giving their testimony in Court after a lapse of 9 months after the speeches wen:: made and it is implicit that they could have no specific recollection cf the speeches, especially when they attended and reported many .similar meetings as part of their duty during the election campaign.\n\nThe second condition is also satisfied because. the witnesses made notes on the spot and made out reports fron1 those notes when the speeches were fresh .in their memory.\n\nThe reports are, strictly not substantive evidence as such and could only be used as part of the oral evidence on oath. The 'reports should therefore have been read out in Court and not marked as exhibits. But the practice of marking such a report as an exhibit is wellcstablished and avoids the useless formal cercmgny of reading it out a\"\n\npart of the oral evidence. [405 E-G; 406 D-EJ\n\nWigmore on Evidence (Third Edn. Vol. III pp. 97-98),\n\nMylapore Krishnaswami v. Emperor, 3:! Mad. 384, 395 and Mohan\n\nSinh Laxmansingh v. BhG'nwarla/ Rajmal Nahata, A.I.R. 1964, M.P. 137, 146, referred to.\n\nE Public Prosecutor v. Venkatarama Naidu, I.L.R. [1944), Mad, 113,\n\napproved.\n\nJagannath v. Emperor, A.I.R. 1932 Lah. 7 and Sodhi Pindi Das v.\n\nEmperor, A.LR. 1938 Lah. 629, disapproved.\n\n(2) Though the reports were not taken down in short-hand nor were the exact words spoken by S.M. taken down by the various police constables. the reports show a remarkable similarity of approach, appeal and attack on the Congress Party; and in those circumstances it must be held the police constables correctly reproduced the substance of the speeches. It 1s not necessary that the exact words must be reproduced before a speech can be held to amount to corrupt practice. [ 414 A--C]\n\n(3) (i) This statement does not amount to corn1pt practice. hc<ause\n\n!ere was no proof .that he Jagdguru WJS the religious head of the maior1ty of the elector~ in this constituency or that he exercised great influence. on thm. and so, 1t could not be held that an ordinary Hindu voter of the constituency would feel that he would be committing a sin if he disregarded the alleged directive of the Jagadguru. [410 A-CJ\n\nRam Dial v. Sant Lnl, [1959) Supp. 2 S.C.R. 748, distinguished.\n\n(Per Hegde, J. dissenting) : The statement amounted to corrupt practice.\n\n\\V!Jat s. 123(2) requies is to induce or attempt to induce 'an elector' -wh.'h means ve~ a smgle lector-that he will be rendered an object ?f sptntul censure 1f he exer~1Ses or refuses to exercise his electoral right in a particular manner.\n\nWhile undoubtedly the inducement or attempt\n\nto induce complained of should be such as to amount to a direct or\n\nndirect intrfrence with the free exercise of the electoral right it is not m the pubhc mterest to cut down the scope of the sub-section. Whether a partiCular statement comes within it or not depends on various factors such as the nature of the statement, the person who makes it and the persons to whom it is addressed.\n\nTherefore, when a respected religious preacher induces or attempts to induce the illiterate and superstitious voters who form the bulk of the voters that they will become objects of divine displeasure if they do not exercise their franchise in a particular manner, though his statements are not supported by religious books and he himself\n\n\"'ay nt be a religious head of the majority of electors, the statements y yet amount to a corrupt practice in. law. [415 C-G]\n\n(Per Sikri and Bachawat, JJ.) : (ii) There is no bar to a candidate or his supporters appealing to the electors not to vote for the Congress in the name of religion, or appealing to vote for the Swatantra Party because the people in that party are fond of their religion.\n\nWhat s. 123(2) of the Representation of the People Act bars is-that a candidate or his agent or any other person with the consent of the candidate or his agent should appeal to the voters to vote or refrain from voting for any person on the ground of his religion, that is the religion of the candidate. [410 C-D;\n\n411F]\n\n(iii) This statement does not amount to corrupt practice within s. 123(2) proviso (a)(ii), because, die law does not place any bar on describing a party as irreligious or saying that because that politicjil party is irreligious natural calamities had resulted on account if its disregard of religion.\n\nJ4n E-F]\n\n(iv) Asking the voters to vote for the appellant because he was a Brahmin, fell within the mischief of s. 123(3). [411 F-G]\n\n(Per Hegde, J. dissenting) : When he stated that there should be at le<1st one Brahmin Minister in the Cabinet, S.M. was merely giving expres sion to the fact that communal and regional representations in our pohtical institutions have c; ome to stay and was not appealing to the voters to vote on the basis of the appellant's caste.\n\n[415H]\n\n(By Full Court) : (v) As this statemen.t constitutes an attempt to induce the electors to believe that they would become objects of divine displeasure if they voted for the Congress and thereby allowed cow slaughter to be continued, and as in the circumstances of the case, it must be deemed to have been made with the appellant's consent, the appellant was guilty of corrupt practice within the meaning of s. 123(2) proviso (a)(ii). [413C;\n\n415B-C]\n\nNarbada Pra.vad v. Chhagan Lal, [1969] 1 S.C.R., 499 followed.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 979 of 1968.\n\nAppeal under s. 116-A of the Representation of the People Act 1951 from the judgment and order dated December 5, 1967 of the Gujarat High Court in Election Petition No. 3 of 1967.\n\nS. T. Desai, A. K. Verma, A. L. Barot, and/. B. Dadachanji,\n\nfor the appellant.\n\nH Purshottamdas Trikamdas and I. N. Shroff, for respondent No. 1.\n\nThe Judgment of StKR! and BACHA WAT, J J. was delivered by SIKRI, J. HEGDE, J. delivered a sejarate Opinion.\n\nSikri, .J.\n\nThis appeal under s. 116-A of the Representation of the People Act, 1951, is directed against the judgment and order of the High Court of Gujarat iio Election Petition No. 3 of 1967, B setting aside the election of Kanti Prasad Jayshankar Yagnik, appellant before us, to the Gujarat State Assembly from Mehsana State Assembly Constitucy under s. 123(2), s. 123(3) and s. I 00 (1 )(b) of the Representation of the People Act, 1951hereinafter referred to as the Act. c The High Court held that certain speeches made by Shambhu Maharaj, with the consent of the appellant, amounted to 'corrupt practices' within the meaning of ss. 123(2) and 123(3) of the Act.\n\nSince we are in agreement with some of the cooclusions arrived at by the High Court it is not necessary to deal with all the speeches made by Shambhu Maharaj, but only with the speeches which the High Court held to amount to 'corrupt D practices' within the meaning of ss. 123(2) and 123(3). Before we set out the impugned passages from the speeches we may give a few preliminary facts.\n\nThe poll for the election was taken Oill February 21, 1967. and the result of the election declared on February 22, 1967.\n\nPurshottamdass Ranchoddas Patel, the petitioner in the High Court and respondent before us, secured 16,159 votes whereas the appellant secured 23,055 votes. The other candidates, who were respondents to the petition secured 720 votes, l ,017 votes and 454 votes, respectively. The petition out of the which this appeal arises was filed on April 5, 1967, and the petitioner prayed for the relief that the election of the appellant be declared void and further prayed that he be declared duly elected to the Assembly.\n\nVarious grounds were urged in the petition but we need only deal with the ground that the appellant and his agents arranged public meetings of Shri Shambhu Maharaj on February\n\n18. 1967, at various villages which were part of the Mehsana Assembly constituency, and Shambhu Maharaj made a systematic appeal in his speeches to a large section of the electors to vote for the appellant on ground of religion, caste, and community, and the electors were told that it would be an irreligious act to vote for the petitioner who was a Congress candidate as Congress allowed slaughtering of cows and bullocks.\n\nIt was also alleged that Shri Shambhu Maharaj had used undue influence interfered with the free electoral rights of electors' by inducin~ or attempting to induce them to believe that they would become object of divine displeasure or spiritual censure by his speeches.\n\nThe petitioner sought to prove the peeches by producing members of the Police Force, as witnesses, who had under illstructions of Government taken down notes of the speeches and reported them to their officers. The High Court relied on the reports of these members of the Police Force and held that their reports were correctly recorded and fairly represented the speeches made by Shambhu Maharaj. In this cOlllllection, the High Court discarded the testimony of the petitioner's witnesses\n\n(P.W.s 25 to 33) on the ground that it would be safe not to accept the evidence of partisan witnesses unless it was corroborated by independent witnesses.\n\nThe learned counsel for the appellant, Mr. S. T. Desai, contends, first, that the reports made by the members of the Police Force are not admissible in evidence, and secondly, that in the circumstances of the case no weight should be attached to these reports. We may first deal with the question of the admissibility of the evidence before we set out the speeches. ·\n\nThe learned counsel contends that under the Indian Evidence Act written reports of speeches can only be used in two ways; one, to refresh a witness's memory under s. 159, and secondly, under s. 160 after satisfying two conditions : (I) that the witness has no specific recollection o.f the facts themselves and (2) the witness says that he is sure that the facts were correctly recorded in the document. He urges that in this case the reports were not used to refresh any wi(!ness's memory, and that the conditions requisite under s. I 60 had not been satisfied. It is true that these reports have not been used for the purpose of refreshing the memory of any witness under s. 159, but these have been used undt..-r s. 160.\n\nWe may here set out ss. 159, 160 and 161 of the Indian Evidence Act.\n\n\"S. 159. A witness may, while under examination, refresh his memory by referring to any writinl! made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court cansiders it likely that the transaction wa~ at that time fresh in his memory.\n\nThe witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct. Whenever a witness may refresh his memory by reference to any document. he may, with the permission of the Court, refer to a copy of such decument :\n\nProvided the Court be satisfied that there is sufficient reasqn for the non-production of the original.\n\nAn expert may refresh his memory by reference to professional treatises.\n\nS. 160. A witness may also testify to facts mentioned in any such document as is mentioned in section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.\n\nS. 161. Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.\" In this case it is clear that the reports were written by the witnesses themselves at the time of the speeches or soon afterwards when the speeches were fresh in their memory.\n\nIt seems to us that it is not necessary that a witness should specifically state that he bas no specific recollection of the facts and that he is sure that the facts were corectly recorded in the document, before the document can be used under s. 160. It is enough if it appears from his evidence that these conditions are established. In this particular case the witnesses were giving their testimony in Court after a lapse of nearly nine months and one would have to have super-human memory to specifically reollect the details of the speeches, especially when the witness may have attended and reported many similar meetings as a part of his duty during the election campaign. It may be implied in this case that the witnesses had no specific recollection of the facts.\n\nThe second requirement wouJr! b~ satisfied if the Court comes to the conclusion that the witness wds in a position to correctly record the facts in the document.\n\nAre then the requirements of s. 160 satisfied in this case ?\n\nAs an example we may consider the evidence of P.W. 7. who testified regarding the speech, Ex. J., delivered at village Motidav.\n\nHe stated that Shambhu Maharaj addressed the meeting at Motidav at about 5.30 p.m. on February 18, 1967, and the appellant was present at that meeting; Maganlal A. Patel was also\n\npresent at the time when Shambhu Maharai was speaking; while the speeches were being deliveed he was making notes of what was being spoken; in this manne~ he had written out a report regacding\n\nall that had happened at the meeting; zfter returning to Mehana he submitted his report of the meeting to P .S.I. Choudhary. He was shown two reports about the meetings at Motidav, and he stated :\n\n.. \"Both these reports, part of 'X', are in my handwr1tmg.\n\nI wrote out the contents of these two reports at Motidav when the meetings were going on.\" (The two reports put in. a; nd marked Ex. \"J\" collectively).\n\nIn cross-examination questions were directed to establishing that the reports were not exact reports.\n\nHe stated that he was taking down all the speeches of Shambhu Maharaj who was speaking at medium pace and he wrote whatever Shambhu\n\nMaharaj spoke. He further stated that he was writing down from memory immediately after the words were spoken by Shambhu Maharaj. He admitted that \"it is true that every word spoken by Shambhu Maharaj was not takqn down by me in my report but what I have taken down was in fact spoken by him.\" He, however, added that \"it it not true that what I have written out in Ex. 'J' was not written down at Motidav village.\"\n\nOn this evidence it seems to us that it is quite clear that both the conditions required by s. 160 have been compiled with. While the speech was delivered QD February 18, 1967, he was giving his evidence on November 7, 1967. It is implicit that he had no specific recollection of the speeches, and the second condition is also satisfied because he made notes and then made out the report from his notes. It may be that the counsel would have been well-advised to have read out Ex. 'J' rather than produce it as an exhibit, but this is apparently done in some Indian Court> to save time and it is now too late in the day to condemn such practice, specially as it is a difference without any substance. It is true that the report is, strictly speaking, not substantive evidence as such, and the document can only be used as a part of the oral evidence sanctified by the oath.\n\nThe position seems to be the same in some States in U.S.A., vide Wigmore on Evidence (Third Edition; Vol. III; pp. 97-98, extracted below :\n\n\"1871, Per Curiam in Moots v. State, 21 Oh. St. 653: The entry in the book and the oath of the .witness supplement each other. The book was really a part of the oath, and therefore admissible with it in evidence.\"\n\n\"1879, Earl, J., in .Howard v. McDonough 77 N.Y. 592 : After the witness has testified, the memorandum which he has used may be put in evidence,-not as pro\\'ijng anything of itself, but as a detailed statement of the items testified to by the witness. The manner in which the memorandum in such a case may be used is very much in the discretion of the trial\n\nJudge.\"\n\n\"1882, Cooley, J., in Mason v. Phelps, 48 Mir, L 126, 11 N.W. 413, 837 : After she had testified that she knew it to be correct, she might have read the entries or repeated them as her evidence.\n\nShowing the book was no more than this\".\n\n\"1886, Smith, C.J., in Bryan v. Moring, 94 N.C. 687 : The memorandum thus supported and identified becomes part of the testimony of the witness, just as if without it the witness had orally repeated the words from memory.\"\n\nThere is much to be said for the modeIJil doctrine in some of the\n\nStates in the United States, which \"seems to be that such docu-· ments are admissible evidence and that the Court will not go\n\nthrough the useless ceremony of having the witness read a document relating to a fact of which he had no present recollecti?n,\n\nexcept that he knew it was correct when made.\" (see McCorrmck oo Evidence; p. 593; footnote 3).\n\nThe learned counsel relied on the dissenting judgment of Sankaran-Nair, J., in Mylapore Krishnasami v. Emperor(') where he observed :\n\n\"If therefore the constable has \\llOt recorded correctly the words used by the speaker but only his impression, then the notes would be inadmissible under section 160 of the Indian Evidence Act to prove the words used.\n\nThey may be admissible to prove the impression created in the mind of the cqnstable, which is very different.\"\n\nWe are unable to appreciate how this passage assists the appellant.\n\nIf it is proved that the constable did not correctly record the words, a fortiori one of the conditions of s. 160 has not been satisfied and the writing cannot be used to prove the words.\n\nThe learned cou1nsel also referred to the decision of the Madhya Pradesh High Court in Mohansingh Laxmansingh v. Bhanwarlal Rajmal Nahata('). The High Court seems to have held that on the facts, the statements prepared by the witness in that case did not become primary evidence of the speech said to have been delivered by the speaker and cannot be used as such.\n\nLater on the High Court seems to have held that the notes were taken down for a particular purpose, to wit, for an election petitioin, and raise a reasonable suspicion that what the witness recorded was not a correct record of the speech. If the High Court meant to say that Ex-P-12 (the notes in that case) could not be used\n\n(I) 32 Mad. 384; 395.\n\n(2) A.l.R.1964 M.P.137, 146.\n\nunder s. 160 we must hold that the case was wrongly decided, but if the High Court meant to say that there was suspicion that the speech was not a correct record the:n nothing can be said against the decision on this poinl\n\nBlacker, J. in Sodhi Pindi Das v. Emperqr(') held, relying on Jagan Nath v. Emperor(') that it is essential that the witness must state orally before the Court that although he had no specific recollection of the facts themselves, he was sure that the facts were correctly recorded in the document.\n\nWe are unable to agree with this interpretation.\n\nAs we have already stated, if the requisite conditions can be satisfied from the record, the lack of an express declaration by witness does not make the evidence inadmissible.\n\nIn Public Prosecutor v. Venkatarama Naidu(') Mockett, J., rightly dissented from the judgment of the Lahore High Court in\n\nSodhi Pindi Das v. Emperor(').\n\nIn England the Law of Evidence has been changed and many of such documents made directly admissible: (see Phipson on Evidence, Tenth Edition, Ch. 22).\n\nIt seems to us that on the facts the report, Ex. J., was properly used under s. 160 of the India~ Evidence Act. The question of the weight to be attached to the various reports of the speeches is another matter and we will deal with the question presently.\n\nThe High Court has found three speeches to constitute \"corrupt practices\". The following three passages in Ex. 'J'- speech delivered by Shambhu Maharaj at village Motidav on February 18, 1967-\\\\ere complained of by the learned Counsel in the High Court :\n\n\" ( 1) I will say on~ fact and that is that at present t11e Congress is stating everywhere that nobody else will make the people happy except themselves.\n\nBut I say that apart from God no other Government either Congress or Swatantra Party c11n make people happy.\n\nAn agriculturist may have one bigha of land (about half an acre) and he might have sown wheat but if there is heavy frost or locusts or if one bullock worth Rs. 1000/- dies, Government may give him money, may give him bullock, but I do not think that that man can be happy; but nature can make him happy. Today in our India, everyday 33,000 cows are being slaughtered\n\nthrou.hout the country. Ten to eleven lacs of bullocks are being -slaughtered during the year and in Ahmedabad Town alone 10,000 bullocks are slaughtered.\n\n(i) A.l.R. 1938 Lah. 629,\n\n(2) A.l.R. 1912 Lah. 7. (J) I.LR. [19441 Mad. 111.\n\nJAYSllANKER V. RANCHHODDAS (Sikri, J.) 40~\n\n( 2) This unworthy Congress Government has cut the nose of Hindu Society. Sant Fateh Singh the reli- . ' g10us preceptor of the Sikhs, fasted for I 0 days; where as Jagadguru fasted for 73 days, still this Government is not even thinking of opening negotiations. This unworthy Government accepted the contention of the Sikhs\n\nafter the fast of I 0 days; whereas in spite of the penance undertaken by J agadguru by his fast of 73 days, the Government has not considered any topic in this connection. Your J agadguru had full confidence that, except for ten crores who are the followers of the Congress, twenty to thirty crores from the Hindu Society would help him. ( 3) For exa..'11ple, if any Maulvi from Mucca had fasted for 73 days ad had given such a mandate to our Muslim brothers, then would they have voted for the Congress. That you have to consider, In the same manner, if Fateh Singh, the religious leader of Sikhs, had fasted for 73 days, would they (Sikhs) have voted .for the Congress ? In the same maniner if there were Parsis or Christians, then they also would vote for their religious preceptor. This is what you have to consider.\n\nThe mandate of your religious preceptor is that do not cast your vote for anyone, the mandate of the Jagadguru is that let cows be slaughtered, let bullocks be slaughtered.\n\nIn Gujarat State though there is ban, still bullocks are allowed to be slaughtered, the bullocks which give every individual happiness throughout the life. This Government asks for votes in the name of. the bullocks (the Congress Party election symbol being a pair of bullocks with yoke on) and I am. therefore, having an experience. Do not vote for the Congress and by putting the mark of vote on the symbol of bullocks amounts to cutting the throat of a bullock by a knife symbolized by your vote. It is my mandate that you should not do this dastardly act.\" The High Court did not find the first two passages to conti tute \"corrupt practices\". The third passage was held by the High Court to constitute \"corrupt practice\" on the groul?-~ that \"thogh there is no proof that Shankaracharya had any relrg1ous following\n\nas such in this particular constituency'. there. is no mandate Hl writing from the Jagadguru and there 1s no ~Irect address to his followers by the Jagadguru, Shambhu Mahara1 has clearly appealed to the Hindu voters as such not to vote for the Congres~ Party\n\nJest they might be betraying thir religious lader. part1cular\\Y when he had fasted for 73 days m a cause which had some basis in the religious beliefs of the Hindus.\"\n\nWe are unable to agree with the High Court in this respect.\n\nThe decision of this Court in Ram Dial v. Sant Lal(') is clearly .distinguishable because there it was held by this Court that Sbri\n\nSat Guru wielded great local influence among the large number of Namdbaris who were voters in the Sirsa constitutmey . .In the present case there is no proof that Jagadguru Shankaracharya of Puri was the religious bead of the majority of the electors in this constituency or exercised great influence on them.\n\nIt cannot be held on the facts of this case that an ordinary Hindu voter in this constituency would feel that be would be committing a sin if he disregarded the alleged directive o.f the J agadguru.\n\nOne other ground given by the High Court is that \"there can be no doubt that in this passage (passage No. 3) Shambhu Maharaj had put forward an appeal to the electors not to vote for the Congress Party \\n the name of the religion.\" In our Opinion, there is no bar to a candidate or his supporters appealing to the electors not to vote for the Congress in the name .of religion. What s. 123 ( 3) bars is that an appeal by a candidate or his agent or any other person with the CQ!J, sent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, •i.e., the religion of the candidate.\n\nThe following four passages in Ex. K, a speech delivered by .Shambhu Maharaj at Kherwa after mid.night of February 18, 1967, were objected to :\n\n\" ( 1) The Congress says that it has brought happiness and will give happiness in future; but even a father cannot give happiness to his son, nor can a son give happiness to his father.\n\nGiving happiness rests in the hands of God. But God gives happiness where there is religion. He does not give happmess to the irreligious.\n\n(2) Formerly there were no famines.\n\nPossibly once in 100 years there might be one famine.\n\nAs against that nowadays every year there is some natural calamity like a famine. Either there is no rain or there .is frost or there is visitatiQlli of locust or there is some disease in the crops and some calamity or the other is constantly visting us.\n\nThe reason for this is that Congress permits slaughter of 33,000 bullocks everyday.\n\nWhen slaughter of cows is banned, bullocks are allowed to be slaughtered. In Gujarat 12,000 bullocks are being slaughtered.\n\n(3) Nobody would sit till 12-30 at night to listen to any talks by the Congress-walas. But I have come (I) [1959] Supp. 2 S. C.R. 74q,\n\nto tell the public, which is fond of its religion, to elect the Swatantra Party, so that the slaughter of bullocks might be stopped and all people who are fond of their religion are also keeping away till 12-30 at night. ( 4) Vijaykumarbhai has gone.\n\nA Brahmin minister must be there and hence Kantilalbhai is going to be a minister, hence vote for him. We must have at least one minister who is a Brahmin. Hence vote for Kantilalbhai. At the same time vote for Bhaikaka and H.M.\n\nPatel by putting your voting mark on the star.\"\n\nThe High Court held the first two passages read together to constitute \"corrupt practice\" on the ground that \"they amounted to interference with the free exercise of the electoral right of voters by holding out threats of divine displeasure and spiritual censure.\" The High Court held that in these passages there was a direct causal relationship between the cow slaughter and the natural calamities and this clearly showed that the voters were told that if they did not want such natural calamities to visit them they should not vote for the CCl\\!1gress Party and thus avoid the divine displeasure which was responsible for these natural calamities. It seems to us that this is not a fair reading of these two pas.sages. Cow slaughter is not mentioned in these passages except to say that sow slaughter is banned in Gujarat. The causal relationship, if any, exists between slaughter of 33,000 bullocks every day aind natural calamities.\n\nThis, in our view, cannot amount to constitute \"corrupt practice\" within s. 123 (2) proviso (a) (ii).\n\nThe law does not ptace any bar on describing a party as irreligious or saying that because that political party is irreligious natural calamities have resulted because of its disregard of religion.\n\nWe do not find anything objectionable in the third passage because here again it is Olllly an appeal to elect the Swatantra Party because the people in that party are fond of their religion.\n\nThe last passage in Ex. 'K' clearly fell within the mischief of s. 123 ( 3). The High Court in this connection observed :\n\n\"The refesence to Vijaykumarbhai is to Vijaykumar Trivedi, who was a Brahmin and was a minister in the Gujarat Govemmf1nt till March 1967. and when this speech was delivered.\n\nThe reference to Kantilalbhai is to the first respondent, who is also a Brnhmin and the reoference to Bhaikaka is to Bhailalbhai Patel, leader of the Swatantra Party and H.M. Patel is another leader of the Swatantra Party and what Shambhu Maharaj was askin11 in this connection was that it was necessary that there should be one Brahmin in the Gujarat State Ministry and if one Brahmin,\n\n• ,\n\nVii<iykumar Trivedi, was to leave the ministry, another Brahmin Minister, viz., the first respondent should be first elected so that he might get a seat in the Legislature and thereafter become a minister, and thus it is clear that in the passage, Shambhu Maharaj was asking the people to vote for the first respondent because he was a Brahmin by caste. It has b~ >tated as a categorical statement that there must be at least one Minister, who was a Brahmin. Under S. 123(3) of the Act, an appeal by any person to vote for any person on the ground of his caste or community is a corrupt practice, provided, of course, that such person has made such appeal with the c<l\\llSent of the candidate concerned.\n\nI will come to the question of consent a bit later on, but it is clear tliat in this particular passage an appeal was being made to the electors to cast their votes for the first respondent because the first respondent is a Brahmin and also because of the promise, which had been put forward in this passage, that there should be at least oue Brahmin Minister in the Ministry.\n\nI may point out that so far as the petitioner is concerned, the petitioner is a Patidar and it is i:n the context of this background that an appeal is made in the name of caste of the first respondent and the people are asked to vote for the first respondent because he was a Brahmin.\"\n\nIt seems to us that the High Court is correct in drawing the inference that Shambhu Maharaj was asking his voters to vote for the first respondent because he was a Brahmin.\n\nShambhu Maharaj is reported to have adopted the same theme in Ex. 'P' when he said that \"Vijaykumarbhai had gone out and Kantilalbhai is going to be the Minister.\"\n\nFollowing three pasages were objected in Ex. 'P', a speech made at Dangerwa :\n\n\"(1 ) The time of election has arrived. The Congress Party is carrying on its propaganda desparately but what I want to say is that if Swatantra Party comes into power then it will (!lOt turn your roof-tiles into gold.\n\nOnly God gives happiness. There is. frost, there is rust in the crops, there is excess of rains, there is a famine all these are due to the workings of God. Every day twenty four crores of cows are being slaughtered, then how God will tolerate that and how will you get happiness?\n\n(2) Look at the Congressmen who are destroyers of Hindu Religion. ( 3) Every year we get QD<: or the other natural calamity like excessive rain, or failure of rain or earthquake. This happens because they ask for votes in the name of live bullocks, whereas they get the bullocks slaughtered. The symbol should be of butcher and except ruthless and hard-hearted Congress nobody else will get bullocks slaughtered.\"\n\nIt seems to us that the first and the third passages, read together, constitute an attempt to induce the electors to believe that they would become objects of divine displeasure ii they voted for the Congress and thereby allowed cow slaughter to be continued.\n\nHidayatullah, C.J., in Narbada Prasad v. Chhagan Lal('), observed :\n\n\"It is not necessary to enlarge upon the fact that cow is venerated in our country by the vast majority of the people and that they believe not only in its utility but its holiness. It is also believed that one of the cardinal sins is that of gohatya. Therefore, it is quite obvious that to remind the voters that they would be committing the sin of gohatya would be to remipd them that they would be objects oi divine displeasure or spiritual censure.\"\n\nIn the first and third passages of Ex. 'P', therefore there is clear implication that if you vote for the Congress who are responsible for 24 crores of cows being slaughtered then God will be displeased; in other words there will be divine displeasure alJd the voters will not get happiness.\n\nThe second passage does not seem to be objectionable and the High Court has not found it to be so.\n\nThe learned counsel for the appellant contends that very little weight should be attached to the speeches because the reports were IJOt taken in shorthand but from notes and it is very diflicult to be certain of what were the exact words used by Shambhu Maharaj.\n\nThe High Court examined the speeches, Exs. 'I', 'J' 'K'. 'L', and 'P', in connection with this question and came to the conclusion that common topics, common language and commop approach existed in all the speeches, and this indicated tat Shambhu Maharaj did deliver the speeches.\n\nFurther, accordmg to the High Court, the reports were submitted by different constables at different times and to different Police StatiQllJl, and the learned Judge found that there could possibly be no consultation between the various police constables who took down the state-\n\n(!) [1969] I S.C.R. 499. 8 Sup.C.l/69-8\n\nments, and that the totality of the effect emerging from different reports made the reports credible.\n\nWe agree with the conclusions arrived at by the High Court.\n\nIt is true that the exact words were not taken doWtll by the various police constables, but the similarity of approach, appeal and the attack on the Congress is remarkable and in these circumstances it must be held that the police constables correctly reproduced the substance of the speeches. It is , not necessary in these cases that exact words must be reproduced before a speech can be held to amount to \"corrupt practice\".\n\nThe learned counsel further contends that the appellant's consent to these speeches had not been proved. We agree with the High Court that there is no force in this contention. The High Court observed :\n\n\"As shown in the handbill setting out the programme, the manuscript of which was written out by the first respondent himself in consultation with Maganlal Abram Patel, this tour programme had been arranged to bring success to the first respondent in his election contest.\n\nShambhu Maharaj was touring these villages specifically so that the first respO)tldent might succeed in his contest. Further it would be natural on the part of the first respondent to take advantage of being seen in the presence of a good speaker like Shambhu\n\nMaharaj.\n\nSome of the meetings of Shambu Maharaj appear to have been well-attended.\n\nIt is highly probable that the first respondent accompied Shambhu Maharaj.\n\nTo my mind, therefore, it is clear that the first respondent had accompanied Shambhu Maharaj and was present in each of the meetings at Moti-Dav, Kherwa and Dangerwa when Shambhu Maharaj delivered speeches at these three villages ............ In the instant case also, the first respondent, according to the conclusion that I have reached, was present at the meetings which were addressed by Shambhu Maharai at Moti-Dav, Dangerwa and Kherwa and in each of these three meetings at least, according to the conclusions reached by me, Shambhu Maharaj in the course of his speeches had committed breaches of the provisions of s. 123(2) and s. 123(3) of the Act ........ Under these circumstances, it is clear to my mind, judging by the manner in which the first respondent was touring with Shambhu Maharaj, the manner in which tour programme was arranged and judging from the fact that this tour was speciallv arranged to bring success to the first respondent, that the first respon-\n\nJAYSHANKER v. RANCHHODDAS (Hegde, J.) 415\n\ndent did consent to the commissiOill of the breaches ot the proviso of s. 123(2) and s. 123(3) of the Act by Shambhu Maharaj.\" We may add that many police witnesses depose that the appellant was present and it has not been shown to us that he dissociated himself with any of the remarks in the speeches.\n\nIn the result the appeal fails and is dismissed with costs.\n\nHegde, J.\n\nI agree that the statements contained in Exh. P amount to a corrupt practice under s. 123(2) of the Representation of the People Act and also agree that those statements were made with the consent of the returned candidate. Hence this appeal has to be dismissed but I am unable to agree that before a statement can be considered as an attempt to induce an elector to believe that he will be rendered an object of spiritual censure if he acts in a particular manner that statement must have been made by a person who is a religious head of the majority of the electors in the constituency concerned. What s. 123 (2) requires is to induce or attempt to induce \"an elector\"-which means even a single elector-that he will be rendered an object of spiritual censure if he exercises or refuses to exercise his electoral right in a particular manner. But undoubtedly the inducement or an attempt to induce complained of should be such as to amount to a direct or indirect interference or attempt to interfere with the free exercise of electoral right.\n\nWhether a particular statement comes within s. 123 (2) or not depends on various factors such as the nature of the statement, the person who made it and the persons to whom it is addressed.\n\nNo doubt the nature of the statements in question is of utmost importance. They may exploit well accepted religious beliefs but that is not the only thing that comes within the mischief of s. 123 (2). A respected religious preacher may inducor attempt to induce the illiterate and superstitious voters who fo m the bulk of our voters that they will become the object of divi displeasure if they do not exercise their franchise in a particular manner. His statements may not have any support from the religious books but yet they may amount to a corrupt practice in law. I see no justification to cut down the scope of s\"l23 (2). It will not be in public interest to do so. ·\n\nI am unable to agree that the appeal to vote (in Exh. K) for the appellant on the grt'rnnd that he is likely to be a Minister as according to Shambhu Maharaj there should be at least one Brahmin Minister in the cabinet is an appeal to vote on the ground of the appellant's caste. There is no use hiding the fact that communal and regional representations in all our political institutiom have become a must. Shambhu Maharaj merely gave expression to that fact from public platforms. One may not appreciate his\n\ncampaigning for that point of view but I am unable to agree that It. his statements In that regard amount to corrupt practice under s. 123(3). Those statements cannot be considered as an appeal to vote on the basis of the appellant's caste. The caste of the appellant has come into the picture incidentally.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 143, "entities": [{"text": "KANTI PRASAD JAYSHANKER YAGNIK", "label": "PETITIONER", "start_char": 0, "end_char": 30, "source": "metadata", "metadata": {"canonical_name": "KANTI PRASAD JAYSHANKER YAGNIK", "offset_not_found": false}}, {"text": "PURSHOTTAMDAS RANCHHODDAS PATEL AND OTHERS", "label": "RESPONDENT", "start_char": 37, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "PURSHOTTAMDAS RANCHHODDAS PATEL AND OTHERS", "offset_not_found": false}}, {"text": "January 24, 1969", "label": "DATE", "start_char": 81, "end_char": 97, "source": "ner", "metadata": {"in_sentence": "KANTI PRASAD JAYSHANKER YAGNIK A v.\n\nPURSHOTTAMDAS RANCHHODDAS PATEL AND OTHERS\n\nJanuary 24, 1969\n\n[S. M. S!KRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.]"}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 113, "end_char": 127, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "K. S. HEGDE, JJ.", "label": "JUDGE", "start_char": 132, "end_char": 148, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "Represtltllltion of the People Act", "label": "STATUTE", "start_char": 153, "end_char": 187, "source": "regex", "metadata": {}}, {"text": "s. 123", "label": "PROVISION", "start_char": 202, "end_char": 208, "source": "regex", "metadata": {"linked_statute_text": "Represtltllltion of the People Act", "statute": "Represtltllltion of the People Act"}}, {"text": "s. 160", "label": "PROVISION", "start_char": 542, "end_char": 548, "source": "regex", "metadata": {"linked_statute_text": "Represtltllltion of the People Act", "statute": "Represtltllltion of the People Act"}}, {"text": "Gujarat State Assembly", "label": "ORG", "start_char": 691, "end_char": 713, "source": "ner", "metadata": {"in_sentence": "The poll for election to the Gujarat State Assembly from Mehsana State Assembly constituency was taken on February 21, 1967."}}, {"text": "February 21, 1967", "label": "DATE", "start_char": 768, "end_char": 785, "source": "ner", "metadata": {"in_sentence": "The poll for election to the Gujarat State Assembly from Mehsana State Assembly constituency was taken on February 21, 1967."}}, {"text": "011 February 18, 1967", "label": "DATE", "start_char": 787, "end_char": 808, "source": "ner", "metadata": {"in_sentence": "011 February 18, 1967 one S.M. addressed public meetings at various villages which were part of the constituency."}}, {"text": "S.M.", "label": "OTHER_PERSON", "start_char": 1246, "end_char": 1250, "source": "ner", "metadata": {"in_sentence": "These police constables did not take down every word spoken by S.M. but whatever was taken down was spoken by S.M.; and in the reports, though the exact words were not reproduced the substance of the speeches was corretly reproduced."}}, {"text": "Congress Party", "label": "ORG", "start_char": 1562, "end_char": 1576, "source": "ner", "metadata": {"in_sentence": "These reports showed that S.M. made the following statements in his speeches :-\n\n(i) He appealed to the Hindu voters as such not to vote for the Congress Party lest they might be betraying their religious leader (Jagadguru Sankaracharya of Puri), particularly when be had fasted for 73 days in the cause of preventing cow slaughter;\n\n(ii) He put forward an appeal to the electors not to vote for the Congress Party but to vote for the Swatantra Party in the name of religion;\n\n(iii) He said that a relationship of cause and effect existed between the slaughter of 33,000 bullocks every day and natural calamities like famine and flood;\n\n(iv) Re asked his voters to vote for the appellant because he was a Brahmin; and\n\n(v) He said that if the voters voted for the Congress who are responsible for 24 crore of cows being slaughtered then God will be displeased."}}, {"text": "Jagadguru Sankaracharya", "label": "OTHER_PERSON", "start_char": 1630, "end_char": 1653, "source": "ner", "metadata": {"in_sentence": "These reports showed that S.M. made the following statements in his speeches :-\n\n(i) He appealed to the Hindu voters as such not to vote for the Congress Party lest they might be betraying their religious leader (Jagadguru Sankaracharya of Puri), particularly when be had fasted for 73 days in the cause of preventing cow slaughter;\n\n(ii) He put forward an appeal to the electors not to vote for the Congress Party but to vote for the Swatantra Party in the name of religion;\n\n(iii) He said that a relationship of cause and effect existed between the slaughter of 33,000 bullocks every day and natural calamities like famine and flood;\n\n(iv) Re asked his voters to vote for the appellant because he was a Brahmin; and\n\n(v) He said that if the voters voted for the Congress who are responsible for 24 crore of cows being slaughtered then God will be displeased.", "canonical_name": "Jagadguru Shankaracharya of Puri"}}, {"text": "Puri", "label": "GPE", "start_char": 1657, "end_char": 1661, "source": "ner", "metadata": {"in_sentence": "These reports showed that S.M. made the following statements in his speeches :-\n\n(i) He appealed to the Hindu voters as such not to vote for the Congress Party lest they might be betraying their religious leader (Jagadguru Sankaracharya of Puri), particularly when be had fasted for 73 days in the cause of preventing cow slaughter;\n\n(ii) He put forward an appeal to the electors not to vote for the Congress Party but to vote for the Swatantra Party in the name of religion;\n\n(iii) He said that a relationship of cause and effect existed between the slaughter of 33,000 bullocks every day and natural calamities like famine and flood;\n\n(iv) Re asked his voters to vote for the appellant because he was a Brahmin; and\n\n(v) He said that if the voters voted for the Congress who are responsible for 24 crore of cows being slaughtered then God will be displeased."}}, {"text": "Swatantra Party", "label": "ORG", "start_char": 1852, "end_char": 1867, "source": "ner", "metadata": {"in_sentence": "These reports showed that S.M. made the following statements in his speeches :-\n\n(i) He appealed to the Hindu voters as such not to vote for the Congress Party lest they might be betraying their religious leader (Jagadguru Sankaracharya of Puri), particularly when be had fasted for 73 days in the cause of preventing cow slaughter;\n\n(ii) He put forward an appeal to the electors not to vote for the Congress Party but to vote for the Swatantra Party in the name of religion;\n\n(iii) He said that a relationship of cause and effect existed between the slaughter of 33,000 bullocks every day and natural calamities like famine and flood;\n\n(iv) Re asked his voters to vote for the appellant because he was a Brahmin; and\n\n(v) He said that if the voters voted for the Congress who are responsible for 24 crore of cows being slaughtered then God will be displeased."}}, {"text": "s. 123(2)", "label": "PROVISION", "start_char": 2534, "end_char": 2543, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 2559, "end_char": 2597, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sikri", "label": "JUDGE", "start_char": 2609, "end_char": 2614, "source": "ner", "metadata": {"in_sentence": "On the questions : (I) Whether the reports made by the police constables V.'ere admissible in evidence; (2) Whether any weight should be attached to them; and (3) Whether they showed that the appellant was gui!ty of corrupt practice within the meaning of s. 123(2) and (3) of the Representation of the People Act, 1951\n\nHELD (Per Sikri and Bachawat, JJ.) : (!)", "canonical_name": "Sikri"}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 2619, "end_char": 2627, "source": "ner", "metadata": {"in_sentence": "On the questions : (I) Whether the reports made by the police constables V.'ere admissible in evidence; (2) Whether any weight should be attached to them; and (3) Whether they showed that the appellant was gui!ty of corrupt practice within the meaning of s. 123(2) and (3) of the Representation of the People Act, 1951\n\nHELD (Per Sikri and Bachawat, JJ.) : (!)", "canonical_name": "BACHA WAT"}}, {"text": "s. 160", "label": "PROVISION", "start_char": 2677, "end_char": 2683, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "s. 160", "label": "PROVISION", "start_char": 2853, "end_char": 2859, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "s. 160", "label": "PROVISION", "start_char": 3525, "end_char": 3531, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "Jagdguru", "label": "OTHER_PERSON", "start_char": 5394, "end_char": 5402, "source": "ner", "metadata": {"in_sentence": "ere was no proof .that he Jagdguru WJS the religious head of the maior1ty of the elector~ in this constituency or that he exercised great influence.", "canonical_name": "Jagadguru"}}, {"text": "Jagadguru", "label": "OTHER_PERSON", "start_char": 5695, "end_char": 5704, "source": "ner", "metadata": {"in_sentence": "and so, 1t could not be held that an ordinary Hindu voter of the constituency would feel that he would be committing a sin if he disregarded the alleged directive of the Jagadguru. [", "canonical_name": "Jagadguru"}}, {"text": "Per Hegde", "label": "JUDGE", "start_char": 5783, "end_char": 5792, "source": "ner", "metadata": {"in_sentence": "(Per Hegde, J. dissenting) : The statement amounted to corrupt practice."}}, {"text": "s. 123(2)", "label": "PROVISION", "start_char": 5863, "end_char": 5872, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123(2)", "label": "PROVISION", "start_char": 7277, "end_char": 7286, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 7294, "end_char": 7326, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 123(2)", "label": "PROVISION", "start_char": 7658, "end_char": 7667, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123(3)", "label": "PROVISION", "start_char": 8009, "end_char": 8018, "source": "regex", "metadata": {"statute": null}}, {"text": "Hegde", "label": "JUDGE", "start_char": 8036, "end_char": 8041, "source": "ner", "metadata": {"in_sentence": "411 F-G]\n\n(Per Hegde, J. dissenting) : When he stated that there should be at le<1st one Brahmin Minister in the Cabinet, S.M. was merely giving expres sion to the fact that communal and regional representations in our pohtical institutions have c; ome to stay and was not appealing to the voters to vote on the basis of the appellant's caste.", "canonical_name": "Hegde"}}, {"text": "s. 123(2)", "label": "PROVISION", "start_char": 8781, "end_char": 8790, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 8889, "end_char": 8917, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "s. 116", "label": "PROVISION", "start_char": 8964, "end_char": 8970, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act 1951", "label": "STATUTE", "start_char": 8980, "end_char": 9017, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. T. Desai", "label": "PETITIONER", "start_char": 9132, "end_char": 9143, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, A. K. Verma, A. L. Barot, and/. B. Dadachanji,\n\nfor the appellant.", "canonical_name": "S. T. Desai"}}, {"text": "A. K. Verma", "label": "LAWYER", "start_char": 9145, "end_char": 9156, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, A. K. Verma, A. L. Barot, and/. B. Dadachanji,\n\nfor the appellant."}}, {"text": "A. L. Barot", "label": "LAWYER", "start_char": 9158, "end_char": 9169, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, A. K. Verma, A. L. Barot, and/. B. Dadachanji,\n\nfor the appellant."}}, {"text": "B. Dadachanji", "label": "LAWYER", "start_char": 9177, "end_char": 9190, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, A. K. Verma, A. L. Barot, and/. B. Dadachanji,\n\nfor the appellant."}}, {"text": "H Purshottamdas Trikamdas", "label": "LAWYER", "start_char": 9213, "end_char": 9238, "source": "ner", "metadata": {"in_sentence": "H Purshottamdas Trikamdas and I. N. Shroff, for respondent No."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 9243, "end_char": 9255, "source": "ner", "metadata": {"in_sentence": "H Purshottamdas Trikamdas and I. N. Shroff, for respondent No."}}, {"text": "StKR", "label": "JUDGE", "start_char": 9296, "end_char": 9300, "source": "ner", "metadata": {"in_sentence": "The Judgment of StKR!"}}, {"text": "BACHA WAT", "label": "JUDGE", "start_char": 9306, "end_char": 9315, "source": "ner", "metadata": {"in_sentence": "and BACHA WAT, J J. was delivered by SIKRI, J. HEGDE, J. delivered a sejarate Opinion.", "canonical_name": "BACHA WAT"}}, {"text": "SIKRI", "label": "JUDGE", "start_char": 9339, "end_char": 9344, "source": "ner", "metadata": {"in_sentence": "and BACHA WAT, J J. was delivered by SIKRI, J. HEGDE, J. delivered a sejarate Opinion.", "canonical_name": "Sikri"}}, {"text": "HEGDE", "label": "JUDGE", "start_char": 9349, "end_char": 9354, "source": "ner", "metadata": {"in_sentence": "and BACHA WAT, J J. was delivered by SIKRI, J. HEGDE, J. delivered a sejarate Opinion.", "canonical_name": "Hegde"}}, {"text": "s. 116", "label": "PROVISION", "start_char": 9420, "end_char": 9426, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act 1951", "statute": "the Representation of the People Act 1951"}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 9436, "end_char": 9474, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "High Court of Gujarat", "label": "COURT", "start_char": 9526, "end_char": 9547, "source": "ner", "metadata": {"in_sentence": "Sikri, .J.\n\nThis appeal under s. 116-A of the Representation of the People Act, 1951, is directed against the judgment and order of the High Court of Gujarat iio Election Petition No."}}, {"text": "Kanti Prasad Jayshankar Yagnik", "label": "PETITIONER", "start_char": 9617, "end_char": 9647, "source": "ner", "metadata": {"in_sentence": "3 of 1967, B setting aside the election of Kanti Prasad Jayshankar Yagnik, appellant before us, to the Gujarat State Assembly from Mehsana State Assembly Constitucy under s. 123(2), s. 123(3) and s. I 00 (1 )(b) of the Representation of the People Act, 1951hereinafter referred to as the Act.", "canonical_name": "KANTI PRASAD JAYSHANKER YAGNIK"}}, {"text": "s. 123(2)", "label": "PROVISION", "start_char": 9745, "end_char": 9754, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "s. 123(3)", "label": "PROVISION", "start_char": 9756, "end_char": 9765, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 9793, "end_char": 9831, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Shambhu Maharaj", "label": "OTHER_PERSON", "start_char": 9919, "end_char": 9934, "source": "ner", "metadata": {"in_sentence": "c The High Court held that certain speeches made by Shambhu Maharaj, with the consent of the appellant, amounted to 'corrupt practices' within the meaning of ss.", "canonical_name": ".Shambhu Maharaj"}}, {"text": "ss. 123(2) and 123(3)", "label": "PROVISION", "start_char": 10025, "end_char": 10046, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "ss. 123(2) and 123(3)", "label": "PROVISION", "start_char": 10329, "end_char": 10350, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "Purshottamdass Ranchoddas Patel", "label": "PETITIONER", "start_char": 10571, "end_char": 10602, "source": "ner", "metadata": {"in_sentence": "Purshottamdass Ranchoddas Patel, the petitioner in the High Court and respondent before us, secured 16,159 votes whereas the appellant secured 23,055 votes."}}, {"text": "February\n\n18. 1967", "label": "DATE", "start_char": 11255, "end_char": 11273, "source": "ner", "metadata": {"in_sentence": "Various grounds were urged in the petition but we need only deal with the ground that the appellant and his agents arranged public meetings of Shri Shambhu Maharaj on February\n\n18."}}, {"text": "s 25 to 33", "label": "PROVISION", "start_char": 12456, "end_char": 12466, "source": "regex", "metadata": {"statute": null}}, {"text": "S. T. Desai", "label": "PETITIONER", "start_char": 12650, "end_char": 12661, "source": "ner", "metadata": {"in_sentence": "The learned counsel for the appellant, Mr. S. T. Desai, contends, first, that the reports made by the members of the Police Force are not admissible in evidence, and secondly, that in the circumstances of the case no weight should be attached to these reports.", "canonical_name": "S. T. Desai"}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 13020, "end_char": 13039, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 159", "label": "PROVISION", "start_char": 13139, "end_char": 13145, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 160", "label": "PROVISION", "start_char": 13167, "end_char": 13173, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 159", "label": "PROVISION", "start_char": 13650, "end_char": 13656, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 160", "label": "PROVISION", "start_char": 13692, "end_char": 13698, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 159, 160 and 161", "label": "PROVISION", "start_char": 13721, "end_char": 13741, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 13749, "end_char": 13768, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. 159", "label": "PROVISION", "start_char": 13772, "end_char": 13778, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 160", "label": "PROVISION", "start_char": 14565, "end_char": 14571, "source": "regex", "metadata": {"statute": null}}, {"text": "section 159", "label": "PROVISION", "start_char": 14659, "end_char": 14670, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 161", "label": "PROVISION", "start_char": 14809, "end_char": 14815, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 160", "label": "PROVISION", "start_char": 15454, "end_char": 15460, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 160", "label": "PROVISION", "start_char": 16176, "end_char": 16182, "source": "regex", "metadata": {"statute": null}}, {"text": "Maganlal A. Patel", "label": "OTHER_PERSON", "start_char": 16490, "end_char": 16507, "source": "ner", "metadata": {"in_sentence": "He stated that Shambhu Maharaj addressed the meeting at Motidav at about 5.30 p.m. on February 18, 1967, and the appellant was present at that meeting; Maganlal A. Patel was also\n\npresent at the time when Shambhu Maharai was speaking; while the speeches were being deliveed he was making notes of what was being spoken; in this manne~ he had written out a report regacding\n\nall that had happened at the meeting; zfter returning to Mehana he submitted his report of the meeting to P .S.I. Choudhary.", "canonical_name": "Maganlal Abram Patel"}}, {"text": "Shambhu Maharai", "label": "OTHER_PERSON", "start_char": 16543, "end_char": 16558, "source": "ner", "metadata": {"in_sentence": "He stated that Shambhu Maharaj addressed the meeting at Motidav at about 5.30 p.m. on February 18, 1967, and the appellant was present at that meeting; Maganlal A. Patel was also\n\npresent at the time when Shambhu Maharai was speaking; while the speeches were being deliveed he was making notes of what was being spoken; in this manne~ he had written out a report regacding\n\nall that had happened at the meeting; zfter returning to Mehana he submitted his report of the meeting to P .S.I. Choudhary.", "canonical_name": ".Shambhu Maharaj"}}, {"text": "Mehana", "label": "GPE", "start_char": 16769, "end_char": 16775, "source": "ner", "metadata": {"in_sentence": "He stated that Shambhu Maharaj addressed the meeting at Motidav at about 5.30 p.m. on February 18, 1967, and the appellant was present at that meeting; Maganlal A. Patel was also\n\npresent at the time when Shambhu Maharai was speaking; while the speeches were being deliveed he was making notes of what was being spoken; in this manne~ he had written out a report regacding\n\nall that had happened at the meeting; zfter returning to Mehana he submitted his report of the meeting to P .S.I. Choudhary."}}, {"text": "P .S.I. Choudhary", "label": "OTHER_PERSON", "start_char": 16818, "end_char": 16835, "source": "ner", "metadata": {"in_sentence": "He stated that Shambhu Maharaj addressed the meeting at Motidav at about 5.30 p.m. on February 18, 1967, and the appellant was present at that meeting; Maganlal A. Patel was also\n\npresent at the time when Shambhu Maharai was speaking; while the speeches were being deliveed he was making notes of what was being spoken; in this manne~ he had written out a report regacding\n\nall that had happened at the meeting; zfter returning to Mehana he submitted his report of the meeting to P .S.I. Choudhary."}}, {"text": "Motidav", "label": "GPE", "start_char": 16884, "end_char": 16891, "source": "ner", "metadata": {"in_sentence": "He was shown two reports about the meetings at Motidav, and he stated :\n\n.. \"Both these reports, part of 'X', are in my handwr1tmg."}}, {"text": "Maharaj", "label": "OTHER_PERSON", "start_char": 17359, "end_char": 17366, "source": "ner", "metadata": {"in_sentence": "He stated that he was taking down all the speeches of Shambhu Maharaj who was speaking at medium pace and he wrote whatever Shambhu\n\nMaharaj spoke."}}, {"text": "Motidav village", "label": "GPE", "start_char": 17757, "end_char": 17772, "source": "ner", "metadata": {"in_sentence": "J' was not written down at Motidav village.\""}}, {"text": "s. 160", "label": "PROVISION", "start_char": 17868, "end_char": 17874, "source": "regex", "metadata": {"statute": null}}, {"text": "18, 1967", "label": "DATE", "start_char": 17943, "end_char": 17951, "source": "ner", "metadata": {"in_sentence": "While the speech was delivered QD February 18, 1967, he was giving his evidence on November 7, 1967."}}, {"text": "November 7, 1967", "label": "DATE", "start_char": 17983, "end_char": 17999, "source": "ner", "metadata": {"in_sentence": "While the speech was delivered QD February 18, 1967, he was giving his evidence on November 7, 1967."}}, {"text": "U.S.A.", "label": "GPE", "start_char": 18703, "end_char": 18709, "source": "ner", "metadata": {"in_sentence": "The position seems to be the same in some States in U.S.A., vide Wigmore on Evidence (Third Edition; Vol."}}, {"text": "1882, Cooley", "label": "JUDGE", "start_char": 19376, "end_char": 19388, "source": "ner", "metadata": {"in_sentence": "\"1882, Cooley, J., in Mason v. Phelps, 48 Mir, L 126, 11 N.W. 413, 837 : After she had testified that she knew it to be correct, she might have read the entries or repeated them as her evidence."}}, {"text": "United States", "label": "GPE", "start_char": 19918, "end_char": 19931, "source": "ner", "metadata": {"in_sentence": "There is much to be said for the modeIJil doctrine in some of the\n\nStates in the United States, which \"seems to be that such docu-· ments are admissible evidence and that the Court will not go\n\nthrough the useless ceremony of having the witness read a document relating to a fact of which he had no present recollecti?n,\n\nexcept that he knew it was correct when made.\" ("}}, {"text": "Sankaran-Nair", "label": "JUDGE", "start_char": 20313, "end_char": 20326, "source": "ner", "metadata": {"in_sentence": "The learned counsel relied on the dissenting judgment of Sankaran-Nair, J., in Mylapore Krishnasami v. Emperor(') where he observed :\n\n\"If therefore the constable has \\llOt recorded correctly the words used by the speaker but only his impression, then the notes would be inadmissible under section 160 of the Indian Evidence Act to prove the words used."}}, {"text": "section 160", "label": "PROVISION", "start_char": 20546, "end_char": 20557, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 20565, "end_char": 20584, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 160", "label": "PROVISION", "start_char": 20899, "end_char": 20905, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 21039, "end_char": 21064, "source": "ner", "metadata": {"in_sentence": "The learned cou1nsel also referred to the decision of the Madhya Pradesh High Court in Mohansingh Laxmansingh v. Bhanwarlal Rajmal Nahata(')."}}, {"text": "s. 160", "label": "PROVISION", "start_char": 21732, "end_char": 21738, "source": "regex", "metadata": {"statute": null}}, {"text": "Blacker", "label": "JUDGE", "start_char": 21950, "end_char": 21957, "source": "ner", "metadata": {"in_sentence": "under s. 160 we must hold that the case was wrongly decided, but if the High Court meant to say that there was suspicion that the speech was not a correct record the:n nothing can be said against the decision on this poinl\n\nBlacker, J. in Sodhi Pindi Das v. Emperqr(') held, relying on Jagan Nath v. Emperor(') that it is essential that the witness must state orally before the Court that although he had no specific recollection of the facts themselves, he was sure that the facts were correctly recorded in the document."}}, {"text": "Mockett", "label": "JUDGE", "start_char": 22522, "end_char": 22529, "source": "ner", "metadata": {"in_sentence": "In Public Prosecutor v. Venkatarama Naidu(') Mockett, J., rightly dissented from the judgment of the Lahore High Court in\n\nSodhi Pindi Das v. Emperor(')."}}, {"text": "Lahore High Court", "label": "COURT", "start_char": 22578, "end_char": 22595, "source": "ner", "metadata": {"in_sentence": "In Public Prosecutor v. Venkatarama Naidu(') Mockett, J., rightly dissented from the judgment of the Lahore High Court in\n\nSodhi Pindi Das v. Emperor(')."}}, {"text": "England", "label": "GPE", "start_char": 22635, "end_char": 22642, "source": "ner", "metadata": {"in_sentence": "In England the Law of Evidence has been changed and many of such documents made directly admissible: (see Phipson on Evidence, Tenth Edition, Ch."}}, {"text": "s. 160", "label": "PROVISION", "start_char": 22861, "end_char": 22867, "source": "regex", "metadata": {"statute": null}}, {"text": "February 18, 1967-\\\\ere", "label": "DATE", "start_char": 23216, "end_char": 23239, "source": "ner", "metadata": {"in_sentence": "J'- speech delivered by Shambhu Maharaj at village Motidav on February 18, 1967-\\\\ere complained of by the learned Counsel in the High Court :\n\n\" ( 1) I will say on~ fact and that is that at present t11e Congress is stating everywhere that nobody else will make the people happy except themselves."}}, {"text": "India", "label": "GPE", "start_char": 23881, "end_char": 23886, "source": "ner", "metadata": {"in_sentence": "Today in our India, everyday 33,000 cows are being slaughtered\n\nthrou.hout the country."}}, {"text": "Ahmedabad Town", "label": "GPE", "start_char": 24033, "end_char": 24047, "source": "ner", "metadata": {"in_sentence": "Ten to eleven lacs of bullocks are being -slaughtered during the year and in Ahmedabad Town alone 10,000 bullocks are slaughtered."}}, {"text": "JAYSllANKER V. RANCHHODDAS", "label": "JUDGE", "start_char": 24167, "end_char": 24193, "source": "ner", "metadata": {"in_sentence": "JAYSllANKER V. RANCHHODDAS (Sikri, J.) 40~\n\n( 2) This unworthy Congress Government has cut the nose of Hindu Society."}}, {"text": "Sant Fateh Singh", "label": "OTHER_PERSON", "start_char": 24285, "end_char": 24301, "source": "ner", "metadata": {"in_sentence": "Sant Fateh Singh the reli- . '"}}, {"text": "Mucca", "label": "GPE", "start_char": 24917, "end_char": 24922, "source": "ner", "metadata": {"in_sentence": "3) For exa..'11ple, if any Maulvi from Mucca had fasted for 73 days ad had given such a mandate to our Muslim brothers, then would they have voted for the Congress."}}, {"text": "Fateh Singh", "label": "OTHER_PERSON", "start_char": 25093, "end_char": 25104, "source": "ner", "metadata": {"in_sentence": "That you have to consider, In the same manner, if Fateh Singh, the religious leader of Sikhs, had fasted for 73 days, would they (Sikhs) have voted .for the Congress ?"}}, {"text": "Gujarat", "label": "GPE", "start_char": 25537, "end_char": 25544, "source": "ner", "metadata": {"in_sentence": "In Gujarat State though there is ban, still bullocks are allowed to be slaughtered, the bullocks which give every individual happiness throughout the life."}}, {"text": "Shankaracharya", "label": "OTHER_PERSON", "start_char": 26310, "end_char": 26324, "source": "ner", "metadata": {"in_sentence": "The third passage was held by the High Court to constitute \"corrupt practice\" on the groul?-~ that \"thogh there is no proof that Shankaracharya had any relrg1ous following\n\nas such in this particular constituency'."}}, {"text": "Shambhu Mahara1", "label": "OTHER_PERSON", "start_char": 26513, "end_char": 26528, "source": "ner", "metadata": {"in_sentence": "is no mandate Hl writing from the Jagadguru and there 1s no ~Irect address to his followers by the Jagadguru, Shambhu Mahara1 has clearly appealed to the Hindu voters as such not to vote for the Congres~ Party\n\nJest they might be betraying thir religious lader.", "canonical_name": ".Shambhu Maharaj"}}, {"text": "Sat Guru", "label": "OTHER_PERSON", "start_char": 26976, "end_char": 26984, "source": "ner", "metadata": {"in_sentence": "The decision of this Court in Ram Dial v. Sant Lal(') is clearly .distinguishable because there it was held by this Court that Sbri\n\nSat Guru wielded great local influence among the large number of Namdbaris who were voters in the Sirsa constitutmey ."}}, {"text": "Sirsa", "label": "GPE", "start_char": 27074, "end_char": 27079, "source": "ner", "metadata": {"in_sentence": "The decision of this Court in Ram Dial v. Sant Lal(') is clearly .distinguishable because there it was held by this Court that Sbri\n\nSat Guru wielded great local influence among the large number of Namdbaris who were voters in the Sirsa constitutmey ."}}, {"text": "Jagadguru Shankaracharya of Puri", "label": "OTHER_PERSON", "start_char": 27139, "end_char": 27171, "source": "ner", "metadata": {"in_sentence": ".In the present case there is no proof that Jagadguru Shankaracharya of Puri was the religious bead of the majority of the electors in this constituency or exercised great influence on them.", "canonical_name": "Jagadguru Shankaracharya of Puri"}}, {"text": "s. 123", "label": "PROVISION", "start_char": 27870, "end_char": 27876, "source": "regex", "metadata": {"statute": null}}, {"text": ".Shambhu Maharaj", "label": "OTHER_PERSON", "start_char": 28188, "end_char": 28204, "source": "ner", "metadata": {"in_sentence": "K, a speech delivered by .Shambhu Maharaj at Kherwa after mid.night of February 18, 1967, were objected to :\n\n\" ( 1) The Congress says that it has brought happiness and will give happiness in future; but even a father cannot give happiness to his son, nor can a son give happiness to his father.", "canonical_name": ".Shambhu Maharaj"}}, {"text": "Kherwa", "label": "GPE", "start_char": 28208, "end_char": 28214, "source": "ner", "metadata": {"in_sentence": "K, a speech delivered by .Shambhu Maharaj at Kherwa after mid.night of February 18, 1967, were objected to :\n\n\" ( 1) The Congress says that it has brought happiness and will give happiness in future; but even a father cannot give happiness to his son, nor can a son give happiness to his father."}}, {"text": "February 18, 1967", "label": "DATE", "start_char": 28234, "end_char": 28251, "source": "ner", "metadata": {"in_sentence": "K, a speech delivered by .Shambhu Maharaj at Kherwa after mid.night of February 18, 1967, were objected to :\n\n\" ( 1) The Congress says that it has brought happiness and will give happiness in future; but even a father cannot give happiness to his son, nor can a son give happiness to his father."}}, {"text": "Vijaykumarbhai", "label": "OTHER_PERSON", "start_char": 29520, "end_char": 29534, "source": "ner", "metadata": {"in_sentence": "4) Vijaykumarbhai has gone."}}, {"text": "Kantilalbhai", "label": "RESPONDENT", "start_char": 29589, "end_char": 29601, "source": "ner", "metadata": {"in_sentence": "A Brahmin minister must be there and hence Kantilalbhai is going to be a minister, hence vote for him.", "canonical_name": "Kantilalbhai"}}, {"text": "Bhaikaka", "label": "OTHER_PERSON", "start_char": 29757, "end_char": 29765, "source": "ner", "metadata": {"in_sentence": "At the same time vote for Bhaikaka and H.M.\n\nPatel by putting your voting mark on the star.\""}}, {"text": "H.M.\n\nPatel", "label": "OTHER_PERSON", "start_char": 29770, "end_char": 29781, "source": "ner", "metadata": {"in_sentence": "At the same time vote for Bhaikaka and H.M.\n\nPatel by putting your voting mark on the star.\"", "canonical_name": "H.M.\n\nPatel"}}, {"text": "s. 123", "label": "PROVISION", "start_char": 30837, "end_char": 30843, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 31322, "end_char": 31328, "source": "regex", "metadata": {"statute": null}}, {"text": "Vijaykumar Trivedi", "label": "OTHER_PERSON", "start_char": 31420, "end_char": 31438, "source": "ner", "metadata": {"in_sentence": "The High Court in this connection observed :\n\n\"The refesence to Vijaykumarbhai is to Vijaykumar Trivedi, who was a Brahmin and was a minister in the Gujarat Govemmf1nt till March 1967."}}, {"text": "Kantilalbhai", "label": "RESPONDENT", "start_char": 31574, "end_char": 31586, "source": "ner", "metadata": {"in_sentence": "The reference to Kantilalbhai is to the first respondent, who is also a Brnhmin and the reoference to Bhaikaka is to Bhailalbhai Patel, leader of the Swatantra Party and H.M. Patel is another leader of the Swatantra Party and what Shambhu Maharaj was askin11 in this connection was that it was necessary that there should be one Brahmin in the Gujarat State Ministry and if one Brahmin,\n\n• ,\n\nVii<iykumar Trivedi, was to leave the ministry, another Brahmin Minister, viz.,", "canonical_name": "Kantilalbhai"}}, {"text": "Bhailalbhai Patel", "label": "OTHER_PERSON", "start_char": 31674, "end_char": 31691, "source": "ner", "metadata": {"in_sentence": "The reference to Kantilalbhai is to the first respondent, who is also a Brnhmin and the reoference to Bhaikaka is to Bhailalbhai Patel, leader of the Swatantra Party and H.M. Patel is another leader of the Swatantra Party and what Shambhu Maharaj was askin11 in this connection was that it was necessary that there should be one Brahmin in the Gujarat State Ministry and if one Brahmin,\n\n• ,\n\nVii<iykumar Trivedi, was to leave the ministry, another Brahmin Minister, viz.,"}}, {"text": "H.M. Patel", "label": "OTHER_PERSON", "start_char": 31727, "end_char": 31737, "source": "ner", "metadata": {"in_sentence": "The reference to Kantilalbhai is to the first respondent, who is also a Brnhmin and the reoference to Bhaikaka is to Bhailalbhai Patel, leader of the Swatantra Party and H.M. Patel is another leader of the Swatantra Party and what Shambhu Maharaj was askin11 in this connection was that it was necessary that there should be one Brahmin in the Gujarat State Ministry and if one Brahmin,\n\n• ,\n\nVii<iykumar Trivedi, was to leave the ministry, another Brahmin Minister, viz.,", "canonical_name": "H.M.\n\nPatel"}}, {"text": "Brahmin", "label": "OTHER_PERSON", "start_char": 31886, "end_char": 31893, "source": "ner", "metadata": {"in_sentence": "The reference to Kantilalbhai is to the first respondent, who is also a Brnhmin and the reoference to Bhaikaka is to Bhailalbhai Patel, leader of the Swatantra Party and H.M. Patel is another leader of the Swatantra Party and what Shambhu Maharaj was askin11 in this connection was that it was necessary that there should be one Brahmin in the Gujarat State Ministry and if one Brahmin,\n\n• ,\n\nVii<iykumar Trivedi, was to leave the ministry, another Brahmin Minister, viz.,"}}, {"text": "Vii<iykumar Trivedi", "label": "OTHER_PERSON", "start_char": 31950, "end_char": 31969, "source": "ner", "metadata": {"in_sentence": "The reference to Kantilalbhai is to the first respondent, who is also a Brnhmin and the reoference to Bhaikaka is to Bhailalbhai Patel, leader of the Swatantra Party and H.M. Patel is another leader of the Swatantra Party and what Shambhu Maharaj was askin11 in this connection was that it was necessary that there should be one Brahmin in the Gujarat State Ministry and if one Brahmin,\n\n• ,\n\nVii<iykumar Trivedi, was to leave the ministry, another Brahmin Minister, viz.,"}}, {"text": "S. 123(3)", "label": "PROVISION", "start_char": 32415, "end_char": 32424, "source": "regex", "metadata": {"statute": null}}, {"text": "Dangerwa", "label": "GPE", "start_char": 33726, "end_char": 33734, "source": "ner", "metadata": {"in_sentence": "P', a speech made at Dangerwa :\n\n\"(1 ) The time of election has arrived."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 34916, "end_char": 34928, "source": "ner", "metadata": {"in_sentence": "Hidayatullah, C.J., in Narbada Prasad v. Chhagan Lal('), observed :\n\n\"It is not necessary to enlarge upon the fact that cow is venerated in our country by the vast majority of the people and that they believe not only in its utility but its holiness."}}, {"text": "Maganlal Abram Patel", "label": "OTHER_PERSON", "start_char": 37643, "end_char": 37663, "source": "ner", "metadata": {"in_sentence": "The High Court observed :\n\n\"As shown in the handbill setting out the programme, the manuscript of which was written out by the first respondent himself in consultation with Maganlal Abram Patel, this tour programme had been arranged to bring success to the first respondent in his election contest.", "canonical_name": "Maganlal Abram Patel"}}, {"text": "Shambhu\n\nMaharaj", "label": "OTHER_PERSON", "start_char": 38022, "end_char": 38038, "source": "ner", "metadata": {"in_sentence": "Further it would be natural on the part of the first respondent to take advantage of being seen in the presence of a good speaker like Shambhu\n\nMaharaj.", "canonical_name": ".Shambhu Maharaj"}}, {"text": "Shambu Maharaj", "label": "OTHER_PERSON", "start_char": 38065, "end_char": 38079, "source": "ner", "metadata": {"in_sentence": "Some of the meetings of Shambu Maharaj appear to have been well-attended.", "canonical_name": ".Shambhu Maharaj"}}, {"text": "Moti-Dav", "label": "GPE", "start_char": 38328, "end_char": 38336, "source": "ner", "metadata": {"in_sentence": "To my mind, therefore, it is clear that the first respondent had accompanied Shambhu Maharaj and was present in each of the meetings at Moti-Dav, Kherwa and Dangerwa when Shambhu Maharaj delivered speeches at these three villages ............ In the instant case also, the first respondent, according to the conclusion that I have reached, was present at the meetings which were addressed by Shambhu Maharai at Moti-Dav, Dangerwa and Kherwa and in each of these three meetings at least, according to the conclusions reached by me, Shambhu Maharaj in the course of his speeches had committed breaches of the provisions of s. 123(2) and s. 123(3) of the Act ........ Under these circumstances, it is clear to my mind, judging by the manner in which the first respondent was touring with Shambhu Maharaj, the manner in which tour programme was arranged and judging from the fact that this tour was speciallv arranged to bring success to the first respondent, that the first respon-\n\nJAYSHANKER v. RANCHHODDAS (Hegde, J.) 415\n\ndent did consent to the commissiOill of the breaches ot the proviso of s. 123(2) and s. 123(3) of the Act by Shambhu Maharaj.\""}}, {"text": "s. 123(2)", "label": "PROVISION", "start_char": 38813, "end_char": 38822, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123(3)", "label": "PROVISION", "start_char": 38827, "end_char": 38836, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123(2)", "label": "PROVISION", "start_char": 39286, "end_char": 39295, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123(3)", "label": "PROVISION", "start_char": 39300, "end_char": 39309, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123(2)", "label": "PROVISION", "start_char": 39675, "end_char": 39684, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 39692, "end_char": 39724, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 123", "label": "PROVISION", "start_char": 40196, "end_char": 40202, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 40682, "end_char": 40688, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 41018, "end_char": 41024, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123(3)", "label": "PROVISION", "start_char": 42148, "end_char": 42157, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_417_424_EN", "year": 1969, "text": "SHEODHAN SINGH\n\nMOHAN LAL GAUTAM\n\nJanuary 24, 1969\n\n(S. M, Suoo, R. S. BACHAWAT AND K. S. HEGDE, JJ.]\n\nElection petition-Whether abates on di.vsolution of legislature-Pre .. sentation by Advocate's clerk in petitioner's prsence ·-If proper presenta. tion.\n\nThe responoent's election to the\n\nU.P.\n\nLegislative Assembly in February, 1967, was challenged by the appdlant in an election petitioli on various grounds including allegations of corrupt practices.\n\nThe respondent raised two preliminary objections before the High Court namely,\n\n(i) the petition was not maintainable as it was not properly presented; and\n\n(ii) the petition ceased to be maintainable as a result of dissolution of the U.P. Legislative Assembly by virtue of the President's proclamation of April 15, 1968, under article 356 (I) of the Constitution issued during the pendency of the election petition before the High Court. These preliminary objections were rejected by the High Court, which also dismissed the petition on the merits.\n\nOn an appeal to this Court, HELD : (i) The High Court was right in holding that the requirements of law as to the presentation of a petition were fully satisfied as the electrnn petition was presented to the Registry by an Advocate's Clerk in the presence of the petitioner. The petitioner in substance, though not in form, himself presented the petition. (ii) There was no force in the contention that the petition had become infructuous in view of the dissolution of the Legislative Assembly. [418H]\n\nThe question for consideration was not only the validity of the election but aloo the allegation of corrupt practices which, if established, would involve the respondent incurring certain electoral disqualifications.\n\nIt is clear from the provisions of Chapters III and IV. of Part VI of the Representation of the People Act, 1951, that the contest in an elccilion petition ts realty between the constituency and the person or persons complained of.\n\nOnoe the machinery of the Act is moved by a candidate or an elector, the carriage of the case does not entirely rest with the petitioner. fhe reason for these provisions is to ensure to the extent possible that the persons who offend the election law, are not allowed to avoid the con.sequences of their misdeeds.\n\n[421G]\n\nThe law relating lo withdrawal and abatement of election petitions is exhaustively dealt with in Chapter IV of Part VI of the Act. In deciding whether a petition has abated or not it was not possible to travel outside the provisions contained in that Chapter. The Act does not provide for the abatement of an election petition either when the returned candidate whose election is challenged resigns or when the assembly is dissolved. [4210]\n\nCarter and Anr. v. Mills 9, Common Pleas p. 117; distinguished; Ghasi Ram v. Dal Singh and Others (1%8) 3 S.C.R. 102: followed,\n\n(iii) On the facts, the High Court had rightly dismissed the petition. 417\n\nCiv1L APPELLATE JURISDICTION : Civil Appeal No. 1564 of A 1968.\n\nAppeal under s. 116-Ai of the Representation of the People Act, 1951 from the judgment and order dated May 23, 1968 of the Allahabad High Court in Election Petition No. 40 of 1967.\n\nDanial Latifi, S. J. Hyder, Rajindra Singh and M. I. Khowaja, for the appellant.\n\nVeda Vyasa, K. K. Jain, H.K. Puri, G. N. Dikshit, R. N. Dik shit, S. N. Sinha, K. C. Sharma and M. K. Garg, for the respon dent.\n\nThe Judgment of the Court was delivered by Hegdc, J.\n\nThis appeal under s. ll 6A of the Representation of the People At, 1951 arises from the decision in Election Petition No. 40 of 1967 on the file of the High Court of Judicature at Allahabad. In that petition the appellant challenged the election of the respondent to the U.P. Legislative Assembly from lglas Constituency in the general election held in February 1967. In that election the appe!lant, the respondent and four others contested. The respondent secured 10,705 votes more than the appellant.\n\nOther candidates secured Jess votes than the appellant. The appellant challenged the election of the respondent on various grounds, most of which were given up either in the trial court or in this Court. The High Court dismissed the election petition. Against that order the appellant has come up in appeal.\n\nBefore going into the merits of the appeal, it is necessary to deal with the preliminary objections to the appeal, taken by the respondent.\n\nThe first objection taken was that the petition was not maintainable as it was not properly presented. The second objection was that the petition ceased to be maintainable as a result of the dissolution of the U.P. Legislative Assembly as per the President's Proclamation of April 15, 1968 under Art. 356(1) of the Constitution. That Proclamation was issued during the pendency of this election petition before the High Court.\n\nThe High Court rejected both those contentions but those contentions were again pressed for acceptance at the hearing of this G appeal.\n\nThe High Court has found as a fact that the election petition was presented to the registry by an advocate's clerk in the immediate presence of the petitioner. Therefore, in substance though not in form, it was presented by the petitioner himself. Hence the requirement of the law was fully satisfied.\n\nWe are unable to accept the contention of Mr. Veda Vyasa, learned Counsel for the respondent that the petition must be held\n\nto have become infructuous in view of the dissolution of the assembly.\n\nIn this proceeding we are considering the validity of the election of the respondent and not whether he is continuing as a member. If the contention of the appellant that the respondent was guilty of corrupt practices during the election is found to be true then not only his election will be declared void, he is also liable to incur certain electoral disqualifications.\n\nThe purity of elections is of utmost importance in a democratic set-up. No one can be allowed to corrupt the course of an election and get away with it either by resigning his membership or because of the fortuitous circumstance of the assembly having beeu dissolved.\n\nThe public are interested in seeing that those who had corrupted the course of an election are dealt with in accordance with law. That purpose will stand defeated if we accept the contention of Mr.\n\nVeda Vyasa.\n\nThe election petitions in this country are solely regulated by statutory provisions. Hence unless it is shown that some statutory provision directly or by necessary implication prescribes that the pending election petitions stand abated because of the dissolutton of the Assembly, the contention of the respondent cannot be accepted.\n\nSection 80 provides that no election shall be called in question except by an election petition presented in accordance with the provisions of the Act. Section 8H1) says that an election petition calling in question any election may be presented on one or more of the grounds specified in sub-s. (I) of s. 100 and s. 101 to the High Court, by any candidate at such election or any elector.\n\nSection 84 prescribes that a petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidate is void, claim a further declaration that he himself or any other candidate has been duly elected. Chapter III of Part VI deals with the trial of election petitions. Section 86 (I) prescribes that the High Court shall dismiss an election petition which does not comply with the provisions of s. 81 or s. 82 or s. 117. Section 87 (I) says that subject to the provisions of the Act and of any rules made thereunder. every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. Section 97 ( 1) provides for filing recrimination.\n\nSection 98 reads :\n\n\"At the conclusion of the trial of an election petition the High Court shall make an order : H\n\n(a) dismissing the election petition; or\n\n(b) declaring the election of all or any of the returned candidates to be void; or\n\n( c) declaring the election of all or any of the return- A ed candidates to be void and the petitioner or any other candidate to have been duly elected.\" Section 99 (I ) is important for our present purpose. It says :\n\n\"At the time of making an order under s. 98 the High Court shall also make an order : B\n\n(a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording-\n\n( i) a finding whether any corrupt practice has or has not been proved to have been committed at the c election and the nature of that corrupt practice; and\n\n(ii) the names of all persons, if any, who have been proved at the trial to have been, guilty of any corrupt practice and the nature of that practice .......... \" (emphasis supplied). o\n\nChapter lV of Part VI deals with withdrawal and abatement of election petitions.\n\nSection I 09 stipulates that an election petition may be withdrawn only by the leave of the High Court and where an application for withdrawal is made notice thereof fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published in the official gazette. Section 112 says :\n\n\" ( 1) An election petition shall abate only on the death of a sole petitioner or of the survivor of several petitioners.\n\n(2) Where an election petition abates under sub-s. (1 ) the High Court shall ca use the fact to be published in such manner as it may deem fit. ( 3) Any person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner and upon compliance with the conditions, if any, as to security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Court may deem fit.\" Section 116 reads:\n\n\"If before the conclusion of the trial of an election\n\npetition, the sole respondent dies or gives n<itice that he H does not intend to oppose the petition or any of the res- . pendents dies or gives such notice and there is no other\n\nrespondent who is opposing the petition, the High Court\n\nshall cause notice of such event to be published in the Official Gazette, and thereupon any person who might have been a petition.er may, within fourteen days of such publication, apply to be substituted in place of such respondent to oppose the petition, and shall be entitled to continue the proceedings upon such terms as the High Court may think fit.\"\n\nFrom the above provisions 1t is seen that in an election petition, the contest is really between the constituency on the one side and the person or persons complained of on the other.\n\nOnce the machinery of the Act is moved by a candidate or an elector, the carriage of the case does not entirely rest with the petitioner. The reason for the elaborate provisions noticed by us earlier is to ensure to the extent possible that the persons who offend the election law are net allowed to avoid the consequences of their misdeeds.\n\nThe law relating to withdrawal and abatement of election petitions is exhaustively dealt with in Chapter IV of Part VI of the Act. In deciding whether a petition has abated or not we cannot travel outside the provisions contained in that Chapter.\n\nThere is no provision providing for the dropping of an election petition for any reason other than those mentioned therein. The act does not provide for the abatement of an election petition either when the returned candidate whose election is challenged resigns or when the assembly is dissolved. As the Jaw relating to abatements and withdrawal is exhaustively dealt with in the Act itself no reliance can be placed on the provisions of the Civil Procedure Code nor did the learned Counsel for the respondent bring to our notice any provision in the Civil Procedure Code under which the election petition can be held to have abated.\n\nIn support of his contention that the petition has abated great deal of reliance was placed by Mr. Veda Vyasa on the decision in Carter and Anr. v. Mills('). Therein a pending election petition was allowed to be withdrawn on the dissolution of the Parliamen.t.\n\nIn doing so Coleridge, C.J. observed thus :\n\n\"I am of opinion that this application should be granted. The Queen having been pleased to dissolve Parliament, of which fact the Court must take judicial cognizance, a case has arisen not expressly provided for in the Act; and under these circumstances we must guide our proceedings by the old parliamentary practice on the subject.\n\nIt is common knowledge, that according to the old practice the petition abated or dropped in such a case. We think the result is the same now, and that we therefore have authority, and ought to make an order for the return of the deposit.\"\n\n(I) 9, Common Pleas p. 117.\n\n422 SlJPREME COURT REPORTS [!969] 3 s.c.R.\n\nKeating, J., the other judge agreed with the learned Chief Justice.\n\nWe do not know the facts of that case. It is not known whether the election of the returned candidate was challenged on the ground of any corrupt practice.\n\nThe decision in that case rested solely on 'the old parliamentary practice on the subject'.\n\nWe have no such practice in this country. That being so that decision is of no assistance for our present purpose. In Ghasi Ram v. Dal Singh and Others(') this Court proceeded on the basis that the dissolution of the assembly does not put an end to the election petition. For the reasons already mentioned we think that the High Court was right in its conclusion that the election petition had not abated.\n\nThis takes us to the merits of the case. As mentioned earlier the election of the respondent was challenged on numerous grounds. On the pleadings as many as 10 issues were raised. At present we are concerned only with issues Nos. 7, 8 and 10.\n\nThe only question arising under issue No. 7 is whether Exh. 7, was got printed and published by the. respondent. So far as the question of getting it prepared and printed is concerned, the evidence principally relied on is that of P.W. 16 Mohan Singh. We are in agreement with the High Court that Mohan Singh is a wholly unreliable witness. According to him.he was a signatory to that pamphlet and he took active part in getting it printed which means that he was a party to the publication of false statement. He appears to have been on the side of the responderrt at one stage and walked over to the side of the appellant at a later stage, not\n\n1 uncommon during election time. His evidence does not carry conviction. On his own showing he can be a stooge.\n\nIn support of the evidence of P.W. 16 reliance was placed on Exh. D-23, one of the vouchers submitted by the respondent along with his return of election expenses. That voucher relates to the printino of two pamphlets on behalf of the respondent. It shows that me of the pamphlet mentioned therein was printed on both sides cf the paper. Exh. 7 is also printed on both sides of a paper. From that we are asked to conclude that the voucher. in question refers to printing of pa, mphlets like Exh. 7. Such an mference would be a far fetched one. According to the respondent D-23 relates to pamphlets similar to Exh. A-154 and A-155. The High Court has not accepted that contention. The basis on which the High Court rejected that contention does not appear to us to be correct. It is not necessary to go into that question as we are of opinion that there is no satisfactory evidence to show that any entry in Exh. D-23 relates to pamphlets similar to Exh. 7. We are also unable to attach any weight to Exh. 3, the complaint given by the appellant to the Returning Officer. The appellant\n\n(1) [196i] J S.C.R 102.\n\nhas considerable experience of filing election petitions. This was\n\nthe third election petition filed by him. Even as the election was going on he appears to have been preparing for the election petition.\n\nThe evidence of P .W. 7, Narayan Singh Bodh throws a great deal of light on this aspect.\n\nLarge number of witnesses were examined to show that either respondent himself distributed pamphlets like Exh. 7 or he got them distributed through others.\n\nTheir evidence ha• '-en considered by the High Court in detail and reject• ·. we nave been taken through that evidence and we were not impressed by the same. We are satisfied that the High Court has correctly assessed that evidence.\n\nGenerally, this Court accepts the findings of fact arrived at by the High Court.\n\nElection petitions are tried by experienced judges of the High Court. They had the benefit of observing the witnesses when they gave vid.ence. Hence their appreciation of evidence is entitled to great weight. We have not been shown any good reason for departing from that rule.\n\nNow coming to issue No. 8 which relates to the complaint of the appellant that the respondent, his agents and workers had hired several vehicles for conveyance of the voters to and from the polling stations.\n\nIn the petition, particulars of as many as twelve vehicles which were said -to have been used for conveying voters were given.\n\nBut the appellant's learned Counsel confined his arguments to three vehicles only i.e. Truck No. USK 503, :Sus No. RJL 9729 and a Tractor.\n\nSo far as Truck No. USK 503 is concerned, the witnesses who were examined are P.Ws. 37, 40, 41, 45 and 48. Among them the most important witness is P .W. 45 Sukhbir Singh. He claims to have worked for the respondent and transported voters to the polling station in the truck in question. Further he deposed that he hired that truck from \"Achaltar truck operators' Union\" Hathras.\n\nIt is now definitely established and that evidence was not challenged before us that in Hathras there was no concern bearing that name. Hence it is obvious that the evidence of this witness is wholly false. We are unable to accept the contention of Mr. Latifi, learned Counsel for the appellant that the name of concern in question was wrongly mentioned by the witness due to some confusion. The fact that P.W. 45 at one stage worked for the respondent is not of much significance. Changing sides during election is nothing unusual. Once the evidence of P.W. 45 is proved to be false very little basis remains for the evidence of other witnesses who spoke to the user of a. truck in question. It is common knowledge that in the trial of election petitions there would be no dearth of witnesses.\n\nThe faction spirit generated during election projects itself during the trial of election petition\n\nthat follows.\n\nMuch value cannot be attached to the complaint given by the appellant's agent to the polling officer (Exh. 18).\n\nThat document has several suspicious features which were noticed by the High Court.\n\nNow coming to the tractor, its registration No. was not spoken to by any witness. There is no evidence about its hiring. The witnesses who speak to its user are P.Ws. 33 and 34. The evi dence of P.W. 33 is extremely vague. He deposed that a worker of the respondent Sita Ram carried the voters from the villages to the election booth. lle is unable to give the details of the tractor.\n\nP. W. 34 is an omnibus witness. The evidence relating to owner of that tractor is conflicting. The evidence of P.Ws. 33 and 34 does not carry conviction. It was rightly not relied on by the High Court.\n\nNow coming to the hiring of Bus RJL 9729, according to the petition that bus was owned by one Babu Lal of Jaipur. That Babu Lal has not been examined. The evidence of P.Ws. 30, 31 and 32 who speak to the conveyance of the voters in that bus to the polling stations is far from satisfactory. Their evidence did not commend itself to the trial court. We agree with the High Court that it is unsafe to rely on their evidence.\n\nThis takes us to issue No. 10 which relates to the complaint of the appellant that the election expenses incurred by the respondent had exceeded the prescribed limit. In this connection various items of expenses said to have been omitted in the return were particularised in the petition but most of them were not pressed at the hearing.\n\nThe evidence relating to the expenses said to have been incurred in procuring and hiring vehicles for conveying voters to the polling; booths has to be rejected in view of our earlier findings.\n\nF Large number of witnesses were examined to show that considerable quantity of wheat, atta, sugar and ghee had been purchased by the rnspondent for feeding his workers and the expenses incurred for that purpose had not been included in the return of expenses. Their evidence has not been believed by the trial court.\n\nWe have been taken through the evidence and we do not think it is creditworthy nor are we able to place any reliance on the docu- G ments produced in that connection.\n\nIn the result this appeal fails and the same is dismissed with costs.\n\nR.K.P.S.\n\nAppeal dismissed.", "total_entities": 55, "entities": [{"text": "SHEODHAN SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "SHEODHAN SINGH", "offset_not_found": false}}, {"text": "MOHAN LAL GAUTAM", "label": "RESPONDENT", "start_char": 16, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "MOHAN LAL GAUTAM", "offset_not_found": false}}, {"text": "January 24, 1969", "label": "DATE", "start_char": 34, "end_char": 50, "source": "ner", "metadata": {"in_sentence": "SHEODHAN SINGH\n\nMOHAN LAL GAUTAM\n\nJanuary 24, 1969\n\n(S. M, Suoo, R. S. BACHAWAT AND K. S. HEGDE, JJ.]"}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 65, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "K. S. HEGDE, JJ.", "label": "JUDGE", "start_char": 84, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "U.P. Legislative Assembly", "label": "ORG", "start_char": 692, "end_char": 717, "source": "ner", "metadata": {"in_sentence": "The respondent raised two preliminary objections before the High Court namely,\n\n(i) the petition was not maintainable as it was not properly presented; and\n\n(ii) the petition ceased to be maintainable as a result of dissolution of the U.P. Legislative Assembly by virtue of the President's proclamation of April 15, 1968, under article 356 (I) of the Constitution issued during the pendency of the election petition before the High Court."}}, {"text": "April 15, 1968", "label": "DATE", "start_char": 763, "end_char": 777, "source": "ner", "metadata": {"in_sentence": "The respondent raised two preliminary objections before the High Court namely,\n\n(i) the petition was not maintainable as it was not properly presented; and\n\n(ii) the petition ceased to be maintainable as a result of dissolution of the U.P. Legislative Assembly by virtue of the President's proclamation of April 15, 1968, under article 356 (I) of the Constitution issued during the pendency of the election petition before the High Court."}}, {"text": "article 356", "label": "PROVISION", "start_char": 785, "end_char": 796, "source": "regex", "metadata": {"statute": null}}, {"text": "Part VI of the Representation of the People Act, 1951", "label": "STATUTE", "start_char": 1788, "end_char": 1841, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 116", "label": "PROVISION", "start_char": 3010, "end_char": 3016, "source": "regex", "metadata": {"statute": null}}, {"text": "Ai of the Representation of the People Act, 1951", "label": "STATUTE", "start_char": 3017, "end_char": 3065, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Danial Latifi", "label": "LAWYER", "start_char": 3179, "end_char": 3192, "source": "ner", "metadata": {"in_sentence": "Danial Latifi, S. J. Hyder, Rajindra Singh and M. I. Khowaja, for the appellant."}}, {"text": "S. J. Hyder", "label": "LAWYER", "start_char": 3194, "end_char": 3205, "source": "ner", "metadata": {"in_sentence": "Danial Latifi, S. J. Hyder, Rajindra Singh and M. I. Khowaja, for the appellant."}}, {"text": "Rajindra Singh", "label": "LAWYER", "start_char": 3207, "end_char": 3221, "source": "ner", "metadata": {"in_sentence": "Danial Latifi, S. J. Hyder, Rajindra Singh and M. I. Khowaja, for the appellant."}}, {"text": "M. I. Khowaja", "label": "LAWYER", "start_char": 3226, "end_char": 3239, "source": "ner", "metadata": {"in_sentence": "Danial Latifi, S. J. Hyder, Rajindra Singh and M. I. Khowaja, for the appellant."}}, {"text": "Veda Vyasa", "label": "LAWYER", "start_char": 3261, "end_char": 3271, "source": "ner", "metadata": {"in_sentence": "Veda Vyasa, K. K. Jain, H.K. Puri, G. N. Dikshit, R. N. Dik shit, S. N. Sinha, K. C. Sharma and M. K. Garg, for the respon dent.", "canonical_name": "Veda Vyasa"}}, {"text": "K. K. Jain", "label": "LAWYER", "start_char": 3273, "end_char": 3283, "source": "ner", "metadata": {"in_sentence": "Veda Vyasa, K. K. Jain, H.K. Puri, G. N. Dikshit, R. N. Dik shit, S. N. Sinha, K. C. Sharma and M. K. Garg, for the respon dent."}}, {"text": "H.K. Puri", "label": "LAWYER", "start_char": 3285, "end_char": 3294, "source": "ner", "metadata": {"in_sentence": "Veda Vyasa, K. K. Jain, H.K. Puri, G. N. Dikshit, R. N. Dik shit, S. N. Sinha, K. C. Sharma and M. K. Garg, for the respon dent."}}, {"text": "G. N. Dikshit", "label": "LAWYER", "start_char": 3296, "end_char": 3309, "source": "ner", "metadata": {"in_sentence": "Veda Vyasa, K. K. Jain, H.K. Puri, G. N. Dikshit, R. N. Dik shit, S. N. Sinha, K. C. Sharma and M. K. Garg, for the respon dent.", "canonical_name": "R. N. Dik shit"}}, {"text": "R. N. Dik shit", "label": "LAWYER", "start_char": 3311, "end_char": 3325, "source": "ner", "metadata": {"in_sentence": "Veda Vyasa, K. K. Jain, H.K. Puri, G. N. Dikshit, R. N. Dik shit, S. N. Sinha, K. C. Sharma and M. K. Garg, for the respon dent.", "canonical_name": "R. N. Dik shit"}}, {"text": "S. N. Sinha", "label": "LAWYER", "start_char": 3327, "end_char": 3338, "source": "ner", "metadata": {"in_sentence": "Veda Vyasa, K. K. Jain, H.K. Puri, G. N. Dikshit, R. N. Dik shit, S. N. Sinha, K. C. Sharma and M. K. Garg, for the respon dent."}}, {"text": "K. C. Sharma", "label": "LAWYER", "start_char": 3340, "end_char": 3352, "source": "ner", "metadata": {"in_sentence": "Veda Vyasa, K. K. Jain, H.K. Puri, G. N. Dikshit, R. N. Dik shit, S. N. Sinha, K. C. Sharma and M. K. Garg, for the respon dent."}}, {"text": "M. K. Garg", "label": "LAWYER", "start_char": 3357, "end_char": 3367, "source": "ner", "metadata": {"in_sentence": "Veda Vyasa, K. K. Jain, H.K. Puri, G. N. Dikshit, R. N. Dik shit, S. N. Sinha, K. C. Sharma and M. K. Garg, for the respon dent."}}, {"text": "Hegdc", "label": "JUDGE", "start_char": 3434, "end_char": 3439, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Hegdc, J.\n\nThis appeal under s. ll 6A of the Representation of the People At, 1951 arises from the decision in Election Petition No."}}, {"text": "Art. 356(1)", "label": "PROVISION", "start_char": 4695, "end_char": 4706, "source": "regex", "metadata": {"statute": null}}, {"text": "Veda Vyasa", "label": "LAWYER", "start_char": 5313, "end_char": 5323, "source": "ner", "metadata": {"in_sentence": "We are unable to accept the contention of Mr. Veda Vyasa, learned Counsel for the respondent that the petition must be held\n\nto have become infructuous in view of the dissolution of the assembly.", "canonical_name": "Veda Vyasa"}}, {"text": "Section 80", "label": "PROVISION", "start_char": 6653, "end_char": 6663, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 8H", "label": "PROVISION", "start_char": 6805, "end_char": 6815, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 100", "label": "PROVISION", "start_char": 6956, "end_char": 6962, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 101", "label": "PROVISION", "start_char": 6967, "end_char": 6973, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 84", "label": "PROVISION", "start_char": 7044, "end_char": 7054, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 86", "label": "PROVISION", "start_char": 7351, "end_char": 7361, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 81", "label": "PROVISION", "start_char": 7477, "end_char": 7482, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 82", "label": "PROVISION", "start_char": 7486, "end_char": 7491, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 117", "label": "PROVISION", "start_char": 7495, "end_char": 7501, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 87", "label": "PROVISION", "start_char": 7503, "end_char": 7513, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Civil Procedure, 1908", "label": "STATUTE", "start_char": 7732, "end_char": 7761, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 97", "label": "PROVISION", "start_char": 7785, "end_char": 7795, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "Section 98", "label": "PROVISION", "start_char": 7837, "end_char": 7847, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "Section 99", "label": "PROVISION", "start_char": 8233, "end_char": 8243, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "s. 98", "label": "PROVISION", "start_char": 8336, "end_char": 8341, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "Section 112", "label": "PROVISION", "start_char": 9249, "end_char": 9260, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 116", "label": "PROVISION", "start_char": 9863, "end_char": 9874, "source": "regex", "metadata": {"statute": null}}, {"text": "Coleridge", "label": "JUDGE", "start_char": 12218, "end_char": 12227, "source": "ner", "metadata": {"in_sentence": "In doing so Coleridge, C.J. observed thus :\n\n\"I am of opinion that this application should be granted."}}, {"text": "Parliament", "label": "ORG", "start_char": 12351, "end_char": 12361, "source": "ner", "metadata": {"in_sentence": "The Queen having been pleased to dissolve Parliament, of which fact the Court must take judicial cognizance, a case has arisen not expressly provided for in the Act; and under these circumstances we must guide our proceedings by the old parliamentary practice on the subject."}}, {"text": "R.\n\nKeating", "label": "JUDGE", "start_char": 12896, "end_char": 12907, "source": "ner", "metadata": {"in_sentence": "R.\n\nKeating, J., the other judge agreed with the learned Chief Justice."}}, {"text": "Mohan Singh", "label": "WITNESS", "start_char": 14109, "end_char": 14120, "source": "ner", "metadata": {"in_sentence": "So far as the question of getting it prepared and printed is concerned, the evidence principally relied on is that of P.W. 16 Mohan Singh."}}, {"text": "Narayan Singh Bodh", "label": "WITNESS", "start_char": 15972, "end_char": 15990, "source": "ner", "metadata": {"in_sentence": "The evidence of P .W. 7, Narayan Singh Bodh throws a great deal of light on this aspect."}}, {"text": "Sukhbir Singh", "label": "WITNESS", "start_char": 17423, "end_char": 17436, "source": "ner", "metadata": {"in_sentence": "Among them the most important witness is P .W. 45 Sukhbir Singh."}}, {"text": "Achaltar truck operators' Union\" Hathras", "label": "ORG", "start_char": 17604, "end_char": 17644, "source": "ner", "metadata": {"in_sentence": "Further he deposed that he hired that truck from \"Achaltar truck operators' Union\" Hathras."}}, {"text": "Hathras", "label": "GPE", "start_char": 17735, "end_char": 17742, "source": "ner", "metadata": {"in_sentence": "It is now definitely established and that evidence was not challenged before us that in Hathras there was no concern bearing that name."}}, {"text": "Latifi", "label": "OTHER_PERSON", "start_char": 17900, "end_char": 17906, "source": "ner", "metadata": {"in_sentence": "We are unable to accept the contention of Mr. Latifi, learned Counsel for the appellant that the name of concern in question was wrongly mentioned by the witness due to some confusion."}}, {"text": "Sita Ram", "label": "RESPONDENT", "start_char": 19022, "end_char": 19030, "source": "ner", "metadata": {"in_sentence": "He deposed that a worker of the respondent Sita Ram carried the voters from the villages to the election booth."}}, {"text": "Babu Lal", "label": "OTHER_PERSON", "start_char": 19439, "end_char": 19447, "source": "ner", "metadata": {"in_sentence": "Now coming to the hiring of Bus RJL 9729, according to the petition that bus was owned by one Babu Lal of Jaipur."}}, {"text": "Jaipur", "label": "GPE", "start_char": 19451, "end_char": 19457, "source": "ner", "metadata": {"in_sentence": "Now coming to the hiring of Bus RJL 9729, according to the petition that bus was owned by one Babu Lal of Jaipur."}}]}
{"document_id": "1969_3_425_437_EN", "year": 1969, "text": "D.R.GURUSHANTAPPA\n\nABDUL KHUDDUS ANWAR & ORS.\n\nJanuary 27, 1969 •\n\n(J. M. SHELAT, V. BHARGAVA AND C. A, VAIDIALINGAM, JJ.J\n\nRepresentation of the People Act (43 of 1951), s. 10--Caodidate elected employed in a company owned by Government-If disqual1 1ed Constitution of India Arts. 102(1) and 191(1)-Scope of.\n\nThe first respondent was appointed in a undertaking started and managed by the State Government, as its own concern. Later a company was registered and it took over the undertaking.\n\nAll the shares in the company were held by the Government though some were in the name of its officers.\n\nThe Directors of the Company were appointed by the Government-a Minister \\.Vas one of the first Directors of the Company; the appointment of the Secretary of the Company was subject to approval of the Government; and, even in the general working of the c(ompany, Government had the power to issue directions to the Directors which were to be carried out by them.\n\nWhen the concern was taken over from the Government by the Company, the services of the first respondent were not terminated and he was continued in the same post by the company which he was holding when the concern was being run by the Govern ment. and there was no fresh contract entered into between him and the company.\n\nHe was later promoted to the post of Superintendent in the Company, and he successfully contested a seat to the State Legislature.\n\nThe appellant an unsucdessful candidate, challenged the election contend ing : (i) that the first respondent when initially appointed to the post was a government servant and, even after that concern was taken over by the company. he continul!d to be in the service of the Government~ and (ii) alternatively, that ever if the first respondent ceased to be Government servant, he still continued to hold an office of profit under the State Government. though technically he was in the employment of the company.\n\nHELD : The first respondent was not holding an office of profit under the State Government.\n\n( i) When the undertaking was taken over by the company as a going conce'rn, the employees working in the undertaking were also taken. over and since. in law, the company had to be treated as an entity distinct and sepa'rate from the Government. the employees, as a result of the transfer of the undertaking, beoame employees of the company and ceased to be employees of the Government.\n\nThe first respondent was a workman at the time of the transfer of the undertaking and as a workman, he had, under s. 25FF of the Industrial Disputes Act, become an employee of the new employer. viz. the company.\n\nIn view of this provision of law, there was no need for any specific contract being ente'red into between the Government and the first respondent terminating his Government service; nor was there any need for a fresh contract being entered into between the companv and the first respondent to make him an employee of the company. Further, after the undertaking was taken over by the company, the employees, who were workmen, were no longer governed by the S.tate1s Civil Service Regulations. Their conditions o'f service were deter mined by the Standing Orders of the Company which were certified under 425\n\nthe Industrial Enwloyment (Standing Order) Act, 1946.\n\nThe mere inclusion in the Civil List of the name of a person could not prove that that person was in the service of the Government, unless evidence was tendered to show the circumstances under which the name was included in the Civil List and to exclude the possibility of names of persons other than those in government service being included in the Civil List.\n\nNo such evidence was given in this case.\n\nFinally the post, which be was holding while the concern was being run by the Government, ceased to be a Gove'rnment post in the transfer of the undertaking to the company and became a post under the qompany, so that the first respondent ceased to be in Government service by continuing in that post. [429E, G; 430B,\n\n&-HJ\n\n(ii) The fact that the Government had control over the Managing Director and other Directors as well as the power of issuing directions relating to the wo'rking of the company could not lead to the inference that every employee of the company was under . the control of the Government.\n\nThe power to appoint and dismiss first respondent did not vest in the Government or in any Government servant. The {M)Wer to control and give directions as to the manner in which the duties of the office were to be performed by the first respondent also did not vest in the Government, but in an officer of the company. Even the power to determine the question of remuneration payable to the first respondent was not vested in the Government which could only lay down rules relating to the conditions of service qf the employees of the company. In the case of election as President or Vice-President, the disqualification\n\narises even if the candidate is holding an office of profit under the local or any other authority under the control of the Central Government or the State Government, whereas, in the case of a candidate for election as a Member of any of the Legislatures, no such disqualification is laid down by the Constitution if the office of profit is held under the local or any other authority under the control of the Government and ne>t directly under any of the Government. This clearly indicates that in the case of eligibility for election as a member of a Legislature, the holding of an office of profit under a corporate body like a local authority does not bring about disqualification even if the local authority be under. the control of the Government. The me're control of the Government over the authoritv having the power to appoint, dismiss, or control the working of thC officer employed by such authority does not disqualify the officer from hcing a candidate for election as a member of the Legislature in the manner in which sudh disqualification comes into existence for being elected as the President or the Vice-President. [433F; 434H; 435 A-CJ\n\nBy s. 10 of the Representation of the People Act, the disqualification is limited to a person holding the office of a managing agent, manager or secretary of a company in the capital of which the Government has not less than 25 % share, and the disqualification does not apply to other employees of the company.\n\nThis gives two indications as to the scope of the .disqualification laid down in Arts. 102(1) (a) and 19l(l)(a) of the Constitution.\n\nOne is that the holding of an office in a company, in the capital of which the Government has not less than 25 % share, is not covered by the disqualifications laid down in Arts. 102(1)(a) and 191(1) (a), as. othe'rwise, this provision would be redundant. The second is that even Parliament, when passing the Act, did not consider it necessary to disqualify every person holding an office of profit under a Government company, but limited the disqualification to persons holding the office of managing agent, manager or secretary of the company.\n\nThe fact that the entire share capital in the company in this case is owned by the Government does not, make any differen.ce.\n\n[435 D-H]\n\nA Gurugobinda &lsu v. Sank<>ri Prasad Ghosal 4' Ors. [1964] 4 S.C.R. 3il and Maulana Abdul Shakur v. Rikhab. Chand,\n\n[1958] S.C.R. 387, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 718 of 1968.\n\nAppeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated November 17, 1967 of the Mysore High Court in Election Petition No. 7 of 1967.\n\nS. V. Gupte, Shyama/a Pappu, S. S. Java/i and Vineet Kumar, for the appellant.\n\nLily Thomas, for respondent No. 1.\n\nThe Judgment of the Court was delivered by\n\nBhargava, J.\n\nThis appeal under section l l 6A of the Representation of the Peoples' Act No. 43 of 1951 (hereinafter referred to as \"the Act\") has been filed by one of the unsuccessful candidates for election to the Mysore Legislative Assembly from No. 152, Bhadravati Constituency, against the judgment of the High Court of Mysore dismissing his election petition for setting aside the election of the successful candidate, respondent No. 1.\n\nAfter the nomination papers had been filed, the scrutiny of the nomination papers took place on the 21st January, 1967 and five nomination papers were declared as valid. They were the nomination papers of the appellant, respondent No. 1 and respondents Nos. 2 to 4.\n\nThe polling for the Constituency took place on 15th February, 1967, and after the counting of votes, the results were declared on 22nd February, 1967. Respondent No. 1 received 15,862 votes, while the appellant received 13,380 votes. The other three candidates, respondents 2 to 4, were also unsuccessful having received much smaller number of votes. On 5th April, 1957, the appellant filed the election petition challenging the election of respondent No. 1 on a number of grounds, out of which we need mention only one singl.e ground, as the appeal in this Court is confined to that ground alone. It was pleaded that respondent No. 1 was disqualified under Article 191(1)(a) of the Constitution from being chosen as a member of the Legislative Assembly, because he was holding an office of profit under the Government of the Statt of Mysore on the date-of scrutiny. This ground, as well as other grounds taken by the appellant fer challenging the validity of the election of respondent No. 1 were all rejected by the High Court and the election petition was dismissed. Consequently, the appellant has come up in this appeal to this Court.\n\nThough. in this appeal, a number of grounds were raised, Mr.\n\nS. V. Gupte, counsel for the appellant, confined the case to this sole ground of disqualification of respondent No. 1 on the date of scrutiny.\n\nThe facts relevant for deciding this issue may now be stated.\n\nA On the date of scrutiny, respondent No. 1 was employed as Superintendent, Safety Engineering Department in the Factory run by the Mysore Iron & Steel Works Ltd., Bhadravati. His salary was more than Rs. 500 per mensem. The past history of the service of respondent No. 1 was that he was appointed in the year 1936 in the Mysore Iron & Steel Works, Bhadravati, which was started by B the Government of Mysore and was being managed by the Government as its own concern. He continued to be a servant of the Government of' Mysore when, in the year 1962, a private !incited Company was registered under the name of Mysore Iron & Steel\n\nLimited, Bhadravati (hereinafter referred to as \"the Company\") under the Indian Companies Act, 1956, and this Company took C over the Mysore Iron & Steel Works from the Government. Respondent No. 1 had first joined service as a daily worker in 1936, but was promoted as Chargeman, Asstt. Foreman, Foreman and thereafter as Assistant Superintendent which was the post held by him in the year 1962 at the time when the concern was taken over by the Company. Subsequently, he was promoted as Superintendent in the year 1964 and was working on that post at the time D of the election in 1967. It was also the common case of the parties that the shares of the Company were held cent per cent by the Mysore Government, though some of the shares were shown in the names of some of the Officers in the service of the Mysore Government. Under the Articles of Association of the Company, the first Directors of the Company w.ere the Minister-in-charge of E the Industries Portfolio in the Mysore Government, the Secretaries to the Mysore Government in the Finance Department, and in the Commerce and Industries Department, the Managing Director of the Mysore Iron & Steel Ltd., and the Chief Conservator of Forests of the Mysore Government. The Governor of Mysore was entitled to appoint all or a majority of the members of the F Board of Directors so long as the Government of Mysore held not less than 51 per cent of the total paid-up capital of the Company or so long as the Governor continued to be interested in any fiduciary capacity. The Board of Directors could also co-opt one or more individuals as Directors. Thus, the State Government had considerable control in appointment of Directors of the Company as well as in the appointment of the Managing Director who was G to be appointed by the Governor from amongst the Directors nominated by him.\n\nThe . Governor was also entitled to appoint from amongst the nominated Directors a Chairman and Vice-Chairman of the Board of Directors. Even. the Secretary of the Company had to be appointed by the Board of Directors after obtaining approval of the Governor. In respect of other employees of H the Company. recruitment and service conditions had to be in accordance with the rules which may be prescribed by the Governor from time to time.\n\nWhen the concern was taken over from\n\nthe Government b) the Company, the services of respondent No. 1 were not terminated and he was continued in the same post by the Company which h~ was holding when the concern was being run by the Government. There was no fresh contract entered into between him and the Company. On these facts, two alternative contentions we.e raised by Mr. Gupte to urge that respondent No. 1 was disq•.ohfied under Art. 19l(l)(a) of the Constitution.\n\nThe first argument was that respondent No. l, when initially appointed to a post in the Mysore Iron & Steel Works in 1936, was a government servant and, even after that concern was taken over by the Company, he continued to be in the service of the Mysore Government.\n\nIn the alternative, the second contention was that, even if respondent No. 1 ceased to be a government ser vant, he still continued to hold an office of profit under the Government of Mysore though, technically, he was in the employment of the Company.\n\nSo far as the tirst point is concerned, reliance is placed pri marily on the circumstance that, when the concern was tak'en over by the Company from the Government, there were no specific agreements terminating the government service of respondent No. 1, or bringing into existence a relationship of master and servant between the Company and respondent No. 1. That cir cumstance, by itself, cannot lead to the conclusion that respondent No. 1 continued to be in government service.\n\nWhen the undertaking was taken over by the Company as a going concern, the employees working in the undertaking were also taken over and since, in law, the Company has to be treated as an entity distinct and separate from the Government, the employees, as a result of the transfer of the undertaking, became employees of the Company and ceased to be employees of the Government. This position is very clear at least in the case of those employees who were covered by the definition of workmen under the Industrial Disputes Act in whose cases, on the transfer of the undertaking, the provisions of section 25FF of that Act would apply.\n\nRespondent No. l was a workman at the time of the transfer of the undertaking in the year 1962, because he was holding the post of an Assistant Superintendent and was drawing a salary below Rs. 500 per mensem.\n\nAs a workman, he would, under s. 25Ff of the Industrial Disputes Act, become an employee of the new employer, viz., the Company, which took over the undertaking from the Mysore Government which was the previous employer.\n\nIn view of this provision of law, there was, in fac~ no need for any specitic contract being entered into between the Mysore Government and respondent No. I tem1inating his government scr- Yicc, nor was there any need for a fresh contract bein~ entered into between the Company and respondent No. 1 to ln; ike him an employee of the Company. 8Sup.C.l/6J-9\n\n~UVREME CUURT RbPURTS [l%9J .1 S.C.R.\n\nThis position is further clarified by the circumstance that, after the undertaking was taken over by the Company, the employees, who were workmen, were no longer governed by the Mysore Civil Service Regulations.\n\nTheir conditions of service were determined by the Standing Orders of the Company which were certified under the Industrial Employment (Standing Orders) Act, 1946. These Standing Orders even referred to certain employees as \"lent Officers\". The reference was obviously to persons who continued to be in the Government service, but whose services were Jent to the Company. It was conceded in the present case that respondent No. 1 was not a lent officer as envisaged by that expression used in the Standing Orders.\n\nRespondent No. I further came to be governed by the Works Service Rules.\n\nIt is true that, under the Articles of Association. the Governor had the power to lay down conditions of service ot the employees of the Company; but that cannot mean that the employees of the Company continued. to be in the service of th~ Government. Reliance in this connection was also placed on behalf of the appellant on the fact that the name of respondent No. l appeared in the Mysore Civil List under the heading \"Iron and Steel Ltd., Bhadravati\" from which an inference was sought to be drawn that respondent No. I must have continued in government service, as, otherwise, his name would not have been included in the Civil List. The mere inclusion in the Civil List of tb.e name of a person cannot be held to prove that that person is in the service of the Govermnent, unless evidence is tendered to show the circumstances under which the name was included in the Civil List and to exclude the possibility of names of persons other than those in government service being included in the Civil List. No such evidence was given in this case.\n\nOn the other hand, the same Civil List shows that even the names of certain employees of the Universities in the State are also included in it, and, on the face of it, University employees could not be held to be in government service. The Civil List relied upon clearly is not confined to names of persons in Mysore Government service only, so that this piece of evidence relied on by the appellant also does not establish that respondent No. 1 continued to be in government service after the undertaking was taken over by tb.e Company.\n\nFinally, there is the circumstance that it is not shown that, after the undertaking was taken over by the Company, respondent No. I continued to hold a lien on any Government post.\n\nIn fact, the post, which he was holding while the concern was being run by the Mysore Government. ceased to be a Government post on the transfer of the undertaking to the Company and became a post under the CompJny, so thnt respondent No. I ceased to be in govcmruelll service by .; Ollliliuing in tho! pose The first .;, mkrt\n\ntion raised on behalf of the appellant, therefore, fails.\n\nOn the second contention that even if respondent No. 1 was not holding a government post, he' must be held to be holding an office of profit under the Government, Mr. Gupte relied o!1 the principles laid down by this Court in Gurugobmda Basu v. Sankari J'rasaa Ghosal and Uthers('). The Court in that case brought out the distinction between an office of profit under the Government and a post in the service of the Government by stating ;-\n\n\"We agree with the High Court that for holding an ollice of profit under the liovernment, one need not be in the service of Govermnent and there need be no relationship of master and servant between them. The Constitution itself makes a distinction between 'the holder of an office of profit under the Government' and 'the holder of a post or service under the Govermnent'; see Arts. 309 and 314.\n\nThe Constitution has also made a distinction between 'the holder of an office of profit under the Government' and 'the holder of an office of profit under a local or other authority subj.eel to the control of Government'; see Art. 58(2) and 66(4).\" The Court then proceeded to consider the earlier decision in the case of Maulana Abdul Shakur v. Rikhab Chand and Anr.(') and held:-\n\n\"It is clear from the aforesaid observations that in Maulana Abdul Shakur's case(') the factors which were held to be decisive were : (a) the power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion, and ( b) payment from out of Government revenues, though it was pointed out that payment from a source other than Government revenues was not always a decisive factor.\" After this reference to Maulana Abdul Shakur's case('), the Court proceeded to apply the principles to the facts of the case before it.\n\nIn that case, the question was whether the appellanl was holding an office of profit under the Government of India.\n\nIt was pointed out that the appointment of the appellant as also his continuance in office rested solely with the Government of India in respect of the two Companies for which he was employed as an Auditor. His remuneration was also fixed by the Government. The Court assumed for the purposes of the appeal that the two Companies were statutory bodies distinct from Government, but noted the fact that, at the same time, they were Governmem Companies within the meaning of the Indian Companies Act.\n\nEmphasis was laid on the circumstance that, in the performance of his functions, the appellant was controlktl hy tl1e Comptroller\n\n(1) [1964J 4 S.C.R. 311.\n\n(2) [1958] S.C.R. 387.\n\nand Auditor-General who himself was undoubtedly holder of an office of profit under the Government, though there were safeguards in the Constitution as to the tenure of his office aild removability therefrom.\n\nUnder Art. 148 of the Constitution, the Comptroller & Auditor-General was appointed by the President and he could be removed from office in like manner and on the like grounds as a Judge of the Supreme Court. The salacy and other conditions of service of the Comptroller & Auditor-General were to be such as might be determined by Parliament by law and, until they were so determined, they were to be as specified in the Second Schedule to the Constitution. Other provisions relating to the Comptroller and Auditor-General were also talren notice of and an inference was drawn from these provisions that the Comptroller and Auditor-General is himself a holder of an office of profit under the Government of India, being appointed by the President, and his administrative powers are such as may be prescribed by the rules made by the President, subject to the provisions of the Constitution and of any law made by Parliament.\n\nThe Court then held:-\n\n\"Therefore, if we look at the matter from the point of view of substance rather than of form, it appears to us that the appellant, as the holder of an office of profit in the two Government companies, the Durgapur Projects Ltd.,. and the Hindustan Steel Ltd., is really under the Government of India; he is appointed by the Government of India; he is removable from office by the Government of India; he performs functions for two\n\nGovtirnment companies under the control of the Comptroller and Auditor-General who himself is appointed by the President and whose administrative powers may be controlled by rules made by the President.\"\n\nThereafter, the Coun proceeded to hoid:-\n\n\"In view of these decisions, we cannot acc.ede to the submission of Mr. Chaudhury that the several factors which enter into the determination of this question-the appointing authority, the authority vested with power to terminate the appointment, the authority which deiermines the remuneration, the source from which the remuneration is' paid, and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf must all co-exist and each must show subordination to Government and. that it must necessarily follow that if one of the elements is absent, The test of a person holding an office under the Government, Ceniral or State, is not satisfied. 1; he cases we have referred to specifi. cally point out that the circumstance that the source\n\nGURUSHANTAPPA v. ABDUL KHIJDDUS ( Bhar11ava, J.) 433\n\nfrom which the remuneration is paid is not from public revenue is a neutral factor not decisive of the question.\n\nAs we have said earlier, whether stress will be laid on one factor or the other will depend on the facts of each case.\n\nHowever, we have no hesitation in saying that where the several elements, the power to appoint, the power to dismiss, the power to control and give directiQiis as to the manner in which the duties of the office are to be performed, and the power to determille the question of remuneration are all present in a given case, then the officer in question holds the office under the authority so empowered.\"\n\nMr. Gupte, from these views expressed by the Court, sout to draw the inference that the primary consideration for determining whether a person holds an office of profit under a Government is the amount of control which the Government exercises over that officer. In the present case, he relied on the circumstance that all the shares of the Company are not only owned by the Mysore Government, but the Directors of the Company are appointed by the Government-a Minister was one of the first Directors of the Company; the appointment of the Secretary to the Company is subject to approval of the Government; and, even in the general working of the Company, Government has the power to issue directions to the' Directors which must be carried out by them. If was urged that respondent No. 1 was directly under the control of the Managing Director who is himself appointed by the Governmeni and may even be a 'lent officer' holding a permanent post under the Government. Respondent No. 1, thus, must be held to be working under the control of the Government exercised through the Managing Director.\n\nWe are unable to accept the proposition that the mere fact that the Government had control over the Managing Director and other Directors as well as the power of issuing directions relating to the working of the Company can lead io the inference that every employee of the Company is under the control of the Government.\n\nThe power of appointment and dismissal of respondent No. 1 vested in the Managing Director of the Company and not in the Government. Even the directions for the day-to-day work to be nerformed by respondent No. 1 could only be issued by the Managing Director of the Company and not bv the Government. The indirect control of the Government which might arise because of the power of the Government to appoini the Managing Director and to issue directions to the Company in its general working does not bring respondent No. 1 directly under the control of the Government.\n\nIn Gurugobinda Basu's case('), . the position was quite different. In that case. the appellant was appointed by\n\n(I) [t964J4S.C.R. 311.\n\nthe Government and was liable to be dismissed by the Government. His day-to-day working was controlled by the Comptroller and Auditor-General who was a servant of the Government and was not in any way an office-bearer of the two Companies concerned. In fact, the Court had no hesitation in holding that the appellant in that case was holding an office of profit under the Government, because the Court found that the several elements which existed were the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration.\n\nAll these elements being present, the Court did not find any difficulty in finding that the appellant was holding an office of profit under the Government. In the case before us, the position is quite different. The power to appoint and dismiss respondent No. 1 does not vest in the Government or in any government servant.\n\nThe power to control and give directions as to the manner in which the duties of the office are to be performed by respondent No. 1 also does not vest in the Government, but in an officer of the Company. Even the power to determine the question of remuneration payable to respondent No. 1 is not vested in the Government which can only lay down rules relating to the conditions of service of the employees of the Company.\n\nWe are unable to agree that, in these circumstances, the indirect control exercisable by the Government because of its power to appoint the Directors and to give general directions to the Company can be held to make the post of Superintendent, Safety Engineering Department, an office of profit under the Government.\n\nIn this connection, a comparison between Arts. 58(2) and 66 ( 4), and Arts. l 02 (1) and 191 (l )(a) of the Constitution is\n\nof significant help. In Arts. 58(2) and 66(4) dealing with e!igi- F bility for election as President or Vice-President of India, the Constitution lays down that a person shall not be eligible for election if he bolds any office of profit under the Government of India or the Government of anv State or under anv local or other authoritv subiect to the control of anv of the said Governments.\n\nIn Articles 102(l)(a) and 19l(l)(a) dealing with membershio of either House of Parliament or State Legislature, the disquali- G • fication arises only if the person holds any office of profit under the Government of India or the Government of any State other than an office declared by Parliament or State Legislature by law not to disqualify its holder.\n\nThus, in the case of election as President or Vice-President, the disqualification arises even if the candidate is holding an office of orofit under a local or any other H authority under the control of the Central Government or the State Government. whereas, in the case of a candidate for election as a Member of any of the Lep; islatures. no such disqualification\n\nGURUSHANTAPPA v. ARDUL KHUDDUS ( Bhargava, .T.) 435\n\nis laid down by the Constitution if the office of profit is held under a local or any other authority under the control of the Governinents and not directly under any of the Governments. This clearly indicates that in the case of eligibility for election as a member of a Legislature. the holding of an office of profit under a corporate body like a local authority does not bring about disqualification even if that local authority be under the control of the Government. The mere control of the Government over the authority havinj!: the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the Legislature in the manner in which such disqualification comes into existence for being elected as the President or the Vice-President.\n\nThe Company, in the present case. no doubt did come under the control of the Government and respondent No. 1 was holding an office of profit under the Company; but, in view of the distinction indicated above. it is clear that the disqualification laid down under Art. 191 (I) (a) of the Constitution was not intended to apply to the holder of such an office of profit.\n\nIt also appears to us that it was in view of this limited spplication of the disqualification laid down in Arts. 102(1) (a) 1141d 191 (I ) (a) of the Constitution that Parliament made an additional provision in section 10 of the Act by laying down that \"a person shall be disqualified if. and for so long as, he is a managing agent. manager or secretary of anv company or corp0ration (other than\n\na co-operative society) in the capital of which the appropriate Government has not less than twenty-five per cent share.\" It is to be noted that the Parliament. in enacting this section, limited the disqualification to a person holding the office of a managing agent. manager or secret3rv of a company, and not to other employees of the Company. This provision, thus, gives two indications as to the scope of the disqualification laid down in Arts. 102\n\n( 1 )(a) and 191 ( 1 )(a) of the Constitution.\n\nOne is that the holding of an office in a company, in the capital of which the Government has not less than 25 per cent share, is not covered bv the disqualificatiom laid down in Arl~. 102(1) (a) and 191 ( 1 ) (a). as, otherwise, this provision would be redundant.\n\nThe second is that even Parliament. when passing the Act, did not consider it necessary to disqualify every person holding an office of profit under a Government Company, but limited the disqualification to persons holding the office of managing agent, manager or secretary of the Company. The fact that the entire share capital in the Company in the case before us is owned by the Government does not, in our opinion, make any difference. Under the Articles of Association, it is clear that, though, initially, all shares were held by the Government, it is possible that private citizens may also hold shares in the Company. In fact, there are provisions indicating that shares held by certain shareholders can f ass\n\nby succession to members of their family or can even be transferred by gift to them.\n\nThe Articles of Association lay down that the Company shall be a private limited company within the meaning of the Indian Companies Act, 1956, and, though the shares in the capital of the Company are under the control of the Board of Directors, they have been given the liberty to allot, grant option over or otherwise dispose of the shares at such time and to such persons, and in such manner and upon such terms as they may think proper.\n\nUnder this power, the Directors can allot shares to private individuals. It is under art. 34 of the Articles of Association that a shareholder is given the power, by way of gift or for or without any pecuniary consideration. to transfer anv share in the capital of the Company to the wife or husband of such member, or to a son, daughter. father. mother, grandson. grand-daughter, brother, sister. nephew or niece of such member or the wife or husband of any person standing in such relationship to the transferring member. Devolution of shares, consequent to the death of a member. on his heirs is also recognised by the Articles of Association.\n\nJn these circumstances, the principles which will applv to the Company will be on a par with those applicable to other Government Companies or Comoanies in which the Government holds more than 25 per cent of the share capital. The Company cannot, therefore, be treated as either being equivalent to the Government or to be an agent of the Government. so that the control exercised by its Directors or the Managing Director over respondent No. I cannot be held to he control exercised by the Government.\n\nMr. Gupte, in this connection. also urged that we should pierce the veil of the Company being a separate juristic and legal entitv, apart from the Government which owns all the shares in the Company, and hold that, in fact, the Company should be equated with the Government of Mysore itself. In our opinion. in the oresent case, no question of piercin~ the veil can arise in view of the provisions of section 10 of the Act which specificallv deals with disqualification for membefllhiP of persons holding offices under a Companv in which a Government holds shares.\n\nThat section limits the scone of disaualification ta holders of three narticular offices onlv and in camnanies in which the •lrnre-halding of the Government is not less than 25 ner cent. This provision clearly indicates that. for nurooses of determinin!! disqualification for candidature to a Le!!islature, it would not be appropriate to attempt to lift the veil and eauate a Comoanv with the Government merely hecause the share-caoital of the Comnanv is contributed hy the Government. The discussion of the relevant Constitutional provisions above also sunnorts this view. Jn the nresent case, therefore, respondent No. 1 cannot be held to be holding an\n\nnffic~ of rrofit 11nder the C\"10vemrnent of Mysore and was not dis-\n\nGURUSHANIAPPA v. ABDUL KHUDDUS (Bhargava, /.) 437\n\nqualified from being chosen as a member of the Assembly of the State.\n\nThe appeal fails and is dismissed with costs.\n\nY.P.\n\nAppeal dismissed.", "total_entities": 76, "entities": [{"text": "D.R.GURUSHANTAPPA", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "D. R. GURUSHANTAPPA", "offset_not_found": false}}, {"text": "ABDUL KHUDDUS ANWAR & ORS", "label": "RESPONDENT", "start_char": 19, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "ABDUL KHUDDUS ANWAR & ORS", "offset_not_found": false}}, {"text": "January 27, 1969", "label": "DATE", "start_char": 47, "end_char": 63, "source": "ner", "metadata": {"in_sentence": "January 27, 1969 •\n\n(J. M. SHELAT, V. BHARGAVA AND C. 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BHARGAVA", "offset_not_found": false}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 124, "end_char": 156, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 10", "label": "PROVISION", "start_char": 171, "end_char": 176, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act", "statute": "Representation of the People Act"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 254, "end_char": 275, "source": "regex", "metadata": {}}, {"text": "Arts. 102(1) and 191(1)", "label": "PROVISION", "start_char": 276, "end_char": 299, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 2527, "end_char": 2533, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 2542, "end_char": 2565, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Civil Service Regulations", "label": "STATUTE", "start_char": 3091, "end_char": 3116, "source": "regex", "metadata": {}}, {"text": "Central Government", "label": "ORG", "start_char": 5053, "end_char": 5071, "source": "ner", "metadata": {"in_sentence": "In the case of election as President or Vice-President, the disqualification\n\narises even if the candidate is holding an office of profit under the local or any other authority under the control of the Central Government or the State Government, whereas, in the case of a candidate for election as a Member of any of the Legislatures, no such disqualification is laid down by the Constitution if the office of profit is held under the local or any other authority under the control of the Government and ne>t directly under any of the Government."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 6091, "end_char": 6096, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 6104, "end_char": 6136, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Arts. 102(1)", "label": "PROVISION", "start_char": 6482, "end_char": 6494, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Arts. 102(1)(a) and 191(1)", "label": "PROVISION", "start_char": 6708, "end_char": 6734, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Parliament", "label": "ORG", "start_char": 6815, "end_char": 6825, "source": "ner", "metadata": {"in_sentence": "The second is that even Parliament, when passing the Act, did not consider it necessary to disqualify every person holding an office of profit under a Government company, but limited the disqualification to persons holding the office of managing agent, manager or secretary of the company."}}, {"text": "[1964] 4 S.C.R. 3", "label": "CASE_CITATION", "start_char": 7273, "end_char": 7290, "source": "regex", "metadata": {}}, {"text": "s. 116", "label": "PROVISION", "start_char": 7445, "end_char": 7451, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 7461, "end_char": 7499, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. V. Gupte", "label": "PETITIONER", "start_char": 7614, "end_char": 7625, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Shyama/a Pappu, S. S. Java/i and Vineet Kumar, for the appellant.", "canonical_name": "S. V. Gupte"}}, {"text": "Shyama/a Pappu", "label": "LAWYER", "start_char": 7627, "end_char": 7641, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Shyama/a Pappu, S. S. Java/i and Vineet Kumar, for the appellant."}}, {"text": "S. S. Java", "label": "LAWYER", "start_char": 7643, "end_char": 7653, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Shyama/a Pappu, S. S. Java/i and Vineet Kumar, for the appellant."}}, {"text": "Vineet Kumar", "label": "LAWYER", "start_char": 7660, "end_char": 7672, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Shyama/a Pappu, S. S. Java/i and Vineet Kumar, for the appellant."}}, {"text": "Lily Thomas", "label": "LAWYER", "start_char": 7694, "end_char": 7705, "source": "ner", "metadata": {"in_sentence": "Lily Thomas, for respondent No."}}, {"text": "Bhargava", "label": "JUDGE", "start_char": 7774, "end_char": 7782, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBhargava, J.\n\nThis appeal under section l l 6A of the Representation of the Peoples' Act No.", "canonical_name": "V. BHARGAVA"}}, {"text": "Mysore Legislative Assembly", "label": "ORG", "start_char": 7990, "end_char": 8017, "source": "ner", "metadata": {"in_sentence": "43 of 1951 (hereinafter referred to as \"the Act\") has been filed by one of the unsuccessful candidates for election to the Mysore Legislative Assembly from No."}}, {"text": "High Court of Mysore", "label": "COURT", "start_char": 8085, "end_char": 8105, "source": "ner", "metadata": {"in_sentence": "152, Bhadravati Constituency, against the judgment of the High Court of Mysore dismissing his election petition for setting aside the election of the successful candidate, respondent No."}}, {"text": "21st January, 1967", "label": "DATE", "start_char": 8318, "end_char": 8336, "source": "ner", "metadata": {"in_sentence": "After the nomination papers had been filed, the scrutiny of the nomination papers took place on the 21st January, 1967 and five nomination papers were declared as valid."}}, {"text": "15th February, 1967", "label": "DATE", "start_char": 8532, "end_char": 8551, "source": "ner", "metadata": {"in_sentence": "The polling for the Constituency took place on 15th February, 1967, and after the counting of votes, the results were declared on 22nd February, 1967."}}, {"text": "22nd February, 1967", "label": "DATE", "start_char": 8615, "end_char": 8634, "source": "ner", "metadata": {"in_sentence": "The polling for the Constituency took place on 15th February, 1967, and after the counting of votes, the results were declared on 22nd February, 1967."}}, {"text": "5th April, 1957", "label": "DATE", "start_char": 8839, "end_char": 8854, "source": "ner", "metadata": {"in_sentence": "On 5th April, 1957, the appellant filed the election petition challenging the election of respondent No."}}, {"text": "Article 191(1)(a)", "label": "PROVISION", "start_char": 9143, "end_char": 9160, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Government of the Statt of Mysore", "label": "ORG", "start_char": 9293, "end_char": 9326, "source": "ner", "metadata": {"in_sentence": "1 was disqualified under Article 191(1)(a) of the Constitution from being chosen as a member of the Legislative Assembly, because he was holding an office of profit under the Government of the Statt of Mysore on the date-of scrutiny."}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 9688, "end_char": 9699, "source": "ner", "metadata": {"in_sentence": "in this appeal, a number of grounds were raised, Mr.\n\nS. V. Gupte, counsel for the appellant, confined the case to this sole ground of disqualification of respondent No.", "canonical_name": "S. V. Gupte"}}, {"text": "Mysore Iron & Steel Works Ltd.,", "label": "ORG", "start_char": 10027, "end_char": 10058, "source": "ner", "metadata": {"in_sentence": "1 was employed as Superintendent, Safety Engineering Department in the Factory run by the Mysore Iron & Steel Works Ltd., Bhadravati."}}, {"text": "Bhadravati", "label": "GPE", "start_char": 10059, "end_char": 10069, "source": "ner", "metadata": {"in_sentence": "1 was employed as Superintendent, Safety Engineering Department in the Factory run by the Mysore Iron & Steel Works Ltd., Bhadravati."}}, {"text": "Mysore Iron & Steel Works, Bhadravati", "label": "ORG", "start_char": 10218, "end_char": 10255, "source": "ner", "metadata": {"in_sentence": "1 was that he was appointed in the year 1936 in the Mysore Iron & Steel Works, Bhadravati, which was started by B the Government of Mysore and was being managed by the Government as its own concern."}}, {"text": "Government of' Mysore", "label": "ORG", "start_char": 10401, "end_char": 10422, "source": "ner", "metadata": {"in_sentence": "He continued to be a servant of the Government of' Mysore when, in the year 1962, a private !"}}, {"text": "Mysore Iron & Steel\n\nLimited, Bhadravati", "label": "ORG", "start_char": 10507, "end_char": 10547, "source": "ner", "metadata": {"in_sentence": "incited Company was registered under the name of Mysore Iron & Steel\n\nLimited, Bhadravati (hereinafter referred to as \"the Company\") under the Indian Companies Act, 1956, and this Company took C over the Mysore Iron & Steel Works from the Government."}}, {"text": "Indian Companies Act, 1956", "label": "STATUTE", "start_char": 10601, "end_char": 10627, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Mysore Iron & Steel Works", "label": "ORG", "start_char": 10662, "end_char": 10687, "source": "ner", "metadata": {"in_sentence": "incited Company was registered under the name of Mysore Iron & Steel\n\nLimited, Bhadravati (hereinafter referred to as \"the Company\") under the Indian Companies Act, 1956, and this Company took C over the Mysore Iron & Steel Works from the Government."}}, {"text": "Mysore Government", "label": "ORG", "start_char": 11222, "end_char": 11239, "source": "ner", "metadata": {"in_sentence": "It was also the common case of the parties that the shares of the Company were held cent per cent by the Mysore Government, though some of the shares were shown in the names of some of the Officers in the service of the Mysore Government."}}, {"text": "Mysore Iron & Steel Ltd.", "label": "ORG", "start_char": 11670, "end_char": 11694, "source": "ner", "metadata": {"in_sentence": "Under the Articles of Association of the Company, the first Directors of the Company w.ere the Minister-in-charge of E the Industries Portfolio in the Mysore Government, the Secretaries to the Mysore Government in the Finance Department, and in the Commerce and Industries Department, the Managing Director of the Mysore Iron & Steel Ltd., and the Chief Conservator of Forests of the Mysore Government."}}, {"text": "Mysore", "label": "GPE", "start_char": 11775, "end_char": 11781, "source": "ner", "metadata": {"in_sentence": "The Governor of Mysore was entitled to appoint all or a majority of the members of the F Board of Directors so long as the Government of Mysore held not less than 51 per cent of the total paid-up capital of the Company or so long as the Governor continued to be interested in any fiduciary capacity."}}, {"text": "Government of Mysore", "label": "ORG", "start_char": 11882, "end_char": 11902, "source": "ner", "metadata": {"in_sentence": "The Governor of Mysore was entitled to appoint all or a majority of the members of the F Board of Directors so long as the Government of Mysore held not less than 51 per cent of the total paid-up capital of the Company or so long as the Governor continued to be interested in any fiduciary capacity."}}, {"text": "Gupte", "label": "OTHER_PERSON", "start_char": 13197, "end_char": 13202, "source": "ner", "metadata": {"in_sentence": "On these facts, two alternative contentions we.e raised by Mr. Gupte to urge that respondent No."}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 13256, "end_char": 13263, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 14803, "end_char": 14826, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 25F", "label": "PROVISION", "start_char": 14897, "end_char": 14908, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 15177, "end_char": 15183, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 15192, "end_char": 15215, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Industrial Employment (Standing Orders) Act, 1946", "label": "STATUTE", "start_char": 16091, "end_char": 16140, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Arts. 309 and 314", "label": "PROVISION", "start_char": 19546, "end_char": 19563, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 58(2) and 66(4)", "label": "PROVISION", "start_char": 19792, "end_char": 19812, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Maulana Abdul Shakur", "label": "OTHER_PERSON", "start_char": 20002, "end_char": 20022, "source": "ner", "metadata": {"in_sentence": "and held:-\n\n\"It is clear from the aforesaid observations that in Maulana Abdul Shakur's case(') the factors which were held to be decisive were : (a) the power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion, and ( b) payment from out of Government revenues, though it was pointed out that payment from a source other than Government revenues was not always a decisive factor.\""}}, {"text": "Government of India", "label": "ORG", "start_char": 20640, "end_char": 20659, "source": "ner", "metadata": {"in_sentence": "In that case, the question was whether the appellanl was holding an office of profit under the Government of India."}}, {"text": "Governmem Companies within the meaning of the Indian Companies Act", "label": "STATUTE", "start_char": 21093, "end_char": 21159, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 148", "label": "PROVISION", "start_char": 21559, "end_char": 21567, "source": "regex", "metadata": {"linked_statute_text": "Governmem Companies within the meaning of the Indian Companies Act", "statute": "Governmem Companies within the meaning of the Indian Companies Act"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 21747, "end_char": 21760, "source": "ner", "metadata": {"in_sentence": "148 of the Constitution, the Comptroller & Auditor-General was appointed by the President and he could be removed from office in like manner and on the like grounds as a Judge of the Supreme Court."}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 21974, "end_char": 21989, "source": "regex", "metadata": {"linked_statute_text": "Governmem Companies within the meaning of the Indian Companies Act", "statute": "Governmem Companies within the meaning of the Indian Companies Act"}}, {"text": "Durgapur Projects Ltd.", "label": "ORG", "start_char": 22707, "end_char": 22729, "source": "ner", "metadata": {"in_sentence": "The Court then held:-\n\n\"Therefore, if we look at the matter from the point of view of substance rather than of form, it appears to us that the appellant, as the holder of an office of profit in the two Government companies, the Durgapur Projects Ltd.,."}}, {"text": "Hindustan Steel Ltd.", "label": "ORG", "start_char": 22740, "end_char": 22760, "source": "ner", "metadata": {"in_sentence": "and the Hindustan Steel Ltd., is really under the Government of India; he is appointed by the Government of India; he is removable from office by the Government of India; he performs functions for two\n\nGovtirnment companies under the control of the Comptroller and Auditor-General who himself is appointed by the President and whose administrative powers may be controlled by rules made by the President.\""}}, {"text": "Chaudhury", "label": "OTHER_PERSON", "start_char": 23253, "end_char": 23262, "source": "ner", "metadata": {"in_sentence": "Thereafter, the Coun proceeded to hoid:-\n\n\"In view of these decisions, we cannot acc.ede to the submission of Mr. Chaudhury that the several factors which enter into the determination of this question-the appointing authority, the authority vested with power to terminate the appointment, the authority which deiermines the remuneration, the source from which the remuneration is' paid, and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf must all co-exist and each must show subordination to Government and."}}, {"text": "Gurugobinda Basu", "label": "OTHER_PERSON", "start_char": 26690, "end_char": 26706, "source": "ner", "metadata": {"in_sentence": "In Gurugobinda Basu's case('), ."}}, {"text": "Arts. 58(2) and 66", "label": "PROVISION", "start_char": 28599, "end_char": 28617, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Arts. 58(2) and 66(4)", "label": "PROVISION", "start_char": 28707, "end_char": 28728, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Articles 102(l)(a) and 19", "label": "PROVISION", "start_char": 29079, "end_char": 29104, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 191", "label": "PROVISION", "start_char": 30973, "end_char": 30981, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Arts. 102(1)", "label": "PROVISION", "start_char": 31187, "end_char": 31199, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 10", "label": "PROVISION", "start_char": 31291, "end_char": 31301, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 102", "label": "PROVISION", "start_char": 31920, "end_char": 31929, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 33172, "end_char": 33185, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "art. 34", "label": "PROVISION", "start_char": 33576, "end_char": 33583, "source": "regex", "metadata": {"linked_statute_text": "The Articles of Association lay down that the Company shall be a private limited company within the meaning of the Indian Companies Act, 1956", "statute": "The Articles of Association lay down that the Company shall be a private limited company within the meaning of the Indian Companies Act, 1956"}}, {"text": "section 10", "label": "PROVISION", "start_char": 35044, "end_char": 35054, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_438_446_EN", "year": 1969, "text": "smoR ELECTRICITY WORKS LTD.\n\nTIIE GUJARAT ELECTRICITY BOARD AND ANR.\n\nJanuary 29, 1969\n\n(J, C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.] Elfctricity (Supply) Act, 1948, Ss. 2(8) and 19(1 )(b)(ii)-Expres. sion 'maxinzum demand'-Construction of-Conditions precedent for en .. cbling Electricity Board to nzake direct supply in area of a licensee.\n\nThe appellant carried on the business f generating and distributin.g electriqal\" energy within a specified area under a licence granted t? 1t under the Indian Electricity Act, 1910.\n\nThe respondent, Gu1a_rat Electricity Board agreed with the second respondent company to give direct supply of electricity to its factory which wa~ witin the area of supply of the appellant. The appellant brought a suit agamst the respon- .\n\nden~ for declaration that the agreement between the first and the second respondents without its consent was illegal and ultra vires lhe powers of the first respondent under the Electricity (Supply) Act., 1948, and sought an injunction restraining the first respondent from IDlplementmg the decision.\n\nThe appellant's case was that the first respondent was not entitled to give direct supply to the second respondent as the \"maximum 'demand\" of the appellant at the time of the request of the second respondent was 262 to 349 KVA between September and December, 1959, and therefore. mdre than twice the \"maximum dem3nd\" of the second respondent which had never exceeded 40 tq 45 KV A. The first respondent dontended, however, that the\n\n0 maximum demand\" of the appeJlant company at the time of request was less than twice the \"maximum demand\" of 398 KVA asked for bv the second respondent from the first respondent. The trial court held that the first respondent's decision to give direct supply to the second respondent was ultra vires its power under section 19 (l)(b)(ii) of the Act. However, the first appellate court allowed an appeal and the High Court dismissed a further appeal holding, inter alia, that by virtue of s. 1'9(1)(b)(ii) the comparison required to be made was between the maximum demand of the licensee on the Board at the time of request for direct supply based on electiicity actually supplied and taken during some reasonable period immediately preceding the time of request for dircc( supply, and the maximum demand whi<1h the applicant wants to keep the Board ready on tap when supplying electricity to the applicant.\n\nOn appeal to this the Court, HELD : The appellant was entitled to the grant of a decree in terms of the trial court's deci'ee.\n\nThe \"maximum demand\" as defined in section 2(8) of the Act has relation only to an existing state of facts and there can be no maximum demand in relation to a future period.\n\nOn a true construction of section 19(1) (b)(ii), what is required to be compared for determining the applicability of the clause with the maximum demand of the licensee on the Board at the time of request fo'r direct upply, was the\n\n11maximun1 'demand\" by the appliaant on the licensee at that time and not any hypothetical or anticipated demand which the applicant may call upon the Board be ready to supply, The phrase \"supplied and taken\" in s. 2(8) shows that the ascertaimnent of maximum demand is dependent upon the electricity actually supplied and taken in any particular period in the p .. t and not electricity which may be supplied and taken in a future period.\n\n[444B]\n\nELECT\\'. WORKS v. ELECTY. BOARD (Ramaswamy, J.) 439\n\nThere was no force in the respondent's contention that the words \"asked for by any such person\" must be construed to mean any hypothe\n\ntrical or anticipated demand which the applicant may call upon the Board to be rc.:iJy to supply. Such an interpretation \\vould be inconsistent with the definition of .. maxin1urn demand\" in section 2( 8) of the Act.\n\nThere was no reason \\.\\hy 1he phrase \"maximum denu-1nd'' in section 19(1)(b)(ii) of the Act should be given two different meanings one for the Jicensee and the other for the consumer ask in~ for the m:1ximt1m den1and. H cannot be '.'>l1Pf10sed thll th~ legislature (onten1platcd th:t1 the phntsc \"maximum dem:ind\" should he dvt>n two ditrcreni manin•!,,, in lh~ s;1m~ claus~. 1444Ci I • •\n\nCIVIL APPELLATE JURISDICT.!ON : Civil Appeals Nos. J52 and 453 of 1966.\n\nAppeals by special leave from the judgment and order, dated July 4, 1964 of the Gujarat High Court in Second Appeals Nos. 33 and 34 of 1964.\n\nP.A. Mehta, B. K. Mehta, K. L. Hathi and Atiqur Rehman, for the appclla(\\t (in both the appeals).\n\nl. N. Shroff, for respondent No. I (in both the appeals).\n\nH. L. A11a11d and K. B. Mehta, for respondent No. 2 (in both the appeals).\n\nThe Judgment of the Court was delivered by Ramaswami, J.\n\nThe appellant, the Sihor Electricity Works Ltd., is a public limited company carrying on the business of generating and distributing electrical energy under the licence granted to it under the Indian Electricity Act, 1910, having its supply area within the limits of Sihor Town situated in the district of Bhavna1rnr in Saurashtra. The first respondent is the Gujarat Electricity Board 'which is a Corporation constituted under the Electricity (Supply) Act. 1948 for the purposes of generation. supply and distribution of electricity in the State of Gujarat.\n\nThe recond respondent is the Saurashtra Electrical and Metal Industries (Private) Ltd., a private limited company carryirig on the business of manufacturing electrical accessories etc. and having its factorv at Sihor within the area of supply of the appellant comnanv. The aopellant company was originally generating and\n\ndistributing electricitv but at the relevant time it was a distributing licensee distributing the energy purchased in bulk from the first respondent within its area of supply.\n\nThe appellant brought a suit against the respondents in the Court of Civil Judge (Junior Division) of Sihor being Civil Suit\n\nNo. 45 &I' 1960 to Obtain a declaration that the decision of the first respondent as contained in its letters dated 3rd June. 1960 and 24th October, 1960 to give direct supPlY to the factory of the second respondent within the area of supply of the appellant and without its consent was illegal and ultra vires its powers under\n\nthe Electricity (Supply) Act, '1948 (Act No. 54 of 1948) (here inafter called the Act), and for a permanent injunction restrain ing the first respondent from implementing the said decision .. The case of the appellant was that the first respondent was not entitled to give direct supply to the second respondent as the 'maximum demand' of the appellant at the time of request of the second respondent was more than twice the 'maximum demand' asked for by the second respondent. The appellant company alleged that the maximum demand of the appellant company in the relevant period. namely, September 1959 to December 1959 was between 262 to 349 KY A while the maximum demand of the second respondent had never exceeded 40 to 45 KV A. The first respondent contested the suit on the ground that the decision was legal and proper because the maximum demand of the appellant company at the time of request was less than twice the maximum demand 'asked for' by the second respondent from the first respondent. It was contended that the demand 'asked for' by the second respondent was 398 KY A, and. therefore, the first respondent was entitled in law to give direct supply to the second respondent. The trial Judge held that the decision of the first respondent to give direct supply of electricity to the second respondent was ultra vires the power of the first respondent under section 19(1)(b)(ii) of the Act and was, therefore, null and void and gave a declaration to that effect in favour of the appellant. The trial Judge, however, refused to grant the consequential relief of injunction on the ground that the Board being a public authority could be expected to respect the law laid down by the Court and it was, therefore, not necessary to issue any injunction against the respondents, Aggrieved by the decree passed by the trial Judge the two respondents filed separate appeals in the District Court. The appellant preferred a cross-abjection contending that the trial Judge was in error in refusing to grant injunction. The appeals and the cross-abjection were heard by the District Judge of Bhavnagar and by a common judgment delivered on 12th October, 1963, the District Judge a, ccepted the contentions urged on behalf of the respondents and allowed the appeals.\n\nThe District Judge held that the jurisdiction of the Civil Court to entertain the suit was excluded by reason of s. 76( n .Jf the Act and the dispute between the parties being a dispute covered by that section could be determined only in the manner provided by that section, viz., by arbitration. The District Judge also decided that the maximum demand asked for by the second respondent was in excess of 50 per cent of the maximum demend of the appellant at the time of request for direct supply and the first respondent was enti&d to give direct supply of electrical energy to the second respondent under s. 19(1)(b)(ii) of the Act. The District Judge accordingly found that the suit was liable to fail not only for want of jurisdiction but also on merits and accordingly a!Jowed the apPeals and\n\nELECTY. WORKS v. ELECIY. BOARD (Ramaswamy, J.) 44i\n\ndismissed the suit. Thereafter, the appellant preferred appeals to the High Court of Gujarat being Civil Second Appeals Nos. 33 and 34 of 1964. The said appeals came for hearing before Mr.\n\nJustice P. N. Bhagwati, who dismissed the same by a common judgment dated 4th July, 1964. The learned Judge took the view that the Court had jurisdiction to hear the suit as the provision for arbitration under s. 7 6 of the Act was inserted in the statute not in the interest of public good but for the benefit of individuals and therefore either party can waive the right to insist on arbitration.\n\nThe learned Judge, however, held that the true effect of s. 19(1)(b)(ii) was that \"the comparison required to be made was between the maximum demand of the licensee on the Board at the time of request for direct supply which would of course be maximum demand based on electricity actually supplied and taken during some reasonable period immediately preceding the time of request for direct supply and the maximum demand which the applicant wants to keep the Board ready on tap when supplying electricity to the applicant\". These appeals are brought by special leave from the judgment of the Gujarat High Court dated 4th July, 1964 in Second Appeals Nos. 33 and 34 of 1964.\n\nThe question of law presented for determination in this case is whether the High Court was right in holding that section 19 (I)\n\n(b)(ii) of the Act prescribed that a comparison must be made between the actual maximum demand of the licensee company and the anticipated maximum demand of the consumer before the Electricity Board can decide to give direct supply to the consumer within the area of supply of the licensee company.\n\nSection 19(1) of the Act states :-\n\n\"The Board may, subject to the provisions of this Act, supply electricity to any licensee or person requiring such supply in any area in which a scheme sanctioned under Chapter V is in force;\n\nProvided that the Board shall not- ( a) supply electricity for any purpose directly to any licensee for use in any part of the area of supply of\n\na bulk-licensee without the consent of the bulk-licensee, unless the licensee to be supplied has an absolute right of veto on any right of the bulk-licensee to supply electricity for such purpose in the said part of such area, or unless the bulk-licensee is unable or unwilling to supply electricity for such purpose in the said part of such area on reasonable terms and conditions and within a reasonable time, or\n\n(b) supply electricity for any purpose to any persons, not being a licensee for use in any part of the\n\nlJPKEME COURl REPORTS [l969j 3 S.C.R.\n\narea of supply of a licensee without the consent of the A licensee, unless- ( i) the actual effective capacity of the licensee's generating station computed in accordance with paragraph IX of the First Schedule at the time when such supply was required was Jess than twice the maximum demand asked for by any such person; or B\n\n(ii) the maximum demand of the licensee, being a distributing licensee and taking a supply of energy in bulk is, at the time of the request, less than twice the maximum demand asked for by any such person; or\n\n(iii) the licensee is unable or unwilling to_ supply c electricity for such purpose in the said part of such area on reasonable terms and conditions and within a reasonable time/'\n\nSection 2 ( 8) of the Act delines 'maximum demand' as follows :-\n\n\" 'Maximum demand' in relation to any period shall, unless otherwise provided in any general or special order of the State Government, mean twice the largest number of kilowatt-hours or kilo-volt-ampere-hours supplied and talc.en during any consecutive thirty minutes in that period\".\n\nSection 18 deals with general duties of the Board and reads\n\n\"Subject to the provisions of this Act, the Board shall be charged with the general duty of promoting the coordinated development of the generation, supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas not for the time being served or adequately served by any licensee, and without prejudice to the generality of the foregoing provisions it shall be the duty of the Board-\n\n(a) to prepare and carry out schemes sanctioned under Chapter V;\n\n( b) to supply electricity to owners of controlled stations and to licensees whose stations are closed down under this Act; ( c) to supply electricity as soon as practicable to any other licensees or persons requiring such supply and whom the Board may be competent under this Act so to supply.\"\n\nSection 26 of the Act clothes the Board with all powers and obligations of a licensee under the Electricity Act, 1910, with this\n\nELECTY. WORKS v. ELEC'fY. IJOARD (Ramci:>1vamy, /.) HJ\n\nexception that certain sections, including section 22 relating to the duties and 'obligations of a licensee, are declared not to apply to the Board. Since section 22 is excepted from its applicauon to the Board, it is evident that unlike a licensee under the Electricity Act, 1910, the Board is under no obligation to supply electricity to any person applying to it for supply. Section 49 of the Act empowers the Board to fix the terms and conditions on which it will supply electricity to a person other than a licensee and that power is conferred in wide terms subject only to the provisions ot the Act and any regulations which may be made by the Board in that behalf.\n\nThe legal position therefore is that the. Board cannot supply electricity to any licensee or a person other than a licensee unless the Board 1s competent to do so under the Act.\n\nUnder Section 19(1) the Board would ordinarily be competent to supply electricity to a licensee or to a person requiring such supply m any area in which a scheme sanctioned under Chapter V 1s in force. But there are two provisos which limit the genera! power of the Board to supply electrji; ity. Proviso (a) relates to a case of a licensee requiring supply of electricity in any part of the area of supply ot a bulk licensee. Proviso (b) is material to the present case. This proviso enjoins the Board not to supply electricity for any purpose to any person other than a licensee for use in any part of the area of the licensee unless the case falls within any of the three clauses, namely, clauses (i), (ii) and (iii). The intention of the legislature seems to be that if any person requires supply of electricity for any purpose for use in any part of the area of supply of a licensee, he must approach the licensee in the first instance and the licensee alone must have the right to supply electricity to him unless of course the licensee consents to his taking of supply of electricity from the Board in which event the Board would be free to supply electricity to him.\n\nThis provision was apparently enacted with a view to protect the interest of the licensee who has incurred capital expenditure in putting up generating plants, transformers, mains and transmission lines and who should be therefore entitled to secure a reasonable return by having a sufficient number of consumers to take the electricity which may be generated by the licensee or which .may be taken in bulk by the licensee from the Board. But the legislature engrafted certain exceptions to this rule by enacting clauses (i), (ii) and (iii) and providing that in cases covered by any of these clauses, the Board shall be at liberty to supply electricity to any person applying to it for supply despite the want of consent of the licensee. It is common ground that the exceptions set out in clauses (i) and (iii) do not apply to the present case and the only exception relied on by the respondents is that set out in clause (ii). On behalf of the respondents it was contended that the High Court has takon a correct view with regard to the interpretation of s. 19(1)(b)(ii) of the\n\nAct and the first respondent was entitled to supply electricity to the second respondent without the consent of the appellant as the conditions oi clause (ii) of the sub-section have been satisfied.\n\nWe are unable to accept this argument. In our opinion, the maximum demand' as denned in section 2(8) of the Act has relation oruy to an existing state of facts and there can be no max1mmn demand in relat10n to a futu(e period'\" and, therefore, on a true construction of section 19(l)(b)(ii) of the Act what is required to be compared for determining the applicability of the clause with the maxinmm demand of the licensee on the Board at the time of request for direct supply, was the 'maximum demand' by the applicant on tl1e licensee at that time and not any hypothetical or anucipated demand which the applicant may call upon the Board be ready to supply. It is manifest that section 2 ( 8) of the Act gives a technical meaning to the expression 'maximum demand' by. defining it as twice the largest number of kilowatt hours or k.Jlo-volt, ampere . hours supplied and taken during any consecutive thirty minutes in any particular period. It follows from the language of the definition that the concept of maximum demand is a concept ba>cd on existing facts and it is not possible to think of a maximwn demand in relation to a future point of time.\n\nReference should be made in this connection to the phrase \"supplied and taken\" in section 2(8) of the Act. This phrase also shows that the ascertainment of maximum demand is dependent upon the electricity actually supplied and taken in any particular period in the past and not electricity which may be supplied and taken in a future period. In other words, the 'maximum demand' as defined in s. 2 ( 8) of the Act has always reference to a past period and there can be no maximum demand in relation to a future period. On behalf of the respondents attention was invited to the words \"asked for by any such person\" in section J9(J)(b)(ii) of the Act.\n\nBut these words are inserted in the section merely by way of description and they must be construed to mean that the Board will make direct supply only when the applicant makes a request for such direct supply from the Board and not otherwise. It is not possible to accept the argumC!llt of the respondents that the words \"asked for by any such person\" must be construed to mean any hypothetical or anticipated demand which the applicant may call upon the Board to be ready to supply.\n\nSuch an interpretation would be inconsistent with the definition of 'maximum demand' in section 2 ( 8) of the Act.\n\nWe also see no reason why the phrase 'maximum demand' in section 19(1)\n\n(b) (ii) of the Act should be given two different meanings one for the licensee and the other for the consumer asking for the maxi .. mum demand. It cannot be supposed that the legislature contemp lated that tl1e phrase maxinrnm demand' should be given two different meanings in the 'amc clause.\n\n'.E\n\nELECTY. WORKS v. ELECTY. l30ARD (Ramaswami, J.) 445\n\nIt was pointed out on behalf of the respondents that if the phrase 'maximum demand' in section 19(1)(b)(ii) of the Act is given the technical meaning as !Ilentiond in section 2 ( 8) ?f the Act, hardship may be caused m certam cases.\n\nIt was said that an applicant may not be taking electritity supplied by the licensee and may still be desirous of taking electricity from the Board for the first time. Such an applicant would have no maximum demand at the time of request for direct supply but when asking for direct supply he is required to intimate to the Board what is the maximum demand he would require.\n\nIt was said that the applicant may have a potential peak demand which the licensee may not be able to supply.\n\nIn such a case it was not reasonable to require the applicant to approach the licensee in the first instance and thereafter make an application to the Board. It was also argued that there was no reason why the applicability of clause (ii) should be restricted only to persons taking electricity supplied by the licensee. In our opinion, there is no warrant for this argument.\n\nAs we have already indicated the language of section 19 (I ) (b )(ii) of the Act must be construed in the light of the definition of 'maximum demand' contained in section 2 ( 8) of the Act. Upori that construction it is clear that the applicability of clause (ii) is restricted to persons taking electricity supplied by the licensee. There is also no hardship caused to an applicant who may not 'take electricity supplied by the licensee and who may be desirous' of taking electricity for the first time from the Board in view of his anticipated requirements.\n\nIt is open to such an applicant to take recourse to the provision of clause (iii) of section 19 ( 1) (b) of the Act which provides that the Board may supply electricity direct without the consent of the licensee if the later is unable and unwilling to supply electricity for the purpose of the applicant on reasonable terms and conditions and within a reasonable time. In our opinion, no anomaly or inconvenience would result if the construction contended for on behalf of the appellant with regard to section 19 (I )(b )(ii) of the Act is accepted.\n\nIf our interpretation of s. 19(1 )(b) (ii) of the Act is correct, the appellant is entitled to the grant of a decree in terms of the trial Court's decree.\n\nIt is pointed out by Mr. Justice Bhagwati in his judgment that right up to' the end of December, 1959 the maximum off take of electricity by the second respondent from the appellant was not more than 50 KV A. The maximum demand of the licensee on that period was 291 KVA, and so, the conditions of s. 19( 1 )(b )(ii) of the Act were not satisfied.\n\nIt follows that the first respondent was not entitled under that clause to supply H electricity direct to the second respondent.\n\nFor the reasons expressed we hold that the judgment of the Gujarat High Court in Second Appeals Nos. 33 and 34 of 1964 L8 Sup Cl/69-10\n\ndated 4th July, 1964 and of the District Judge of Bhavnagar dated 12th October, 1963 should be set aside and the judgment and decree of the Civil Judge (Junior Division) at Sihor dated 31st March, 1960 should be restored. The apPt<als are accordingly allowed with costs in this Court and the High Court.\n\nR.K.P.S.\n\nAppeals allowed.", "total_entities": 72, "entities": [{"text": "smoR ELECTRICITY WORKS LTD", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "SIHOR ELECTRICITY WORKS LTD", "offset_not_found": false}}, {"text": "TIIE GUJARAT ELECTRICITY BOARD AND ANR", "label": "RESPONDENT", "start_char": 29, "end_char": 67, "source": "metadata", "metadata": {"canonical_name": "THE GUJARAT ELECTRICITY BOARD AND ANR", "offset_not_found": false}}, {"text": "January 29, 1969", "label": "DATE", "start_char": 70, "end_char": 86, "source": "ner", "metadata": {"in_sentence": "January 29, 1969\n\n(J, C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 92, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "V. 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"PROVISION", "start_char": 19896, "end_char": 19909, "source": "regex", "metadata": {"statute": null}}, {"text": "section 19(1)(b)(ii)", "label": "PROVISION", "start_char": 20353, "end_char": 20373, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 20433, "end_char": 20442, "source": "regex", "metadata": {"statute": null}}, {"text": "section 19", "label": "PROVISION", "start_char": 21409, "end_char": 21419, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 21527, "end_char": 21536, "source": "regex", "metadata": {"statute": null}}, {"text": "section 19", "label": "PROVISION", "start_char": 22010, "end_char": 22020, "source": "regex", "metadata": {"statute": null}}, {"text": "section 19", "label": "PROVISION", "start_char": 22427, "end_char": 22437, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19(1 )(b)", "label": "PROVISION", "start_char": 22501, "end_char": 22513, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 22665, "end_char": 22673, "source": "ner", "metadata": {"in_sentence": "It is pointed out by Mr. Justice Bhagwati in his judgment that right up to' the end of December, 1959 the maximum off take of electricity by the second respondent from the appellant was not more than 50 KV A. The maximum demand of the licensee on that period was 291 KVA, and so, the conditions of s. 19( 1 )(b )(ii) of the Act were not satisfied."}}, {"text": "s. 19( 1 )(b )(ii)", "label": "PROVISION", "start_char": 22930, "end_char": 22948, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_447_461_EN", "year": 1969, "text": "MUNICIPAL COMMITTEE, AMRITSAR & ANR.\n\nSTATE OF PUNJAB & ORS.\n\nJanuary 30, 1969\n\n[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]\n\nPunjab Cattle Fairs (Regulation) Act (6 of 1968) as amended by Amending Act 18 of 1968, ss. 2(bb), 4, 15 and 23-0riginal Act without definition in s. 2(bb) of cattle fair, if vague-Whether Act can be struck down on.rhe ground of vagueness and eOect of striking down-If Act ceases to have existence in law-Decision before amendment if res judicata be- [l1:een parties aft, er amendment-Act creating monopoly in State if violates Art. !9(l)(b), (d), (/) and (g) of the Constitution-Scope of s. 4--S.\n\n15 if violative of Art. 19(1)(/)-Municipal Committee if citizen-If can con1plain of violation of Art. 19-Direction regarding property of Municipal Com1nittee aniounting to requisition-JJ violative of Art. 32-Directions regarding atnenities-lf authorised by Act.\n\nJn the State of Punjab .local authorities and individual owners c:lf land were holding cattle fairs.\n\nThe Punjab Cattle Fairs (Regulation) Act, 1967, was passed by the State Legislature in exercise of pawers under entry 28 of List II of VII Schedule to the Constitution, declaring a monapoly in the State ta hold cattle fairs and prohibiting all local authorities and individuals from holding cattle fairs at 'any place in the State'.\n\nThere was no definition of the expression 'cattle 'fair' in the Act.\n\nThe validity of the Act was challenged on the ground that the provisions of the Act were 'vague and ambiguous\\ and the High Court, in Mohinder Singh Sawhney v. State of Punjab, A.I.R. 1968 Punj. 391, accepted the conten tion. The State Legislature thereupon, by Amendment Act 18 of 1968 introduced s. 2(bb) defining the expression 'cattle fair' to mean 'a gathering of more than 25 persons for the purpose of general sale or purchase of cattle'.\n\nFair Officers were appointed under s. 4(1) of the Act, and under s. 4(2) they declared certain areas as fair areas. Some of the areas so declared belonged to a Municipal Committee in the State. The Municipal Committee, a lessee from the Municipal Committee and some residents in the State, challenged the Act in this Court on the following grounds :-\n\n(I) Since the Act was struck down in Mohinder Singh Sawlmey's case, the Act ceased to have any existence in law and could not therefore be amended;\n\n(2) The order of the High Court in that case operated as res judicata bet\\\\1een the parties and could not be enforced without a re-enactment of the Act:\n\n(3) The Act violated Arts. !9(l)(b), (d), (f) and (g); and\n\n(4) Section 15 c:lf the Act, which authorises the State to call upon a Panchayat Samiti or a Municipal Committee within whose jurisdiction the fair is held to deposit a prescribed amount in the Cattle Fair Fund to cover the initial expenses of the fair and compels the local authority to abide by the directions, was invalid.\n\nH The Municipal Committee also challenged the demand by the Fair Officer, asking the Municipal Committee to supply water, electricity and to make sanitary arrangements and to make the staff articles and offices of the Municipal Committee available to the Fair Officer.\n\nHELD : ( i) The Act as originally enacted was not vague.\n\nWhen the A Legislature did not furnish a definition of 'cattle fair' it must be deemed to have used the expression in its ordinary signification, as meaning a periodical concourse of buyers and sellers in a place, generally for sale and purchase of cattle, at times or on occasions ordained by custom.\n\n(454 C-EJ\n\nBut even if it was vague it could not have been struck down on that ground. The High Court in Mohinder Singh Sawhney's case struck down B the Act on the ground of vagueness on the assumption that. the validity of the Act was liable to be adjudged by the test of 'due process of law'. But this Court, in A. K. Gopalan v. State of Madras, [1950] S.C.R. 88, held that the doctrine of due process has no place in our Constitution. Superior Courts in India may declare a law invalid, if the Legislature has no power to enact the law or if the law violates any elf the fundamental rights guaranteed in Part III of the Constitution or is inconsistent with any constitutional ptovision, but not on the ground that it is vague. There..\n\nC fore, as a result of the judgment of the High Court the Act did not cease to have existence in law.\n\n[453 C-D, G; 454 A-BJ\n\nKehar Singh v. The State of Punjab, (1969) 71 P.'L.R. 24, approved.\n\n(2) The decision in Mohinder Singh Sawhney's case does not operate\n\na~ res judicata even in favour of the petitioners in that case.\n\nIts effect was only that the Act was in law non-existent so long as there was no defi D nition of the expression 'cattle 'fair' in the Act.\n\nBut that defect has been remedied by the Amending Act. [454 B-C]\n\n( 3) (a) The Act does not impose unreasonable restrictions upon the fundamental rights guaranteed under Art. 19(l)(b) and (d). It prohibits an individual or local authority from arranging a gathering of more than 25 persons for the purpose specified in the definition. The restriction was E only for the purpose of making the monopoly effective, and must be regarded as a reasonable restriction within the meaning of els. 19(3) and\n\n(5) upon the freedom of assembly an.cl of free movement. [456 C-E]\n\n(b) The Act is restricted in its scope and the freedoms guaranteed by Art. 19( I )(f) and (g) are also not infringed.\n\n(D A law which is 'basically and essentially necessary' for creating a F State .monopoly arul thereby deprives the citizens of the right to carry on the same business is not, by virtue of Art. 19(6), open to challenge on the ground that it infringes the fundamental right guaranteed by Art. 19(1) (g). In the present case, the primary object elf the Act is to give a monopoly to the State to hold cattle fairs and as a necessary concomitant of that monopoly,, holding of cattle fairs by local authorities and individua!S is prchibited.\n\nThe law will not also be exposed to attack on the ground that the right to carry on business is property, for, the validity of G restrictions on the right to carry on occupation, trade or business, or to practice any profession must be adjudged only in the light of Art. 19(6).\n\nMoreover, the presumption of reasonableness df a statute creating a mono .. poly in the State applies not only in respect of the right under Art. 19(1)(g) but also under Art. 19(l)(f). [456 E--0; 457 A-CJ\n\nAkadasi Padhan v. State of Orissa, [1963] Supp. 2 S.C.R. 691, followed.\n\nH State of Bihar'v. Rameshwar Pratap Narain, [1962] 2 S.C:R. 382 and M. V. P. Ramunni Kurup v. Panchayat Board, Badagara, A.l.R. 1954 Mad. 754, referred to.\n\nMUNIC. COMMITTEE V. PUNJAB 449\n\n(ii) The prohibition imposed upon all person• and authorities is in reopect of only cattle fairs and not in respect elf cattle markets, that is, places where the business of sale or plirchase is regularly conducted by private parties and not ao a fair. The Act does not prohibit anyone from carrying on the business of cattle market on his own land:\n\n[455 E-F; 461 El\n\nWhen the business is in the nature of a market for saie of sheep and goats brought by intending sellorli 'for slaughter, such a place cannot be called a fair.\n\nA person carrying on his business in a cattle market on his own land need not take out a licence under s. 9 of the Act even though he was collecting brokerage and was carrying on the business elf a broker, because, it is only a person carrying on his business within a fair area, lJ1wfully declared, that is required to obtain the licence.\n\n[460 F-HJ\n\n(iii) Though the words used in s. 4 .are wide and are capable of the interpretation that the State could hold a ca!Ue fair at any place, it is implicit in ss. 3 and 4 that the monopoly acquired by the State to hold and manage cattle fairs is confined to property belonging to the State and does not extend t0 the property of local authorities or private owners.\n\n[456 A-CJ\n\nA Municipal Committee is not a 'citizen' within the meaning Of Art 19 and therefore, is not entitled to claim protection of any of the fundamental rights under Art. 19. But a direction to make municipal property available for holding a cattle fair by the State is a threat to requisition municipal property without authority of law, d is. not a mere direction to regulate the fair held on behalf of the Municipal Committee. Such a taking possession of property without payment of compensation as required by Art. 3i(l) must be deemed unauthorised ands. 23, giving the provisions of the Act a paramount operation. notwithstanding anything inconsistent in any other law, will not supersede the constitutional gu:trantee.\n\n[458 E-G]\n\n(4) Under s. 17(d), out of the Cattle Fair Fund, the amount recovered from a local authority may be reimbursed but the provision in s. 15, authorising the State to call upon a local authority to pay a sum of money towards the Cattle Fair Fund is an unreasonable deprivation of propect:T and violates the right under Art. 19(1) (f) and hence is inva)id. [457\n\nC-E)\n\nAlso the demand made by the Fair Officer for assistance of the tall. articles and offices of the Municipality for holding a fair, and the deo1and for supi)ly of water and electricity and making suitable sanitary arrangements are not warranted by any provision of the Act, and must be declared invalid. [459 A-CJ\n\nORIGINAL JURISDICTION : Writ Petitions Nos. 295, 362, 365, 443 and 444 of 1968.\n\nPetitions under Art. 3 2 of the Constitution of India for the enforcement of the fundamlltal rights.\n\nH. R. Gokhale and Naunit Lal, for the petitioners (in W. P.\n\nNo. 295 of 1968).\n\nH. R. Gokhale, Jagjit Singh Chawla, S. K. Mehta and K. L.\n\nMehta, for the petitioner (in W.P. No. 362 of 1968).\n\nR. K. P. Shankar Dass, Bishambar Lal and H. K. Puri, for th~ petitioners (in W.P. No. 365 of 1968).\n\nJagjit Singh Chawla, S. K. Mehta l\\llld K. L. Mehta, for tlle A petitioners (in W.P. Nos. 443 and 444 of 1968).\n\nNiren De, Attorney-General, V. C. Mahajan and R. N. Sachthey, tor the respondents (in W.P. Nos. 295 and 362 of 1968).\n\nV. C. Mahajan and R. N. Sachthey, for the responde.nts (in W.P. No. 365 of 1968).\n\nR. N. Sachthey, for the respondents (in W.P. Nos. 443 and 444 of 1968).\n\nThe Judgment of the Court was delivered by Shah, J.\n\nCattle fairs are held for the last many decades in different parts of the territory of the State of Punjab, by local authorities and individual owners of land. The person or authority holding the cattle fair provides facilities to cattle owners for board and lodging and for stabling their cattle generally in consideration of charges including a percentage on the price realised by sale or purchase of cattle.\n\nThe Governor of Punjab with a view to control and regulate cattle fairs promulgated Ordinance No. 14 of 1967 on November 4, 1967, declaring a monopoly in the State of Punjab to hold cattle fairs and prohibiting all local authorities and individuals from holding cattle fairs \"at any place in the State\". This Ordinance was replaced by the Punjab Cattle Fairs (Regulation) Act 6 of 1968. Bys. 3 of the Act it is provided :\n\n\"(1) The right to hold a cattle fair at any place in the State of Punjab and to control, manage, and regulate such fair shall vest exclusively in the State Government and shall be exercisable by it, in accordance with the provisions of this Act and the rules made thereunder, through such persons or authorities as it may deem fit.\n\n(2) ; Notwithstanding anything contained in any other law for the time being in force and save as provided by sub-section ( 1), it shall be unlawful for any person or local authority to hold, control, manage or regulate a cattle fair at any place in the State of Punjab.\" The expression \"cattle\" is defined by s. 2(b) as including a buffalo, camel, cow, donkey, elephant, goat, horse mule, sheep and their young-ones and such other animals as the State Government may by notification specify. By s. 4(1) authority is vested in the State Government io appoint Fair Officers for holding, controlling, managing nnd regulating cattle fairs in a district.\n\nBy sub-s. (2) the Fair Officer is made responsible for making arrangements in respect of all matters connected with the holding of a cattle fair and its proper control, management and regulation '\n\nand has also the power of-(i) defining the fair area; (ii) rescrva tion of sites or places for latrines, urina}s, baths, shops, exhibitions, shows, demonstrations, foot-baths for animals, water supply for drinking purposes, shelters, green and dry fodder, entertainment and similar other purposes necessary in connection with the cattle fair; (iii) allotment of sites temporarily for commercial or other purposes in connection with the cattle fair, authorisation of raising of structures on such sites, and fixation of rents for such sites in the prescribed manner; (iv) arrangements for watch and ward, lighting, medical first aid, veterinary aid, sanitation, tentage and other facilities as may be necessary in connection with the cattle fair; and ( v) construction of temporary offices for the purpose of collecting taxes and fees imposed and levied in connection with the cattle fair. The expression \"fair area\" is defined iin s .. 2 ( d) as meaning \"such area within a district as may be specified by a fair officer for the purpose of holding a cattle fair\". By s. 5 power is conferred upon the State Government to impose in a fair area during the continuance of a cattle fair, tolls on vehicles entering such area for business purposes and octroi duty on goods brought for sale within such area.\n\nJurisdiction of the local authorities to levy taxes and fees in any fair area in connection with the fair is excluded by s. 6. By s. 8 it is provided that no person shall sell cattle at a. cattle fair unless the has obtained a registration certificate in respect of cattle to be sold. Section 9 provides for licensing of brokers. By s. 15 the State Government is authorised to direct the Panchayat Samiti or Municipal Committee, in whose jurisdiction the fair is to be held, to deposit in the Cattle Fair Fund the prescribed amount, not exceeding one thousand rupees, to cover the initial expenses of the fair and the locai authority so directed is enjoined to comply with tlte direction. Section 16 provides for the setting up of a Cattle Fair Fund in which all fees, rent or other sums of money (not being tolls and taxes) received or realized under the provisions of the Act or the rules made thereunder, and all donations or grants made to the Fund by the State Government, a local authoritR_ or any other person are to be credited. By s. 18 penalties are prescribed for contravention of the provisions of sub-s. (2) of s. 3. Power is conferred by s. 21 to make regulations to provide against the outbreak or spread of fire and for certain other matters. By s. 22 the State Government is authorised to make rules for carrying out the purposes of the Act. The Act, however, as originally enacted contained no definition of the expression \"cattle fair\".\n\nValidity of the Punjab Cattle Fairs (Regulation) Act, 1967 was challenged in a group of petitions moved before the High Court of Punjab by persons interested in holding cattle fairs:\n\nMohinder Singh Sawhney v.\n\nState of Punjab and Others(').\n\nBefore the High Court one of the contentions raised by the\n\n(I) A.I.R. [1968] Punjab 391.\n\npetitioners was that the provisions of the Act were \"vague and ambiguous'', and on that account the Act was u/t; a vires. The Court accepted that contention.\n\nThe Court observed that there was a distinction between a \"cattle market\" and a \"cattle fair\" and since no definition of \"cattle fair\" was supplied by the Act it was left to the executive authorities to determine what a \"cattle fair\" was and on that account \"the infirmity went to the root of the matter, and the Act was liable to be struck down in its entirely on the ground of vagueness, even if some of its provisions were unexceptionable in themselves\".\n\nThe State Legislature then enacted the Punjab Cattle Fairs (Regulation) Amendment Act 18 of 1968 which introduced by s. 2(bb) a definition of the expression \"cattle fair\" as meaning \"a gathering of more than twenty-five persons for the purpose of general sale or purchase of cattle\". Fair Officers were appointed by the State Government and they issued notifications declaring certain areas as \"fair areas\".\n\nA number of petitions were again moved in the High Court of Punjab for an order declaring invalid the Act as amended. The High Court of Punjab dismissed the petitions, upholding the validity of the Act: Kehar Singh v.\n\nThe State of Punjab & Another('). The Court in that case held that the definition of \"cattle fair\" was not intended to bring within its compass sales by private individuals outside fair areas: it was intended only to apply where in general, people assemble at some place for the purpose of buying and selling cattle and the number of persons exceeds\n\ntwenty-five, and that Act 6 of 1968 as amended by Act 18 of 1968 \"does not contravene the provisions of Arts. 19 ( l )( f) & ( g) of the Constitution\".\n\nCertain persons interested in conducting cattle fairs have filed writ petitions in this Court.\n\nArguments which are common in all the petitions may first be considered.\n\nWe are unable to accept the argument that since the High Court of Punjab by their judgment in Mohinder Singh Sawhney's case(') struck down the Act, Act 6 of 1968 had ceased to have any existence in law, and that, in any event, assuming that the judgment of the Punjab High Court in Mohinder Singh Sawhne.v's case(') did not make the Act non-existent, as between the parties in whose favour the order was passed in the earlier writ petitions, the order operated as res i.udicata, and on that account the Act could not be enforced without re-enactment.\n\nThe High Court of Punjab in Mohinder Singh Sawhney's case(') observed at p. 396 :\n\n(I) (1969) 71 P.L.R. 24.\n\n(2) A.J.R. (19681Punjab391.\n\nMUNIC. COMMITTEE V. PUNJAB (Shah, /,) 453\n\n\" . . . . in our opinion the petitions must succeed on the ground that the legislation is vague, uncertain and ambiguous.\",\n\nand also (at p. 394) that-. \". . . . as the infirmity of vagueness goes to the root of the matter, legislative enactment has to be struck down as a whole even if some of its provisions are unexceptionable in themselves.\"\n\nBut the rule that an Act of a competent legislature may be \"struck down\" by the Courts on the ground of vagueness is alien to our Constitutional system.\n\nThe Legislature of the State of Punjab was competent to enact legislation in respect of \"fairs\" vide entry 28 of List II of the Seventh Schedule to the Constitution.\n\nA law may be declared invalid by the superior Courts in India if the Legislature has no power to enact the law or that the law violates any of the fundamental rights guaranteed in Part Ill of the Constitution or is inconsistent with any constitutional provision, but not on the ground that it is vague.\n\nIt is true that in Claude C. Connally v. General Construction Company(') it was held by the Supreme Court of the United States of America that :\n\n\"A statute which either forbids or requires the doing of an act in terms so vague that men oi common inteHigence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.\"\n\nBut the rule enunciated by the American Courts has no application under our Constitutional set up.\n\nThe rule is regarded as an essential of the \"due process clauses\" incorporated in the American Constitution by the 5th & the 14th Amendments. The Courts in India have no authority to declare a statute invalid on the ground that it violates the \"due process of law\". Under our Constitution, the test of due process of law cannot be applied to statutes enacted by the Parliament or the State legislatures. This Court has definitely ruled that the doctrine of \"due process or law\" has no place in our Constitutional system: A. K. Gopailitl\n\nv. The State of Madras('). Kania, C.J., observed (at p. 120J.\n\n\"There is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words. . . . . it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramoupt law settled by the deliberate wisdom of the nation that one\n\n(!) 70 L. Etln. 322.\n\n(2) [1950] S.C.R. 88.\n\ncan find a safe and solid ground for the authority of A Courts of Justice to declare void any legislative enactment.\" The order made by the High Court in Mohinder Singh Sawhney's case(') striking down the Act was passed on the assumption that the validity of the Act was liable to be adjudged by the test of \"due process of law''.\n\nThe Court was plainly in error in so B assuming. We are also unable to hold that the previous decision\n\nop:rtes as res judicata even in favour of the petitioners in whose peht1ons an order was made by the High Court in the first group of p:titions. The c:ffect of that decision was only that the Act was m law, non-existent, so long as there was no definition of the expression \"cattle fair\" in the Act.\n\nThat defect has been c\n\n1 remedied by the Punjab Act 18 of 1968.\n\nWe may hasten to observe, that we are unable to agree that the Act as originally enacted was unenforceable even on the ground of vagueness. It is true that the expression \"cattle fair\" was noi defined in the Act.\n\nThe Legislature, when it did not furnish the definition of the expression \"cattle fair\" must be deem- D ed to have used the expression in its ordinary signification, as meaning, a periodical concourse of buyers and sellers in a place generally for sale and purchase of cattle at times or on occasions ordained by custom.\n\nWe agree with the High Court that by enacting the Act the State was not attempting to prevent all transactions for sale and purchase of cattle. The State took upon itself by the Act a monopoly of conducting fairs, but it did not thereby seek to monopolise all transactions of sale and purchase in cattle. This is now made clear by the definition of \"cattle fair\" ins. 2(bb).\n\nA law which vests in the State a monopoly to carry on a certain trade or business to the extent that it has direct relation to the creation of the monopoly, is not open to challenge on the ground of violation of the freedom guaranteed by Art. 19 (1) (g). As pointed out by this Court in Akadasi Padhan v. State .of Orissa( 2 ) (at p. 707) :\n\n\" 'A law relating to' a State monopoly cannot, in the context [of Art. 19(l)(g)] include all the provisions contained in the said Jaw whether they have direct relation with the creation of the monopoly or not. expression should be construed to mean the law relating to the monopoly in its absolutely essential features. If a law is passed creating a State monopoly, the Court should enquire what are the provisions of the said law which are basically and essentially necessary for creating the\n\n(I) A.l.R. (1968] Punjab 391\n\n(2) [l 963] Supp. 2 S.C.R. 691.\n\nMUNIC. COMMITTEE v. PUNJAB (Shah,/.) 455\n\nState monopoly.\n\nIt is only those esoential and basic provisions which are protected by the latter part of Art. 19 ( 6). If there are other provisions made by the Act which are subsidiary, incidental or helpful to the operation of the monopoly, they do not fall under the said part and their validity must be judged under the first part of Art. 19 ( 6) . In other words, the effect of the amendment made in Art. 19 ( 6) is to protect the law relating to the creation of monopoly and that means that it is only the provisions of the law which are integrally and essentially connected with the creation of the monopoly that are protected.\n\nThe rest of the provisions which may be incidental do not fall under the lattet part of Art. 19(6) and would inevitably have to satisfy the test of the first part of Art. 19(6).\" The provisions of the Act which seek to monopolise for the State the right to carry on cattle fairs are protected against the challenge that they put an unreasonable restriction upon persons carrying on the occupation of holding cattle fairs.\n\nWhat is implicit in the grant of a monopoly to the State is expressly enacted in s. 3 (2) that no other person or authority may conduct a cattle fair at any place in the State of Punjab.\n\nBut the restriction operates only in respect of cattle fairs and not other trades or occupations relating to dealings in cattle.\n\nThe Act is restricted in its scope: the prohibition imposed upon all persons and authorities restraining them from holding, controlling managing and regulating cattle fairs at any place in the State of Punjab extend only to cattle fairs strictlv so-called, and not to cattle markets.\n\nThe monopoly declared by the Act does not invest the State with the monopoly to conduct cattle markets, i.e. places where the business of sale or purchase is regularly conC:ucted by private parties and not as a fair.\n\nAny attempt made by the Officers of the State claiming to exercise authority under the Act to prohibit cattle markets is without authority of law.\n\nThe Act also does not invest the State with authority to declare private property of an individual or of a local authority, a fair area.\n\nSection 4 (2) enables the Fair Officer to define a fair area, to reserve sites or places for certain facilities, to make temporary allotment for commercial and other purposes and to arrange for watch and ward and for construction of temporary\n\noffics. The Cattle Fair Officer is not thereby authorised to hold fairs on lands not belonging to the State.\n\nIn defining a \"fair area\" and in making reservation, allotment, construction and arrangements of the nature mentioned in els.\n\n(i) to (v) of sub-s.\n\n(2) of s. 4 the Cattle Fair Officer cannot trespass upon private property. It is implicit in the provisions of the Act that the State will hold cattle fairs on its own lands and not on private lands.\n\nThe words used in s. 4 are wide and may be capable of the interpretation that the right to hold, control, manage and regulate a cattle fair at any place in the State of Punjab under s. 3 ( 1) authorises the State to hold, control, manage and regulate fairs ir. all places including private lands. But it would be reasonable to interpret the Act, so as not to authorise violation of the fundamental rights guaranteed by Arts. 19 and 31 of the Constitution. It is implicit in the provisions of ss. 3 & 4 of the Act that the monopoly acquired by the State to hold and manage cattle fairs may be held on property belonging to the State and does not extend to the property of local authorities or private owners.\n\nThe contention that the provisions of the Act, and especially the definition of \"cattle fair\" in s. 2(bb), impose unreasonable restrictions upon the fundamental rights guaranteed under Art. 19(1) (b) & (d) has, in our judgment, no substance. The definition of cattle fair in s. (bb) does not infringe the right of citizens under Art. 19(1) (b) to assemble peaceably and witho.ut arms, and the right under Ar.t. 19 (!) ( d) to move freely throughout the territory of India. By the definition clause concourse of twentyfive persons is not prohibited: the Act does not place restrictions upon the freedom 0f assembly or of free movement either under\n\ncl. (b) or cl. ( d) of Art. 19 (1 ) . The Act only prohibits an individual or local authority from arranging a gathering of more than twenty-five persons for the purpose specified in the definition of \"cattle fair\".\n\nThe restriction for the purpose of making the monopoly effective must be regarded as reasonable within the meaning of els. (3) & (5) of Art. 19.\n\nBy imposing restrictions upon the right to hold a fair, the citizens are not deprived of their property, and the freedom guaranteed by Art. 19 ( 1 )( f) is not infringed. The primary object of the Act is to give a monopoly to the State to hold cattle fairs.\n\nAs a necessary concomitant of that monopoly, holding of cattle fairs by local authorities and individuals is prohibited. The prohibition flows directly from the assumption of monopoly by the State and falls within the terms of Art. 19(6) of the Constitution. It is a provision of the law creating monopoly \"basically\n\nand essentially necessary\" for creating . the State monopoly to prevent other persons from conducting the same business.\n\nOur attention was invited to the decision of this Court in State of Bihar v. Rameshwar Pratap Narain Singh and Others(') and to a decision of the Madras High Court in Mandivil Vania Pudukudi Ramunni Kurup and Others v. PaT?Chayat Board, Badagara and Others(') in support of the plea that a right to hold a fair is property.\n\nBut .those cases have no bearing on the question arising in these petitions.\n\nA law which creates a monopoly to\n\n(1) [1962] 2 S.C.R. 382.\n\n(2) A.LR. [1954] Mad, 754.\n\n\\, G\n\nA carry on a business in the State and thereby deprives the citizens of the right to carry on that business by virtue of Art. 19(6) is not open to challenge on the ground that it infringes the Fundamental right guaranteed by Art. 19 (1 )(g) : The law will not also be exposed to attack on the ground that the right to carry on business is property, for the validity of restrictions on the right B to carry on occupation, trade or business, or to practise any profession must be adjudged only in the light of Art. 19(6). In any event the presumption of reasonableness of a statute creating a monopoly in the State may come to aid not only in respect of the claim to enforce the right under Art. 19 (1 ) ( g) but unuer Art. 19( I )(f) as well.\n\nC Section 15 which authorises the State to call upon a Panchayat Samiti or a Municipal Committee, within whose juiisdiction the fair is to be held to deposit in the Cattle Fair Fund the prescribed amount, not exceeding one thousand rupees to cover the initial expenses of the fair and compelling the local authority to abide by the directions, is invalid.\n\nIt is clearly a provision for D deprivation of property. Reasonableness of such a provision was not set up either in the affidavit or in the arguments before us. It is true that under s. 17 ( d) out of the Cattle Fair Fund the amount which has been recovered from a local authority may be reimbursed, but the provision authorising the State to call upon a local authority to pay a sum of money towards the Cattle Fair Fund is, in our judgment, unreasonable and must be declared in- E _ valid. The learned Attorney-General appearing on behalf of the\n\nState of Punjab did not seek to support the provision.\n\nTo sum up, the power which the State Government may exercise. to declare a fair area and to make provision for reservation of sites, allotment of sites temporarily for commercial or other purposes, and to arrange for watch and ward and to construct temporary offices may be exercised only on lands belonging to the State. No such power may be exercised in respect of lands owned by local authorities or individuals. The monopoly which is acquired by the State by s. 3 is a monopoly to hold, control, manage and regulate a fair and not a cattle market business. An attempt to prevent persons from conducting the business of cattle markets and from holding, controlling, managing and regulating cattle markets is unauthorised, for by s. 3 private individuals, local authorities and associations incorporated or not are prohibited only from holding cattle fairs and not cattle markets.\n\nIn the light of these principles we proceed to examine the H .claims1made in the five petitions.\n\nThe Fair Officers have not made any declaration of fair areas which include the lands of the petitioners in Writ Petitions Nos.\n\n362, 443 & 444 of 1968. In respect of the lands of the petitioners in Writ Petitions Nos. 295 and 365 of 1968 a notification defining a fair area has been made.\n\nWrit Petition No. 295 of 1968 This petition is filed by the Municipal Committee, Amritsar.\n\nBy letter dated August 26, 1968, the Deputy Commissioner, Amritsar, informed the Municipal Committee that a cattle fair was intended to be held as scheduled on the \"Cattle Fair Ground (Mal Mandi)\", under the management of the District Fair Officer, and the Municipal Committee was required to arrange to supply water and electricity, to make suitable sanitary arrange ments, to deposit the income from Baisakhi Cattle Fair in Government Treasury in Cattle Fair Fund and to deliver the record in that behalf to the Fair Officer.\n\nThe Sectjon Officer, District Amritsar, also served an order, purported to be made under s. 4(2)(i) read with s. 2(d) of the Punjab Cattle Fairs (Regulation) ct, 1967, specifying the fair area, for the purpose of controlling, managing, regulating and holding the Cattle Fair from October 16, 1968 to October 27, 1968, at Ram Ttilui Ki Mandi described as \"2 Kilometres from the main building situated in Cattle Fair Ground at Ramtabi (Mal Mandi) Amritsar\".\n\nA Municipal Committee is not, according to the decisions of this Court, a \"citizen\" within the meaning of Art. 19. The Municipal Committee is, therefore. not entitled to claim protection of any of the fundamental rights under Art. 19. But the State is incompetent to declare land belonging to the Municipal Committee as falling within the fair area, and to take possession of that land in exercise of the power conferred by the Act, without providing for payment of compensation guaranteed by Art. 31(2).\n\nThe Municipal Committee is by order of the Fair Officer deprived of its property for the duration of the fair.\n\nThe Act does not authorise the holding of cattle fairs on the land of local authorities, individuals or .associations. A direction to make Municipal property available for holding a cattle fair by the State is a threat to requisition municipal property without authority of law and without payment of compensation, and must be deemed unauthorised.\n\nSection 23 of the Act which gives the provisions of the Act a paramount operation, notwithstanding anything inconsistent therewith contained in any other Jaw for the time being in force wiH not supersede a constitutional guarantee.\n\nIt was argued on behalf of the State that by the order only directions to control, manage and regulate the fair held on behalf of the Municipal Committee were intended to be given. But that is not the effect of the order passed by the Deputy Commissioner.\n\nThe Deputy Commissioner informed the Municipal Committee that possession of its land should be handed over so that the State\n\nmay be able to hold the fair under the provisions of the Punjab Cattle Fairs (Regulation) Act, 1967. Section 3(1) is intended only to provide for a monopoly in the State to hold cattle fairs and to control, manage and regulate such fairs.\n\nThe demand made by the Fair Officer asking the Municipal Committee to sup ply water, electricity and to make sanitary arrangements and make the staff, articles and offices of the Municipal Committee avail.able to the Fair Officer is not warranted by any provision of the Act.\n\nThe notification issued by the Fair Officer defining the fair area inclusive of the land of Mal Mandi is, therefore, unauthorised.\n\nThe demand made by the Fair Officer for assistance of the \"staff,\n\narticles and offices of the Municipality\" for holding the fair and the demand for supply of water and electricity and making suitable sanitary arrangements is also uncalled for and unauthorised.\n\nThe directions must, therefore, be declared invalid.\n\nWrit Petition No. 362 of 1968\n\nThe petitioner is Sardara Singh. He claims that he is in lawful possession of a piece of land situated in village Hussainpur, Tahsil and District Rupar (Punjab), and that for the last ten years he holds a cattle market on that piece of land from the first to the fourth of every month. He also asserted that he has been holding cattle markets on the lands in his lawful possession at Kurali, Anandpur Saheb, Marunda (District Rupar) within the State of Punjab.\n\nAccording to the petitioner, for the purpose of holding cattk markets on the lands in his occupation at Hussain pur, the petitioner had constructed a well for providing water to the cattle, with sheds, and mangers. He further claimed that he provides chaff cutters, tents, charpais and all other amenities which are essential for the cattle and the merchants.\n\nIt appears from the averments made by the petitioner that he is holdin~ cattle fairs.\n\nNo declaration was made defining any fair area which included the lands of the petitioner. The State, for reasons already set out, is not entitled to hold a cattle fair on the land in the occupation of the petitioner without providing for compensation as guaranteed under Art. 31 (2). But on that account the petitioner is not entitled to hold a cattle fair even on his own lands.\n\nWrit Petition No. 365 of 1968\n\nThe petitioner is Jagtar Singh.\n\nHe claims that he has obtained for the period April 1, 1968 to March 31, 1969, from the Municipal Committee, Amritsar, a piece of land on lease called the Ahata near the \"Butcher Khana\" known as \"Adda Bakar Mandi\". The land is used for an enclosure for sheep and goats brought for sale.\n\nThe petitioner states that he has constructed near the Butcher-Khana ten kothas around a vacant piece of land for enclosure of goats and sheep brought by prospective seJ.Jers and\n\n. has also constructed some rooms where he provides board and lodging to the merchants who come to Adda Bakar Mandi in connection with their business. He has set out in his petition the manner in which the business is carried on and the charges made . by him. It may be sufficient to mention that the petitioner claims that he conducts a cattle market and not a cattle fair.\n\nThe Fair Officer issued a declaration under s. 4(2) (i) read withs. 2(d) of the Punjab Cattle Fairs (Regulation) Act, 1967, specifying \"2 Kilometres from the main building situated in the Cattle Fair Ground at Bakar Mandi outside Lahori Gate\" as a fair area for the purpose of controlling, managing, regulating and holding the Cattle Fair, Amritsar, at Bakar Mandi outside Lahori Gate.\n\nThe Fair Officer also address.ed a letter to the petitioner dated October 25, 1968, informing him that the Punjab Government had exclusively undertaken the work of holding, managing, controlling and supervising the Cattle Fairs under s. 3 of the Punjab Cattle Fairs (Regulation) Act, 1967, and that the petitioner who was carrying on the business of holding a cattle fair should stop running the Bakar Mandi. The Fair Officer informed the petitioner that the ground of the Bakar Mandi had already been specified as fair area by him and on. that account the petitioner was prohibited to work as commission agent, unless he got a broker's licence under the Act.\n\nThe land in respect of which the declaration has been made as fair area is the land of the Municipal Committee, of which under a licence or a lease the petitioner is in possession.\n\nFor reasons which we have already set out, the Government of Punjab is not competent to declare the land of the Bakar Mandi a fair area. The notification declaring the Bakar Mandi as fair area is, therefore, invalid.\n\nBy s. 3 of the Act the cattle fairs can be held in the State of Punjab only by the State and by no other person.\n\nBut prima fade the business , carried on by the petitioner is in the nature of a market for sale of sheep and goats brought by intending sellers for slaughter. Such a place cannot be called a fair.\n\nIt was urged on behalf of the State that since the petitioner was cqllecting brokerage and carrying on the business of a broker, he was bound to take out a licence under s. 9 of the Act. But a person carrying on his business within the fair area lawfully declared is required to obtain a licence, but not in respect of his business in a cattle market.\n\nThe petition filed by Jagtar Singh must, therefore, be allowed and the ord.er declaring the petitioner's land as fair area and the intimation calling upon him to stop his business of cattle market '.is unauthorised.\n\nWrit Petition Nos. 443 & 444 of 1968\n\nThe petitioners in these petitions are Narain Singh and another. They claim that they are in \"legal possession\" of different pieces of land taken on lease within the State of Punjab at Khanna, Doraha (District Ludhiana), Sunarn (District Sangrur) and also 1 in other Districts where they have been holding cattle markets for the last many years. They claimed that they provide the prospective sellers and purchasers facilities like cots for resting, drinking water, sheds, mangers, chaff-cutters, tents, light, chowkidars, dry fodder and all other essential amenities. They further claimed that the intending vendors come to their lands with cattle and sell the cattle, bargains being struck through brokers in the rnarket C arranged by the petitioners on those pieces of land.\n\n. It is not clear from the aveiments made in the petitions whether the so-called market is of the nature of a fair. The petitioners are prohibited from holding or conducting a cattle fair, since the enactment of Punjab Act 6 of 1968. The lands belonging to the petitioners have not been included in a cattle fair area under the notification issued by the Fair Officer.\n\nWithout deciding the question whether the business carried on by the petitioners is in the nature of a fair or a market, we declare that the petitioners are not entitled to carry on the business of a cattle fair and the relief claimed by !hem in Paragraph-21 (b) cannot be granted.\n\nWe deem it necessary to add that the petitioners are not prohibited from carrying on the business of cattle market on their own lands.\n\nThere will be no order as to costs in these pc.titians.\n\nV.P.S.\n\n8 Sup Cl/69-11", "total_entities": 153, "entities": [{"text": "MUNICIPAL COMMITTEE, AMRITSAR & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "MUNICIPAL COMMITTEE, AMRITSAR & ANR", "offset_not_found": false}}, {"text": "STATE OF PUNJAB & ORS", "label": "RESPONDENT", "start_char": 38, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "STATE OF PUNJAB & ORS", "offset_not_found": false}}, {"text": "January 30, 1969", "label": "DATE", "start_char": 62, "end_char": 78, "source": "ner", "metadata": {"in_sentence": "January 30, 1969\n\n[J. 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Mehta, for tlle A petitioners (in W.P. Nos.", "canonical_name": "K. L.\n\nMehta"}}, {"text": "Niren De", "label": "RESPONDENT", "start_char": 9951, "end_char": 9959, "source": "ner", "metadata": {"in_sentence": "Niren De, Attorney-General, V. C. Mahajan and R. N. Sachthey, tor the respondents (in W.P. Nos."}}, {"text": "V. C. Mahajan", "label": "LAWYER", "start_char": 9979, "end_char": 9992, "source": "ner", "metadata": {"in_sentence": "Niren De, Attorney-General, V. C. Mahajan and R. N. Sachthey, tor the respondents (in W.P. Nos.", "canonical_name": "V. C. Mahajan"}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 9997, "end_char": 10011, "source": "ner", "metadata": {"in_sentence": "Niren De, Attorney-General, V. C. Mahajan and R. N. Sachthey, tor the respondents (in W.P. Nos.", "canonical_name": "R. N. Sachthey"}}, {"text": "V. C. Mahajan", "label": "LAWYER", "start_char": 10070, "end_char": 10083, "source": "ner", "metadata": {"in_sentence": "V. C. Mahajan and R. N. 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Sachthey"}}, {"text": "Shah", "label": "JUDGE", "start_char": 10269, "end_char": 10273, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J.\n\nCattle fairs are held for the last many decades in different parts of the territory of the State of Punjab, by local authorities and individual owners of land."}}, {"text": "Punjab", "label": "GPE", "start_char": 10707, "end_char": 10713, "source": "ner", "metadata": {"in_sentence": "The Governor of Punjab with a view to control and regulate cattle fairs promulgated Ordinance No."}}, {"text": "November 4, 1967", "label": "DATE", "start_char": 10803, "end_char": 10819, "source": "ner", "metadata": {"in_sentence": "14 of 1967 on November 4, 1967, declaring a monopoly in the State of Punjab to hold cattle fairs and prohibiting all local authorities and individuals from holding cattle fairs \"at any place in the State\"."}}, {"text": "s. 2(b)", "label": "PROVISION", "start_char": 11757, "end_char": 11764, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 11943, "end_char": 11950, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 13364, "end_char": 13368, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 13721, "end_char": 13725, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 13730, "end_char": 13734, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 9", "label": "PROVISION", "start_char": 13885, "end_char": 13894, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15", "label": "PROVISION", "start_char": 13933, "end_char": 13938, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16", "label": "PROVISION", "start_char": 14289, "end_char": 14299, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 18", "label": "PROVISION", "start_char": 14640, "end_char": 14645, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 14724, "end_char": 14728, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 14752, "end_char": 14757, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22", "label": "PROVISION", "start_char": 14862, "end_char": 14867, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Punjab", "label": "COURT", "start_char": 15172, "end_char": 15192, "source": "ner", "metadata": {"in_sentence": "Validity of the Punjab Cattle Fairs (Regulation) Act, 1967 was challenged in a group of petitions moved before the High Court of Punjab by persons interested in holding cattle fairs:\n\nMohinder Singh Sawhney v.\n\nState of Punjab and Others(')."}}, {"text": "s. 2(bb)", "label": "PROVISION", "start_char": 16126, "end_char": 16134, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 19", "label": "PROVISION", "start_char": 17092, "end_char": 17100, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 17572, "end_char": 17589, "source": "ner", "metadata": {"in_sentence": "We are unable to accept the argument that since the High Court of Punjab by their judgment in Mohinder Singh Sawhney's case(') struck down the Act, Act 6 of 1968 had ceased to have any existence in law, and that, in any event, assuming that the judgment of the Punjab High Court in Mohinder Singh Sawhne.v's case(') did not make the Act non-existent, as between the parties in whose favour the order was passed in the earlier writ petitions, the order operated as res i.udicata, and on that account the Act could not be enforced without re-enactment."}}, {"text": "Mohinder Singh Sawhne.v's", "label": "OTHER_PERSON", "start_char": 17593, "end_char": 17618, "source": "ner", "metadata": {"in_sentence": "We are unable to accept the argument that since the High Court of Punjab by their judgment in Mohinder Singh Sawhney's case(') struck down the Act, Act 6 of 1968 had ceased to have any existence in law, and that, in any event, assuming that the judgment of the Punjab High Court in Mohinder Singh Sawhne.v's case(') did not make the Act non-existent, as between the parties in whose favour the order was passed in the earlier writ petitions, the order operated as res i.udicata, and on that account the Act could not be enforced without re-enactment.", "canonical_name": "Mohinder Singh Sawhne.v's"}}, {"text": "MUNIC. COMMITTEE V. PUNJAB (Shah, /,) 453", "label": "PETITIONER", "start_char": 18001, "end_char": 18042, "source": "ner", "metadata": {"in_sentence": "MUNIC."}}, {"text": "Legislature of the State of Punjab", "label": "ORG", "start_char": 18549, "end_char": 18583, "source": "ner", "metadata": {"in_sentence": "The Legislature of the State of Punjab was competent to enact legislation in respect of \"fairs\" vide entry 28 of List II of the Seventh Schedule to the Constitution."}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 18673, "end_char": 18689, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court of the United States of America", "label": "COURT", "start_char": 19108, "end_char": 19153, "source": "ner", "metadata": {"in_sentence": "It is true that in Claude C. Connally v. General Construction Company(') it was held by the Supreme Court of the United States of America that :\n\n\"A statute which either forbids or requires the doing of an act in terms so vague that men oi common inteHigence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.\""}}, {"text": "Parliament", "label": "ORG", "start_char": 19866, "end_char": 19876, "source": "ner", "metadata": {"in_sentence": "Under our Constitution, the test of due process of law cannot be applied to statutes enacted by the Parliament or the State legislatures."}}, {"text": "Kania", "label": "JUDGE", "start_char": 20065, "end_char": 20070, "source": "ner", "metadata": {"in_sentence": "Kania, C.J., observed (at p. 120J.\n\n\"There is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words. . . . ."}}, {"text": "is considerable authority for the statement that the Courts are not at liberty to declare an Act", "label": "STATUTE", "start_char": 20108, "end_char": 20204, "source": "regex", "metadata": {}}, {"text": "agree with the High Court that by enacting the Act", "label": "STATUTE", "start_char": 21935, "end_char": 21985, "source": "regex", "metadata": {}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 22546, "end_char": 22553, "source": "regex", "metadata": {"linked_statute_text": "We agree with the High Court that by enacting the Act", "statute": "We agree with the High Court that by enacting the Act"}}, {"text": "Art. 19(l)(g)", "label": "PROVISION", "start_char": 22716, "end_char": 22729, "source": "regex", "metadata": {"linked_statute_text": "We agree with the High Court that by enacting the Act", "statute": "We agree with the High Court that by enacting the Act"}}, {"text": "State monopoly", "label": "RESPONDENT", "start_char": 23250, "end_char": 23264, "source": "ner", "metadata": {"in_sentence": "COMMITTEE v. PUNJAB (Shah,/.) 455\n\nState monopoly."}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 23357, "end_char": 23364, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 23590, "end_char": 23597, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 23657, "end_char": 23664, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19(6)", "label": "PROVISION", "start_char": 23976, "end_char": 23986, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19(6)", "label": "PROVISION", "start_char": 24054, "end_char": 24064, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 24392, "end_char": 24396, "source": "regex", "metadata": {"statute": null}}, {"text": "Any attempt made by the Officers of the State claiming to exercise authority under the Act", "label": "STATUTE", "start_char": 25132, "end_char": 25222, "source": "regex", "metadata": {}}, {"text": "Section 4", "label": "PROVISION", "start_char": 25418, "end_char": 25427, "source": "regex", "metadata": {"linked_statute_text": "Any attempt made by the Officers of the State claiming to exercise authority under the Act", "statute": "Any attempt made by the Officers of the State claiming to exercise authority under the Act"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 25928, "end_char": 25932, "source": "regex", "metadata": {"linked_statute_text": "Any attempt made by the Officers of the State claiming to exercise authority under the Act", "statute": "Any attempt made by the Officers of the State claiming to exercise authority under the Act"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 26140, "end_char": 26144, "source": "regex", "metadata": {"linked_statute_text": "Any attempt made by the Officers of the State claiming to exercise authority under the Act", "statute": "Any attempt made by the Officers of the State claiming to exercise authority under the Act"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 26304, "end_char": 26308, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 19 and 31", "label": "PROVISION", "start_char": 26541, "end_char": 26556, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "ss. 3 & 4", "label": "PROVISION", "start_char": 26614, "end_char": 26623, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(bb)", "label": "PROVISION", "start_char": 26928, "end_char": 26936, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 27016, "end_char": 27026, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 27160, "end_char": 27170, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 27502, "end_char": 27509, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 27832, "end_char": 27839, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 27977, "end_char": 27984, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19(6)", "label": "PROVISION", "start_char": 28328, "end_char": 28338, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Madras High Court", "label": "COURT", "start_char": 28687, "end_char": 28704, "source": "ner", "metadata": {"in_sentence": "Our attention was invited to the decision of this Court in State of Bihar v. Rameshwar Pratap Narain Singh and Others(') and to a decision of the Madras High Court in Mandivil Vania Pudukudi Ramunni Kurup and Others v. PaT?Chayat Board, Badagara and Others(') in support of the plea that a right to hold a fair is property."}}, {"text": "[1962] 2 S.C.R. 382", "label": "CASE_CITATION", "start_char": 28983, "end_char": 29002, "source": "regex", "metadata": {}}, {"text": "Art. 19(6)", "label": "PROVISION", "start_char": 29160, "end_char": 29170, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 29264, "end_char": 29271, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19(6)", "label": "PROVISION", "start_char": 29547, "end_char": 29557, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 29728, "end_char": 29735, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19( I )(f)", "label": "PROVISION", "start_char": 29756, "end_char": 29771, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 15", "label": "PROVISION", "start_char": 29784, "end_char": 29794, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 30323, "end_char": 30328, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Punjab", "label": "GPE", "start_char": 30689, "end_char": 30704, "source": "ner", "metadata": {"in_sentence": "The learned Attorney-General appearing on behalf of the\n\nState of Punjab did not seek to support the provision."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 31208, "end_char": 31212, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 31477, "end_char": 31481, "source": "regex", "metadata": {"statute": null}}, {"text": "Municipal Committee, Amritsar", "label": "ORG", "start_char": 32078, "end_char": 32107, "source": "ner", "metadata": {"in_sentence": "295 of 1968 This petition is filed by the Municipal Committee, Amritsar."}}, {"text": "August 26, 1968", "label": "DATE", "start_char": 32126, "end_char": 32141, "source": "ner", "metadata": {"in_sentence": "By letter dated August 26, 1968, the Deputy Commissioner, Amritsar, informed the Municipal Committee that a cattle fair was intended to be held as scheduled on the \"Cattle Fair Ground (Mal Mandi)\", under the management of the District Fair Officer, and the Municipal Committee was required to arrange to supply water and electricity, to make suitable sanitary arrange ments, to deposit the income from Baisakhi Cattle Fair in Government Treasury in Cattle Fair Fund and to deliver the record in that behalf to the Fair Officer."}}, {"text": "Amritsar", "label": "GPE", "start_char": 32168, "end_char": 32176, "source": "ner", "metadata": {"in_sentence": "By letter dated August 26, 1968, the Deputy Commissioner, Amritsar, informed the Municipal Committee that a cattle fair was intended to be held as scheduled on the \"Cattle Fair Ground (Mal Mandi)\", under the management of the District Fair Officer, and the Municipal Committee was required to arrange to supply water and electricity, to make suitable sanitary arrange ments, to deposit the income from Baisakhi Cattle Fair in Government Treasury in Cattle Fair Fund and to deliver the record in that behalf to the Fair Officer."}}, {"text": "s. 4(2)(i)", "label": "PROVISION", "start_char": 32728, "end_char": 32738, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(d)", "label": "PROVISION", "start_char": 32749, "end_char": 32756, "source": "regex", "metadata": {"statute": null}}, {"text": "October 16, 1968", "label": "DATE", "start_char": 32919, "end_char": 32935, "source": "ner", "metadata": {"in_sentence": "The Sectjon Officer, District Amritsar, also served an order, purported to be made under s. 4(2)(i) read with s. 2(d) of the Punjab Cattle Fairs (Regulation) ct, 1967, specifying the fair area, for the purpose of controlling, managing, regulating and holding the Cattle Fair from October 16, 1968 to October 27, 1968, at Ram Ttilui Ki Mandi described as \"2 Kilometres from the main building situated in Cattle Fair Ground at Ramtabi (Mal Mandi) Amritsar\"."}}, {"text": "October 27, 1968", "label": "DATE", "start_char": 32939, "end_char": 32955, "source": "ner", "metadata": {"in_sentence": "The Sectjon Officer, District Amritsar, also served an order, purported to be made under s. 4(2)(i) read with s. 2(d) of the Punjab Cattle Fairs (Regulation) ct, 1967, specifying the fair area, for the purpose of controlling, managing, regulating and holding the Cattle Fair from October 16, 1968 to October 27, 1968, at Ram Ttilui Ki Mandi described as \"2 Kilometres from the main building situated in Cattle Fair Ground at Ramtabi (Mal Mandi) Amritsar\"."}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 33202, "end_char": 33209, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 33322, "end_char": 33329, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 33589, "end_char": 33599, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 23", "label": "PROVISION", "start_char": 34063, "end_char": 34073, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3(1)", "label": "PROVISION", "start_char": 34780, "end_char": 34792, "source": "regex", "metadata": {"statute": null}}, {"text": "Sardara Singh", "label": "PETITIONER", "start_char": 35694, "end_char": 35707, "source": "ner", "metadata": {"in_sentence": "362 of 1968\n\nThe petitioner is Sardara Singh."}}, {"text": "Hussainpur", "label": "GPE", "start_char": 35790, "end_char": 35800, "source": "ner", "metadata": {"in_sentence": "He claims that he is in lawful possession of a piece of land situated in village Hussainpur, Tahsil and District Rupar (Punjab), and that for the last ten years he holds a cattle market on that piece of land from the first to the fourth of every month."}}, {"text": "Rupar", "label": "GPE", "start_char": 35822, "end_char": 35827, "source": "ner", "metadata": {"in_sentence": "He claims that he is in lawful possession of a piece of land situated in village Hussainpur, Tahsil and District Rupar (Punjab), and that for the last ten years he holds a cattle market on that piece of land from the first to the fourth of every month."}}, {"text": "Kurali", "label": "GPE", "start_char": 36060, "end_char": 36066, "source": "ner", "metadata": {"in_sentence": "He also asserted that he has been holding cattle markets on the lands in his lawful possession at Kurali, Anandpur Saheb, Marunda (District Rupar) within the State of Punjab."}}, {"text": "Anandpur Saheb", "label": "GPE", "start_char": 36068, "end_char": 36082, "source": "ner", "metadata": {"in_sentence": "He also asserted that he has been holding cattle markets on the lands in his lawful possession at Kurali, Anandpur Saheb, Marunda (District Rupar) within the State of Punjab."}}, {"text": "Marunda", "label": "GPE", "start_char": 36084, "end_char": 36091, "source": "ner", "metadata": {"in_sentence": "He also asserted that he has been holding cattle markets on the lands in his lawful possession at Kurali, Anandpur Saheb, Marunda (District Rupar) within the State of Punjab."}}, {"text": "Hussain pur", "label": "GPE", "start_char": 36242, "end_char": 36253, "source": "ner", "metadata": {"in_sentence": "According to the petitioner, for the purpose of holding cattk markets on the lands in his occupation at Hussain pur, the petitioner had constructed a well for providing water to the cattle, with sheds, and mangers."}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 36858, "end_char": 36865, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Jagtar Singh", "label": "PETITIONER", "start_char": 37017, "end_char": 37029, "source": "ner", "metadata": {"in_sentence": "365 of 1968\n\nThe petitioner is Jagtar Singh."}}, {"text": "March 31, 1969", "label": "DATE", "start_char": 37095, "end_char": 37109, "source": "ner", "metadata": {"in_sentence": "He claims that he has obtained for the period April 1, 1968 to March 31, 1969, from the Municipal Committee, Amritsar, a piece of land on lease called the Ahata near the \"Butcher Khana\" known as \"Adda Bakar Mandi\"."}}, {"text": "s. 4(2)", "label": "PROVISION", "start_char": 37920, "end_char": 37927, "source": "regex", "metadata": {"statute": null}}, {"text": "Punjab Government", "label": "ORG", "start_char": 38370, "end_char": 38387, "source": "ner", "metadata": {"in_sentence": "The Fair Officer also address.ed a letter to the petitioner dated October 25, 1968, informing him that the Punjab Government had exclusively undertaken the work of holding, managing, controlling and supervising the Cattle Fairs under s. 3 of the Punjab Cattle Fairs (Regulation) Act, 1967, and that the petitioner who was carrying on the business of holding a cattle fair should stop running the Bakar Mandi."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 38497, "end_char": 38501, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of Punjab", "label": "ORG", "start_char": 39153, "end_char": 39173, "source": "ner", "metadata": {"in_sentence": "For reasons which we have already set out, the Government of Punjab is not competent to declare the land of the Bakar Mandi a fair area."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 39327, "end_char": 39331, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 39807, "end_char": 39811, "source": "regex", "metadata": {"statute": null}}, {"text": "Narain Singh", "label": "PETITIONER", "start_char": 40284, "end_char": 40296, "source": "ner", "metadata": {"in_sentence": "443 & 444 of 1968\n\nThe petitioners in these petitions are Narain Singh and another."}}, {"text": "Khanna", "label": "GPE", "start_char": 40430, "end_char": 40436, "source": "ner", "metadata": {"in_sentence": "They claim that they are in \"legal possession\" of different pieces of land taken on lease within the State of Punjab at Khanna, Doraha (District Ludhiana), Sunarn (District Sangrur) and also 1 in other Districts where they have been holding cattle markets for the last many years."}}, {"text": "Doraha", "label": "GPE", "start_char": 40438, "end_char": 40444, "source": "ner", "metadata": {"in_sentence": "They claim that they are in \"legal possession\" of different pieces of land taken on lease within the State of Punjab at Khanna, Doraha (District Ludhiana), Sunarn (District Sangrur) and also 1 in other Districts where they have been holding cattle markets for the last many years."}}, {"text": "Ludhiana", "label": "GPE", "start_char": 40455, "end_char": 40463, "source": "ner", "metadata": {"in_sentence": "They claim that they are in \"legal possession\" of different pieces of land taken on lease within the State of Punjab at Khanna, Doraha (District Ludhiana), Sunarn (District Sangrur) and also 1 in other Districts where they have been holding cattle markets for the last many years."}}, {"text": "Sunarn", "label": "GPE", "start_char": 40466, "end_char": 40472, "source": "ner", "metadata": {"in_sentence": "They claim that they are in \"legal possession\" of different pieces of land taken on lease within the State of Punjab at Khanna, Doraha (District Ludhiana), Sunarn (District Sangrur) and also 1 in other Districts where they have been holding cattle markets for the last many years."}}, {"text": "Sangrur", "label": "GPE", "start_char": 40483, "end_char": 40490, "source": "ner", "metadata": {"in_sentence": "They claim that they are in \"legal possession\" of different pieces of land taken on lease within the State of Punjab at Khanna, Doraha (District Ludhiana), Sunarn (District Sangrur) and also 1 in other Districts where they have been holding cattle markets for the last many years."}}, {"text": "hem", "label": "OTHER_PERSON", "start_char": 41633, "end_char": 41636, "source": "ner", "metadata": {"in_sentence": "hem in Paragraph-21 (b) cannot be granted."}}, {"text": "S.\n\n8", "label": "PROVISION", "start_char": 41874, "end_char": 41879, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_462_467_EN", "year": 1969, "text": "i>i.JRGA DAS kHANNA\n\nCOMMISSIONER OF INCOME-TAX, CALCUTTA\n\nJanuary 30, 1969\n\n[J.C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]\n\nlncome•tax--CapitaL or Revenue-Thirty years lease of cine1na- Lessee contributing part of 1noney for construction of cinema-No stipulation that it wt:t.· to be trea1ed as advance rent or salami-Nature of re .. ceipt-Whether taxable.\n\nOn July 19, 1945 the asscssee took on lease certain premises in Cal-,, cutta on a monthly rentaJ.\n\nHe made some alterations in the premises so as to convert it into a cinema house but found himself shore of money.\n\nAs permitted by the terms of his lease he leased the premises on February 23, 1946 to certain parties.\n\nAccording to the terms of the indenlure the lessees agreed to pay him Rs. 55,200 towards construction of the cinema house which would on completion be let to them , at a monthly renLal of Rs. 2,100 payable with effect from June I, 1946. The Income-tax authorities treated the sum of !ls. 55,200 thus received as taxable and the High Court on reference held '!1e same.\n\nIn .appeal by the. assessee this Court had to consider whether the receipt was taxable.\n\nHELD : (i) The departmental authorities as well as the High Court were in error in treating the amount of Rs. 55,200 as advance payment of rent.\n\nThe lease by which the cinema house was demised did not contain any condition or stipulation from whi'ch it could be inferred that the aforesaid amount had been paid by way of advance rent. The transaction embodied in the indenture o! lease was clearly business-like. The lessees wanted the building for running it as a cinema house and the lessor agreed to give it to them but apparently represented that he did not have enough money to complete it in accordance with the suggestions and re quirement of the lessees.\n\nThe lessees agreed to pay him the aforesaid amount by way of a lump :$Um without making any provision 1for its ad~ justment towards the rent or repayment by the lessor. 10n the terms of the lease and in the absence of any other material or evidence it could not be held that the sum of Rs. 55,200 was paid by way of advance rental. [465 G-466 BJ\n\n(ii) The question whethe1 premium is a capital or a revenue receipt cannot be decided as a pure question of law.\n\nIts decision necessarily depends upon the facts and circumstances of each case.\n\nIt would not however be wrong to say that prima fac:ie premium or salami is not income and it would be for the income-tax authorities to show that facts exist which would make it a revenue receipt.\n\n{467 B]\n\nAccording to the terms of the lease, in the present case, the payment of rent was to commence not from the date of the lease which was February 23, 1946 but with effect from June I, 1946.\n\nThe lessees entered into possession after the cinema house had been completed which was subsequent to the date of the lease.\n\nThese facts coupled with the payment of ; t. lump sum which was of a non-recurring nature showed that \"the etmoun.t\n\nin question had all the char<.icteristics of a capital payment and was not revenue.\n\n[467 C-D]\n\nJienriks.\" v. G1u}lvfi /fo1d Ltd., 24 T.C. 453, Commissioner of Income-tax, Bihar & Orissa v. Visweshwar, [1939] 7 I.T.R. 536 and\n\nA Member for the Board of Agricultural Income-tax v. Sindhurani Chaudhurani & Ors., [1957] 32 l.T.R. 169, applied.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 873 of 1966.\n\nAppeal by special leave from the judgment and order dated\n\n8 March 26, 1 \\165 of the Calcutta High Court in I. T. Ref. No. 107 of 1960.\n\nSukumar Mitra and D. N. Mukherjee, for the appellant.\n\nNiren De, Attorney-General, S. C. Manchanda and R. N.\n\nSac ht hey, for the respondent.\n\nThe Judgment of the Court was delivered by Grover, J, This is an appeal by special leave from the judgment of the Calcutta High Court in an Income tax Reference in which the question that had to be answered by the High Court was \"whether on the facts and circumstance of the case the sum oi Rs. 55,200/- was a revenue receipt being rent received in advance thus liable to be taxed ?\"\n\nOn July 19, 1945, the assessee took on lease premises No. 157 Upper Circular Road, Calcutta for a term of 99 years on a monthly rental of Rs. 750/-. It was stipulated inter-alia that the lessee could assign the lease with the consent of the lessor.\n\nHe could after the structures on the premises so as to convert them into a cinema if necessary.\n\nAfter expending Rs. 35.000/- on some alterations to the premises the assessee felt the ne1..essity of having some more money in order to convert the building into a cinema.\n\nHe entered into a lease on February 23, 1946 with three persoplll, namely, Nani Gopal Dutt, Makhan Lal Dutt and Shiv Kumar Khanna.\n\nBy this lease, t\\J.e building which was called 'Khanna F Cinema house' at 157, Upper Circular Road, Calcutta was demised to the lessees for a period of 30 years.\n\nThe lessees agreed to pay under the indenture of lease Rs. 55,200/- to the lessor towards the cost of erecting the said cinema.\n\nThe rent which was agreed to be paid was Rs. 2, 100 I - per month.\n\nIt was payable With effect from June 1, 1946. It is necessary to set out the\n\nrelevant portion of the lease :\n\n\"And whereas the lessor obtained sanction from the Corporation of Calcutta and other necessary authorities and commenced the erection of a Cinema House the estimated total cost of which is about Rs. 1,00,000/-\n\n(Rupees one lac). And whereas the lessees agreed to pay to the lessor a sum of Rs. 55,200/- (Rupees Fifty five thousand and two hundred) towards the cost of the erection of the said cinema house according to their suggestion '&lld other charges and expenses\n\nSUPREME COURT REPORTS\n\n[1969] 3 S.C.R.\n\nincurred therefor by the lessor.\n\nAnd whereas the construction of the said Cinema: House is almost complete and is expected to be completed by the end of March, One Thousand Nine Hundred and Forty six and whereas the lessee have called upon the lessor to grant to them a lease of the said Cinema House which the lessor lras agreed to do upon payment by the lessees of the said agreed sum of Rs. 55,200/- (Rupees fifty five thousand and two hundred), towards the costs of building the said Cilllema House and whereas the lessees have paid to the lessor the said sum of Rs. 55,200 (Rupees Fifty five thousand and two hundred) for which separate receipt has been granted by the lessor.\"\n\nAfter the Cinema House had been completed the lessees entered into possession and started exhibiting shows there.\n\nFor the assessment year 194 7-48 the corresponding accounting year being the financial year ending March 31, 194 7, the Income tax Officer sought to treat the sum of Rs. 55,200/ received by the assessee as his income.\n\nThe contention of the assessee was that the aforesaid amount should be treated as capital receipt.\n\nAlternatively if it was to be treated as salami (premium) and was to be taxed as a revenue receipt it should be distributed evenly over the entire term of the lease i.e. 30 years. The Income tax Officer did not accept either of the contentions of the assessee.\n\nIt was held by him that the lease was i!!Ot permanent but was temporary and that the salami had been fixed as an advance payment of rent and not as payment for transfer of the lease-hold interest.\n\nAccording to him the system of accountancy for this source of income being QT) cash basis the whole of the receipt of salami was liable to be taxed as one year's income in the year of the receipt.\n\nThe assessee appealed to the Appellate Assistant Commissioner who agreed with the Income tax Officer.\n\nIn his view the lessees were under no legal obligation to contribute towards the cost of construction of the cinema house and the sum of Rs. 55,200/- constituted payment of advance rent.\n\nThe assessee appealed to the Tribunal which held that the receipt of the aforesaid amount was in the nature of advance payment of rent since the assessee was short of fonds at the time the lease was entered into and that the lease was for a short term and that the amount in question repl\"!sented consolidated rent for thirty years paid in advance.\n\nThe High Court answered the question which was referred in the affirmative and against the assessee.\n\nAccording to the High Court the only ob_ject of the payment of the sum of Rs. 55.200 1:ould bo lo advance the 1:ost of cunstruction or to meet the existing liabilities of the asses; cc for completing the cinema house.\n\nIt was observed :-\n\n\"Further it should be 1wtcd that the period of ]ease is only for 30 years and the assessee's investment on the Cinema is about Rs. 60.000/-, Rs. 35,000/- being the costs e>f constructi<>n and Rs. 25,000/- being costs of machinery with a liability to pay Rs. 750/- rent to the owner of the plot.\n\nAs a result of this ]ease he has got a rent of Rs. 2, 100/- for a term of 30 years.\n\nThus there is no question of payment of any salami as no further inducement for grant of the lease was necessary.\n\nIt is obvious that if the cost of construction of the Cirrema House would have been met in its entirety by the assessee and thereafter if the assessee would have granted the lease to the lessee, the rent would certainly have been much higher.\n\nThus. the said sum of Rs. 55.200/- in the absence of a different recital can only be deemed to have been paid as an advance rent in respect of the said Cinema House.\"\n\nOn. behalf of the appellant-assessee it has been urged that the sum of Rs. 55,200/ was paid to the lessor in lump for completing the cinema house without which the lessee could not have used the building for the purpose of exhibiting cinematograph films.\n\nAccording to the recitals in the deed which must be given due effect the lessees agreed to give this amount towards the cost al erection of the cinema house according to their suggestion and for defraying other charges and expenses.\n\nThe payment of rent was expressly stipulated at the rate of Rs. 2,100/- per month and there was no indication whatsoever that any different or higher rate of rent was agreed to. It is further submitted that there was no material or evidence on which it could be found that the cinema would have fetched any higher rent, the admitted cost of construction beinl! about Rs. (00,000/-.\n\nAlternatively the sum of Rs. 55.200/- could be re1?arded iinly as payment of salami\n\n(peemium) and could not be treated as revenue receipt, the payment being of a non-recurrinq nature.\n\nIt seems to us that the departmental authorities as well as the High Court were in error in treating the amount of Rs. 55,200./-\n\nas advance payment e>f rent.\n\nThe lease by which the cinema house was demised did not contain anv condition or stipulation from which it could be inferred that the aforesaid amount had been paid bv wav of advance rent.\n\nThe transaction embodied in the indenture of lease was clearly business-like. The lessees wanted the building for running it as a cinema house and the lessor agreed to give it to them but apparentlv represented that he did not have enough money to complete it in accordance with' the\n\n<; Ugestions and requirememt of the lessees.\n\nThe lessees agreed to pav hill! the aforesaid amount pv way of µ lump sum without\n\nSUPRBMB COURT REPORTS\n\n\nmakin.g any provision for its adjustment towards the rent or repayment by the lessor. The essential question, however, is whether on the terms of the lease and in the absence of any other material or evidence could it be held that the sum of Rs. 55,200/- was paid by way o{ advance rental ? The view which has been expressed by the Tribunal as also the High Court that the lease was for a comparatively short period of thirty years and that the aforesaid amount had to be spread over that period by way of rent in addition to a rental of Rs. 2,100/- per month cannot be sustained as no foundation was laid for it by any cogent evidence.\n\nThe departmental authorities can well be said to have based their decision on mere conjectures as there was nothing whatsoever to substantiate the suggestion that the real rental value of the cinema house was in the region of Rs. 2,250/ - per mQnth and not Rs. 2, 100/ - which Was the agreed rent.\n\nIt can equally well be said that the payment of the amount in question to the appellant was in the nature of a premium\n\n(salami) . In the words of Lord Greene M. R. in Henriksen v.\n\nGrafton Hotel Ltd.(') \"A payment of this character appears to me to fall into the same class as the payment of a premium of a lease, which is admittedly not deductible. In the case of such a premium it is nothing to the point to say that the parties if they had chosen, might have suppressed the premium and made a corresponding increase in the rent.\n\nNo doubt they might have done so, but they did not do so iin fact.\" Fazl Ali t, (as he then was) in Commissioner of Income tax, Bihar & Orissa v. Visweshwar Singh( 2 ) referred to the distinction between a single payment made at the time of the settlement of the demised property and recurring payments made during the period of its einiovment by the lessee. 'fhis distinction. according to the learned Judge. is clearly recognised in s. 105 of the Trans4'er of Property Act which defines both premium and rent.\n\nThis is what was observed at pa~ 545: ''It is obvious that if the premium represents the whole or part of the price of the land it caninot be income.\n\nAs pointed out by Sir George Lowndes in the Commissioner of Income tax. Ben{!al v. Messrs. Shaw Wallace & Companv. income in the Indian Income-tax Act connotes a periodical monetary return, coming in with some sort of rewlaritv or expected rewlaritv from definite sources. The premium of salami which is paid once for all and is not recurring payment. hardly satisfies this test. I concede that in some cases where the rent is ridiculously low and the premium abnormally hil?h, it may be possible to argue that the premium includes advance rent ........ \"\n\n(I) 241T.C. 4S3,\n\n(2) [19391 7 J.T.R. S~6.\n\nIt has not beon even remotely suggested in the present case that the rent of Rs. 2100 per month was ridiculously low as compared with the amount of Rs. 55,200 paid in lump sum. It is true that the question whether premium is a capital or a revenue receipt cannot be decided as a pure question of law.\n\nIts decision necessarily depends upon the facts and circumstances oi each case. It would not. however. be wrong to say that prima facie premium or salami is not income and it would be for the income tax authorities to show that facts exist which would make it a revenue receipt.\n\nThere is another factor which is of substantial !importance in the present case.\n\nAccording to the terms of the lease the payment of rent was to commence not from the date of the lease which was February 23, 1946, but with effect from June 1, 1946. It is also )!iot disputed that the lessees entered into possession after the cinema house hacl been completed which was subsequent to the date of the lease. These facts coupled with the payment of a lump sum which was of a non-recurring nature showed that the amount in question had all the characteristics of a capital payment and was not reveinue.\n\nThis would be in accord with the principles laid down by this Court in Member for the Board of Agricultural Income tax v. Sindhurani Chaudhurani & Others(') which was a case of settlement of agricultural land but in which the principles governing the payment of premium or salami have been fully discussed.\n\nFor the reasons given above we hold that the question which was referred to the High Court ought to have been answered in the negative and in favour of the assessee. The appeal is accordingly allowed with costs in this Court and the High Court and the answer returned by the High Court is hereby discharged.\n\nG.C.\n\nAppeal allowd.\n\n(1) [19571 321.T.R. 169,", "total_entities": 24, "entities": [{"text": "COMMISSIONER OF INCOME-TAX, CALCUTTA", "label": "RESPONDENT", "start_char": 21, "end_char": 57, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, CALCUTTA", "offset_not_found": false}}, {"text": "January 30, 1969", "label": "DATE", "start_char": 59, "end_char": 75, "source": "ner", "metadata": {"in_sentence": "i>i.JRGA DAS kHANNA\n\nCOMMISSIONER OF INCOME-TAX, CALCUTTA\n\nJanuary 30, 1969\n\n[J.C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 80, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 89, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 106, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "February 23, 1946", "label": "DATE", "start_char": 640, "end_char": 657, "source": "ner", "metadata": {"in_sentence": "As permitted by the terms of his lease he leased the premises on February 23, 1946 to certain parties."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 3474, "end_char": 3493, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated\n\n8 March 26, 1 \\165 of the Calcutta High Court in I. T. Ref."}}, {"text": "Sukumar Mitra", "label": "LAWYER", "start_char": 3526, "end_char": 3539, "source": "ner", "metadata": {"in_sentence": "Sukumar Mitra and D. N. Mukherjee, for the appellant."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 3544, "end_char": 3559, "source": "ner", "metadata": {"in_sentence": "Sukumar Mitra and D. N. Mukherjee, for the appellant."}}, {"text": "Niren De", "label": "LAWYER", "start_char": 3581, "end_char": 3589, "source": "ner", "metadata": {"in_sentence": "Niren De, Attorney-General, S. C. Manchanda and R. N.\n\nSac ht hey, for the respondent."}}, {"text": "S. C. Manchanda", "label": "LAWYER", "start_char": 3609, "end_char": 3624, "source": "ner", "metadata": {"in_sentence": "Niren De, Attorney-General, S. C. Manchanda and R. N.\n\nSac ht hey, for the respondent."}}, {"text": "R. N.", "label": "LAWYER", "start_char": 3629, "end_char": 3634, "source": "ner", "metadata": {"in_sentence": "Niren De, Attorney-General, S. C. Manchanda and R. N.\n\nSac ht hey, for the respondent."}}, {"text": "Grover", "label": "JUDGE", "start_char": 3712, "end_char": 3718, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Grover, J, This is an appeal by special leave from the judgment of the Calcutta High Court in an Income tax Reference in which the question that had to be answered by the High Court was \"whether on the facts and circumstance of the case the sum oi Rs."}}, {"text": "July 19, 1945", "label": "DATE", "start_char": 4057, "end_char": 4070, "source": "ner", "metadata": {"in_sentence": "On July 19, 1945, the assessee took on lease premises No."}}, {"text": "Calcutta", "label": "GPE", "start_char": 4137, "end_char": 4145, "source": "ner", "metadata": {"in_sentence": "157 Upper Circular Road, Calcutta for a term of 99 years on a monthly rental of Rs."}}, {"text": "Nani Gopal Dutt", "label": "OTHER_PERSON", "start_char": 4650, "end_char": 4665, "source": "ner", "metadata": {"in_sentence": "He entered into a lease on February 23, 1946 with three persoplll, namely, Nani Gopal Dutt, Makhan Lal Dutt and Shiv Kumar Khanna."}}, {"text": "Makhan Lal Dutt", "label": "OTHER_PERSON", "start_char": 4667, "end_char": 4682, "source": "ner", "metadata": {"in_sentence": "He entered into a lease on February 23, 1946 with three persoplll, namely, Nani Gopal Dutt, Makhan Lal Dutt and Shiv Kumar Khanna."}}, {"text": "Shiv Kumar Khanna", "label": "OTHER_PERSON", "start_char": 4687, "end_char": 4704, "source": "ner", "metadata": {"in_sentence": "He entered into a lease on February 23, 1946 with three persoplll, namely, Nani Gopal Dutt, Makhan Lal Dutt and Shiv Kumar Khanna."}}, {"text": "June 1, 1946", "label": "DATE", "start_char": 5099, "end_char": 5111, "source": "ner", "metadata": {"in_sentence": "It was payable With effect from June 1, 1946."}}, {"text": "March 31, 194 7", "label": "DATE", "start_char": 6587, "end_char": 6602, "source": "ner", "metadata": {"in_sentence": "For the assessment year 194 7-48 the corresponding accounting year being the financial year ending March 31, 194 7, the Income tax Officer sought to treat the sum of Rs."}}, {"text": "Fazl Ali", "label": "JUDGE", "start_char": 12741, "end_char": 12749, "source": "ner", "metadata": {"in_sentence": "Fazl Ali t, (as he then was) in Commissioner of Income tax, Bihar & Orissa v. Visweshwar Singh( 2 ) referred to the distinction between a single payment made at the time of the settlement of the demised property and recurring payments made during the period of its einiovment by the lessee. '"}}, {"text": "s. 105", "label": "PROVISION", "start_char": 13108, "end_char": 13114, "source": "regex", "metadata": {"statute": null}}, {"text": "George Lowndes", "label": "OTHER_PERSON", "start_char": 13359, "end_char": 13373, "source": "ner", "metadata": {"in_sentence": "As pointed out by Sir George Lowndes in the Commissioner of Income tax."}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 13473, "end_char": 13487, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1969_3_468_478_EN", "year": 1969, "text": "PADRAUNA RAJKRISHNA SUGAR WORKS LTD. & ORS.\n\nLAND REFORMS COMMISSIONER, U.P. & . ORS.\n\nJanuary 31, 1969\n\n(J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.J B\n\nU.P. Zamindari Abolition & Land Reforms Act (U.P, I of 1951), ss. 279 and 286---Dues under other statutes recoverable as arrears of land revenue-Whether restrictions under ss. 279 and 286(1) applicable.\n\nThe amount of dues under the Indian Income-tax Act, 1922 the U.P.\n\nSugar Factories Control Act. 1938 and the. Co-operative Societies Act, 1912 were 'fecoverab!e as arrears of land revenue.\n\nSection 286( 1) of the U.P. Zamindari Abolition & Land Reforms Act provides that if any arrears of ]and revenue could not be recovered by any of the processes mentioned in els. (a) to (e) of s. 279, the Collector may realise the same by attachment and sale of the interests o'f the defaulter in any other immovable property of the defaulter, and s. 286(2) provided that money recoverable as arrears of land revenue, may be recovered by process \"under this section\" from any immovable property of the defaulter.\n\nAs the appellant-company was unable to meet its liabilities in respect of income.tax dues, sugar cess and the amount due for cane supplied to it, the immovable property o'f the company were sold to meet the dues. The appellant challenged the sale contending that (i) the immovable property of the company could be attached and sold only after the processes prescribed in els. (a) to (e) of s. 279 i.e. by the sale of movable properties y.ere resorted to; (ii} the sale was illegal or irregular as the CoUector\n\nignored the intimation of the Income-tax Officer staying the sale for recovery of income-tax; and (iii) the appellant, was prevented from raising funds 'for making the deposit os provided by r. 285H (of the rules framed under the Act) for .setting aside the sale as the purchaser was appointed as the Authorised Controller and put in possession of all the properties of the appellant. Dismissing the appeal this Court,\n\nHELD : (i) Power to recover arrears of land revenue from a defaulter is governed by the processes mentioned in els. (a) to (e) of s. 279 of the Act and s. 286( I) places certain restrictions upon the power o'f the Collector to recover land revenue by attachment and sale of lands other than the holdin~ in respect of which the land revenue is due. But the restrictions on the power of the Collector operated only when land revenue is in arrears.\n\nRetrictions, if any, upon the power of the Collector to re cover dues under statutes, as a'rrears of land revenue arise. from the statute \\\\•hich is the source of the liabi1ity and not from the U.P. Zamindari Abolition & Tand Re'forms Act, which merely sets out the processes for recovery of the dues.\n\nTo hold that sub-s. (2) of s. 2R6 requires the CoJiector in the first instance to recover out of the movable property or by arrest and detention of the defaulter before immovable property of the defaulter is attached and sold is to amend the substantive provisions 0[ the Acts under which the liability for money due is recoverable as land revenue.\n\nFor instance. under s. 46 of the Income-tax Act. 1922. the powers exercisable by the CoIIecto'r in recovering arrears of income-tax, which are recover1bie a\" arrears of land revenue are not re!'tricted to the Land Revenue Code; the Collector is entitled to exercise all the powers of a Civil Court for the purpose of recovery of an amount due under a decree under the Code o'f (:ivil PrQl'eC:ure, and the Code of CiVJl Proctdure imc\n\nPAI>MUNA V, COMMISSIONER (Shah, 1.) 469\n\nA . poses no obligations to recover the dues by sale of movables or by arrest\n\nand detention of the defaulter before immovable property may be attach ed. The provisions of the Act, which authorise recovery of sums of money as arrears of land revenue, do not require the Collector to follow any sequence df the processes for recovery; it is competent to the Collector to resort to any process prescribed by s. 279 in aid of recovery of the .dues which are recoverable as arrears of land revenue. [473 H-474 B\n\nD; 475 HJ\n\n(ii) The sale was not illegal or irregular for the reason that the Collector isnored the intimation of the Income-tax Officer staying the sale for recovery of income-tax dues. The immovable property could have been put up for sale for recovery df sugar cane cess and the cane price which were many times more than the income-tax dues.\n\n[476 G]\n\n(iii) There was no force in the contention. that the appellant was \\Jn- C able to raise funds and make the deposit under r. 28SH because the purchaser was appointed the Authorised Controller, who took possession of all the properties of the Comnany. The appellant could not comply with the provision of r. 285H for having the sale set aside as the movables were not sufficient to enable the aopellant to raise the amount required for deposit under r. 28SH. [476 HJ\n\nCIVIL APPBLLATB JUIUSDICTION: Civil Appeal No. 130 of D 1966.\n\nAppeal from the judgment and decree dated December 13, 1961 of the Allahabad High Court in Special Appeal No. 217 of 1958.\n\nC. K. Daphtary, B. Sen, 1. P. Goyal and A. Banerjee, tor the appellants.\n\nC. B. Agarwala and 0. P. Rana, for respqrldents Nos. 1, 2, 3 and 8.\n\nT. A. Ramachandran and R. N. Sllchthey, for respondent No. 4.\n\nM. C. Chagla, G. D. Srivastava, B. Datta and 1. B. Dada. chanji, for respondents Nos. 5 and 6.\n\nThe Judgment of the Court was delivered by\n\nShah, J. The Padrauna Rajkrishna Sugar Works Ltd.- hereinafter called 'the Company'-carried on the business of manufacture and sale of sugar and supply of electricity.\n\nThe Companv was in financial difficulties in 1954 and was unable to meet its obligations.\n\nThe principal liabilities of the Comp~.nv in July 1955 were Rs. 81,821-2-0 due as income-tax provisionally assessed for the assessment year 1952·53 in respect of which an order for recovery was made under s. 46(2) of the Income-tax Act. 1922; Rs. 5,64,301-14-9 due as sugarcane cess under s. 29 of the Suizar Factories Control Act, 1938, for the years 1952-53 to 1954-55: and Rs. 1,92,053-12-3 due by the Company to the Co-operative Development Union Ltd. as arrears of cane price for the year 1954-55.\n\n470 SUPllEME COURT 11.EPOR TS\n\n(1969] 3 S.C.R.\n\nBy order dated July 14, 1954, issued under the Fsseritial Supplies (Temporary Powers) Act, the Government of U.P. appointed the Collector, Deoria as the Authorised Controller of the Company.\n\nOn August 8, 1955 the La, nd Reforms Commis sioner sanctioned the proposal submitted by the Collector, Deoria, to sell the holdings and the property of the Company for realizing Rs. 8,38,176-13-0.\n\nSardar Jagjit Singh, Chief Engineer, Indian Institute of Sugar Technology, Ka, npur, valued the movables belonging to the Company i.e. tools and workshop plant, mill stores, spare parts and furniture at Rs. 7 ,64,817 /. and the lands and the factory at Rs. 23, 75,000/ ·· Thereafter a sale proclama tion was issued on October 4, 1955, for recove.ry of the total amount of Rs. 8,38,17Q13-0.\n\nThe sale was fixed for November 8, 1955. In the first iinstance only the movables were put up for sale by the Collector, Deoria, but the highest bid offered was Rs. 2, 75,000/ •.\n\nThe Collector then put up for sale the immov able property for which a bid of Rs. 23,50,000/ • was made. and accepted.\n\nThe movables were then put up for sale and the highest bid for Rs. 2,75,000/· was accepted. The purchasers of both the lots were the Cawnpore Sugar Works Ltd., through their managing agent Tulsidas Mundra-respondent No. 7 in this appeal. On December 6, 1955, the Company moved an application before the Commissioner, Gorakhpur Division, under r. 285·1 of the U.P. Zarnindari Abolition and Land Reforms Rules praying that the sale be set aside.\n\nThe Commissioner rejected the peti tion, observing that an application u.nder r. 285-1 of the U.P.\n\nZarnindari Abolition and Land Reforms Rules, 1952, to set aside a sale on the ground cl material irregularity or mistake in publishing or conducting a sale may be granted only if the appli c!llllt proves to the satisfaction of the Commissioner that he has sustained substantial injury by reason of such irregularity or mistake, and that no material irregularity or mistake was proved to be committed in publishing or conducting the sale, far less, a mistake or irregularity which could have caused substantial injury to the applicant.\n\nThe sale was confirmed by order dated July\n\n2. 1956. by the Land Reforms Commissioner.\n\nOtn July 30, a petition was moved by the Company in the High Court of Allahabad for a writ in the nature of certiorari q11ashing the order dated June 25, 1956, of the Commissioner, Gorakhpur Division.\n\nThe petition was dismissed by Oak, J. In appeal under the Letters Patent the order was confirm~ by the High Court.\n\nMukherji, J., was of the view that s. 286 of the U.P. Zarnindari Abolition and Land Reforms Act did not oblige the Collector to exhaust the processes prescribed by els. (a) to ( e) in s. 279 cl that Act before resorting to the sale of immovable property of the Company and that it was not proved that\n\nPAD!lAUNA V. COMMISSIONER (Shah, J.) 4'1\n\nA there was any material in:egularity or mismke in publishing or conducting the sale o.r that any substantial injury had resulted to the Company. Jagadish Sahai, J., was of the view thats. 286(2) of the U.P. Zamindari Abolition and Land Reforms Act provides that where an amount is recoverable as arrears of land revenue, the Collector has first to attempt under els. (a) to ( e) of s. 279 II to recover the amount due, and if he is unable to recover the amount he may proceed to sell the immovable property of. the defaulter.\n\nBut the learned Judge was of the opinion that the provision was merely directory and not mandatory.\n\nHe observed:\n\nc \" ...... the provision relating to the exhaustion of\n\nthe processes contemplated by clauses (a) to ( e) of section 279 of the Act is merely directory.\n\nIn view of the provisions of the various Acts which make the realization of sums becoming due under those Acts as arrears of land revenue and in view of the provisions of the Act the Collector has got a duty and a statutory obligation to realise those sums. He has no discretion in the matter.\n\nConsequently I read the words \"may realise the same from the interest of the defaulter in any immovable property\" in sub-section (1) or \"may be recovered from any immovable property of the defaulter\" in sub-section (2) as meaning that if the Collector does nat succeed in recovering the amount by '- having recourse to the processes mentioned in clauses\n\n(a) to ( e) of sectioo 279 of the Act he shall sell immovable property of the defaulter.\"\n\nThe learned Judge also observed that the Collector acted ih violation of the statutory provision contained in s. 286(2) of the Act in selling the immovable property before selling the movable property, but the sale could rot'be set aside, because substantial injury was not shown to have been caused.\n\nThe Compamy has appealed to this Court against the order passed by the High Court confirming the order passed by Oak, J.\n\nIn this appeal, it is urged in the first instance, that the Company possessed stocks of sugar of value exceeding the liability for payment of Rs. 8,38,000/- odd.\n\nBut the stocks of sugar were not menti~ n the Collector's repo!'t to the Land Reforms Commissioner : they were not included in the sale proclamation as property put up for sale, nor were they valued in the report of Sardar Jagjit Singh.\n\nThe Company asserted in the petition before the High Court that it possessed stocks of sugar worth Rs. 9 lalchs which had not been attached earlier, but no such\n\ncontontion was advanced in support of the application for setting\n\nSUPREME COURT REPORTS\n\n[1969] 3 5.C.R. -~·-\n\naside the sale before the Commissioner, nor was any argument advanced before the High Court.\n\nIt appears that the stocks of sugar were mortgaged separately a1rtd the amount for which they were mortgaged was not included in the claims made for which the property of the Company was to be put up for sale.\n\nIt was then urged that under s. 286(2) of Act 1 of 1951, the Collector, was bound in the first instance to exhaust the processes for recovery of arrears prescribed by els. (a) to ( e) of s. 279 of the Act and he could not attach and sell immovable property of the Company until those processes were exhausted.\n\nIt was urged that s. 286(2) of the Act was mandatory and the Collector not having sold the movables in the first instance, the sale must be declared void.\n\nThe amount for the recovery of which the sale of the assets of the Company was held, included income-ta:ic dues, sugarcane cess' and the amount due for cane supplied to the Company. This amount was. recoverable as arrears of land revenue because of the provisions of the Indian Income-tax Act. 1922, the U.P. Sugar Factories Control Act. 1938. and the Co-operative Societies Act\n\nI 912.\n\nSection 286(2) of the U.P. Zamindari Abolition and Land Reforms Act provides :\n\n\"Sums of money recoverable as arrears of ]and revenue. but not due in respect of anv specific ]and. may be recovered by process under this section from any immovable property of the defaulter.\"\n\nThough the amount for which the property was put up for sale was recoverable as arrears of land revenue. mo part of it was due in respect of anv specific land.\n\nThe amount could nrima facie be recovered from the immovable propertv of the defoulter. But relyill!! uoon the expression \"under this section\" in s. 286 (2) of Act 1 of 195 I it was contended that the immovable pronerty of the Comnanv could be attached and sold only after the proce, se' prescribed in s. 279 els. (a) to ( e) were resorted to and the Collector was unable to recover the dues.\n\nIt was urned that this fa the tn1e effect of s. 286 ( 1 ) and s. 279 of Act 1 of 1951.\n\nSection 286 ( l ) provides :\n\n, \"r.t any arrears of land revenue cannot be recovered . by anv of the processes mentioned in dames (a) to ( e) of Section 279. the Collector may realize the same bv rittachment and sale of the interest of the defaulter in any other immovable propertv of the defaulter.\"\n\nSection 279 of the Act sets out the procedure fnr recovery of arrears of )and revenue.\n\nThe section as it stood at the date of sale provided :\n\nPADRAUNA V, COMMISSIONER (::1/Jah, J.)\n\n\"An arrear of land revenu.:: 0ma:,- be recovered by any one or morn o.f the following processes :\n\n(a) by serving a writ of dema, nd or a citation to appear on any defaulter, ( b) by arrest and detention of his person,\n\n(c) by attachment and sale of his movable properly\n\nincluding produce, ( d) by attachment of the holding in respect of which the arrear is due, ( e) by sale of the holding in respect of which the arrear is due.\n\n(f) by attachmeint and sale of other immovable property of the defaulter.\"\n\nSection 280 deals with the mode of recovery prescribed by cl. (a) of s. 279; s. 281 with the mode prescribed by cL\n\n(b) i.e. by arrest and detention; and s. 282 with the mode prescribed by cl.\n\n( c) i.e. by attachment and sale of the movable property including produce.\n\nSection 284 sets out the procedure for sale of the holding in respect of which the arrear was due and s. 286(1) deals with the power to proceed against the interest of the defaulter in other immovable property.\n\nFor recoverv of arrears of la.rid revenue, the Collector is bound to resort to one or more of the processes mentioned in s. 279 read with ss. 280, 282, 284 & 285 of the Act, before he attaches and sells the immovable property of the defaulter, other than the holding in respect o.f which the land revenue is due.\n\nThat clearly follows from the terms of sub-s. ( 1) of s. 286. Subsection (2) of s. 286 makes the same process applicable for recovery of sums of money which are recoverable as arrears of land revenue. But the liability to pay the amount so recoverable arises by virtue of the provisions of other Acts and is not due in respect of any holding of the defaulter. It is only recoverable as arrears of land revenue by virtue of the provisions of the Act under which the liability has arisen. Since U.P. Act 1 of 1951 provides bys. 286(2) that sums of money recoverable as arrears of land revenue may be recovered from any immovable property of the defaulter, the procedure prescribed b.y the Act applies to such recovery.\n\nBecause of the use of the expression \"under . this section\" iJll sub-s. (2) of s. 286 it is not intended that the Collector must resort in the first instance to the processes prescribed by els. (a) to (e) before he resorts to cl. (f} of s. 279. Cls. (d) & (e) of s. 279 have no application, where income-tax dues and sugarcane ccss or cane price arc recoverable from the defaulter : and cl. (b) is inapplicable where the defaulter is an artificial person like a Company.\n\nPower to recover am>ars of land reve- •\n\n474 SUPlUIME GOURT Rl!PORTS [196Yj :i S.C.R.\n\n111ue from defaulter is governed by_ the processes mentioned in A s. 279 els. (a) to (e), and s. 286(1) places certain restrictions upon the power of the Collector to r(\\cover land revenue by attachment and sale of lands other than the holding in respect of which the land revenue is due.\n\nBut the restrictions on the power of the Collector operate Oll)ly when land revenue is in arrears.\n\nRestrictions if any upon the power of the Collector to recover B dues under other statutes, as arrears of land revenue arise rrom the statute which is the source of the liability and not from Act 1 of 1951 which merely sets out the processes for recovery of the dues.\n\nTo hold that sub-s. ( 2) of s. 286 requires the Collector in the first instance to recover out of the movable property or by arrest c and detention of the defaulter before immovable property of the defaulter is attached and sold is to amend the substantive provi sions of the Acts under which the liability for money due. is recoverable as land revenue.\n\nFor instance, under s. 46 (2) of the Indian Income-tax Act, 1922, it is provided :\n\n\"The Income-tax Officer may forward to the Collec- D tor a certificate under his signature specifyilllg the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall. proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue : Provided that without prejudice to any other powers E of the Collector in this behalf, he shall for the purpose of recovering the said amount have the powers which <Under the Code of Civil Procedure, 1908 (V of 1908), a Civil Court has for the purpose of the recovery of ain\n\namount due under a decree.\" The power exercisable by the Collector in recovering arrears of F income-tax which are recoverable as arrears of land revenue are, it is clear, not restricted to the Land Revenue Code: the Collector is eintitled to exercise all the powers of a Civil Court for the purpose of recovery of an amount due under a decree under the Code of Civil Procedure, and the Code of Civil Procedure imposes no obligation to recover the dues by sale of movables or by arrest G and detention of the defaulter before immovable property may be attached.\n\nSection 51 of the Code of Civil Procedure provides: \"Subject to such conditions and limitations as may be prescribed, the Court may, on the applicatiqn of the decree-holder, order execution of the decree--\n\n(a) by delivery of any property specifically decreed; H\n\n(b) by attachment and sale or by sale without attachment of any pronett}';\n\nPADRAUNA v. COMMISSIONER (Shah, ).) 475\n\n( c) by arrest and detention in prison;\n\n(d) in such other manner as the nature of the relief granted may require :\n\nProvided \" By virtue of 0. 21 r. 30(e) of the Code of Civil Procedure simultaneous execution both against the property and person of the judgment-debtor is allowed.\n\nTo hold, therefore, that in seeking to recover income-tax dues the Collector is in the first instance, by virtue of sub-s. (2) of s. 286, restricted io the recovery of arrears by attachment sale of movables or by arrest and detention in prison of the defaulter, and 1f he cannot recover the amount then and then only to have recourse to the immovable property of the judgment-debtor is to seek to amend both the come-tax Act, 1922~ as well as the Code of Civil Procedure.\n\nThe U .P. Legislature is incompetent to alter the provisions of the Income-tax Act.\n\nWe are, therefore, unable to agree with the opinion expressed by Jagadish Sahai, J., that the use of the words \"under this section\" points to the applicability of the whole section i.e. subsection ( 1) in the recovery dues recoverable under sub-section\n\n(2) of section 286, and \"that the two sub-sections have got to be\n\nrea~ together and the effect of sub-section ( 2) is that even in connection with the recovery of miscellaneous dues as arrears of land revenue it is permissible to sell immovable property of the defaulter but subject to what is provided for in sub-section ( 1) \".\n\nWe are also unable to agree with the observations made by the learned Judge that -\n\n\" ..... .if sub-section (2) of section 286 of the Act were to be read in isolation and detached from subsection (I) it would become impossible to administer the same. Sub-section (2) only provides that the arrears of miscellaneous dues may be recovered from any immovable property of the defaulter without specifying the manner in which they are to be recovered, that is to say, without indicating whether it would be recovered from the usufruct of the property or by jts sale or by mortgage or lease.\"\n\nThe provisions of the Act which authorise recovery of sums of money as arrears of land revenue do not require the Collector to follow any sequence of the processes for recovery: it is competent to the Collector to resort to any process prescribed by s. 279 in aid of recovery of the dues which are recoverable as arrears of l!Uld revenue. It is unnecessary in the circumstanoes to\n\n476 SUPi.EME COURT REPORTS\n\n[1969] 3 S.C.R.\n\nconsider whether the provisions of s. 28 6 (1 ) are mandatory or directory.\n\nIt was urged in the alternative that after selling the immovable property which realized more than Rs. 23,50,000/- the Collector should not have sold the movable property, for the claim for which the properties of tile Company were put up for sale was only Rs. 8,30,176-13-0.\n\nAt first bl_ush there is torce in this argument.\n\nWhy the Collector thought it necessary to sell the movables after the immovable property was knocked down to the Cawnpore Sugar Works Ltd. for Rs. 23,50,000/- was never explained.\n\nAfter the immovable property belonging to the Company was knocked down to the purchasers for an amount of Rs. 23,50,000/- it was apparently not necessary to hold the auction for sale of movables valued at Rs. '/,64,817/- and to accept a bid of only Rs. 2,75,000/-.\n\nThe argument that the movables were of no use to any person other tnan the purchaser of immovable property is w1tl1out substance.\n\nThe movables sold were the tools and workshup p.ant, mill stores, spare palls and furniture, and it is difficult to accept the contention that these movables were of no value except to the purchaser. But the Company raised no contention in this behalf before the Commissioner, nor in the petition before the High Court. The question was also not argued before the High\n\nCourt in that form. We cannot at this stage investigate the reasons why movables valued at Rs. 7 ,64,817 /- were put up for sale and sold when it was not necessary to sell them to realise the dues.\n\nIt was then urged that the Income-tax Officer had, by intimaticin dated December 11, 1954, asked the Collector to stay the sale proceeding for recovery of income-tax dues amounting to Rs. 81,821-2-0.\n\nFor some reason, which is not clear from the record, the Collector ignored the intimation given by the Incometax Officer and proceeded to put the property to sale. He included the amount in the sale proclamation, overruling the protests of the Company, and sold the properties for recovery of a consolidated amount which Included Rs. 81,821-2-0 due as income-tax. But on that account the sale is not illegal or irregular.\n\nAn amount exceeding Rs. 7 lakhs was recoverable for the sugarcane cess and the cane price and the immovable property of the Company could have been put up for sale for recovery of those dues. The sale is not proved to be vitiated on the ground of any material irregularity or mistake in publishing or cQ!lducting it, and it is therefore not liable to be set aside.\n\nIt was finally contemded that the Company was prevented from exercising its right under r. 285-H of the rules framed under U.P. Act 1 of 1951, because ilie purchaser at the sale was appointed, by order of the Central Government, Authorised Con-\n\nPADRAUNA v, COMMISSIONER (Shah, /,) 477\n\n.,. troller' of the factory of the Company, and all the properties bf the Company were put in the possession of the purchaser, and that the Company was unable to raise the requisite amount to be deposited under r. 285-H.\n\nUnder r. 285-H any person whose holding or other immovable property has been sold under the Act may, at any time within thirty days from the date of sale, B apply to have the sale set aside on his depositing in the Collector's office--\n\n(a) for payment to the purchaser, a sum equal to 5 per cent. of the purchase money; and\n\n(b) for paymqnt on account of the arrer, the amount specified in the proclamation in Z.A.\n\nForm 74 as that for the recovery of which the sale was ordered, Jess any amount which may, since the date of such proclamation of sale, have been paid on that account; and ( c) the cost of the sale.\n\nD H the deposit is made, the Collector shall pass an order setting aside the sale. It was open to the Company under r. 285-H eve; n after the bids were accepted to deposit 5 per cent. of the sum realised by sale of the immovable property and to pay the amount due for the recovery of which the sale was ordered and the C06t of the sale.\n\nBut no attempt was made to deposit the amounts E mentioned in els. (a), (b) & (c) of r. 285-H. '.The contention that the Company was wiable to make the deposit under Rlile\n\n285-H because the purchaser was appointed Authorised Controller\n\naS also not raised before the Commissioner and the High Court.\n\nThe argument that if the movable property had not been sold, the Company may have raised the amount liable to be deposited under els. (a), (b) & (c), but by sale of those properties and purchase of the same by a person who was shortly after the pur- F\n\nchase appointed the Aiuthorised Controller prevented the Comp~ from exercising the right under r. 285-H is hypothetical.\n\nAgain even that argument was not raised before the Commissioner, nor in the petition, nor in the arguments before the High Court.\n\nEvidently, the Company was required to comply with the G provis.ions of r. 285-H for having the sale set aside to deposit a_n amount of Rs. 9,50,000/, besides the cost of the sale. Even if the movables had not been sold, and assuming that they were of the value of Rs. 7,64,817/- the movables wer~ not sufficient to enable the Company to raise the amount required for deposit under r. 285-H.\n\nH The contentions raised by the Company fail and the appeal is dismissed.\n\nWe are, however, of the view, especially because of the action of the Collector in putting the movables to sale even L8 Sup Cf/69-12\n\n\n[1969) 3 S.C.R.\n\nafter the immovable property realised an amount very much in A excess of the dues, and ignoring the intimation sent by the Incometax Officer to stay the sale proceeding, which has involved the Company in loss of property of substantial value, that the parties should bear their OW\\ll costs throughout.\n\nY.P.\n\nAppeal dismissed.", "total_entities": 119, "entities": [{"text": "PADRAUNA RAJKRISHNA SUGAR WORKS LTD. & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "PADRAUNA RAJKRISHNA SUGAR WORKS LTD. & ORS", "offset_not_found": false}}, {"text": "LAND REFORMS COMMISSIONER, U.P. & . ORS", "label": "RESPONDENT", "start_char": 45, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "LAND REFORMS COMMISSIONER, U.P. & . ORS", "offset_not_found": false}}, {"text": "January 31, 1969", "label": "DATE", "start_char": 87, "end_char": 103, "source": "ner", "metadata": {"in_sentence": "January 31, 1969\n\n(J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.J B\n\nU.P. Zamindari Abolition & Land Reforms Act (U.P, I of 1951), ss."}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 109, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 118, "end_char": 130, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ", "label": "JUDGE", "start_char": 135, "end_char": 151, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Land Reforms Act", "label": "STATUTE", "start_char": 184, "end_char": 200, "source": "regex", "metadata": {}}, {"text": "ss. 279 and 286", "label": "PROVISION", "start_char": 219, "end_char": 234, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Act", "statute": "Land Reforms Act"}}, {"text": "ss. 279 and 286(1)", "label": "PROVISION", "start_char": 329, "end_char": 347, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Act", "statute": "Land Reforms Act"}}, {"text": "amount of dues under the Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 365, "end_char": 417, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sugar Factories Control Act", "label": "STATUTE", "start_char": 428, "end_char": 455, "source": "regex", "metadata": {}}, {"text": "Co-operative Societies Act, 1912", "label": "STATUTE", "start_char": 471, "end_char": 503, "source": "regex", "metadata": {}}, {"text": "Section 286( 1)", "label": "PROVISION", "start_char": 551, "end_char": 566, "source": "regex", "metadata": {"linked_statute_text": "Co-operative Societies Act, 1912", "statute": "Co-operative Societies Act, 1912"}}, {"text": "Land Reforms Act", "label": "STATUTE", "start_char": 601, "end_char": 617, "source": "regex", "metadata": {}}, {"text": "s. 279", "label": "PROVISION", "start_char": 742, "end_char": 748, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Act", "statute": "Land Reforms Act"}}, {"text": "s. 286(2)", "label": "PROVISION", "start_char": 897, "end_char": 906, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Act", "statute": "Land Reforms Act"}}, {"text": "s. 279", "label": "PROVISION", "start_char": 1453, "end_char": 1459, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Act", "statute": "Land Reforms Act"}}, {"text": "s. 279", "label": "PROVISION", "start_char": 2124, "end_char": 2130, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 286( I)", "label": "PROVISION", "start_char": 2146, "end_char": 2156, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2R", "label": "PROVISION", "start_char": 2771, "end_char": 2776, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 46", "label": "PROVISION", "start_char": 3114, "end_char": 3119, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 3127, "end_char": 3141, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "PAI>MUNA V", "label": "JUDGE", "start_char": 3528, "end_char": 3538, "source": "ner", "metadata": {"in_sentence": "the powers exercisable by the CoIIecto'r in recovering arrears of income-tax, which are recover1bie a\" arrears of land revenue are not re!'tricted to the Land Revenue Code; the Collector is entitled to exercise all the powers of a Civil Court for the purpose of recovery of an amount due under a decree under the Code o'f (:ivil PrQl'eC:ure, and the Code of CiVJl Proctdure imc\n\nPAI>MUNA V, COMMISSIONER (Shah, 1.)"}}, {"text": "s. 279", "label": "PROVISION", "start_char": 3975, "end_char": 3981, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPBLLATB JUIUSDICTION", "label": "PETITIONER", "start_char": 4900, "end_char": 4928, "source": "ner", "metadata": {"in_sentence": "476 HJ\n\nCIVIL APPBLLATB JUIUSDICTION: Civil Appeal No."}}, {"text": "December 13, 1961", "label": "DATE", "start_char": 5005, "end_char": 5022, "source": "ner", "metadata": {"in_sentence": "Appeal from the judgment and decree dated December 13, 1961 of the Allahabad High Court in Special Appeal No."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 5030, "end_char": 5050, "source": "ner", "metadata": {"in_sentence": "Appeal from the judgment and decree dated December 13, 1961 of the Allahabad High Court in Special Appeal No."}}, {"text": "C. K. Daphtary", "label": "PETITIONER", "start_char": 5087, "end_char": 5101, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, B. Sen, 1."}}, {"text": "B. Sen", "label": "OTHER_PERSON", "start_char": 5103, "end_char": 5109, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, B. Sen, 1."}}, {"text": "P. Goyal", "label": "OTHER_PERSON", "start_char": 5114, "end_char": 5122, "source": "ner", "metadata": {"in_sentence": "P. Goyal and A. Banerjee, tor the appellants."}}, {"text": "A. Banerjee", "label": "OTHER_PERSON", "start_char": 5127, "end_char": 5138, "source": "ner", "metadata": {"in_sentence": "P. Goyal and A. Banerjee, tor the appellants."}}, {"text": "C. B. Agarwala", "label": "LAWYER", "start_char": 5161, "end_char": 5175, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala and 0."}}, {"text": "P. Rana", "label": "OTHER_PERSON", "start_char": 5183, "end_char": 5190, "source": "ner", "metadata": {"in_sentence": "P. Rana, for respqrldents Nos."}}, {"text": "T. A. Ramachandran", "label": "OTHER_PERSON", "start_char": 5230, "end_char": 5248, "source": "ner", "metadata": {"in_sentence": "T. A. Ramachandran and R. N. Sllchthey, for respondent No."}}, {"text": "R. N. Sllchthey", "label": "LAWYER", "start_char": 5253, "end_char": 5268, "source": "ner", "metadata": {"in_sentence": "T. A. Ramachandran and R. N. Sllchthey, for respondent No."}}, {"text": "M. C. Chagla", "label": "LAWYER", "start_char": 5293, "end_char": 5305, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, G. D. Srivastava, B. Datta and 1."}}, {"text": "G. D. Srivastava", "label": "LAWYER", "start_char": 5307, "end_char": 5323, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, G. D. Srivastava, B. Datta and 1."}}, {"text": "B. Datta", "label": "LAWYER", "start_char": 5325, "end_char": 5333, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, G. D. Srivastava, B. Datta and 1."}}, {"text": "B. Dada. chanji", "label": "RESPONDENT", "start_char": 5341, "end_char": 5356, "source": "ner", "metadata": {"in_sentence": "B. Dada."}}, {"text": "Shah", "label": "JUDGE", "start_char": 5433, "end_char": 5437, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J. The Padrauna Rajkrishna Sugar Works Ltd.- hereinafter called 'the Company'-carried on the business of manufacture and sale of sugar and supply of electricity."}}, {"text": "Padrauna Rajkrishna Sugar Works Ltd.-", "label": "PETITIONER", "start_char": 5446, "end_char": 5483, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J. The Padrauna Rajkrishna Sugar Works Ltd.- hereinafter called 'the Company'-carried on the business of manufacture and sale of sugar and supply of electricity.", "canonical_name": "PADRAUNA RAJKRISHNA SUGAR WORKS LTD. & ORS"}}, {"text": "s. 46(2)", "label": "PROVISION", "start_char": 5898, "end_char": 5906, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 5914, "end_char": 5928, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 29", "label": "PROVISION", "start_char": 5982, "end_char": 5987, "source": "regex", "metadata": {"statute": null}}, {"text": "Suizar Factories Control Act, 1938", "label": "STATUTE", "start_char": 5995, "end_char": 6029, "source": "regex", "metadata": {}}, {"text": "Government of U.P.", "label": "ORG", "start_char": 6340, "end_char": 6358, "source": "ner", "metadata": {"in_sentence": "470 SUPllEME COURT 11.EPOR TS\n\n(1969] 3 S.C.R.\n\nBy order dated July 14, 1954, issued under the Fsseritial Supplies (Temporary Powers) Act, the Government of U.P. appointed the Collector, Deoria as the Authorised Controller of the Company."}}, {"text": "Deoria", "label": "GPE", "start_char": 6384, "end_char": 6390, "source": "ner", "metadata": {"in_sentence": "470 SUPllEME COURT 11.EPOR TS\n\n(1969] 3 S.C.R.\n\nBy order dated July 14, 1954, issued under the Fsseritial Supplies (Temporary Powers) Act, the Government of U.P. appointed the Collector, Deoria as the Authorised Controller of the Company."}}, {"text": "August 8, 1955", "label": "DATE", "start_char": 6440, "end_char": 6454, "source": "ner", "metadata": {"in_sentence": "On August 8, 1955 the La, nd Reforms Commis sioner sanctioned the proposal submitted by the Collector, Deoria, to sell the holdings and the property of the Company for realizing Rs."}}, {"text": "Sardar Jagjit Singh", "label": "OTHER_PERSON", "start_char": 6635, "end_char": 6654, "source": "ner", "metadata": {"in_sentence": "Sardar Jagjit Singh, Chief Engineer, Indian Institute of Sugar Technology, Ka, npur, valued the movables belonging to the Company i.e. tools and workshop plant, mill stores, spare parts and furniture at Rs."}}, {"text": "Indian Institute of Sugar Technology, Ka, npur", "label": "ORG", "start_char": 6672, "end_char": 6718, "source": "ner", "metadata": {"in_sentence": "Sardar Jagjit Singh, Chief Engineer, Indian Institute of Sugar Technology, Ka, npur, valued the movables belonging to the Company i.e. tools and workshop plant, mill stores, spare parts and furniture at Rs."}}, {"text": "November 8, 1955", "label": "DATE", "start_char": 7049, "end_char": 7065, "source": "ner", "metadata": {"in_sentence": "The sale was fixed for November 8, 1955."}}, {"text": "Cawnpore Sugar Works Ltd.", "label": "ORG", "start_char": 7459, "end_char": 7484, "source": "ner", "metadata": {"in_sentence": "The purchasers of both the lots were the Cawnpore Sugar Works Ltd., through their managing agent Tulsidas Mundra-respondent No."}}, {"text": "Tulsidas Mundra", "label": "OTHER_PERSON", "start_char": 7515, "end_char": 7530, "source": "ner", "metadata": {"in_sentence": "The purchasers of both the lots were the Cawnpore Sugar Works Ltd., through their managing agent Tulsidas Mundra-respondent No."}}, {"text": "December 6, 1955", "label": "DATE", "start_char": 7567, "end_char": 7583, "source": "ner", "metadata": {"in_sentence": "On December 6, 1955, the Company moved an application before the Commissioner, Gorakhpur Division, under r. 285·1 of the U.P. Zarnindari Abolition and Land Reforms Rules praying that the sale be set aside."}}, {"text": "Commissioner, Gorakhpur Division", "label": "RESPONDENT", "start_char": 7629, "end_char": 7661, "source": "ner", "metadata": {"in_sentence": "On December 6, 1955, the Company moved an application before the Commissioner, Gorakhpur Division, under r. 285·1 of the U.P. 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In appeal under the Letters Patent the order was confirm~ by the High Court."}}, {"text": "Mukherji", "label": "JUDGE", "start_char": 8813, "end_char": 8821, "source": "ner", "metadata": {"in_sentence": "Mukherji, J., was of the view that s. 286 of the U.P. Zarnindari Abolition and Land Reforms Act did not oblige the Collector to exhaust the processes prescribed by els. ("}}, {"text": "s. 286", "label": "PROVISION", "start_char": 8848, "end_char": 8854, "source": "regex", "metadata": {"linked_statute_text": "Zarnindari Abolition and Land Reforms Rules, 1952", "statute": "Zarnindari Abolition and Land Reforms Rules, 1952"}}, {"text": "Zarnindari Abolition and Land Reforms Act", "label": "STATUTE", "start_char": 8867, "end_char": 8908, "source": "regex", "metadata": {}}, {"text": "s. 279", "label": "PROVISION", "start_char": 8997, "end_char": 9003, "source": "regex", "metadata": {"linked_statute_text": "Zarnindari Abolition and Land Reforms Act", "statute": "Zarnindari Abolition and Land Reforms Act"}}, {"text": "PAD!lAUNA V. COMMISSIONER", "label": "JUDGE", "start_char": 9115, "end_char": 9140, "source": "ner", "metadata": {"in_sentence": "a) to ( e) in s. 279 cl that Act before resorting to the sale of immovable property of the Company and that it was not proved that\n\nPAD!lAUNA V. 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incompetent to alter the provisions of the Income-tax Act", "statute": "Legislature is incompetent to alter the provisions of the Income-tax Act"}}, {"text": "section 286", "label": "PROVISION", "start_char": 21115, "end_char": 21126, "source": "regex", "metadata": {"linked_statute_text": "Legislature is incompetent to alter the provisions of the Income-tax Act", "statute": "Legislature is incompetent to alter the provisions of the Income-tax Act"}}, {"text": "s. 279", "label": "PROVISION", "start_char": 21838, "end_char": 21844, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 28", "label": "PROVISION", "start_char": 22050, "end_char": 22055, "source": "regex", "metadata": {"statute": null}}, {"text": "December 11, 1954", "label": "DATE", "start_char": 23638, "end_char": 23655, "source": "ner", "metadata": {"in_sentence": "It was then urged that the Income-tax Officer had, by intimaticin dated December 11, 1954, asked the Collector to stay the sale proceeding for recovery of income-tax dues amounting to Rs."}}, {"text": "Central Government", "label": "ORG", "start_char": 24765, "end_char": 24783, "source": "ner", "metadata": {"in_sentence": "It was finally contemded that the Company was prevented from exercising its right under r. 285-H of the rules framed under U.P. Act 1 of 1951, because ilie purchaser at the sale was appointed, by order of the Central Government, Authorised Con-\n\nPADRAUNA v, COMMISSIONER (Shah, /,) 477\n\n.,."}}]}
{"document_id": "1969_3_479_489_EN", "year": 1969, "text": "ABDUL KARIM AND OTHERS\n\nSTATE OF WEST BENGAL\n\nJanuary 31, 1969\n\n[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.)\n\nPreventive Detention Act IV of 1950 Ss. 3(2), 8, 9, 10 &o 11(1)-Com. titution of India, Art. 22 (5)-I/ State Government under an obligation to consider representation of detenu before forwarding to Advisory Board.\n\nThe petitioners were detained by orders of detention under s. 3 (2) of tho Preventive Detention Act IV of 1950. After the grounds of detention were communicated to them, they made representations to the State Government agaiust their detention. These were considered by the Advisory Board which reported under section 10 of the Act that there was sufficient cause for detention in each case and the State confirmed the detention& under s. 11 (1) di the Acl By petitions under Article 32 of the Constitution, the petitioners challenged the legality of their detention on the ground that the representations made hy them against their orders of detention were not considered by the respondent Government, but were merely forwarded hy it to the Advisory Board.\n\nIt was contended on behalf of the. State Government that there was no obligation on it to consider the representations since an Advisory Board had been constituted under Section 8 of the Act to consider the cases of. the detenus and had reported that there was sufficient cause for their detention; and that there was no express language in Article 22 (5) of the Coll8titution requiring the State Government to consider the representations o'i the detenus.\n\nAn alternative contention was that the State Government might be obliged to consider the representat, ion of a detenu only in a case • where the detention was for a period o! less than three months ar in a case contemplated by Article 22 (7).\n\nHELD: The orders of detention against the petitioners were illegal and ultra vires.\n\nIt is necessarily implicit in the language of Art.. 22 (5) that the State Government to whom the representation is made should praperly consider the representation as expeditiously as possible. The constitution of an Advisory Board under Section 8 of the Act does not relieve the Stale Government from the leal obligation .to consider the representation of the detenu as soon as it ts received by it, and to take appropriate action thereon including revocation di the order which it was empowered to do under section 13 of the Act. [ 486 Hl It is manifest that the right under Art. 22 (5) to make a representation has been guaranteed independent o! the duration of the period o! detention and irrespective of the existence or non-existence of an Advisory Board. The constitution of an Advisory. Board for the purpose di reporting whether a person should or should not be detained for a period of more than three months is a very different thing from a right i>f consideration by the State Government whether a person should be detained even for a single day. Even if a reference has to be made to the Advisory Board under section 9 of the Act, the appropriate Government is, under a legal obligation, to consider the representation of the detenu before ruch a reference is made.\n\n[488 DJ\n\nAll the procedural requirements of Article 22 a:re mandatory in character and even if one of the procedural requirements is not complied with the order of detention would be rendered illegal. [489 Al '\n\nORIGINAL JURISDICTION : Writ Petition No. 327 of 1968.\n\nPetition under Art. 32 of the Constitution of India for a writ in the nature of habeas corpus.\n\nR. K. Garg, for the petitioneni.\n\nDebabrata Mukherjee, P. K. Chakravarti and G. S. Chatterjee, for the respondent.\n\n'The Judgment of the Court was delivered by Ramaswami, J. In this case the petitioners have obtained a rule g upon the respondent, viz., the State of West Bengal, to show cause why a writ of habeas corpus should not be issued under Art. 3 2 of the Comtitution directing their release from detention under orders passed under s. 3 ( 2) of the Preventive Detention Act, 1950 (Act IV of 1950) (hereinafter called the Act). Cause has been shown by Mr. Debabrata Mukherjee and other coun$eJ on behalf of the respondent to whom notice of the rule was ordered to be given.\n\nAt the conclusion of the hearing of this petition on 15th January, 1969, we directed the release of these petitioners and said that the reasons would be furnished later. We shall now proceed to state those reasons.\n\nAs regards petitioner No. 2 Sk. Abdul Karim, the order of detention was made on 17th February, 1968 by tl\\.e District Ma, gistrate of Hooghly and reads as follows :\n\n\"No. 230..C Dated 17-2-1968 Whereas I am satisfied with respect to the person known as Sk. Abdul Karim, son of late Sk. Nasiruddin of Mathurdangi, Police-station Chanditala District Hooghly, that with a view to preventing him from acting in any ma!llller prejudicial to the maintenance of supplies and services essential to the eo!Oll).unity, it is necessary so to do, I therefore in exercise of the powers conferred by section 3 ( 2) of the Preventive Detention Act; 19 50 make this order directing that the said Sk. Abdul Karim be detained.\n\nGiven under my hand and seal of office.\n\nSd/ - Illegible . . 17-2-68 District Magistrate, Hoogb!y\".\n\nOn the same date the foilowing grounds of detention were communicated to the detenu :\n\n\"I. You are being detained in pursuance of a detention order made under sub-section ( 2) of section 3 of the Preventive Detention Act, 1950 (Act IV of 1950), on the following groUlllds :\n\n2. That on 2-2-68 at 19.05 hours you were arrested while carrying 60 kgs. of rice without authority from Dankuni Bazar towards Dankuni Rly. Station with a view to despatch the same by train into the statutory rationing areas of Calcutta and Howrah. {a) That on 9-2-68 at 14.00 hrs. you were found to detrain at Dankuni Rly. Station with a bag containing one maund of rice from Burdwan-Howrah local train.\n\n(b) That on 10-2-68 at 13.55 hrs. you with 2/'3other smugglers were found to carry rice 20 kgs. e.ach, by train from Dankuni Rly. Station towards Sealdah and you all detrained at Baranagore off side platform with unauthorised stocks of rice.\n\n(c) That on 11-2-68 at 08.45 hrs, you with other smugglers were found cg 15 kgs. of rice each by train towards Howrah from Danlruni Rly. Station.\n\n3. You are hereby informed that you may make a representation to the State Government, as early as possible, on receipt of the detention order and that such representation should be addressed to the Asstt. Secy. to the Govt. of West Bfl!lgal, Home Deptt. Special Section, Writers' Buildings, Calcutta, and forwarded through the Superintendent of the Jail in which you are detained.\n\n4. You are also informed that under section 10 of the Preventive Detention Act, 1950 (Act IV of 1950), the Advisory Board shall hear you in person and if you desile to be so heard by the Advisory Board, you should mtimate such desire in your representation to the State Government.\n\nSd/- Illegible 17-2-68 District Magistrate, Hooghly\".\n\nOn 21st February, 1968, Sk. Abdul Karim made a representation to the State Government against the order of detention.\n\nOn 22nd April, 1968, the Advisory Board made a report under a section 10 of the Act stating that there was sufficient cause for detention of Sk. Abdul Karim.\n\nOn 24th July, 1968, the Governor of West.Bengal confirmed the detention order under section 11(1) of the Act. /\n\nSection 3 of the Act provides :\n\n\"3. (1) The Central Government or the State Government may- ( a) If satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to-\n\n(i) the defence of India, the relatlons of India with foreign powers or the security of India, or\n\n(ii) the security of the State or the maintenance of public order, or\n\n(iii) the maintenance of supplies and services essential to the community, or\n\n(b) if satisfied with respect to any person who is a foreigner within the meaning of the Forejgners Act, 1946 (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained.\n\n( 4) When any order is made or approved by the State Government under this section, the State Govem!-\n\nment shall, as soon as may be, report the fact to the Central Government together with the grqunds on which the order has been made and such other particulars as in the opinion of the State Government having bearing on the necessity for the order\".\n\nSub-sections (2) and (3) of this section empower the District Magistrate, Sub-Divisional Magistrate or the Commissioner of Police in a Presidency Town to exercise the power conferred by and make the order contemplated in sub-section ( 1), but with the qualification that any order made thereunder must be reported forthwith to the Government of the State to which the officer in question is subordinate with the grounds on which the order has been made and such other particulars as in his opinion hav.e a bearing on the necessity for the order.\n\nSub-section ( 3) further pfl'\" vides that no such order made after the commencement of the\n\nPreventive Detention (Second Amendment) Act, 1952, shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government.\n\nSection 7 of the Act reads :\n\n\"7. ( 1 ) When a person is detained in pursuance of a detention order, the authority making the order shall,\n\n. '\\\n\nas soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of. making a representation against the order to the appropriate Governmem:t.\n\n(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose\".\n\nSection 8 provides for constitution of one or more Advisory Boards for the purposes of this Act. Sectfop 9 states :\n\n\"In every case where a detention order has been made under this Act, the appropriate Government shall, within thirty days from the date of detention under the order, place before the Advisory Board constituted by it under section 8 the grounds on which the order has beein made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer, also the report by such officer, under sub-section (3) of section 3\".\n\nSection 11 cts :\n\nI • \"11. (I ) In any case where the AdVJSOry Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and CO(!ltinue the detention of the person concerned for such period as it thinks fit. ( 2) In any case where the Advisory Board has reported that there is in its opinion no sufficient cause for the dettion of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith\".\n\nSection llA states :\n\n\"11 A. ( 1) The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 11 shall be twelve months from the date of detention.\n\n( 2) Notwithstanding anything contained in subsection ( 1) every detention order which has been confirmed under section 11 before the commencement of the Preventive Detention (Second Amendment) Act, 1952, shall unless a shorter period is specified in the order, continue to remain in force untll the 1st day of April, 1953, or until the expiration of twelve months\n\nfrom the date of dete.ntion, whichever period of detention expires later.\n\n(3) The provisions of sub-section\n\n(2) shall have effect notwithstanding anything to the contrary contained in section 3 of the Preventive Detention ( Ameaidment) Act, 1952 (XXXIV of 1952), but nothing contained in this section shall affect the power of the appropriate Governmtl!lt to revoke or modify the detention order at any earlier time.\"\n\nSection 13 provides for revocation of a detention order and reads as follows :-\n\n\" 13. ( 1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897 (X of 1897) a detention order may at any time be revoked or modified- ( a) notwithstanding that the order has been made by an officer mentioned in the sub-section ( 2) of section 3, by the State Government to which that officer is subordinate or by the Central Government; and (b) notwithstanding that the order has been made by a State Government or by the Central Government.\n\n(2) The revocation or expiry of a detention order shall not bar . the making of a fresh detentio.ri order under section 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer, as the case may be, is satisfied that such an order should be made\".\n\nThe Preventive Detention Act (Act No. 4 of 1950) was enacted by Parliament by virtue of the power conferred on it by Art. 22 clause (7) of the Constitution read with entries 9 of List I and 3 of List III of the Seventh Schedule. Article 22 ( 4), ( 5), ( 6) and ( 7) provides as follows :\n\n\"22.\n\n( 4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless--\n\n(a) an Advisory Board consisting of persons who\n\nare, or have been, or are qualified to be e.ppointed as H Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for sl'ch detention :\n\nProvided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or\n\n(b) such person is detained in accordance with the provisions of law made by Parliament under subclauses (a) and (b) of clause (7). ( 5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made wd shall afford him the earliest opportunity of making a representation against the order.\n\n(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. ( 7) Parliament may by law prescribe-\n\n(a) the circumstances er which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinioin of the Advisory Board in accordance with the provisions of sub-clause (a) of clause 4);\n\n(b) the maximum period for which any person may in any class or classes of cases be detained under any law for preventive detention; and ( c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) ol clause ( 4) \".\n\nIt was argued by Mr. Garg that the representations of the petitioners were not considered by the respondent Government of West Bengal; but were merely forwarded by the respondent to the Advisory Board without any consideratiQII.\n\nIt was contended G that the detention of the petitioners was bad in Jaw, because there was a failure on the part of the Government to consider the representations submitted by the petitioners before forwarding them to the Advisory Board. In the first counter-affidavit of the respondent it was asserted by Mr. Monoranjan Dey that \"there was no requirement of law which compelled the consideration by the State Government ol the deteirlu's representation before being forwarded to the Advisory Board for consideration\".\n\nIn the second counter. affidavit Mr. Monoranjan Dey said that \"for securing n unprejudiced and impartial consideration of the represqntatton of the\n\npetitioner by an independent Statutory Authority, the State Government refrained at that stage from expressing its views on the .representations to the Advisory Board\". The counter-lffi.davits of the respqn.dent are somewhat vague and the allegation of the petitioner has not been categorically denied.\n\nMr. Debabrata Mulilierjee, however, said in the course of argwnent that the case may be decided on the footing that the representations were not considered by the State Government before sending them to the. Advisory Board.\n\nIt was cqntended on behalf oi the respondent that there was no obligation on the State Government to consider the representations since the Advisory Board had been constituted under\n\nsection 8 of the Act to consider the case of the de~'us and to report to the State Govelllll1lent whether there was sufficient cause for their .detention.\n\nThe question involved in this case depends upon the construction of Art. 22 ( 5) of the Constitution which has already been reproduced.\n\nThough the Constitution has recognised the necessity of law~ as to prevfl!ltive detention, it has also provided certain safeguards to mitigate their harshness by placing fetters on the legislative power conferred on this topic.\n\nArticle 22 lays down the pennissible limits of legislation empowering preventive detention. Article 22 prescribes the minimum procedure that must be included in any law permitting prevf1!ltive detention and if such requirements are not observed the detention iniringes the fundamental right of the detenu guaranteed under Articles 21 and 22 of the Constitution.\n\nThe said requirements are : ( 1 ) that !!10 law can provide for detention for a period of more than three months unless the sufficiency for the cause of the detention is investigated by an Advisory Board within the said period of three months; (2) that the State law cannot authorise detention beyond the maximum period prescribed by Parliament under the powers given to it in Art. 22 clause (7); (3) that Parliament also cannot make a law authorising detention for a period beyond three months without the intervention of an Advisory Board unless the law conforms to the conditions laid down in clause ( 7) of Art. 22; ( 4) provision has also been made to enable Parliament to prescribe the procedure to be followed by Advisory Boards. Apart from these enabling and disabling provisions certain procedural rights have been expressly safeguarded by clause ( 5) of Art. 22. A person detained under a law of preventive detention has a right to obtain information as to the grounds of detention and has also the right to make a represeintation protesting against an order of preventive detention. Article 22 ( 5) does not expressly say to whom the representatlon is to be made and how the detainmg authority is to deal with the representation.\n\nBut it is necessarily implicit in the language ofArt. 22(5) that the State Government to whom the representation is made should properly consider the representation as expeditiously as\n\npossible. The constitution of an Advisory Board under section 8 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it. On behalf of the respondent it was said that there was no express Iainguage in Art. 22 ( 5) requiring the State\n\nGovernment to consider the representation of the detenu. But it is a necessary implication of the language of Art. 22 ( 5) that the State Government should consider the representation made by the detenu as soon as it is made, apply its mind to it and, if necessary, take appropriate action. In our opinion, the constitutional right\n\n!make a representation guaranteed by Art. 22(5) must be taken to include by necessary implication the constitutional right to a\n\nproper consideration of the representation by the authority to whom it is made. The right of representation under Art. 22 ( 5) is a valuable constitutional right and is not a mere formality. It is, therefore, not possible to accept the argument of the respondent that the State Government is not under a legal obligation to consider the representation of the detenu or that the representation must be kept in cold storage in the archives of the Secretariat till the time or occasion for sending it to the Advisory Board is reached. If the viewpoint contended for by the respondent is correct, the constitutional right under Art. 22 ( 5) would be rendered iJlusory. Take for instance a case of detention of a person on account of mistaken identity. If the order cf detention has been made against A and a different person B is arrested and detained by the police authorities because of similarity of names or some such cause, it cannot be reasonably said that the State Government should wait for the report of the Advisory Board before releasing the wrong person from detention. It is obvious that apart from the procedure of reference to the Aclvisory Board, the State Government has ample power under ectiOn 13 of the Act to reyoke nny ordr of detention at any time. If the right of representation in such a case is to be real and not illusory, there is a legal obligation imposed upon the State Government to consider the representation and to take appropriate action thereon. Otherwise the right of representation conferred by Art. 22 ( 5) of the Constitution would be rendered nugatory. The argument of Mr. Debabrata Mukherjee as regards the construction of Art. 22 ( 5) cannot a.!so\n\nbe correct for another reason. Under Art. 22 clause ( 4) of the Constitution, it is open to Parliament to make a law providing for preventive detention for a period of Jess than three months without the cause of detention being investigated by an Advisory Board. It is clear that the right of representation conferred by clause ( 5) of Art. 22 does not depend upon the duration of period nf detention. Even if the period of detention is less than three months, the detenu has a constitutional right of representation.\n\nIt is also important to notice that under Art. 22(7) Parliament may by law prescribe the circumstances under which and the class\n\n488 SUPllEME COURT llEPORTS\n\n[1969] 3 S.C.R.\n\nor classes of cases in which a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board. It cannot possibly be argued that if Parliament makes a law contemplated by Art. 22(7) of the Constitution, the detaining authority is under no legal obligation to consider the representation made by the detenu under Art. 22(5).\n\nFaced with this difficulty counsel on behalf of the respondent conceded that in a case where the detention is for a period of Jess than three months or in a case CQllltemplated Qy Art. 22(7), the State Government will be legally obliged to consider the representation of the detenu. But it was suggested that in a case where a reference has to be made to the Advisory Board it was not necessary for the State Government to consider the\n\nrepresation. We are unable to accept this argument as correct.\n\nThere is no such dichotomy in the scheme of Art. 22 ( 5) of the Constitution and there is no reason why it must be interpreted in a different manner for the two classes of detenus. It is manifest that the right under Art. 22 ( 5) to make a representatiOl!l has been guaranteed independent of the duration of the period of detention and irrespective of the existence or non-existence of an Advisory Board. The constitution of an Advisory Board for the purpose of reporting whether a person should or should not be detained for a period of more than three j!}flnths is a very different thing from a right of consideration by ilie State Government whether a person should be detained even for a sjngle day.\n\nThe obligation of the detaining authority to consider the representation is different from the obligation of the Advisory Board to consider the representation later on at the time of hearing the referooce.\n\nIt follows, therefore, that even if reference is to be made to the Advisory Board under section 9 of the Act, the appropriate Government is under legal obligation to consider the representation of the detenu before such a reference is made.\n\nIn the present case, Sk. Abdul Karim has alleged that his representation was not considered by the State Government before it was forwarded to the Advisory Board. This allegation is not controverted in the counter-affidavit filed on behalf of the responc!Qnt. What is at stake in this case is the issue of personal freedom which is one of the basic principles of a democratic State.\n\nA predominant position and role is given in our Constituti9n to human personality and human freedom as the ultimate source of all moral and spiritual values. Preventive detntion is a serious invasion of personal liberty, and, therefore, the Constitution has provided procedural safeguards against the improper exercise of the power of preventive detention.\n\nAl! the procedural requirements of Article 22 are in our opinion maindatory in character and\n\nA even if one of the procedural requirement is not complied with, the order of detention would be rendered illegal.\n\nAccordingly, the order of detention dated 17-2-1968 made a11ainst petitioner No. 2, Sk. Abdul Karim aod the subsequent order of the Gover\n\nnor of West Bengal dated 24th April, 1968 confirming the order Of detention must be held to be illegal and u/Jra vires and peti B tioner No. 2 Sk, Abdul Karim was entitled to be released.\n\nIn the case of petitioners Nos. 5, Nirmal Chandra Jana, No. 6 SL Ibrahim and No. 8 Nur Mohd. the order of detentioo sullers . from the same legal defect as the order of detention in the case of petitioner No. 2, Sk. Abdul Karim.\n\nFor the reasons already stated we hold that the order of detention and the order of cone firmation under section 11 of the Act in the case of petitioners Nos. 5, 6 8 were also illegal and ultra vi res and the petitioners were consequently entitled to be released\n\nR.K.P.S.\n\nPetition allowed.", "total_entities": 119, "entities": [{"text": "ABDUL KARIM AND OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "ABDUL KARIM AND OTHERS", "offset_not_found": false}}, {"text": "STATE OF WEST BENGAL", "label": "RESPONDENT", "start_char": 24, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "STATE OF WEST BENGAL", "offset_not_found": false}}, {"text": "January 31, 1969", "label": "DATE", "start_char": 46, "end_char": 62, "source": "ner", "metadata": {"in_sentence": "ABDUL KARIM AND OTHERS\n\nSTATE OF WEST BENGAL\n\nJanuary 31, 1969\n\n[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.)"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 68, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 77, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 94, "end_char": 111, "source": "metadata", "metadata": {"canonical_name": "A.N. 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"17-2-1968", "label": "DATE", "start_char": 25372, "end_char": 25381, "source": "ner", "metadata": {"in_sentence": "Accordingly, the order of detention dated 17-2-1968 made a11ainst petitioner No."}}, {"text": "Abdul Karim", "label": "PETITIONER", "start_char": 25418, "end_char": 25429, "source": "ner", "metadata": {"in_sentence": "Abdul Karim aod the subsequent order of the Gover\n\nnor of West Bengal dated 24th April, 1968 confirming the order Of detention must be held to be illegal and u/Jra vires and peti B tioner No.", "canonical_name": "ABDUL KARIM AND OTHERS"}}, {"text": "Nirmal Chandra Jana", "label": "PETITIONER", "start_char": 25693, "end_char": 25712, "source": "ner", "metadata": {"in_sentence": "5, Nirmal Chandra Jana, No."}}, {"text": "SL Ibrahim", "label": "PETITIONER", "start_char": 25720, "end_char": 25730, "source": "ner", "metadata": {"in_sentence": "6 SL Ibrahim and No."}}, {"text": "Nur Mohd", "label": "PETITIONER", "start_char": 25741, "end_char": 25749, "source": "ner", "metadata": {"in_sentence": "8 Nur Mohd."}}, {"text": "section 11", "label": "PROVISION", "start_char": 25993, "end_char": 26003, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_490_496_EN", "year": 1969, "text": "GANESH PRASAD DIXIT\n\nll.\n\nCOMMISSIONER OF SALES TAX, MADHYA PRADESH\n\nFebruary 3, 1969\n\n[J. C. SH;\\11, V. R.AMASWAMI AND A. N. GROVER, JJ.]\n\nMadhya Pradesh General Sales Tax A.ct (2 of 1959), ss. 2(d) 7, 18(5) and Madhya Pradesh General Sales Tax Rules, 1959, r. 33-Notice for best judgment assessment-Time given to show cause less than 15 day~ No prejudice to tax-payer-I/ proceedings liable to be set aside-Purchasu of building material-Material not resold but used in construction-- Building contractor if dealer-Purchase price of building maJerial ii liable to purchase-tax.\n\nThe appellants were a firm of building contractors and were registered as dealers under the Madhya Pradesh General Sales Tax, 1959. They were purchasing building materials, which were taxable under the Act, and were using them in the course of their business. The Sales-tax Olli cer served notices upon. them under s. 18(5) calling upon them to show cause why best judgment assessment should not be made. The appellants did not offer any explanation for their failure to submit returns of their turnover, and the Salestax Officer assessed their turnover in respect of sales as nil and assessed them to purchase-tax under s. 7 in respect of goods purchased by them for use in their construction business. Rule 33 of the Madhya Pradesh General Sales Tax Rules; 1959, provides tbat a notice of assessment under s. 18(5) shall not give, ordinarily, less than 15 days\n\nfrom the date of the service to show cause, but, the notices in the present case did not give the appellants a clear period of 15 days to show cause.\n\nOn the questions : (I) Whether the notices were invalid, and therefore, the assessment, on the basis of those notices was bad in law; (2) Whether the appellants were dealers; and (3) Whether the impositioo elf purchase-tax under s. 7 was in order,\n\nHELD: (1) The terms of r. 33 are not mandatory. Therefore, unlcos prejudice has resulted to the tax-payer the pr<reedings are not liable to be set aside. In the instant case it was not tht case of the appellants that because of the insufficiency of time they We'• unable to submit their Cl planation. Hence, the notice and assessmeu. could not be held to be invalid. [492 B-F; 493 BJ\n\n~ Ml s. Kajorfrnal Kalyanmal v. Commissioner of Income-tax, U.P. 3 I.T.C: 451 and lamna Dhar Potdar v. C.l.T., Punjab, 3 I.T.R. 112, distin guished.\n\n(2) Whether in a particular set of circumstances a person may be said to be a dealer carrying on business in a commodity must depend upon the facts of that case and no general test may be applied for determining the\n\nquestion. Merely because the turnover of the appellants in respect of sales was nil they did not cease to be dealers. A person, to be a dealer within the meaning of the Act, need not both purchase and sell goods because, a person who carries on the business of buying is, by the definition of the term in s. 2(d), a dealer. [4<13 H; 496 Fl\n\nState of A..P. v. H. Abdul Bakshi, 15 S.T.C. 644 (S.C.) followed.\n\nLM.S. Sadak Thamby & Co. v. State of Madras,\n\n14 S.T.C. 753, approved.\n\n(3) By using. the expre!'sion 'either consumers such goods in the manufacture of the goods for sale or otherwi.se' in s. 7, tho Legislature intended that consumption of goods renders the price paid for their purchase taxable, if th~ goods are used in the manufacture of the goods for sale or if the gootb are consurned otherwise. Therefore, under s. 7, purchase..\n\ntax is payable, where no sales-tax is payable under s. 6 on the sale price of the goods, by a dealer who buys taxable goods in the course of his business, and, (a) either consumes such goods in the manufacture of other goods for sale; or (b) consumes such goods otherwise; or (c) di!- poses of such goods in any manner other than by way of sale in tho State; or ( d) despatches them to a place outside tho State except as direct result of sale or purchase in the course of inter-State trade or commerce.\n\nIn the present case the assessees were registered as dealers, they had purchased taxable material in the course elf their business and bad consumed the materials otherwise than in the manufacture of goods for sale and for a profit motive. Therefore, the purchase price paid by tho appellant. was .taxable.\n\n[495 E--0; 496 A-BJ\n\nV. K. S. V. Sangh v. State of Maharashtra, 22 S.T.C. 116, not applicable.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 940 and 941 of 1966.\n\nAppeals by special leave from the judgments and orders dated August 31, 1965 of the Madhya Pradesh High Court in Misc. Civil Cases Nos. 321 and 331 of 1964.\n\nM. C. Chagla, B. L. Neema, Anja/i K. Varma and J. B.\n\nDadachanji, for the appellant (in both the appeals).\n\nI. N. Shroff, for the respondent (in both the appeals).\n\nThe Judgment of the Court was delivered by\n\nShalt, J. In respect of assessment to sales-tax for two accounting periods April 1, 1961 to June 30, 1961 and July 1, 1961 to September 30, 1961, the Board of Revenue, Madhya Pradesh, referred the following questions to the High Court of Madhya Pradesh for opinion :\n\n\" ( 1 ) Whether in the facts and circumstances of the case the notice in Form XVI that was served on the applicant was invalid and therefore the assessment of the applicant on the basis of that notice was bad in law ?\n\n( 2) Whet)ler in the facts and circumstances of the case the applicant was a dealer during the assessment period under the Act and tho imposition of purchase tax on him under 7 of the Act was in order ?\"\n\nThe High Court answered the first question in the negative, and the second in the affirmative. These appeals are preferred with special leave granted by this Court. • The appellants are a firm of building contractors and are registered as dealers under the Madhya Pradesh General Sales Tax Act 2 of 1959.\n\nThe appellants purchased building materials in the two account periods and used the materials in the course of their business.\n\nThe Sales Tax Officer, Jabalpur Circle, served notices under s. 18 ( 5) of the Act calling upon the appellants to show cause why \"best judgment\" assessments should not be made, and by order dated November 30, 1961, he assessed the appellants to tax in respect of goods purchased by the appellants for use in their construction business and imposed a penalty of Rs. 200/- in each case. Appeals against the orders imposing tax and penalty were dismissed by the Assistant Commissioner of Sales Tax and the Board of Revenue.\n\nRule 33 of the Madhya Pradesh General Sales Tax Rules, 1959, provides that a notice of assessment under s. 18 ( 5) shall be in Form XVI, and ordinarily it shall give not less than 1 ~\n\ndays from the date of the service to the assessee to show rause why he \"should not be assessed or re-assessed to tax and/or to pay penalty\".\n\nThe notices served upon the appellants did not give them a clear period of 15 days to show cause. But we are unable to hold on that account that the notices and the assescSments were invalid.\n\nWe agree with the High Court that the rule is not intended to be \"either invariable or rigid\", and \"unless prejudice has resulted to the tax-payer the proceedings are not liable to be set aside\". It is not even suggested that because of the insufficiency of time the appellants were unable to submit their explanation for failure to make their returns of turnover.\n\nTwo cases on which reliance was placed by counsel for the appellants in support of the plea that the notices were invalid have, in our judgment, no bearing. In Messrs.\n\nKajorimal Kalyanmal v. The Commissioner of Income-tax, U.P., (1) it was held that. a notice under s. 22(2) of the Income-tax Act. 1922, giving the assessee 20 days for filing the return was \"entirely illegal\".\n\nIn Jamna Dhar Potdar and Co. Lyallpur v.\n\nCommissioner of Income-tax, Punjab(') it was held, following the judgment in Ka; orima/ Kalyanmal's case(') that a notice which does not give to a tax-payer under s. 22(2} of the Income-tax Act, 1922, clear notice for furnishing a return, of thirty days from the date of service is illegal. But these cases were decided under s. 22 ( 2) of the Income-tax Act, 1922, before it wa~ amended by the Income-tax (Amendment) Act 7 of 1939.\n\nUnder the section as it then stood, it was enacted that the\n\n(I} 3 l.T.C. 451.\n\n(2) 3 I.T.R. ll2.\n\nIncome-tax Officer shall serve a notice upon any person whose total income is in the opinion of the Income-tax Officer of such an amount as to render that person liable to pay income-tax.\n\nThe section was held to be mandatory. But the terms of r. 33 of the Madhya Pradesh General Sales Tax Rules are plainly not mandatory. The answer given by the High Court on the first question must be accepted.\n\nTo appreciate the scope of the enquiry under the second question, the relevant provisions of the Act may be summarised.\n\nBy s. 2 ( d) of the Act, insofar as it is relevant, the expression \"dealer\" is defined as meaning, amongst others, \"any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise''. By s. 4(2) every dealer is liable to tax in respect of sales or supplies of goods effected in Madhya Pradesh with effect from the date on which his turnover calculated during a period of twelve months immediately preceding such date first exceeds the limits specified in sub-s. ( 5). Section 6 provides that the tax payable by a dealer under the Act shall be levied on his taxable turnover relating to the goods specified in Sch. II.\n\nSection 7 provides : \"Every dealer who in the course of his business purchases any taxable goods, in circumstances in which no tax under section 6 is payable on the sale price of such goods and either consumes such goods in the manufacture of other goods for sale or otherwise or disposes Of such goods in any manner other than by way of sale in the State or despatches them to a place outside the State except as a direct result of sale or purchase in the course of inter-State trade or commerce, shall be liable to pay tax on the purchase price of such goods at the same rate at which it would have been leviable on the sale price of such goods under section 6 :\n\nProvided \" Counsel for the appellants submitted that the appellants were not \"dealers\" within the meaning of the Act because they did not carry on the business of buying goods, and that in any event, the goods pll!chased by them for use in their construction business were not liable to tax under s. 7.\n\nThe appellants are registered dealers under the Madhya Pradesh General Sales Tax Act, 1958 (Act 2 of 1959). It is H true that in respect of the periods their tl}mover in respect of sales was assessed as \"nil\".\n\nBut on that account they did not cease to be registered dealers within the meaning of the Act. A person to be a dealer within the meaning of the Act need not 8 Sup. CJ.69-13\n\nboth purchase and sell goods: a person who carries on the business of buying is by the express definition of the' tetm in s. 2(d) a \"dealer\". This Court held in The Stgte of Aruihra Pradesh v. H.\n\nAbdul Bakshi and Bros.(') that it is not predicted'OOJa dealer that he must carry on the business of buying and selling the same goods. A person who buys goods for consumption in the process of manufacture of articles to be sold by him is a dealer within the meaning of the Hyderabad General Sales Tax Act 14 of\n\n1950. In H. Abdul Bakshi arli!l Bros's case(') the assessees sold skins, after tanning hides and skins purchased by them. In the process of tanning, they had to use tanning bark purchased by them.\n\nThis Court held that the turnover arising out of the tanning bark purchased by the assessees for consumption in the process of tanning was liableflto tax on the footing that the assessees were carrying on the busifill!is of buying goods, even though the goods beught were consum\\!l:l'in the process of tanning. In dealing with the question whether an activity of purchase of goods required for consumption in a manufacturing process may be regarded as a business, the Court observed (at p. 647) :\n\n\"A person to be a dealer must be engaged in the business of buying or selling or supplying goods. The expression 'business' though extensively used is a word of indefinite import. In taxing statutes it is used in the sense of an occupation, or profession which occupies the time, attention and labour of a person, nonnally with the object of making profit. To regard an activity as business there must be a course of dealings, either actually continued or contemplated to be continued with a profit motive, and not for sport or pleasure. But to. be a dealer a person need not follow the activity of buying, selling and supplying the same commodity.\n\nMere buying for personal consumption, i.e. without a profit motive, will not make a person dealer within the meaning of the Act, but a person who consumes a commodity bought by him in the course of his trade, or use in manufacturing another .commodity for sale, would be regarded as a dealer. The Legislature has not made\n\nsale of the very article bought by a person a condition for treating him as a dealer; the definition merely requires that the buying of the commodity mentioned in rule 5 (2) must be in the course of business, i.e. must be for sale or use with a view to make profit out of the integrated activity of buying and disposal.\n\nThe commodity may itself be converted into another\n\n(I) 15 S.T.C. 641.\n\nsaleable commodity, or it may be used as an ingredient or in aid of a manufacturing process leading to the production of such saleable commodity.\"\n\nThis Court agreed with the view expressed in L. M. S. Sadak Thamby & Co. v. The State of Madras(') in which a similar question was decided by the High Court of Madras. In that case the assessee had purchased tanning bark and had consumed it in tanning raw hides. The Madras High Court held that the buying of goods was in the course of business since it was associated with the business of tanning of hides carried on with a profit-making motive. These decisions support the contention of the State that price paid for goods bought for consumption in manufacturing an article for sale is exigible to purchase-tax even if the goods purchased are either destroyed or transformed into another species of goods.\n\nCounsel for the appeHants urged that in the cases of H.\n\nAbdul Bakshi a11d Bros.(') and L. M. S. Sadak Tham by & Compa11y(1) the assessees were carrying on the business of selling goods manufactured by them and for the purpose of manufacturing those goods certain other goods were purchased and consumed in the process of manufacture, but here the goods are not consumed in producing another commodity for sale, and on that account the two cases are distinguishable. The answer to that argument must be sought in the terms of s. 7. The phraseology used in that section is somewhat involved, but the meaning of the section is fairly plain. Where no sales tax is payable under s. 6 on the sale price of the goods, purchase-tax is payable by a dealer who buys taxable goods in the course of his business, and ( 1) either consumes such goods in the manufacture of other goods for sale, or (2) consumes such goods otherwise; or (3) disposes of such goods in any manner other than by way of sale in the State; or ( 4) despatches them to a place outside the State except as a direct result of sale or purchase in the course of inter -\n\nState trade or commerce. The assessees are registered as dealers and they have purchased building materials in the course of their business: the building materials are taxable under the Act, and the appellants have consumed the materials otherwise than in the manufacture of goods for sale and for a profit-motive. On the plain words of s. 7 the purchase price is taxable.\n\nMr. Chagla for the appellants urged that the expression \"or otherwise\" is intended to denote a conjunctive introducing a specific alternative to the words for sale immediately preceding. The clause in which it occurs means, says Mr. Chagla, that bv s. 7 the price paid for buying goods. consumed in the manufacture of other goods, intended to be sold or otherwise disposed of,\n\n(I) 14 S.T.C. 753.\n\n(2) 15 S.T.C.644.\n\nalone is taxable. We do not think that that is a reasonable interpretation of the expression \"either consumes such gooCls in the manufacture of other goods for sale or otherwise\". lt is intended by the Legislature . lhat consumption of goods renders the price paid for their purchase taxable, if the goods are used in the manufacture of other goods for sale or if the goods are consumed otherwise.\n\nThe decision in Versova Kali Sahakari Vahatuk Sangh Ltd. v.\n\nThe State of Maharashtra(') on which reliance was placed by Mr. Chagla has, in our judgment, no application. In that case a society registered under the Bombay Co-operative Societies Act, 1925, carried on the business of transporting fish belonging to its members from fishing centres to the markets and vice versa. For preserving fish in the course of transport, the society used to purchase ice, and the members, whose fish was transported, were charged for the quantity of ice required in respect of their baskets of fish.\n\nThe difference between the price paid by the society for ice pu.rchased and the charge made by the society for ice supplied was brought to tax by the Sales Tax Officer under the Bombay Sales Tax Act, 1959. The High Court of Bombay held that the society was not supplying ice with the intention of carrying on business in: ice, and on that account the society was not a \"dealer\" within the definition of that term in s. 2 (11 ) of the Act in regard to the supply of ice by it to its members. In that case the taxing authority did not seek to impose purchase-tax : he sought to bring to tax the difference between the price paid by the society for purchasing ice and the charges which it made from its members for supplying ice, and the High Court held that in supplying ice the society was not carrying on business in ice, and on that account was not a \"dealer\". Whether in a particular set of circumstances a person may be said to be carrying on business in a commodity must depend upon the facts of that case and no general test may be applied for determining that question.\n\nThe appeals fail and are dismissed with costs.\n\nOne hearing fee.\n\nV.P.S.\n\nAppeals dismissed.\n\n(I) 22 S.T.C. 116,", "total_entities": 56, "entities": [{"text": "GANESH PRASAD DIXIT", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "GANESH PRASAD DIXIT", "offset_not_found": false}}, {"text": "COMMISSIONER OF SALES TAX, MADHYA PRADESH", "label": "RESPONDENT", "start_char": 26, "end_char": 67, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF SALES TAX, MADHYA PRADESH", "offset_not_found": false}}, {"text": "February 3, 1969", "label": "DATE", "start_char": 69, "end_char": 85, "source": "ner", "metadata": {"in_sentence": "COMMISSIONER OF SALES TAX, MADHYA PRADESH\n\nFebruary 3, 1969\n\n[J. 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GROVER", "offset_not_found": false}}, {"text": "ss. 2(d)", "label": "PROVISION", "start_char": 191, "end_char": 199, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh General Sales Tax Rules, 1959", "label": "STATUTE", "start_char": 213, "end_char": 257, "source": "regex", "metadata": {}}, {"text": "s. 18(5)", "label": "PROVISION", "start_char": 894, "end_char": 902, "source": "regex", "metadata": {"linked_statute_text": "Madhya Pradesh General Sales Tax Rules, 1959", "statute": "Madhya Pradesh General Sales Tax Rules, 1959"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 1200, "end_char": 1204, "source": "regex", "metadata": {"linked_statute_text": "Madhya Pradesh General Sales Tax Rules, 1959", "statute": "Madhya Pradesh General Sales Tax Rules, 1959"}}, {"text": "s. 18(5)", "label": "PROVISION", "start_char": 1387, "end_char": 1395, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 1823, "end_char": 1827, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(d)", "label": "PROVISION", "start_char": 2900, "end_char": 2907, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 3193, "end_char": 3197, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 3422, "end_char": 3426, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 3492, "end_char": 3496, "source": "regex", "metadata": {"statute": null}}, {"text": "August 31, 1965", "label": "DATE", "start_char": 4481, "end_char": 4496, "source": "ner", "metadata": {"in_sentence": "Appeals by special leave from the judgments and orders dated August 31, 1965 of the Madhya Pradesh High Court in Misc."}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 4504, "end_char": 4529, "source": "ner", "metadata": {"in_sentence": "Appeals by special leave from the judgments and orders dated August 31, 1965 of the Madhya Pradesh High Court in Misc."}}, {"text": "M. C. Chagla", "label": "OTHER_PERSON", "start_char": 4578, "end_char": 4590, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, B. L. Neema, Anja/i K. Varma and J. B.\n\nDadachanji, for the appellant (in both the appeals)."}}, {"text": "B. L. Neema", "label": "OTHER_PERSON", "start_char": 4592, "end_char": 4603, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, B. L. Neema, Anja/i K. Varma and J. B.\n\nDadachanji, for the appellant (in both the appeals)."}}, {"text": "K. Varma", "label": "OTHER_PERSON", "start_char": 4612, "end_char": 4620, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, B. L. Neema, Anja/i K. Varma and J. B.\n\nDadachanji, for the appellant (in both the appeals)."}}, {"text": "J. B.\n\nDadachanji", "label": "OTHER_PERSON", "start_char": 4625, "end_char": 4642, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, B. L. Neema, Anja/i K. Varma and J. B.\n\nDadachanji, for the appellant (in both the appeals)."}}, {"text": "I. N. 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In respect of assessment to sales-tax for two accounting periods April 1, 1961 to June 30, 1961 and July 1, 1961 to September 30, 1961, the Board of Revenue, Madhya Pradesh, referred the following questions to the High Court of Madhya Pradesh for opinion :\n\n\" ( 1 ) Whether in the facts and circumstances of the case the notice in Form XVI that was served on the applicant was invalid and therefore the assessment of the applicant on the basis of that notice was bad in law ?"}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 5011, "end_char": 5039, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShalt, J. In respect of assessment to sales-tax for two accounting periods April 1, 1961 to June 30, 1961 and July 1, 1961 to September 30, 1961, the Board of Revenue, Madhya Pradesh, referred the following questions to the High Court of Madhya Pradesh for opinion :\n\n\" ( 1 ) Whether in the facts and circumstances of the case the notice in Form XVI that was served on the applicant was invalid and therefore the assessment of the applicant on the basis of that notice was bad in law ?"}}, {"text": "s. 18", "label": "PROVISION", "start_char": 5974, "end_char": 5979, "source": "regex", "metadata": {"statute": null}}, {"text": "November 30, 1961", "label": "DATE", "start_char": 6109, "end_char": 6126, "source": "ner", "metadata": {"in_sentence": "The Sales Tax Officer, Jabalpur Circle, served notices under s. 18 ( 5) of the Act calling upon the appellants to show cause why \"best judgment\" assessments should not be made, and by order dated November 30, 1961, he assessed the appellants to tax in respect of goods purchased by the appellants for use in their construction business and imposed a penalty of Rs."}}, {"text": "Madhya Pradesh General Sales Tax Rules, 1959", "label": "STATUTE", "start_char": 6450, "end_char": 6494, "source": "regex", "metadata": {}}, {"text": "s. 18", "label": "PROVISION", "start_char": 6539, "end_char": 6544, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Pradesh General Sales Tax Rules, 1959", "statute": "the Madhya Pradesh General Sales Tax Rules, 1959"}}, {"text": "s. 22(2)", "label": "PROVISION", "start_char": 7588, "end_char": 7596, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 7604, "end_char": 7618, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Kalyanmal", "label": "OTHER_PERSON", "start_char": 7831, "end_char": 7840, "source": "ner", "metadata": {"in_sentence": "In Jamna Dhar Potdar and Co. Lyallpur v.\n\nCommissioner of Income-tax, Punjab(') it was held, following the judgment in Ka; orima/ Kalyanmal's case(') that a notice which does not give to a tax-payer under s. 22(2} of the Income-tax Act, 1922, clear notice for furnishing a return, of thirty days from the date of service is illegal."}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 7922, "end_char": 7936, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 8087, "end_char": 8107, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2", "label": "PROVISION", "start_char": 8799, "end_char": 8803, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "s. 4(2)", "label": "PROVISION", "start_char": 9032, "end_char": 9039, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Madhya Pradesh", "label": "GPE", "start_char": 9123, "end_char": 9137, "source": "ner", "metadata": {"in_sentence": "By s. 4(2) every dealer is liable to tax in respect of sales or supplies of goods effected in Madhya Pradesh with effect from the date on which his turnover calculated during a period of twelve months immediately preceding such date first exceeds the limits specified in sub-s. ( 5)."}}, {"text": "Section 6", "label": "PROVISION", "start_char": 9313, "end_char": 9322, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 9464, "end_char": 9473, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 9601, "end_char": 9610, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 10117, "end_char": 10126, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 10427, "end_char": 10431, "source": "regex", "metadata": {"statute": null}}, {"text": "appellants are registered dealers under the Madhya Pradesh General Sales Tax Act, 1958", "label": "STATUTE", "start_char": 10438, "end_char": 10524, "source": "regex", "metadata": {}}, {"text": "s. 2(d)", "label": "PROVISION", "start_char": 10942, "end_char": 10949, "source": "regex", "metadata": {"linked_statute_text": "The appellants are registered dealers under the Madhya Pradesh General Sales Tax Act, 1958", "statute": "The appellants are registered dealers under the Madhya Pradesh General Sales Tax Act, 1958"}}, {"text": "H. Abdul Bakshi", "label": "OTHER_PERSON", "start_char": 11339, "end_char": 11354, "source": "ner", "metadata": {"in_sentence": "In H. Abdul Bakshi arli!l Bros's case(') the assessees sold skins, after tanning hides and skins purchased by them."}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 13686, "end_char": 13706, "source": "ner", "metadata": {"in_sentence": "This Court agreed with the view expressed in L. M. S. Sadak Thamby & Co. v. The State of Madras(') in which a similar question was decided by the High Court of Madras."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 13807, "end_char": 13824, "source": "ner", "metadata": {"in_sentence": "The Madras High Court held that the buying of goods was in the course of business since it was associated with the business of tanning of hides carried on with a profit-making motive."}}, {"text": "H.\n\nAbdul Bakshi", "label": "OTHER_PERSON", "start_char": 14302, "end_char": 14318, "source": "ner", "metadata": {"in_sentence": "Counsel for the appeHants urged that in the cases of H.\n\nAbdul Bakshi a11d Bros.(') and L. M. S. Sadak Tham by & Compa11y(1) the assessees were carrying on the business of selling goods manufactured by them and for the purpose of manufacturing those goods certain other goods were purchased and consumed in the process of manufacture, but here the goods are not consumed in producing another commodity for sale, and on that account the two cases are distinguishable."}}, {"text": "L. M. S. Sadak Tham", "label": "OTHER_PERSON", "start_char": 14337, "end_char": 14356, "source": "ner", "metadata": {"in_sentence": "Counsel for the appeHants urged that in the cases of H.\n\nAbdul Bakshi a11d Bros.(') and L. M. S. Sadak Tham by & Compa11y(1) the assessees were carrying on the business of selling goods manufactured by them and for the purpose of manufacturing those goods certain other goods were purchased and consumed in the process of manufacture, but here the goods are not consumed in producing another commodity for sale, and on that account the two cases are distinguishable."}}, {"text": "s. 7", "label": "PROVISION", "start_char": 14775, "end_char": 14779, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 14924, "end_char": 14928, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 15715, "end_char": 15719, "source": "regex", "metadata": {"statute": null}}, {"text": "Chagla", "label": "OTHER_PERSON", "start_char": 15756, "end_char": 15762, "source": "ner", "metadata": {"in_sentence": "Mr. Chagla for the appellants urged that the expression \"or otherwise\" is intended to denote a conjunctive introducing a specific alternative to the words for sale immediately preceding."}}, {"text": "s. 7", "label": "PROVISION", "start_char": 16001, "end_char": 16005, "source": "regex", "metadata": {"statute": null}}, {"text": "that case a society registered under the Bombay Co-operative Societies Act, 1925", "label": "STATUTE", "start_char": 16741, "end_char": 16821, "source": "regex", "metadata": {}}, {"text": "Sales Tax Officer under the Bombay Sales Tax Act, 1959", "label": "STATUTE", "start_char": 17306, "end_char": 17360, "source": "regex", "metadata": {}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 17366, "end_char": 17386, "source": "ner", "metadata": {"in_sentence": "The High Court of Bombay held that the society was not supplying ice with the intention of carrying on business in: ice, and on that account the society was not a \"dealer\" within the definition of that term in s. 2 (11 ) of the Act in regard to the supply of ice by it to its members."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 17572, "end_char": 17576, "source": "regex", "metadata": {"linked_statute_text": "the Sales Tax Officer under the Bombay Sales Tax Act, 1959", "statute": "the Sales Tax Officer under the Bombay Sales Tax Act, 1959"}}]}
{"document_id": "1969_3_497_504_EN", "year": 1969, "text": "A RAGHUNA'rH & ORS.\n\nKEDAR NAIB February 3, 1969 B\n\n[1. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]\n\nTran!Jfer of Property Act, 1882, ss. 4 and 54-Jndian Registration Act, 1908, \" 49 as amended by Transfer of Property (Amendment) Supplementary Act. 1929, s. lection 4 of T .P. Act whether makes s. 49 of Registration Act applicable to documents compulsorily registrable under s. 54 of T.P. Act-Unregistered sale-deed whether admissible in evidence.\n\nConstruction of documents-Mortgage or sale.\n\nPractice-High Court in appeal whether can give further relief than given to plaintiff by trial court when plaintiff did nor file appeal against decree of trial court.\n\nD took a loan of Rs. 1700/ - from M, father of the defendants.\n\nOn 27th July 1922, D along with his grandmother executed a possessory mortgage deed (Ex.4) in respect of a house for the amount of the aforesaid loan in favour of M. On 23rd February 1953, D's heir sold the said house to the plaintiffs who filed a suit for redemption of the house and for accounts.\n\nThe defendants who were sons of M resisted the suit on the ground that Ex .. 4 was not a deed of mortgage though apparently so.\n\nAccording to them when read with Ex. 26 which was executed in October\n\n1922 it was an outright sale. The !rial court decreed the plaintiff's suit for redemption on payment of an amount fixed by it.\n\nThe first Appellate Court allowed the defendants' appeal. The High Court when finally disposing of the second appeal set aside the judgment elf the lower appellate court and restored the judgment of the trial court. The High Court further remanded the case to the lower appellate court with the direction that \"the defendants be asked to render accounts before they claim any pay\n\nmeat from the plaintiff at the time of the redemption of the mortgage\".\n\nIn appeals before this Court the contentions on behal'f of the defendantsappellanls were : ( i) That Ex. 4 was really a sale deed and not a mortgage deed and it should be read with Ex. 26; (ii) Thats. 4 of the Transfer of Property Act did not make s. 49 of the Registration Act applicable to documents compulsorily registrable by the provisions of s. 54 paragraph 2 of the Transfer of Property Act, and therefore Ex. 26 though unregistered was not inadmissible in evidence; (iii) That in any case since the respon dents (olaintiffs) had not filed any appeal against the decree of the trial court, the High Court should not have granted them further relief as it did by giving a direction that the defendants should be asked to render accOU11ts before they claimed payment from the plaintiff at the time elf the redemption of the mortgage.\n\nHELD : (i) The terms of Ex. 4 clearly showed that it was a mortgage deed and not a sale deed.\n\n(ii) Ex. 4 could not be read with Ex. 26 because the latter was required to be registered under s. 54 of the Transfer of Property Act. In the absenee of such registration this document could not be received in evidence of any transaction affecting the property in view elf s. 29 of the Registration Act. [500 B--501 EJ The contention that s. 4 of the Transfer of Property Act did not make s. 49 of the Registration Act applicable to transactions under s. 54 paragraph 2 of the Transfer of Property Act could not be accepted.\n\nAny A doubt in this respect was removed by s. 10 of the Transfer of Property\n\n1 Amendment) Supplementary Act, 1929 which introduced the words '\"by \"\"Y provision of the Transfer of Property Act, 1882\" in s. 49 of the Registration Act. This amendment made it clear that the documents in the supplemental list i.e. the documents of which registration is necessary under tl'c Transfer of Property Act but not under the Registration Act fall within the scope of section 49 of the Registration Act, and if. not registered are not admissible in evidence of any transaction aifectlng any B immovable property comprised therein and do not affect any such immov able property. (503 F-504 BJ\n\nSohan Lal & Ors. v . . \"v/o/wn Lal & Ors., I.LR. 50 All. 986 and Rama Sahu v. Gowro Ratho, I.LR. [1921] 44 Mad. 55. referred to.\n\n(iii) The appellants were right in contending that when the plaintifi had not filed an appeal against the decree of the trial court the High Court C was not legally justified in giving further relief to the plaintiff than that granted by the trial court.\n\nAccordingly the portion of the decree of the High Court remanding the case to the IO\\ver appellate court with a direction that the dofendants should be asked to tender accounts, was liable to be set \"'ide. [504 D-E]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 457 and 458 of 1966.\n\nAppeals by special leave from the judgment aind order date\\I April 27, 1964 of the Allahabad High Court in Second Appeals Nos. 4940 and 3660 of 1961.\n\nS. P. Si11ha and Shaukat Hussain, for the appellants (in both the appeals).\n\nJ. P Goyal and G. Nabi Untoo, for the respondent (in both the appeals).\n\nThe Judgment of the Court was delivered by Ramaswami, J.\n\nIn the suit which is the subject matter of these appeals the plaintiff alleged that one Dwarka Prasad took a loan of Rs. 1700 from Madho Ram, father of the defendants, and that on 27th July, 1922, Dwarka Prasad along with one Mst. Kunta. his maternal grand mother, executed a possessory mortgage deed of the disputed house for Rs. 1700 in favour of Madho Ram.\n\nThe tenns of the mortgage deed were that the mortgagor was to pay interest of Rs. 12, 12/- per month out of which the rent amounting to Rs. 6/- which was the agreed usufruct of the house in suit was to be adjusted and the mortgagor was to pay Rs. 6/12/- per month in cash towards the balance of the interest. The parties agreed that the mortgage would be redeemable within twenty years after paying the principal amount and that portion of interest which was not discharged by the usufruct and other amounts. When Dwarka Prasad wiis unable to pay the amount of Rs. 6/12/- per month, he delivered possession of the house to Madho Ram who let out the house on a monthly\n\nrent of Rs. 25. The mortgagors Dwarka Prasad and Mst. Kunta died leaving Mst. Radha Bai as Dwarka Prasad's heir.\n\nRadha Bai sold the house in dispute to the plaintiff on 2nd February, 1953 and executed a sale deed. The plaintiff, therefore, became entitled to redeem the mortgage and asked the defendants to render accounts.\n\nThe defendants contested the suit on the ground that Madho Ram was not the mortgagor nor were the defendants mortgagees.\n\nIt was alleged that in the locality where the house was situated, there was a custom of paying Haqe-chaharum and to avoid that payment, the original deed dated 27th July, 1922 was drafted and executed in the form of a mortgage though it was actually an out-right sale. According to the defendants, the house was actually sold to Madho Ram and was not mortgaged. The defendants also pleaded that if the deed dated 27th July, 1922 was held to be a mortgage, the mortgagees were entitled to get the payment of Rs. 6442/8/- as interest, Rs. 2315 as costs of repairs etc.\n\nThe trial court held that the deed dated 27th July, 1922 was a mortgage deed, that Dwarka Prasad did not sell the house to Madho Ram and that the plaintiff was entitled to redeem the mortgage on payment of Rs. 1709/14/..\n\nThe trial court.accordingly decreed the plaintiff's suit for redemption on payment of Rs. 1709/14/-. Against the judgment of the trial court the defendants preferred an appeal before the District Judge, Varanasi, who allowed the appeal and dismissed the plaintiff's suit.\n\nThe plaintiff took the matter in second appeal to the High Court which framed an issue and remanded the case back to the lower appellate court for a fresh decision.\n\nThe issue framed by the High Court was \"Have the defendants become the owners of the property in dispute by adverse possession ?\" The High Court also directed the lower appellate court to decide the question oi admissibility of Exts. A-25 and A-26. After remand the lower appellate court held that the deed dated 27th July, 1922 was a mortgage deed\n\nand not a sale-deed, and, therefore, the plaintiff was entitled to redeem the mortgage. The lower appellate court further held that the defendants had failed to prove that they had acquired title by\n\nadverse possession.\n\nThe lower appellate court made the following order:-\n\n'The appeal is allowed with half costs in this way that the suit is decreed for the redemption of the mortgage in question if the. plaintiff pays within six months Rs. 1700 as principal, Rs. 9.87 N.P. Prajawat paid before this suit and any Prajawat paid by the defendants during the pendency of this suit till the plaintiff deposits the entire sum due under this decree and the interest at the rate of Rs. 6/12/- per month from 27-7-19?.2 till the plaintiff deposits the entire sum due\n\nunder this decree. The costs of the trial court are made easy.\n\nLet the preliminary decree under Order 34, R. 7, C.P.C. be modified accordingly\".\n\nAgainst the judgment and decree of the lower appellate court both the plaintiff and the defendants filed appeals before the High Court. The plaintiff prayed that the decree of the lower appellate court should be set aside and the decree of the trial court should be restored. The defendants, on the other hand, prayed that the decree of the lower courts should be set aside and the plaintiff's suit should be dismissed with costs.\n\nBy its judgment dated 27th April, 1964 the High Court dismissed the secoind appeal preferred by the defendants but allowed the plaintiff's appeal and set aside the judgment of the lower appellate court and restored the judgment of the trial court.\n\nThe High Court further remanded the case to the lower appellate court with the direction that \"the\n\ndefendants be asked to render accounts before they claim any payment from the plaintiff at the time of redempti® of the mortgage\". The present appeals are brought by special leave against the judgment of the Allahabad High Court dated 27th April, 1964 in second Appeals Nos. 4940 and 3660 of 196!.\n\nIn support of these appeals it was contended by Mr. Sinha that the deed Ex. 4 dated 27th July, 1922 was a sale deed and not a mortgage deed. It was pointed out that there was a subsequent deed of sale dated 8th Ock!ber, 1922 Ex. A-26 which is named 'Titimma Bainama'.\n\nThe contention was that the document Ex. 4 dated 27th July, 1922 rr.ust be construed along with Ex. A.26 which forms part of the same transactio!l and so construed the transaction was not a usufructary mortgage but was an outright sale. We are unable to accept the argument put forward on behalf of the appellant. Ex. A.26 dated 8th October, 1922 is not a registered document, and is hence not admissible in evidence to prove the nature of the transaction covered by the registered mortgage deed Ex. 4 dated 27th July, 1922. If Ex. 4 is taken by itself, there is no doubt that the transaction is one of mortgage.\n\nThe document Ex. 4 recites that in consideration of moaey advanced the executants \"mortgage the said house 'Bhog Bh!\\Q.dak' bearing No. 64/71 situate Mohalla Gola Dina Nath.'' Clause 2 provides a period of twenty years for redemption of the mortgage.\n\nClause 6 of the document stipulates that the cost of refJairs will be borne by the mortgagors. Clause 1 states :\n\n\"That the said sum of Rupees Seventeen hundred half of which is Rupees Eight hundred and fifty will carry interest at the rate of twelve annas per cent monthly. The sum of Rupees six wiH be deducted towards rent monthly from the interest which will accrue.\n\nThe possession of the house has been delivered to the\n\nRAGHUNATH v. KEDAll NATH (Ramaswami, J.)\n\n50 I\n\nA said mortgage Mahajan (money lender). The mortgagors will pay the balance of Rupees six annas twelve month by month to the said mortgagee after deducting the rent of Rupees six after giving the possession of the said house and shop\".\n\n8 Clause 4 provides :\n\n\"That we will go on paying the said Mahajan the sum of Rupees six twelve annas the balance of the interest monthly. If the whole or part of the interest remains unpaid we will pay at the time of redemption. ll this amount of interest is not paid the said house c shall not be redeemed\".\n\nThe reading of these terms clearly shows that Ex. 4 was a mortgage deed and not a sale deed. It was contended on behalf of the appellants that in order to avoid the payment of Haqe-ehaharum, the original deed dated 27th July, 1922 was drafted and executed in the form of a mortgage but it was actually meant to be an out- D right sale.\n\nTn support of this argument reference was made to Ex. A.26 dated 8th October, 1922. As we have already said Ex.\n\nA.26 was required to be registered under section 54 of the Transfer of Property Act. In the absence of such registration this document cannot be received in evideince of any transaction affecting the property in view of s. 49 of the Registration Act. It was, i, however, urged on behalf of the appellants that the effect of section 4 of the Transfer of Property Act was not to make section 49 of the Registration Act applicable to documents which are compulsorily registrable by the provisions of s. 54, paragraph 2 of the Transfer of Property Act.\n\nIn support of this contention reliance was placed on the decision of the full bench of the f Allahabad High Court in Sohan Lal & Ors. v.\n\nMohan Lal &: Ors.( 1 }\n\nSection 4 of the Transfer of Property Act states :\n\n\"The chapters and sections of this Act which relate to contracts shall be taken as part of the Indian Registratio, n Act, 1872.\n\nAnd sections 54, paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to the Indian Registration Act, 1908\".\n\nSection 54 of the Transfer of Property Act reads :\n\n\" \"Sale\" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.\n\n(I) I.LR. 50 All. 986.\n\nSuch transfer, iC1 the case of tangible immoveaoJe property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.\n\nIn the case of tangible immoveable property, of a value less than Qlle hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property\".\n\nSection 1 7 of the Registration Act states :\n\n\"1 7. (1 ) The following documents shall be registered if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864 or the Indian Registration Act, 1866 or the lindian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely :\n\n(a) instrument of gift of immoveable property;\n\n(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extiinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of\n\none hundred rupees and upwards, to or in immoveable property;\n\n(c) non-testamentary iristruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and\n\n( d) leases of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent;\n\n( e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or ope- . rates to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest, wheiher vested or contingent of the value of one hundred rupees and upwards to or in immoveable property\".\n\nSection 49 of the Registration Act prior to its. amendment in 1929 read:\n\n\"No document required by section 17 to be registered shall-\n\n(a) affect any immoveable property comprised therein, or\n\n(b) confer any power to adopt, or ( c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered\".\n\nBy section 10 of the Transfer of Property (Amendment) Supplementary Act, 1929, section 49 was amended as follows:-\n\n\"No document required by section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall- ( a) affect any immoveable property comprised\n\nthere~, or\n\n(b) confer any power to adopt, 01 ( c) be received as evidence of any transaction affecting such property or conferring such power unless it has been registered.\n\nProvided that an unregistered document affecting immoveable property a'1d required by this Act or the Transfer of Property Act, 1882, to be registered may be received. as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be affected by registered instrument\".\n\nThe inclusion of tbe words \"by any provision of the 'l;'ransfer of Property Act, 1882\" by the Amending Act, 1929 settled the doubt entertained as to whether the documents of which the registration was compulsory under the Transfer of Property Act, but not under section 17 of the Registration Act were affected by section 49 of the Registration Act.\n\nSection 4 o.f the Transfer of Property Act enacts that \"sections 54, paragraphs 2 and 3, 59, 107\n\nand 123 shall be read as supplemental to the India, n Registration Act, 1908\". It was previously supposed that the effect of this section was merely to add to the list of documents of which the registration was compulsory and not to include them in section t 7 so as to bring them within the scope of section 49.\n\nThis was the view taken by the Full Bench of the Allahabad High Court in\n\nSohan Lal' s case('). The same view was expressed in a Madras Case Rama Sahu v. Gowro Ratho(') and by MacLeod C.J. in a Bombay case Dawal v. Dharma('). We are however absolved (I) l.L.R. SO All. 986. i2) I.L.R. [1921] 44 Mad. 55.\n\n(3) l.L.R. [1918] 41Born.550.\n\nin the present case from examining the correctness of these dec1- , ions.\n\nFor these decisions have been superseded by subsequent legislation i.e. by the enactment of Act 21 of 1922 which by inserting in section 49 of the Registration Act the words \"or\n\nby any provision of the Transfer of Property Act, 1882\" has.made it clear that the documents in the supplemental list i.e. the documents of which registration is llCCCSSary under the Transfer of Property Act but not under the Registration Act fall within the scope of section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction affecting a.ny immoveable property comprised therein, and do not affect any such immovable property. We are accordingly of the opinion that Ex. A.26 being umegistered is not -admissible in evidence. In our opinion, Mr. Sinha is unable to make good his argument on this aspect of the case.\n\nMr. Sinha contended that in any event the High Court should not have remainded the case to the lower appellate court with a direction that the defendants should be asked to render accounts before they claim any payment from the plaintiff at the time of redemptiqn of the mortgage. It was pointed out that the plaintiff did not file an appeal against the decree of the trial court and in the absence of such an appeal the High Court was not legally justified in giving further relief to the plaintiff than that granted by the trial court. In our opinion, there is justification for this argument. We accordi, ngly set aside that portion of the decree of the High Court remanding the case to the lower appellate court with a direction that the defendants should be asked to render accounts. Otherwise we Sflirm the decree of the High Court allowing the plaintiffs appeal with costs and setting aside the judgment and decree of the lower appellate court and restoring judgmanit and decree of the trial court dated 31st October, 1956.\n\nSubject to this modification we dismiss these appeals. There F will be no order as to costs in this Court.\n\nG.C.\n\nAppeals dismissed.\n\nj_ ,", "total_entities": 113, "entities": [{"text": "February 3, 1969", "label": "DATE", "start_char": 32, "end_char": 48, "source": "ner", "metadata": {"in_sentence": "KEDAR NAIB February 3, 1969 B\n\n[1."}}, {"text": "1. C. SHAH", "label": "JUDGE", "start_char": 53, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 65, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 82, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Jfer of Property Act, 1882", "label": "STATUTE", "start_char": 107, "end_char": 133, "source": "regex", "metadata": {}}, {"text": "ss. 4 and 54", "label": "PROVISION", "start_char": 135, "end_char": 147, "source": "regex", "metadata": {"linked_statute_text": "Jfer of Property Act, 1882", "statute": "Jfer of Property Act, 1882"}}, {"text": "Jndian Registration Act, 1908", "label": "STATUTE", "start_char": 148, "end_char": 177, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 49", "label": "PROVISION", "start_char": 296, "end_char": 301, "source": "regex", "metadata": {"linked_statute_text": "Jndian Registration Act, 1908", "statute": "Jndian Registration Act, 1908"}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 305, "end_char": 321, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 54", "label": "PROVISION", "start_char": 377, "end_char": 382, "source": "regex", "metadata": {"linked_statute_text": "Jndian Registration Act, 1908", "statute": "Jndian Registration Act, 1908"}}, {"text": "27th July 1922", "label": "DATE", "start_char": 731, "end_char": 745, "source": "ner", "metadata": {"in_sentence": "On 27th July 1922, D along with his grandmother executed a possessory mortgage deed (Ex.4) in respect of a house for the amount of the aforesaid loan in favour of M. On 23rd February 1953, D's heir sold the said house to the plaintiffs who filed a suit for redemption of the house and for accounts."}}, {"text": "23rd February 1953", "label": "DATE", "start_char": 897, "end_char": 915, "source": "ner", "metadata": {"in_sentence": "On 27th July 1922, D along with his grandmother executed a possessory mortgage deed (Ex.4) in respect of a house for the amount of the aforesaid loan in favour of M. On 23rd February 1953, D's heir sold the said house to the plaintiffs who filed a suit for redemption of the house and for accounts."}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 2020, "end_char": 2044, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 49", "label": "PROVISION", "start_char": 2058, "end_char": 2063, "source": "regex", "metadata": {"statute": null}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 2071, "end_char": 2087, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 54", "label": "PROVISION", "start_char": 2158, "end_char": 2163, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 2183, "end_char": 2207, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 54", "label": "PROVISION", "start_char": 2841, "end_char": 2846, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 2854, "end_char": 2878, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 29", "label": "PROVISION", "start_char": 3018, "end_char": 3023, "source": "regex", "metadata": {"statute": null}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 3031, "end_char": 3047, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 4", "label": "PROVISION", "start_char": 3084, "end_char": 3088, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 3096, "end_char": 3120, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 49", "label": "PROVISION", "start_char": 3134, "end_char": 3139, "source": "regex", "metadata": {"statute": null}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 3147, "end_char": 3163, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 54", "label": "PROVISION", "start_char": 3197, "end_char": 3202, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 3222, "end_char": 3246, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10", "label": "PROVISION", "start_char": 3314, "end_char": 3319, "source": "regex", "metadata": {"statute": null}}, {"text": "Supplementary Act, 1929", "label": "STATUTE", "start_char": 3362, "end_char": 3385, "source": "regex", "metadata": {}}, {"text": "Transfer of Property Act, 1882", "label": "STATUTE", "start_char": 3439, "end_char": 3469, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 49", "label": "PROVISION", "start_char": 3474, "end_char": 3479, "source": "regex", "metadata": {"linked_statute_text": "the Transfer of Property Act, 1882", "statute": "the Transfer of Property Act, 1882"}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 3487, "end_char": 3503, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Transfer of Property Act but not under the Registration Act", "label": "STATUTE", "start_char": 3643, "end_char": 3702, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 49", "label": "PROVISION", "start_char": 3728, "end_char": 3738, "source": "regex", "metadata": {"linked_statute_text": "Transfer of Property Act but not under the Registration Act", "statute": "Transfer of Property Act but not under the Registration Act"}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 3746, "end_char": 3762, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 4711, "end_char": 4731, "source": "ner", "metadata": {"in_sentence": "Appeals by special leave from the judgment aind order date\\I April 27, 1964 of the Allahabad High Court in Second Appeals Nos."}}, {"text": "S. P. Si11", "label": "LAWYER", "start_char": 4779, "end_char": 4789, "source": "ner", "metadata": {"in_sentence": "S. P. Si11ha and Shaukat Hussain, for the appellants (in both the appeals)."}}, {"text": "Shaukat Hussain", "label": "LAWYER", "start_char": 4796, "end_char": 4811, "source": "ner", "metadata": {"in_sentence": "S. P. Si11ha and Shaukat Hussain, for the appellants (in both the appeals)."}}, {"text": "J. P Goyal", "label": "LAWYER", "start_char": 4856, "end_char": 4866, "source": "ner", "metadata": {"in_sentence": "J. P Goyal and G. Nabi Untoo, for the respondent (in both the appeals)."}}, {"text": "G. Nabi Untoo", "label": "LAWYER", "start_char": 4871, "end_char": 4884, "source": "ner", "metadata": {"in_sentence": "J. P Goyal and G. Nabi Untoo, for the respondent (in both the appeals)."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 4972, "end_char": 4981, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Ramaswami, J.\n\nIn the suit which is the subject matter of these appeals the plaintiff alleged that one Dwarka Prasad took a loan of Rs.", "canonical_name": "V. RAMASWAMI"}}, {"text": "Dwarka Prasad", "label": "OTHER_PERSON", "start_char": 5075, "end_char": 5088, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Ramaswami, J.\n\nIn the suit which is the subject matter of these appeals the plaintiff alleged that one Dwarka Prasad took a loan of Rs."}}, {"text": "Madho Ram", "label": "OTHER_PERSON", "start_char": 5118, "end_char": 5127, "source": "ner", "metadata": {"in_sentence": "1700 from Madho Ram, father of the defendants, and that on 27th July, 1922, Dwarka Prasad along with one Mst."}}, {"text": "27th July, 1922", "label": "DATE", "start_char": 5167, "end_char": 5182, "source": "ner", "metadata": {"in_sentence": "1700 from Madho Ram, father of the defendants, and that on 27th July, 1922, Dwarka Prasad along with one Mst."}}, {"text": "Kunta", "label": "OTHER_PERSON", "start_char": 5218, "end_char": 5223, "source": "ner", "metadata": {"in_sentence": "Kunta."}}, {"text": "Radha Bai", "label": "OTHER_PERSON", "start_char": 6095, "end_char": 6104, "source": "ner", "metadata": {"in_sentence": "Radha Bai as Dwarka Prasad's heir."}}, {"text": "2nd February, 1953", "label": "DATE", "start_char": 6187, "end_char": 6205, "source": "ner", "metadata": {"in_sentence": "Radha Bai sold the house in dispute to the plaintiff on 2nd February, 1953 and executed a sale deed."}}, {"text": "District Judge, Varanasi", "label": "COURT", "start_char": 7442, "end_char": 7466, "source": "ner", "metadata": {"in_sentence": "Against the judgment of the trial court the defendants preferred an appeal before the District Judge, Varanasi, who allowed the appeal and dismissed the plaintiff's suit."}}, {"text": "27-7-19?.2", "label": "DATE", "start_char": 8747, "end_char": 8757, "source": "ner", "metadata": {"in_sentence": "6/12/- per month from 27-7-19?.2 till the plaintiff deposits the entire sum due\n\nunder this decree."}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 8919, "end_char": 8924, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "27th April, 1964", "label": "DATE", "start_char": 9407, "end_char": 9423, "source": "ner", "metadata": {"in_sentence": "By its judgment dated 27th April, 1964 the High Court dismissed the secoind appeal preferred by the defendants but allowed the plaintiff's appeal and set aside the judgment of the lower appellate court and restored the judgment of the trial court."}}, {"text": "Sinha", "label": "OTHER_PERSON", "start_char": 10085, "end_char": 10090, "source": "ner", "metadata": {"in_sentence": "In support of these appeals it was contended by Mr. Sinha that the deed Ex."}}, {"text": "Titimma Bainama", "label": "OTHER_PERSON", "start_char": 10283, "end_char": 10298, "source": "ner", "metadata": {"in_sentence": "A-26 which is named 'Titimma Bainama'."}}, {"text": "8th October, 1922", "label": "DATE", "start_char": 10631, "end_char": 10648, "source": "ner", "metadata": {"in_sentence": "A.26 dated 8th October, 1922 is not a registered document, and is hence not admissible in evidence to prove the nature of the transaction covered by the registered mortgage deed Ex."}}, {"text": "Clause 2", "label": "PROVISION", "start_char": 11092, "end_char": 11100, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 6", "label": "PROVISION", "start_char": 11168, "end_char": 11176, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 1", "label": "PROVISION", "start_char": 11263, "end_char": 11271, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 4", "label": "PROVISION", "start_char": 11882, "end_char": 11890, "source": "regex", "metadata": {"statute": null}}, {"text": "section 54", "label": "PROVISION", "start_char": 12682, "end_char": 12692, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 12700, "end_char": 12724, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, 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"label": "PROVISION", "start_char": 16143, "end_char": 16153, "source": "regex", "metadata": {"linked_statute_text": "Supplementary Act, 1929", "statute": "Supplementary Act, 1929"}}, {"text": "section 17", "label": "PROVISION", "start_char": 16205, "end_char": 16215, "source": "regex", "metadata": {"linked_statute_text": "Supplementary Act, 1929", "statute": "Supplementary Act, 1929"}}, {"text": "Transfer of Property Act, 1882", "label": "STATUTE", "start_char": 16243, "end_char": 16273, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Act or the Transfer of Property Act, 1882", "label": "STATUTE", "start_char": 16611, "end_char": 16652, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Chapter II of the Specific Relief Act, 1877", "label": "STATUTE", "start_char": 16755, "end_char": 16798, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 53A", "label": "PROVISION", "start_char": 16869, "end_char": 16880, "source": "regex", "metadata": {"linked_statute_text": "Chapter II of the Specific Relief Act, 1877", "statute": "Chapter II of the Specific Relief Act, 1877"}}, {"text": "Transfer of Property Act, 1882", "label": "STATUTE", "start_char": 16888, "end_char": 16918, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Property Act, 1882", "label": "STATUTE", "start_char": 17088, "end_char": 17106, "source": "regex", "metadata": {}}, {"text": "Amending Act, 1929", "label": "STATUTE", "start_char": 17115, "end_char": 17133, "source": "regex", "metadata": {}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 17243, "end_char": 17267, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 17", "label": "PROVISION", "start_char": 17283, "end_char": 17293, "source": "regex", "metadata": {"linked_statute_text": "the Amending Act, 1929", "statute": "the Amending Act, 1929"}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 17301, "end_char": 17317, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 49", "label": "PROVISION", "start_char": 17335, "end_char": 17345, "source": "regex", "metadata": {"linked_statute_text": "the Amending Act, 1929", "statute": "the Amending Act, 1929"}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 17353, "end_char": 17369, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 4", "label": "PROVISION", "start_char": 17372, "end_char": 17381, "source": "regex", "metadata": {"linked_statute_text": "the Amending Act, 1929", "statute": "the Amending Act, 1929"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 17390, "end_char": 17414, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "sections 54", "label": "PROVISION", "start_char": 17428, "end_char": 17439, "source": "regex", "metadata": {"linked_statute_text": "the Amending Act, 1929", "statute": "the Amending Act, 1929"}}, {"text": "Registration Act, 1908", "label": "STATUTE", "start_char": 17524, "end_char": 17546, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 49", "label": "PROVISION", "start_char": 17771, "end_char": 17781, "source": "regex", "metadata": {"linked_statute_text": "Registration Act, 1908", "statute": "Registration Act, 1908"}}, {"text": "Sohan Lal", "label": "OTHER_PERSON", "start_char": 17858, "end_char": 17867, "source": "ner", "metadata": {"in_sentence": "This was the view taken by the Full Bench of the Allahabad High Court in\n\nSohan Lal' s case(')."}}, {"text": "Madras", "label": "GPE", "start_char": 17913, "end_char": 17919, "source": "ner", "metadata": {"in_sentence": "The same view was expressed in a Madras Case Rama Sahu v. Gowro Ratho(') and by MacLeod C.J. in a Bombay case Dawal v. Dharma(')."}}, {"text": "MacLeod", "label": "JUDGE", "start_char": 17960, "end_char": 17967, "source": "ner", "metadata": {"in_sentence": "The same view was expressed in a Madras Case Rama Sahu v. Gowro Ratho(') and by MacLeod C.J. in a Bombay case Dawal v. Dharma(')."}}, {"text": "section 49", "label": "PROVISION", "start_char": 18324, "end_char": 18334, "source": "regex", "metadata": {"linked_statute_text": "Registration Act, 1908", "statute": "Registration Act, 1908"}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 18342, "end_char": 18358, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Transfer of Property Act, 1882", "label": "STATUTE", "start_char": 18398, "end_char": 18428, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "CCCSSary under the Transfer of Property Act but not under the Registration Act", "label": "STATUTE", "start_char": 18538, "end_char": 18616, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 49", "label": "PROVISION", "start_char": 18642, "end_char": 18652, "source": "regex", "metadata": {"linked_statute_text": "CCCSSary under the Transfer of Property Act but not under the Registration Act", "statute": "CCCSSary under the Transfer of Property Act but not under the Registration Act"}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 18660, "end_char": 18676, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "31st October, 1956", "label": "DATE", "start_char": 20050, "end_char": 20068, "source": "ner", "metadata": {"in_sentence": "Otherwise we Sflirm the decree of the High Court allowing the plaintiffs appeal with costs and setting aside the judgment and decree of the lower appellate court and restoring judgmanit and decree of the trial court dated 31st October, 1956."}}]}
{"document_id": "1969_3_505_512_EN", "year": 1969, "text": "STATE OF RAJASTHAN v.\n\nMAN INDUSTRIAL CORPORATION LTD.\n\nFebruiuy 4, 1969\n\n(J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.)\n\nSales Tax--Contract for providing and fixing goods in building-Whether sale of goods or for rendering service.\n\nThe respondent, a fabricator of steel windows, submitted a tender for 'providing and fixing' window leaves in a building. The window leaves were to be fabricated according to the specifications in the contract and were to be fixed within six months from the date of acceptance to the building with rnwl plugs in cut stone work. The rate quoted by the respondent was based on the current price of mild steel billets and the price was to be revised in the light elf cost revision of the controlled price of steel.\n\nThe tender was accepted and the respondent carried out the contract. The Sales Tax Officer levied sales tax on the amount received under the contract holding that the contract was for sale of goods and to promote its sale the respondent undertook to fix the windows without demanding any charge for that service. But in appeal the Deputy Commissioner &.cise & Taxation held that two contracts resulted : one for providing windows and the other for fixing them in the building, and that the price of goods supplied, but not the charge for service was taxable. The Board of Revenue confirmed the order passed by the Deputy Commissioner observing that the contract wa~ not a contract of service. On reference, the High Court held that it was a building contract and amount received was not taxabJe.\n\nIn appeal, this Court,\n\nHElD : It was a contract for rendering service and the amount received by the respondent was not taxable.\n\nWhether a particular contract is for sale of goods or is a contract for service depends upon the main object of the parties gathered from the terms of the contract, the circumstances of the transaction, and the custom elf the trade, and no universal rule applicable to all transactions can be evolved. [509 Al\n\nIn this case, the primary undertaking of the respondent was not merely to supply the windows but to 'ftx' the windows. This service waa not rendered under a separate contract, nor was shown to be rendered customarily or normally as incidental to the sale by the person who supplied window leaves. The fixing of the windows in the manner stipulated required special technical skill. If the windows were not properly 'fixed' the contract would not be complete, and the respondent could not claim the amount agreed to be paid to it. It was only upon the 'fixing' of the window-leaves and when the window-leaves had become a part of the building construction that property in the goods passed under the terms of the contract.\n\n[512 E--GJ\n\nThe State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. 9 S.T.C. 353; The Government of Andhra Pradesh v. Guntur Tobaccos Ltd., 16 S.T.C. 240 (S.C.); Patnaik and Company v. State of Orissa, 16 S.T.C. 364 (S.C.); Mckenzies Ltd. v. The State of Maharashtra, 16 S.T.C. 518\n\n(S.C.); Commissioner of Sales-tax, Maharashtra State, Bombay v.\n\nArun\n\nElectrics, 16 S.T.C. 385; Arun Electrics, Bo1nbay v. Commissioner of Sales A Tux, Maharashtra State, 17 S.T.C. 576; The State of Madras v. Richardson & Cruddas Ltd., 21 S.T.C. 245; Love v. Norman Wright (B11ilders) Ltd., {1944] I K.B. 484, referred to.\n\nCIVIL APPELLATE JURISillCTION: Civil Appeal No. 812 ()f\n\nI 966.\n\nAppeal by special leave from the judgment and order dated B May 13, 1965 of the Rajasthan High Court in D.B. Civil Ref. No.\n\nI 8 of 1963.\n\nM. C, Chagla and K. Baldev Mehta, for the appellants.\n\nSanpat P. Mehta, 0. P. Malhotra, J. B. Dadachanji and 0. C.\n\nMathur, for the respondent.\n\nThe Jmtgment of the Court was delivered by\n\nShah, J.\n\nThe respondent carries on the business of fabricating \"steel doors, windows, sashes and other goods\".\n\nOn April 20, 1957, the resp<mdent -submitted in pursuance o! an invitation by the Executive Engineer, Ajmer Central Division, its tender for providing and fixing \"S.H. Windows 'W' Type\", \"S.H. Windows 'WI' Type\", \"T.H. Windows\" and \"Composite Windows\" of certain sizes \"in accordance with the specifications, designs, drawing and instructions\". The tender was accepted and the respondent carried out the contract.\n\nThe Sales Tax Officer 'B' Circle, Jaipur City included in the taxable turnover of the respoodent Rs. 23,480/- received under the contract. He held that the contract with the Executive Engineer was one of sale of goods and the respondent had with a view to promote sales of goods manufactured by it \"voluntarily offered to fit\" the goods and had made no separate charge for that service.\n\nThe Deputy CommissiOltl.er Excise & Taxation in appeal held that from the acceptance of the tender, two contracts resulted . one for providing doors and windows and another for \"fixing\" those doors and windows in a specified building, and that the price of the goods supplied, but not the charge for service, was taxable. He accordingly remanded the case with a direction to assess tax on the price for sale of materials <>nly.\n\nThe Board of Revenue exercising revisional p<Jwer confirmed the order passed by the Deputy Commissioner observing that the contract undertaken by the respondent was not contract of service.\n\nThe following question was referred by the Board of Revenue to the High Court of Rajasthan :\n\n\"Whether on the proper interpretation of the contract between the applicant and the Executive Engineer, C.P.W.D., Ajmer, regarding the providing amd fixing of the steel windows to the Accountant General's\n\nOffice, Jaipur, and looking to the terms of the transaction of the type undertaken by the applicant the Board were justified in holding that the contract was divisible between two parts representing the sale of the windows and the Jabour charges in fixing the same and thus partly liable to sales-tax ?\"\n\nThe High Court held that the _contract between the respondent and the Executive Engineer was a \"building contract\" and the amount received by the respondent was not taxable.\n\nThe relevant terms of the tender which was accepted by the Exeoutive Engineer were :\n\nC \"Item Rate-tender for Works\n\nI/We hereby tender for the execution for the President of India of the work specified in the under-written memorandum within the time specified in such memorandum at the rates specified therein, and in accordance in all respects with the specifications, designs, drawing, D and instructions in writing referred to in Rule 1 hereof and in Class II of the conditions of contract and with such materials as are provided for by and in all other respects in accordance with such conditions so far as applicable.\" This recital was followed by a memorandum setting out the E \"general description\" of the building in respect of which the window-leaves were to be supplied, the estimated cost of the contract and the description and the ammber of items of w0rk offered to be done. The items of work offered to be done were \"providing and 6xing\" four different types of windows.\n\nThe relevant conditions were--\n\nI' \"l. The wark shall be executed as per the specifications attached.\n\n2. The work is to be completed in 6 mQllths from the date of award of works. 3.\n\n4. The windows are to be fitted with raw! plugs m cut stoneworks.\n\n5. Work will be executed either by plain glass or\n\nund glass as may be decided by the Engineer in Charge.\n\nNote:- 1.\n\n2. We are offering windows which will be glazed with plain glass only.\n\nIf at a later date it is\n\n508 SUPREME COURT ltEPOllTS\n\n(1969] 3 S.C.R.\n\ndesired to have windows glazed with ground glass, A the difference in cost of glass will have to be paid\n\n3. 4.\n\nby you.\n\n5. The quotation is based on the current prices ot mild steel billets fixed by the Government. Should there be any change in the cqntrolled price of billets supplied to us, proportionate revision in the cost of rolled sections used in the fabrication will be made i, n the quotation.\n\n6. Sales Tax or any other tax is applicable will be extra.\n\n7. Work will be completed in 6 months from the date of order.\"\n\nThese were followed by specifications relating to the steel to be used in the fabrication, glazing, fittings and finish of the windows.\n\nThe respondent offered to execute and complete the \"work\"\n\nmtioned in the written memorandum according to the specifications and conditions.\n\nIn the view of the High Court the contract was for work, in the execution of which some movabre property vassed : it was not a contract for sale of windows and for rendenng service in connection with the fixing of those windows.\n\nCounsel for the State of Rajasthan contends that the respeadent carried on the business of fabricating and selling wind&w\n\nand door leaves and sashes etc. and entered into a contract for \"sale of windows\", and to promote sale of its manufactured goods, undertook to fix the windows without demanding any charge for that service, and the High Court was in error in holding that the contract was one of service in the execution of which property\n\nin the materials supplied by the respondent passed. Counsel urged that the terms of the tender were not decisive and the Court was entitled to ascertain the true effect of .the cootract as disclosed by the nature of the work, and the \"invoice\" for payment made out by the respondent.\n\nCounsel submitted that it is usual for manufacturers or dealers in specialized articles to arrange to \"fix and \"service\" the articles sold by them and on that account the contract does not acquire the character of a contract of_ service. He gave instances of sale of motor-tyres, luggage carriers, air-conditioning ooits, refrigerators and contended that in undertaking to instal or fix these units or articles the sellers do not enter into a works contract merely because they undertake to instal or for the articles sold so as to make them fit for immediate service.\n\nBut whether a particular contract is one for sale of goodi; or is\n\nRAJASTHAN V. MAN !NDST. CQRi'. (Shoh, J.) 509\n\na contract for service d!Jpends 'upon the main object of the parties gathered from the terms of the co, ntract, the circumstances of t11:e transaction, and custom of the trade, and no universal rule applicable to all transacllons may be evolved.\n\nAs observed in Halsbury's Laws of England, 3rd Edn., Vol. 34 Art. 3 at p. 6 : .. A contract of sale of goods must be distinguished trom a contract for work and labour.\n\nA CQ!ltract of sale is a contract whose main object is the transfer of the property in, and the delivery of the possession of, a chattel as a chattel to the buyer.\n\nWhere the main object of work undertaken by the payee of the price !s not the transfer of a chattel qua chattel, the contract 1s one for work and labour.\n\nThe test is whether or not the work and labour bestowed and in anything that can properly become the subject of sale; \"neither the ownership of the materials, nor the value of the skill and labour as compared with the value of the materials is conclusive, although such matters may be taken into consideration in determining, in the circumstances of a particular case, whether the contract is in substance one for work and labour or one for the sale of a chattel.\"\n\nWhat did the respondent agree to do whf<n it offered its tender?\n\nDid the respondent agree to sell the window-leaves as described in the tender or did it, as part of a works contract, agree to \"fix\" windows of certain specifications in the building intended to be used for the offices of the Accountant-General ? On a c01IJSideration of all the circumstances, we are of the view that the object of the respondent was to enter into a works contract. That clearly appears from the terms of the tender and its acceptance.\n\nThe windows were to be fabricated according to the specifications with glass-plain or ground as decided by the Engineer in Charge, and were to be \"fixed\" within six months from the date of its acceptance \"to the building with raw! plugs in cut stone-work.\" The rate quoted by the respondent was based on the current price of mild steel billets, and the price was to be revised in the light of cost revision of the controlled price of steel supplied to the respondent.\n\nThe contract undertaken by the respondent was to prepare the window-leaves according to the specifications and to fix them to the buildin~. There were not two contracts--0ne c.f sale and another o( service. \"Fixing\" the wi1ndows to the building was H also not incidental or subsidiary to the sale, but was an essential term of the contract. The window-leaves did not pass to the Union of India umder the terms of the contact as window-leaves.\n\nOnly on the fixing of the windows as stipulated, the contract 8Sup. CT/69-1~'\n\ncould be fully executed. and the property in the windows passed on the completion of the work and not before.\n\nIt was said by this Court iJO The State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd.(') that in a building contract which is one, entire and indivisible, there is no sale of goods.\n\nIn the case of a building contract the property in materials used does not pass to the other party to the cO!lltract as movable property. In the absence of an agreement to the cQJitrary, the materials in the construction of a building become the property of the other party to the contract only on the theory of accretion.\n\nIn The Government of Andhra Pradesh v. Guntur Tobaccos Ltd.(2 ) this Court pointed out (at p. 255):\n\n\"A contract for work in the execution of which goods are used •may take one of three forms. The con\n\ntract may be for work to be done for remuneration and for supply of materials used in the execution of the works for a price; it may be a contract for work in which the use of materials is accessory or inddental to the execution of the work; or it may be a contract for work and use or supply of materials though not accessory to the execution of the contract is voluntary or gratuitdus.\n\nIn the last class there is no sale because though property passes it does no~ pass for a price. Whether a contract is of the first or the second class must depend upon the circumstances; if it is of the first, it is a composite contract for work and sale of goods; where it is of the second category, it is a contract for execution of work not involving sale of goods.\"\n\n. The contract in questiO!ll in this case is of the second variety.\n\nCounsel relied upon Patnaik and Company v.\n\nState of Orissa(') and Mckenzies Ltd. v. The State of Maharashtra.(') But in both these cases the Court held on a consideration of the\n\nteims of the contract and the circumst11111Ces that the assessees had agreed to and did supply \"motor-bus bodies\" and the contract being one for sale of chattels, !hey were liable to pay sales-tax.\n\nOur attention was also invited to Commissioner of Sales Tax, Maharashtra State, Bombay v. Arun Electrics.(') In that case a firm of electrical contractors undertook the job of n5talling electrical fittings in the houses of their customers, which involved the supply and fixing of goods, such as wire, brass clips, wall brackets and tube lights with accessories.\n\nThe assessees charged\n\n. (1) 9 S.T.C. 353.\n\n(3) 16 S.T.C. 364 (S.C.).\n\n(5) 16 S.T.C. 385.\n\n(2) l6S.T.C. 240(S.C.) .\n\n(4) 16 S.T.C. 518 (S.C,),\n\ntheir customers consolidated rates for the materials consumed and labour involved, in carrying out the contracts.\n\nThe Sales Tax Officer charged to tax under the Bombay Sales Tax Act, 1959, the value of materials supplied in carrying out the contracts. It was held by the High Court of Bombay that the transaction of the assessees with their customers was not a pure works contract, but a combination of two distinct and separutecontracts, one for the supply or the sale of goods for consideration, and the other for the supply of work and labour, and only that part of the contract, which consisted of supply of goods for consideration, was liable to tax under the Sales Tax Act. That case was brought in appeal to this Court at the instance of the assessees. This Court in Arun Electrics, Bombay v. Commissioner of Sales Tax, Maharashtra State(') discharged the answer recorded by the High Court, holding that the conclusion recorded by the Deputy Commissioner and the Tribunal were based on no evidence, and the High Court could not record, on the facts found, an answer to the question referred. The Deputy Commissioner had proceeded only upon the terms of the invoice in which a charge was made for supplying and \"fixing\" the materials and providing light points complete with 1 /8 CTS wire, brass clips, tapes and alJ approved accessories. The conclusion of the departmental authorities was not based on any intention of the parties as disclosed by the evidence, but plainly on the terms of the bill which was , ambiguous.\n\nIn The State of Madras v. Richardson & Cruddas Ltd.(') the assessees without a formal contract agreed to supply fabricate and erect steel structures for a sugar factory. The assessees completed the contract. A bill was submitted by the assessees for charges for fabrication, supply and erection of steel structures at certain rates. The High Court of Madras on a consideration of the evidence held that there was a stipulation for a consolidated lumpsum payment of Rs. 1,160/- per ton for fabricating, supplying and erecting at site all steel work etc; there was no stipulation for passing of property in the goods to the factory before actual compktion of the erection work; there the contract did not contemplate dissecting the value of the goods supplied and the value of work and labour bestowed i, n the execution of the work; and the predominant idea underlying the contract was the bestowing of special skill and labour by the experienced engineers and mechanics of the assessees.\n\nThis Court agreed with the High Court and held that the contract was a works contract and not a contract for sale.\n\nOur attention was invited to a judgment of the Court of Appeal in Love v. Norman Wright (Builders) Ltd.(8 ) In that case the\n\n(!) 17 S.T.C. 576.\n\n(2) 21 S.T.C. 245.\n\n(3) [1944] 1K.B.484.\n\nSU'.PltEME COU'!i.T 1lBl'OR TS fr%9] 3 S.C.R.\n\nrespondents co_ntracted -with the ·ecretary of 'State tor War to do ll. the work and supply the l'llaterial mentioned iin the Schedliles to the contract, including the supply of black-out curtains, curtain rails and battens and their erection at a number of police stations.\n\nIt was held by the court of Appeal that tlle respondents were liable to pay purchase-tax. kel:iance was placed upon the observations made by Goddard, L.J. at p. 482 : 'B \"If one orders another to •make and fix curtains at his house the contract is one of sale though .work and labour are involved in the making and fixing, nor does it matter that ultimately the property was to pass to the War Office under the head contract. As between the plaintiff and the defendants the former passed C the property in the goods to the defendants who passed it on to the War Office.\"\n\nWe do not think that these observations furnish a universal test that whenever there is a contract to \"fix\" certain articles made by a manufacturer the contract must be deemed one for sale and not of service. The test in each case is whether the object of -the D party sought to be taxed is that the chattel as chattel passes to the other party and the services rendered in connection with the installation are under a separate contract or are incidental to the execution of the contract of sale.\n\nIn the present case, the specificatio;!l!l of the windows were set '£ out in the contract. The primary undertaking of the respondent was not merely to supply the windows but to \"fix\" the windows.\n\nThe service is not rendered under a separate contract nor is the service sho\\Wl to be rendered oustomarily or normally as incidental to the sale by the person who supplies window leaves. The ''fix.\n\nin~\" of windows in the manner stipulated required spedal technical skill. If the windows were not properly \"fixed\", the contract would not be complete, and the respondeint could not claim the amolljllt agreed to be paid to it. We agree with the High Court that it was only upon the \"fixing\" of the window-leaves and when the window\"leaves had become a part of the building construction that the property in the goods passed under the terms of the contract.\n\nThe appeal fails and is dismissed with costs.\n\nY.P.\n\nAppeal dismissed.", "total_entities": 25, "entities": [{"text": "STATE OF RAJASTHAN", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "STATE OF RAJASTHAN", "offset_not_found": false}}, {"text": "MAN INDUSTRIAL CORPORATION LTD", "label": "RESPONDENT", "start_char": 23, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "MAN INDUSTRIAL CORPORATION LTD", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 78, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 87, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 104, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "CIVIL APPELLATE JURISillCTION", "label": "RESPONDENT", "start_char": 3323, "end_char": 3352, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISillCTION: Civil Appeal No."}}, {"text": "M. C, Chagla", "label": "PETITIONER", "start_char": 3527, "end_char": 3539, "source": "ner", "metadata": {"in_sentence": "M. C, Chagla and K. Baldev Mehta, for the appellants."}}, {"text": "K. Baldev Mehta", "label": "LAWYER", "start_char": 3544, "end_char": 3559, "source": "ner", "metadata": {"in_sentence": "M. C, Chagla and K. Baldev Mehta, for the appellants."}}, {"text": "Sanpat P. Mehta", "label": "LAWYER", "start_char": 3582, "end_char": 3597, "source": "ner", "metadata": {"in_sentence": "Sanpat P. Mehta, 0."}}, {"text": "P. Malhotra", "label": "JUDGE", "start_char": 3602, "end_char": 3613, "source": "ner", "metadata": {"in_sentence": "P. Malhotra, J. B. Dadachanji and 0."}}, {"text": "B. Dadachanji", "label": "LAWYER", "start_char": 3618, "end_char": 3631, "source": "ner", "metadata": {"in_sentence": "P. Malhotra, J. B. Dadachanji and 0."}}, {"text": "C.\n\nMathur", "label": "LAWYER", "start_char": 3639, "end_char": 3649, "source": "ner", "metadata": {"in_sentence": "C.\n\nMathur, for the respondent."}}, {"text": "Shah", "label": "JUDGE", "start_char": 3716, "end_char": 3720, "source": "ner", "metadata": {"in_sentence": "The Jmtgment of the Court was delivered by\n\nShah, J.\n\nThe respondent carries on the business of fabricating \"steel doors, windows, sashes and other goods\"."}}, {"text": "Jaipur City", "label": "GPE", "start_char": 4278, "end_char": 4289, "source": "ner", "metadata": {"in_sentence": "The Sales Tax Officer 'B' Circle, Jaipur City included in the taxable turnover of the respoodent Rs."}}, {"text": "High Court of Rajasthan", "label": "COURT", "start_char": 5319, "end_char": 5342, "source": "ner", "metadata": {"in_sentence": "The following question was referred by the Board of Revenue to the High Court of Rajasthan :\n\n\"Whether on the proper interpretation of the contract between the applicant and the Executive Engineer, C.P.W.D., Ajmer, regarding the providing amd fixing of the steel windows to the Accountant General's\n\nOffice, Jaipur, and looking to the terms of the transaction of the type undertaken by the applicant the Board were justified in holding that the contract was divisible between two parts representing the sale of the windows and the Jabour charges in fixing the same and thus partly liable to sales-tax ?\""}}, {"text": "Ajmer", "label": "GPE", "start_char": 5460, "end_char": 5465, "source": "ner", "metadata": {"in_sentence": "The following question was referred by the Board of Revenue to the High Court of Rajasthan :\n\n\"Whether on the proper interpretation of the contract between the applicant and the Executive Engineer, C.P.W.D., Ajmer, regarding the providing amd fixing of the steel windows to the Accountant General's\n\nOffice, Jaipur, and looking to the terms of the transaction of the type undertaken by the applicant the Board were justified in holding that the contract was divisible between two parts representing the sale of the windows and the Jabour charges in fixing the same and thus partly liable to sales-tax ?\""}}, {"text": "Jaipur", "label": "GPE", "start_char": 5560, "end_char": 5566, "source": "ner", "metadata": {"in_sentence": "The following question was referred by the Board of Revenue to the High Court of Rajasthan :\n\n\"Whether on the proper interpretation of the contract between the applicant and the Executive Engineer, C.P.W.D., Ajmer, regarding the providing amd fixing of the steel windows to the Accountant General's\n\nOffice, Jaipur, and looking to the terms of the transaction of the type undertaken by the applicant the Board were justified in holding that the contract was divisible between two parts representing the sale of the windows and the Jabour charges in fixing the same and thus partly liable to sales-tax ?\""}}, {"text": "State of Rajasthan", "label": "GPE", "start_char": 8588, "end_char": 8606, "source": "ner", "metadata": {"in_sentence": "Counsel for the State of Rajasthan contends that the respeadent carried on the business of fabricating and selling wind&w\n\nand door leaves and sashes etc."}}, {"text": "England", "label": "GPE", "start_char": 10267, "end_char": 10274, "source": "ner", "metadata": {"in_sentence": "As observed in Halsbury's Laws of England, 3rd Edn.,"}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 10294, "end_char": 10300, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Officer charged to tax under the Bombay Sales Tax Act, 1959", "label": "STATUTE", "start_char": 15358, "end_char": 15427, "source": "regex", "metadata": {}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 15511, "end_char": 15531, "source": "ner", "metadata": {"in_sentence": "It was held by the High Court of Bombay that the transaction of the assessees with their customers was not a pure works contract, but a combination of two distinct and separutecontracts, one for the supply or the sale of goods for consideration, and the other for the supply of work and labour, and only that part of the contract, which consisted of supply of goods for consideration, was liable to tax under the Sales Tax Act."}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 17106, "end_char": 17126, "source": "ner", "metadata": {"in_sentence": "The High Court of Madras on a consideration of the evidence held that there was a stipulation for a consolidated lumpsum payment of Rs."}}, {"text": "SU'", "label": "PETITIONER", "start_char": 18062, "end_char": 18065, "source": "ner", "metadata": {"in_sentence": "SU'."}}, {"text": "Goddard", "label": "JUDGE", "start_char": 18526, "end_char": 18533, "source": "ner", "metadata": {"in_sentence": "kel:iance was placed upon the observations made by Goddard, L.J. at p. 482 : 'B \"If one orders another to •make and fix curtains at his house the contract is one of sale though .work and labour are involved in the making and fixing, nor does it matter that ultimately the property was to pass to the War Office under the head contract."}}]}
{"document_id": "1969_3_513_523_EN", "year": 1969, "text": "M. L. ABDUL JABHAR SAHIB v.\n\nH; V. VENKATA SASTRI & SONS & ORS.\n\nFebruar, y 4, 1969\n\n[S. M. S!KRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.]\n\nTransfer of Properly Act, 1882 (Act 4 of 1882), ss. 3, 59, 73(1) and 100-Security bond charging properties for payment of Rs. 50,000 execuzed to satisfy condition for leave to defend suit under 0. 7 Madras High Court Original Side Rules-S. 59 of the T. P. Act lvhether attracted to charge under s. 100-Requirernents of valid attestation-Security bond did not require attestation but required regist.J'ation under s. 17(1) (b) of Registration Act, 1908 (Act 16 of 1908)-Decree of court mentioning ; hat charge created by security bond enured for benefit of decree holder- Effect of decree-Rateable distribution when pennissible-Jurisdiction of High Court-Property situate outside li1nits of original jurisdiction under Letters Patent--Objection as to jurisdiction whether could be raised in circumstances of case.\n\nThe appellant filed suit No. 56 of 1953 against H for recovery of certain moni..es on the basis of promissory notes. As the suit was under 0. 7 of the Madras High Court Original Side Rules H was given leave to defend it on furnishing certain security. Accordingly H executed in favour of the Registrar, Madras High Court, a security bond charging certain properties 'for the payment of Rs. 50,000.\n\nThe document was attested by only one witness.\n\nAt the time of registration it was signed by t\\VO identifying witnesses and the Suh-Registrar.\n\nThe trial Judge decreed the appellant's suit and the decree mentioned that the charge created by H's security bond would enure for the benefit of the decree holder.\n\nJn execution proceedings the properties in question were sold and the proceeds deposited in court. At this stage the three respondents who also held money decrees against H applied to the Court for rateable distribution of the assets realised in the execution of the appellant's decree in suit No. 56 of 1953. The trial Judge dismissed their applications. In Letters Patent Appeals the High Court held that in the absence of attestation by the two witnesses the security bond executed by H was invalid inasmuch as a charge on property created under s. 100 o'f the Transfer of Property Act attracted the provisions of s. 59.\n\nAs to the decree passed in suit No. 56 of 1953 the High Court held that in view of the decree holder's omission to amend the plaint by adding a prayer for enforcement of the charge the decree should be conStrued as containing merely a recital of the fact that a secu- rity bond had been executed.\n\nOn these findings the High Court held that the respondents were entitled to rateable distribution. Against the High Court's orders the appellant filed appeals in this Court.\n\nOn the question of attestation he contended that the sub-Registrar and the two identi'fying witnesses must also he treated as having attested the security bond.\n\nHELD : (i) The essential conditions of a valid attestation under s. 3 of the Transfer of Property Act are : ( 1) two or more witnesses have seen the executant sign the instrument or have received from him a perw sonal acknowledgment of his signature; (2~ with a view to attest or to bear witness to this fact ea.ch of them has signed the instrument in the presence df the executant.\n\nIt is essential that the witness should have put his signature animo attestendi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an iden- A tifier or a registering officer, he is not an attesting witness.\n\n[519 C-D]\n\nPrima facie the registering officer puts his signature on the document in discharge of his statutory duty under s. 59 elf the Registration Act and not for the purpose of attesting it or certifying that he has received from the executarit a personal acknowledgment of his signature.\n\n[520 B-C]\n\nIn the present case the evidence did not show that the registering officer and the identifying witnesses signed the document with the intention of attesting it.\n\nNor was it shown that the registering officer signed it in the presence of the executant. The document could not therefore be said to have been attested by these witnesses and must be held to have been signed by one attesting witness only.\n\n[520 DJ\n\nVeerappa Chettiar v. Subramania, I.L.R. 52 Mad. 123'; Girja Datt v.\n\nGangotri, A.LR. 1955 S.C. 346, Abinash Chandra Bidyanidhi Bhattacharya\n\nv. Dasarath Malo, I.L.R. 56 Cal. 598, Shiam Sundar Singh v. Jagannath Singh, 54 M.L.J. 43 and Surendra Bahadur Singh v. Thakur Behari Singh, 1939 (2) M.L.J. 762, referred to.\n\n(ii) Section 100 of the Transfer of Property Act does not attract the provisions of s. 59.\n\n[521 C-D]\n\nThe first paragraph of s. 100 consists of two parts. The first part concerns the creation of a charge over immovable property which may be by act o'f parties or by operation of law. No restriction is put on the manner in which a charge can be made.\n\n[521 CJ\n\n_ When such a charge has been created the second part comes into play.\n\nIt provides that all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge. The second part does not address itself to the question of creation of a charge. It does not attract the provisions of s. 59 relating to the creation of a mortgage.\n\nThe second part moreover makes no distinction between a charge created by act of parties and a charge by operation of law.\n\nObviously the provisions Of s. 59 are not attracted to a charge by operation of law. Likewise the legislature C'Juld not have intended that the second part would attract the provisions of s. 59 to a charge created by act of parties.\n\n[521 D-EJ\n\nIf a charge can be made by a registerec:f instrument only in accordance with s. 59, the subsequent transferee will always have notice of the charge in view of s. 3 of the Act. But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases. when the subsequent transferee may not h'!-ve notice of the charge.\n\nThe plain implication of this paragraph is that a charge can be made without any writing.\n\n[521 F-G]\n\nIf a non-testamentary instrument creates a charge of the value of Rs. 100/- or upwards the document must be registered under s. 17(l)(b) of the Indian Registration Act, 1908.\n\nBut there is no provision of law which requires that an instrument creating the charge mut be attested by witnesses.\n\n[521 G-H]\n\nThe object of the second part of the first para¥1'aph of s. 100 is to make it clear that the rights and liabilities elf the parties in case of a charge H shall so far as may be the same as the rights and liabilities of the parties of a simple mortgage.\n\nIt was not intended to prescribe any particula{ mode for the creation of a charge. [522 Bl\n\nIt followed that the security bond in the present case was not required to be attested by witnesses. It was duly registered and was valid and operative. [522 Cl\n\nViswanadhan v. Menon, I.LR. [1939] Mad. 199 and Shiva Rao v.\n\nShanmugasundaraswami, I.LR. [1940] Mad. 306, disapproved.\n\nBaburao v. Narayan, I.LR. 1949 Nag. 802, 819-822, approved.\n\n(iii) The decree in suit No. 56 of 1963 on its true construction declared that the security bond created a charge over the properties in favour of the plaintiffs\n\n1for payment of the decretal ainount and gave them the liberty to apply for sale of the properties for the discharge of the incumbrance.\n\nPursuant to the decree the properties were sold and the assets were held by the court.\n\nThe omission to ask for an amendment of the plaint was an irregularity, but that did not affect the construction of the decree. [522 D-El\n\n(iv) The immovable properties had been sold in execution Of a decree ordering sale for the discharge of the encumbrance thereon in favour of the appellant. Section 73(1) proviso (c) therefore applied and the proceeds of the sale after defraying the expenses of the sale must be applied in the first instance in discharging the amount due to the appellant. Only the balance left after discharging this amount could be distributed among the respondents.\n\n[523 BJ\n\n(v) Since the respondents\"' own case rested on the assumption that the properties were lawfully sold they could not be allowed to raise the objection that the High Court had no territorial jurisdiction for sale of properties outside the local limits of its ordinary original jurisdiction. [522 G]\n\nSeth Hiralal Patni v. Sri Kali Nath, [1962] 2 S.C.R. 747, 751-52, Bahrein Petrolium Co. Ltd. v. P. J. Pappu, [1966) 1 S.C.R. 461, 462-63 and Zamindar of Etiyapuram v. Chidambaram Chetty, I.LR. 43. Mad. 675 (F.B.), referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 272 to 274 of 1966.\n\nAppeals by special leave from the judgment and order dated July 28, 1961 of the Madras High Court in O.S.A. Nos. 65, 70 and 71 of 1956.\n\nK. N. Balasubramaniam and R. Thiagarajan, for the appellant (in all the appeals).\n\nR. Gopalakrishnan, for respondents Nos. 2 to 4 (in C.A. No. 272 of 1966), respondents Nos. 1 and 2 (in C.A. No. 273 of\n\n1966) and respondent No. 1 (in C.A. No. 274 of 1966).\n\nThe Judgment of the Court was delivered by Bachawat, J.\n\nOn February 23, 1953 the appellant instituted C.S. No. 56 of 1953 on the Original Side of the Madras High Court under the summary procedure of Order 7 of the Original Side Rules against Hajee Ahmed Batcha claiming a decree for Rs. 40,556/1/2/- and Rs. 8,327 /12/9/- said to be due under two promissory notes executed by Haji Ahmed Batcha.\n\nOn March 9, 1953, Hajee Ahmed Batcha obtained leave to defend the suit on condition of his furnishing the security for a sum of\n\nRs. 50,000 to the satisfaction of the Registrar of the High Court. . On March 26, 1953 Hajee Ahmed Batcha executed a security bond in favour of the Registrar of the Madras High Court charging several immoveable properties for payment of Rs. 50,000.\n\nThe condition of the bond was that if he paid to the appellant the amount of any decree that might be passed in the aforesaid suit the bond would be void and of no effect and that otherwise it would remain in full force. The bond was attested by B. Somnath Rao. It was also signed by K. S. Narayana Iyer, Advocate, who explained the document to Hajee Ahmed Batcha and identified him.\n\nAll the properties charged by the bond are outside the local limits of the ordinary original jurisdiction of the Madras High Court.\n\nThe document was presented for registration on March 29, 1953 and was registered by D. W. Kittoo, the Sub Registrar of Madras-Chingleput District.\n\nBefore the Sub-Regis trar, Hajee Ahmed Batcha admitted execution of the document and was identified by Senkaranarayan, and Kaki Abdul Aziz. The identifying witnesses as also the Sub-Registrar signed the docu ment.\n\nHajee Ahmed Batcha died on February 14, 1954 and his legal representatives were substituted in his place in C.S. No. 56 of 1953. On March. 19, 1954 Ramaswami, J. passed a decree for Rs. 49,891/13/· with interest and costs and directed payment of the decretal amount on or before April 20, 1954. While passing the decree, he o.bserved :-\"It is stated that the defendant has executed a security bond in respect of their immoveable properties when they obtained leave to defend and this will stand enured to the benefit of the decree-holder as a charge for the decree amount.'' ...\n\nClauses 3 and 4 of the formal decree provided :-\n\n\" ( 3) that the security bond executed in respect of their immoveable properties by defendants 2 to 4 in pursuance of the order dated 9th March 1953 in application No. 797 of 1953 shall stand enured to the benefit of the plaintiff as a charge for the amounts mentioned in clause 1 supra; ( 4) that in default of defendants 2 to 4 paying the amount mentioned in clause 1 supra on or before the date mentioned in clause 2 supra the plaintiff shall be at liberty to apply for the appointment of Commissioners for sale. of the aforesaid properties.\"\n\nThe appellant filed an application for (a) making absolute the charge decree date.ct March 31, 1954 and directing sale of the properties; and (b) appointment of Commissioners for selling them.\n\nOn April 23, 1954 the Court allowed the application, appointed Commissioners for selling of the properties and directed that the relevant title deeds and security bond be handed over\n\nABl)UL JABHAR v. VEN1'.ATA SASTRI (Bachawat, J.) 517\n\nto the Commissioners.\n\nThe Commissioners sold the properties on May 29 and 30, 1954. The sales were confirmed and the sale proceeds were deposited in Court on July 2, 1954.\n\nAll the three respondents are simple money creditors of Hajee Ahmed Batcha.\n\nThe respondents Venkata Sastri & Sons filed O.S. No. 13 of 1953 in the Sub-Court, Vellore, and obtained a decree for Rs. 5,500 on March 27, 1953.\n\nRespondent H.R.\n\nCowramrna instituted O.S. No. 14 of 1953 in the same Court and obtained a money decree on April 14, 1953.\n\nThe two decreeholders filed applications for execution of their respective decrees.\n\nOne Rama Sastri predecessors of respondents H.R. Chidambara Sastri and H.R. Gopal Krishna Sastri obtained a money decree against Hajee Ahmed Batcha in O.S. No. 364 of 1951/52 in the Court of the District Munsift', Shimoga, got the decree transferred for execution through the Court of the District Munsiff, Vellore, and filed an application for execution in that Court. On June 7, 1954 the aforesaid respondents filed applications in the Madras High Court for ( i) transfer of their .execution petitions pending in the Vellore courts to the file of the High Court and (ii) an order for rateable distribution of the assets realized in execution of the decree passed in favour of the appellant in C.S. No. 56 of 1953.\n\nThe appellant opposed the applications and contended that as the properties were charged for the payment of his decretal amount, the sale proceeds were not available for rateable distribution amgngst simple money creditors.\n\nThe respondents contended that the security bond was invalid as it was not attested by two witnesses and that the decree passed in C.S. No. 56 of 1953 did not create any charge. Balakrishna Ayyar, J. dismissed all the applications as also exemption petitions filed by the respondents.\n\nHe held that the decree in C.S. No. 56 of 1953 did llOt create a charge on the properties. But following the decisi~ in Veerappa f:hettiar v. Subramania(') he held that the security bond waa sWliciently attested by the Sub-Registrar and the identifying witnea!les-. The respondents filed appeals against the orders.\n\nOn March zs. 1 %& the Jj)ivisional Bench hearing the appeals referred t~ a Fult Bench the following question :\n\n\"Whether the decis1ou in Veerappa Chettiar v.\n\nSubramania Iyer (l.L.R. 52 Mad. 123) requires reconsi'11raifon.\"\n\nThe Full Bench held :\n\n\"fn our opinion, such signatures of the registering officer and the identifying witnesses endorsed on a mortgage document can be treated as those of attesting wit- H nesses if ( l) the signatories are those who have seen Ifie exeeution or received a personal acknowled}lment\n\n(1) l.L.R. 52 Mad. 123.\n\nfrom the executant of his having executed the docu- A ment, ( 2) they sign .their names in the presence of the executant and (3) wcile so doing they had the animus to attest.\n\nThe mere presence of the signatures of the registering officer or the identifying witnesses on the registration endorsements would not by themselves be sufficient to satisfy the requirem.nts of a valid attesta- B tion; but it would be competent for the parties to show by evidence that any or all of these persons did in fact intend to and did sign as attesting witness as well.\"\n\nThe Full Bench held that the decision in Veerappa Chettiar's Case(') can be held to be correct to this limited extent only and not otherwise. At the final hearing of the appeals, the Divisional C Bench held that ( 1) a charge by act of parties could be created only by a document registered and attested by two witnesses; (2) the security bond was not attested by two witnesses and was therefore invalid; (3) the decree in C.S. No. 56 of 1953 should be construed as containing nothing more than a recital of the fact of there having been a security bond in favour of the plaintiff; D and the sale in execution of the decree must be regarded as a sale in execution of a money decree; and ( 4) the respondents were entitled to an order for rateable distribution.\n\nAccordingly. the Divisional Bench allowed the appeals, directed attachment of (he sale proceeds and declared that the respondents were ntitled to rateable distribution along with the appellant.\n\nThe present appeals have been filed after obtaining special leave from this E Court.\n\nThe following questions arise in these appeals : ( 1) Is the securitv bond attested bv two witnesses: (2) if not. is it invalid? ( 3) does the decree in C.S. No. 56 of 1953 direct sale of the properties for the discharge of a charge thereon. and ( 4) are the respondents entitled to rateable distribution of the assets held bv court As to the first question. it is not the case of the appellant that KS. Naravana Iver is an attesting witness.\n\nThe contention is that the Sub-Registrar D.W. Kittoo and the identifying witnesses Senbranarayana and Kaki Abdul Aziz attested the document.\n\nIn our opinion. the High Court rightly rejected this contention.\n\nSection 3 of the Transfer of Property Act gives the definition of the word \"attested'' and is in these words :-\n\n\"Attested\". in relation to an instrument. means and shall be deemed to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument. or has seen some other person sign the instrument in the presence and by the\n\n(1) I.LR. 52 Mad. 12).\n\ndirection of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time and no particular form of attestation shall be necessary.'' It is to be noticed that the word \"attested\", the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact.\n\nBriefly put, the essential conditions of a valid attestation under s. 3 are : ( 1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in th~ presence of the executant.\n\nIt is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the ex.ecutant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.\n\n\"In every case' the Court must be satisfied that the names were written animo attestandi\", see Jarman on Wills, 8th ed. 137.\n\nEvidence is admissible to show whether the witness had the intention to attest. \"The attesting witnesses must subscribe with the intention that the subscription made should be complete attestation of the will, and evidence is admissible to show whether such was the intention or not,\" see Theobald on Wills, 12th ed. p. 129.\n\nIn Girja Datt v. Gangotri (')the Court held that the two persons who had identified the testator at the time of the registration of the will an<l had appended their signatures at the foot of the endorsement by the Sub-Registrar. were not attesting witnesses as their sirnatures were not put \"animo attestandi\". In Abinash Chandra\n\nBidrnnidhi Bhattacharya v. Dasarath Malo( 2 ) it was held that a person who had put his name under the word \"scribe\" was not an attesting \":itnss as he had put his ignature only for the purpose 0f authent1catmg that he was a \"scnbe\". In Shiam Sundar Singh\n\nv. lagannath Singh (3 ) the Privy Council held that the legatees wh? had put_ their signatures on the will in token of their consent to 11~ execution were not attesting witnesses and were not disqualified from taking as legatees.\n\nThe Indian. Reg_istration Act. 1908 lays down a detailed procedure fo~ _reinstrallon of documents.\n\nThe registering officer is\n\n(I) A.l.R. 1955 S.C. 346. 351.\n\n(l) 54 M.L.J. 43.\n\n(2) T.l.R. 56 Cal. 59~\n\ns20 SUPREMlE COUR<Jl RIEPORTS\n\n[1969)3 S.C.R.\n\n.under a duty to enquire whether the document is executed by the person by whom it purp<!>rts to have been executed and to satisfy himself as to the identity of the executant, s. 34 ( 3). He can register the document if he is satisfied about the identity of the person executing the document and if that person• admits execution, [s. 25 ( 1) ].\n\nThe signatures of the executant and of every person examined with reference to the document are endorsed on the document, (s. 58). The registering officer is required to affix the date and his signature to the endorsements ( s. 59).\n\nPrima facie, the registering officer puts his signature on the document in discharge of his statutory duty under s. 59 and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature.\n\nThe evidenc~ does not show that the registering officer o, W.\n\nKitto put his signature on the document with the intention of attesting it Nor is it proved that he signed the document in the presence of the executant.\n\nTn these circumstances he cannot be regarded as an attesting witness, see Surendra Bahadur Singh v.\n\nThakur Behari Singh('). Likewise the identifying witnesses Senkaranarayima and Kaki Abdul Aziz: put their sigmtures on the document to authenticate the fact that they ha j identified the executant.\n\nIt is not shown that they put their signatures for the purpose of attesting the document. They cannot therefore be regarded as attesting. witnesses.\n\nIt is common case that B. Somnath Rao attested the document.\n\nIt follows that the document was attested by one witness only.\n\nAs to the second question, the argument on behalf of the respondents is that s. 100 of the Transfer of Property Act attracts s. 59 and that a charge can be created only by a document signed, registered and attested by two witnesses in accordance with s. 59 where the principal money secured is Rs. 100 or upwards. The High Court accepted this contention following its earlier decisions in Viswanadhan v. Menon(') and Shiva Rao v. Shanmugasundaraswami(') and held that the security bond was invalid, as it was attested by one witness only. We are unable to agree with this <ipinion. Section 100 is in these terms :-\n\n\"Where immoveable property of one person is by act of parties or operation of la_w made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property: and all the provisions hereinbefore contained which, apply to a simple mortgage shall, so far .. as. may be, apply to such charge.\n\n(I) (1939) 2 M.L.J. 762.\n\n(2) I.L.R. [1939] Mad. 199. (J) I.L.R. [1940] Mad. JOS._\n\nE •\n\nNothing in this section applies to the charge of a trustee on the trust property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.\"\n\nThe first paragraph consists of two parts: The first part con-· cerns the creation of a charge over immoveable property. A charge may be made by act of parties or by operation of Jaw.\n\nNo restriction is put on the manner in which a charge can be made.\n\nWhere such a charge has been created the second part comes into play.\n\nIt provides that all the provisions hereinbefore contained which apply to a simple mortgage shall, ; o far as may be, apply to such charge.\n\nThe second part does not address itself to the question of creation of a charge. It does not attract the provisions of s. 59 relating to the creation of a mortgage.\n\nWith regard to the applicability of the provisions relating to a simple mortgage, the second part of the first paragraph makes no distinction between a charge created by act of parties and a. charge by operation of law. Now a charge by operation of law is not made by a signed; registered and attested instrument. Obviously, the second part has not the effect of attracting the provisions of s. 59 to such a charge. Likewise the legislature could not have intended that the second part would attract the provisions of s. 59 to a charge created by act of parties. Had this been the intention of the legislature the second part would' have been differently worded.\n\nIf a charge can be made by a registered instrument only in accordance with s. 59, the subsequent transferee will always have notice of the charge in. view of s. 3 under which registration of the instrument operates as such a notice. But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases where the subsequent transferee may not have notice of the charge. The plain implication of this paragraph is that a charge can be made without any writing.\n\nIf a non-testamentary instrument creates a charge of the value of Rs. 100 or. upwards; the document must be registered under s. 17 (1 )(b) of the Indian Registration Act. But there is no provision of law which requires that an instrument creating the charge must be attested by witnesses.\n\nBefore s. 100 was amended by Act 20 of 1929. it was well settled that the section did not prescribe any particular mode of creating a charge. , The amendment substituted the_ words \"all -\n\nthe provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge,\" for the words \"all the provisions hereinbefore contained as to a mortgagor shall, so far as may be, apply to the owner of such property, and the provisions of sections 81 and 82 shall, so far as may be, apply to the person having such charge.\" The object of the amendment was to make it clear that the rights and liabilities of the parties in case of a charge shall, so far as may be, the same as the rights and Jiabilities of the parties to a simple mortgage.\n\nThe amendment .was not intended to prescribe any particular mode for the creation of a charge.\n\nWe find that the Nagpur High Court came to a similar conclusion in Baburao v. Narayan('). It follows that the security bond was not required to be attested by witnesses.\n\nIt was duly registered and was valid and operative.\n\nAs to the third question, we find that the decree dated March 19, 1954 declared that the security bond in respect e>f the immove. able properties would enure for the benefit of the appellant as a charge for the decretal amount.\n\nThis relief was granted on the\n\nral prayer of the plaintiffs.\n\nWe are unable to agree with the High Court that in view of the omission to amend the plaint by adding a prayer for enforcement of the charge, the decree should be construed as containing merely a recital of the fact that a security bond had been executed. In our opinion, the decree on its true construction declared that the security bond created a charge over the properties in favour of the plaintiffs for payment of the decretal amount and gave them the liberty to apply for sale of the properties for tl).e discharge of the incumbrance. Pursuant to the decree the properties were sold and the assets are now held by the Court. The omission to ask fot an amendment of the plaint was an irregularity, but that does not affect the construction of the decree.\n\nIt was suggested that the decree was invalid as the High Court had no territorial jurisdiction under clause 12 of its Letters Patent to pass a decree for sale of properties outside the local limits of its ordinary original jurisdiction.\n\nFor the purpose of these appeals, it is sufficient to say that the respondents cannot raise this question in the present proceedings. If the decree is_ invalid and the sale is illegal on this ground, the respondents cannot maintain their applications for rateable distribution of the assets.\n\nThey can ask for division of the sale proceeds only on the assumption that te properties were lawfully sold. It is therefore unnecessary to decide whether the objection as to the territorial jurisdiction of the High Court has been waived by the judgment-debtor and cannot now be agitated by him and persons claiming through him having regard to the decisions in Seth Hiralal Patni v. Sri Kali\n\n.(!) l.L.R. [1949] Nag. 802, 819-822.\n\nNath('), Behrein Petroleum Co. Ltd., v. P. J. Pappu( 2 ), Zamindar of Etiyapuram v. Chidambaram Chetty( 3 ).\n\nAs to the 4th question we find that the immoveable properties have been sold in execution of a decree ordering sale for the discharge of the encumbrance thereon in favour of the appellant.\n\nSection 73 (I) proviso ( c) therefore applies and the proceeds of sale after defraying the expenses of the sale must be applied in the first instance in discharging the amount due to the appellant.\n\nOnly the balance left after discharging this amount can be distributed amongst the respondents. It follows that the High Court was in error in holding that the respondents were entitled to rateable distribution of the assets along with the appellant.\n\nIn the result, the appeals are allowed, the orders passed by the Divisional Bench of the Madras High Court are set aside and the orders passed by the learned Single Judge are restored.\n\nThere will be no order as to costs.\n\nG.C.\n\n\n(2) [1966] l S.C.R.461.462·3.\n\n(3) 1.L.R, 43 Mad. 675 (F.B).\n\nAppeals allowed.", "total_entities": 102, "entities": [{"text": "M. L. ABDUL JABHAR SAHIB", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "M. L. ABDUL JABHAR SAHIB", "offset_not_found": false}}, {"text": " V. VENKATA SASTRI & SONS & ORS.", "label": "RESPONDENT", "start_char": 31, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "H. V. VENKATA SASTRI & SONS & ORS", "offset_not_found": false}}, {"text": "R. S. 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{"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeals Nos."}}, {"text": "K. N. Balasubramaniam", "label": "LAWYER", "start_char": 9038, "end_char": 9059, "source": "ner", "metadata": {"in_sentence": "K. N. Balasubramaniam and R. Thiagarajan, for the appellant (in all the appeals)."}}, {"text": "R. Thiagarajan", "label": "LAWYER", "start_char": 9064, "end_char": 9078, "source": "ner", "metadata": {"in_sentence": "K. N. Balasubramaniam and R. Thiagarajan, for the appellant (in all the appeals)."}}, {"text": "R. Gopalakrishnan", "label": "RESPONDENT", "start_char": 9121, "end_char": 9138, "source": "ner", "metadata": {"in_sentence": "R. Gopalakrishnan, for respondents Nos."}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 9339, "end_char": 9347, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Bachawat, J.\n\nOn February 23, 1953 the appellant instituted C.S. No."}}, {"text": "Hajee Ahmed Batcha", "label": "RESPONDENT", "start_char": 9539, "end_char": 9557, "source": "ner", "metadata": {"in_sentence": "56 of 1953 on the Original Side of the Madras High Court under the summary procedure of Order 7 of the Original Side Rules against Hajee Ahmed Batcha claiming a decree for Rs.", "canonical_name": "Hajee Ahmed Batcha"}}, {"text": "Haji Ahmed Batcha", "label": "RESPONDENT", "start_char": 9673, "end_char": 9690, "source": "ner", "metadata": {"in_sentence": "8,327 /12/9/- said to be due under two promissory notes executed by Haji Ahmed Batcha.", "canonical_name": "Hajee Ahmed Batcha"}}, {"text": "March 26, 1953", "label": "DATE", "start_char": 9894, "end_char": 9908, "source": "ner", "metadata": {"in_sentence": "On March 26, 1953 Hajee Ahmed Batcha executed a security bond in favour of the Registrar of the Madras High Court charging several immoveable properties for payment of Rs."}}, {"text": "B. Somnath Rao", "label": "OTHER_PERSON", "start_char": 10318, "end_char": 10332, "source": "ner", "metadata": {"in_sentence": "The bond was attested by B. Somnath Rao."}}, {"text": "K. S. Narayana Iyer", "label": "OTHER_PERSON", "start_char": 10356, "end_char": 10375, "source": "ner", "metadata": {"in_sentence": "It was also signed by K. S. Narayana Iyer, Advocate, who explained the document to Hajee Ahmed Batcha and identified him."}}, {"text": "March 29, 1953", "label": "DATE", "start_char": 10637, "end_char": 10651, "source": "ner", "metadata": {"in_sentence": "The document was presented for registration on March 29, 1953 and was registered by D. W. Kittoo, the Sub Registrar of Madras-Chingleput District."}}, {"text": "D. W. Kittoo", "label": "OTHER_PERSON", "start_char": 10674, "end_char": 10686, "source": "ner", "metadata": {"in_sentence": "The document was presented for registration on March 29, 1953 and was registered by D. W. Kittoo, the Sub Registrar of Madras-Chingleput District."}}, {"text": "Madras-Chingleput District", "label": "GPE", "start_char": 10709, "end_char": 10735, "source": "ner", "metadata": {"in_sentence": "The document was presented for registration on March 29, 1953 and was registered by D. W. Kittoo, the Sub Registrar of Madras-Chingleput District."}}, {"text": "Senkaranarayan", "label": "OTHER_PERSON", "start_char": 10841, "end_char": 10855, "source": "ner", "metadata": {"in_sentence": "Before the Sub-Regis trar, Hajee Ahmed Batcha admitted execution of the document and was identified by Senkaranarayan, and Kaki Abdul Aziz."}}, {"text": "Kaki Abdul Aziz", "label": "OTHER_PERSON", "start_char": 10861, "end_char": 10876, "source": "ner", "metadata": {"in_sentence": "Before the Sub-Regis trar, Hajee Ahmed Batcha admitted execution of the document and was identified by Senkaranarayan, and Kaki Abdul Aziz."}}, {"text": "February 14, 1954", "label": "DATE", "start_char": 10980, "end_char": 10997, "source": "ner", "metadata": {"in_sentence": "Hajee Ahmed Batcha died on February 14, 1954 and his legal representatives were substituted in his place in C.S. No."}}, {"text": "March. 19, 1954", "label": "DATE", "start_char": 11085, "end_char": 11100, "source": "ner", "metadata": {"in_sentence": "On March."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 11101, "end_char": 11110, "source": "ner", "metadata": {"in_sentence": "19, 1954 Ramaswami, J. passed a decree for Rs."}}, {"text": "April 20, 1954", "label": "DATE", "start_char": 11232, "end_char": 11246, "source": "ner", "metadata": {"in_sentence": "49,891/13/· with interest and costs and directed payment of the decretal amount on or before April 20, 1954."}}, {"text": "clause 1", "label": "PROVISION", "start_char": 11855, "end_char": 11863, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 1", "label": "PROVISION", "start_char": 11944, "end_char": 11952, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 2", "label": "PROVISION", "start_char": 11994, "end_char": 12002, "source": "regex", "metadata": {"statute": null}}, {"text": "April 23, 1954", "label": "DATE", "start_char": 12327, "end_char": 12341, "source": "ner", "metadata": {"in_sentence": "On April 23, 1954 the Court allowed the application, appointed Commissioners for selling of the properties and directed that the relevant title deeds and security bond be handed over\n\nABl)UL JABHAR v. VEN1'."}}, {"text": "May 29 and 30, 1954", "label": "DATE", "start_char": 12626, "end_char": 12645, "source": "ner", "metadata": {"in_sentence": "The Commissioners sold the properties on May 29 and 30, 1954."}}, {"text": "July 2, 1954", "label": "DATE", "start_char": 12721, "end_char": 12733, "source": "ner", "metadata": {"in_sentence": "The sales were confirmed and the sale proceeds were deposited in Court on July 2, 1954."}}, {"text": "Venkata Sastri", "label": "RESPONDENT", "start_char": 12829, "end_char": 12843, "source": "ner", "metadata": {"in_sentence": "The respondents Venkata Sastri & Sons filed O.S. No."}}, {"text": "H.R.\n\nCowramrna", "label": "RESPONDENT", "start_char": 12971, "end_char": 12986, "source": "ner", "metadata": {"in_sentence": "Respondent H.R.\n\nCowramrna instituted O.S. No."}}, {"text": "Rama Sastri", "label": "PETITIONER", "start_char": 13173, "end_char": 13184, "source": "ner", "metadata": {"in_sentence": "One Rama Sastri predecessors of respondents H.R. Chidambara Sastri and H.R. Gopal Krishna Sastri obtained a money decree against Hajee Ahmed Batcha in O.S. No."}}, {"text": "H.R. Chidambara Sastri", "label": "RESPONDENT", "start_char": 13213, "end_char": 13235, "source": "ner", "metadata": {"in_sentence": "One Rama Sastri predecessors of respondents H.R. Chidambara Sastri and H.R. Gopal Krishna Sastri obtained a money decree against Hajee Ahmed Batcha in O.S. No."}}, {"text": "H.R. Gopal Krishna Sastri", "label": "RESPONDENT", "start_char": 13240, "end_char": 13265, "source": "ner", "metadata": {"in_sentence": "One Rama Sastri predecessors of respondents H.R. Chidambara Sastri and H.R. Gopal Krishna Sastri obtained a money decree against Hajee Ahmed Batcha in O.S. No."}}, {"text": "Hajee Ahmed Batcha", "label": "RESPONDENT", "start_char": 13298, "end_char": 13316, "source": "ner", "metadata": {"in_sentence": "One Rama Sastri predecessors of respondents H.R. Chidambara Sastri and H.R. Gopal Krishna Sastri obtained a money decree against Hajee Ahmed Batcha in O.S. No.", "canonical_name": "Hajee Ahmed Batcha"}}, {"text": "June 7, 1954", "label": "DATE", "start_char": 13542, "end_char": 13554, "source": "ner", "metadata": {"in_sentence": "On June 7, 1954 the aforesaid respondents filed applications in the Madras High Court for ( i) transfer of their .execution petitions pending in the Vellore courts to the file of the High Court and (ii) an order for rateable distribution of the assets realized in execution of the decree passed in favour of the appellant in C.S. No."}}, {"text": "Balakrishna Ayyar", "label": "JUDGE", "start_char": 14289, "end_char": 14306, "source": "ner", "metadata": {"in_sentence": "Balakrishna Ayyar, J. dismissed all the applications as also exemption petitions filed by the respondents."}}, {"text": "Veerappa Chettiar", "label": "OTHER_PERSON", "start_char": 15861, "end_char": 15878, "source": "ner", "metadata": {"in_sentence": "The Full Bench held that the decision in Veerappa Chettiar's Case(') can be held to be correct to this limited extent only and not otherwise."}}, {"text": "KS. Naravana Iver", "label": "WITNESS", "start_char": 17263, "end_char": 17280, "source": "ner", "metadata": {"in_sentence": "it is not the case of the appellant that KS."}}, {"text": "D.W. Kittoo", "label": "WITNESS", "start_char": 17348, "end_char": 17359, "source": "ner", "metadata": {"in_sentence": "The contention is that the Sub-Registrar D.W. Kittoo and the identifying witnesses Senbranarayana and Kaki Abdul Aziz attested the document."}}, {"text": "Senbranarayana", "label": "WITNESS", "start_char": 17390, "end_char": 17404, "source": "ner", "metadata": {"in_sentence": "The contention is that the Sub-Registrar D.W. Kittoo and the identifying witnesses Senbranarayana and Kaki Abdul Aziz attested the document."}}, {"text": "Kaki Abdul Aziz", "label": "WITNESS", "start_char": 17409, "end_char": 17424, "source": "ner", "metadata": {"in_sentence": "The contention is that the Sub-Registrar D.W. Kittoo and the identifying witnesses Senbranarayana and Kaki Abdul Aziz attested the document."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 17515, "end_char": 17524, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 17532, "end_char": 17556, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3", "label": "PROVISION", "start_char": 18546, "end_char": 18550, "source": "regex", "metadata": {"statute": null}}, {"text": "s20", "label": "PROVISION", "start_char": 20713, "end_char": 20716, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 20936, "end_char": 20941, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 21091, "end_char": 21096, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 58", "label": "PROVISION", "start_char": 21229, "end_char": 21234, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 59", "label": "PROVISION", "start_char": 21331, "end_char": 21336, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 59", "label": "PROVISION", "start_char": 21453, "end_char": 21458, "source": "regex", "metadata": {"statute": null}}, {"text": "Kitto", "label": "WITNESS", "start_char": 21661, "end_char": 21666, "source": "ner", "metadata": {"in_sentence": "The evidenc~ does not show that the registering officer o, W.\n\nKitto put his signature on the document with the intention of attesting it Nor is it proved that he signed the document in the presence of the executant."}}, {"text": "Senkaranarayima", "label": "WITNESS", "start_char": 21976, "end_char": 21991, "source": "ner", "metadata": {"in_sentence": "Likewise the identifying witnesses Senkaranarayima and Kaki Abdul Aziz: put their sigmtures on the document to authenticate the fact that they ha j identified the executant."}}, {"text": "B. Somnath Rao", "label": "WITNESS", "start_char": 22289, "end_char": 22303, "source": "ner", "metadata": {"in_sentence": "It is common case that B. Somnath Rao attested the document."}}, {"text": "s. 100", "label": "PROVISION", "start_char": 22469, "end_char": 22475, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 22483, "end_char": 22507, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 59", "label": "PROVISION", "start_char": 22517, "end_char": 22522, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 59", "label": "PROVISION", "start_char": 22643, "end_char": 22648, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 100", "label": "PROVISION", "start_char": 22974, "end_char": 22985, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 59", "label": "PROVISION", "start_char": 24454, "end_char": 24459, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 59", "label": "PROVISION", "start_char": 24893, "end_char": 24898, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 59", "label": "PROVISION", "start_char": 25019, "end_char": 25024, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 59", "label": "PROVISION", "start_char": 25240, "end_char": 25245, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 25323, "end_char": 25327, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 25794, "end_char": 25799, "source": "regex", "metadata": {"statute": null}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 25822, "end_char": 25838, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 100", "label": "PROVISION", "start_char": 25966, "end_char": 25972, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 81 and 82", "label": "PROVISION", "start_char": 26426, "end_char": 26444, "source": "regex", "metadata": {"statute": null}}, {"text": "Nagpur High Court", "label": "COURT", "start_char": 26842, "end_char": 26859, "source": "ner", "metadata": {"in_sentence": "We find that the Nagpur High Court came to a similar conclusion in Baburao v. Narayan(')."}}, {"text": "March 19, 1954", "label": "DATE", "start_char": 27105, "end_char": 27119, "source": "ner", "metadata": {"in_sentence": "As to the third question, we find that the decree dated March 19, 1954 declared that the security bond in respect e>f the immove."}}, {"text": "clause 12", "label": "PROVISION", "start_char": 28204, "end_char": 28213, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 73", "label": "PROVISION", "start_char": 29367, "end_char": 29377, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_524_547_EN", "year": 1969, "text": "KHAJE KHANAVAR KHADERKHAN JIUSSAJN KHAN A\n\nAND OTHERS v.\n\nSIDDAV ANBALLI NUALINGAPPA & ANR.\n\nFebruary 4, 1969\n\n(J. M. SHELAT, V. BHARGAYA AND C. A. VAD>IALINGAM, JJ.]\n\nConstitution ,.Jf India, 1950, Art. 173(a)-Making oath or affirmation-When should be made.\n\nPractice and Procedure-Representation of the People Act. ( 43 of 1951). s. 116A-Appea/-Taking new points-Code of Civil Procedure (Act 5 of 1908), O. 16, r. 14-Duty of Court to su1n111on court witnesses.\n\nNotification by Election Com1nissioner under Art. 113(a)-Requirenient of making oath or affinnation before con1petent officer 'of that cons- 1ituency'-Scope of. ·\n\nThe first respondent, who was the Chief Minister of the State, and the first appellant were candidates for election to the Mysore Legislative Assembly from Shiggaon constituency.\n\nThe notification fixing the timeschedule \"for the elections fixed 20th January 1967, as the last date for filing nominations, 21st as the date of scrutiny, and 23rd as the last date for withdrawal of candidature. The first respondent, had also filed his nomination at two other places, Bagalkot and Hospet, and validly made the affirmations required by Art. 173(a) of the Constitution, at those plaoes on the 19th and 20th January.\n\nHe also made the affirmation before the Returning Officer of the Shiggaon constitUency on the date of scrutiny) that is, 21st January. The first respondent was declared elected unopposed on the date of scrutiny on the ground that all other candidate;, including the fin; t appellant, had withdrawn their candidature. The first appellant challenged the first respondent's election on the grounds that the first respondent was disqualified for 'failure to make the affirmation under Art. 173(a) before filing the nomination paper in Shiggaon constituency, that the withdrawal from candidature of the first appellant was attempted to be obtained by inducement, threats and undue inftuence and was in fact pro-. cured with the connivance of the Returning Officer, and that the first respondent committed other irregularities in the filing of his nomination.\n\nIt was alleged that one P was responsible for the corrupt practices with the consent of the first respondent.\n\nP was not examined as a witness by the respondents. The first appellant filed an application to examine P as a court-witness. on the ground that the appellant cOuld not examiite him as his own witness since he would be hostile to the appellant. The High Court rejected the application. ·\n\nThe High Court, a'fter rightly repelling the contention that the affirmation should have been made prior to the filing of the nomination, held that the affirmation made prior to scrutinY was sufficient comp, iance with the requirements of Art. 173(a}, and that the charges of corrupt practice of undue influence and •bribery against the first respondent, and the connivance of the Returning Officer in relation to the corrupt practices and irregutarities, were not proved. •\n\nIn appeal to this Court. it was contended that : (I) This Court. in Paslmoati Nath Singh v. Harihar Prasad Singh, A.I.R. 1968 S.C. 1064, held that the affirmation should be made lief ore the date of scrutiny, so that, in the present case, it should have been made at the latest by the midc\n\nHUSSAIN KHAN V, NIJALINGAPPA 525\n\nnight between 20th and 21st January; and (2) On the failure of the first respondent to examine P an adve-rse inference should have been drawn\n\nagainst the first respondent, and that the High Court erred in not summoning P as a court-witness.\n\nHELD : ( 1) (a) Since the first appellant was permitted to raise the new gromd based upon the decision in Pashupatl Nath Singh's case, the first respondent should not be debarred from putting forward his alternative plea that Art. 173(a) wu satisfied on the basis of the affirmations made at Bagalkot and Hospet.\n\n[532 E-F]\n\n(b) The notification issued by the Election Commission in pursuance of Art. 173(a) stated that the affirmation should be made before the Returning Ofticer or &sistant Returning Officer for that constituency. In Uling the expression 'that constituency', the intention of the Election Commiuion was that the affirmation must be made before the Returning Officer or Assistant Returning Oflicer of that particular constituency from which the candidate was seeking election to the Legislature of the State, whether it be an Assembly Constituency or a Council Constituency.\n\n[534 A-BJ\n\n(c) When the first respondent made bis affirmations on the 19th and 20th before the Returning Officer at Bagalkot and Hospct respectively. he was a candidate nominated for election from those constituencies.\n\nOnce he made such an affirmation before one of the persons authorised by the Election Commission he had fully complied with the requirements of Art. 173(a), and thereupon, became qualified to be a candidate for election to the Mysore Legislative Assembly.\n\n[534 C-E] The purpose of Art. 173(a) is to ensure that any person, who wants to be a member of a Legislature of a State, must be<.1r true faith and allegiance to the Constitution as by law established and undertake to uphol<l the sovereignty and integrity of India, and, to ensure this, he must make an oath or affirmation. The Article require..;;; one oath or affirmation in accordance with the form set out in the Third Schedule to the Constitution so as to remove the disqualification from being a candidate for election to the Legislature <1f the State. The Article does not mention that the making of oath or lffirmation is to be preliminary to the validity of candidature in each constituency, and the Article does not require that the qualification must be acquired •!'l'arately in respect of each cowtituency from which a candidate was seeking election. Once the oath or affirmation is made before a competent authority in respect of one constituency, the candidate becomes bound by that oath or affirmation even if he gets elected to the Legislature from a different constituency [534 E-H; 535\n\nA-BJ\n\n(2) In the present case, the circumstantisJ evidence indicated that the version put forward on behalf of the appellants could not be true. Therefore, the High Court wu justified in holding that the appellants' case was shown to be false by other evidence, so that, there was no compelling reason for the High Court to examine P as a court-witness or to draw an adverse hiference against first respondent. for his failure to examine P as a witness.\n\n[540 G-H; 541 AJ Dr. M. Chenna Reddy v. V. Ramochandra Rao, C.A. No. 1449/68 dt. 17-12-1968, R. M. Seshadri v. G. Vasantha Pai, [1969J 2 S.C.R. 1019\n\nand Nani Gopal Swami v. Abdul Hamid Chowdhury, A.l.R. 1959 Assam 200, referred to.\n\nClvIL APPELLATE JURISDICTION: Civil Appeal No. 1621 of 1967.\n\n8Sup, Cl/69~ IS\n\nAppeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated August 4, 7, 8, 1967 of the Mysore High Court in Election Petition No. 2 of 1967. .\n\nB. S. Patel, S. Paramila and R. B. Datar, for the ppellants.\n\nA. K. Sen, S. S. Jara/i and M.\n\nVeerappa, for respondent H No. I.\n\nShyamala Papp11 and S. P. Nayar, for respondent No. 2.\n\nThe Judgment of ihe Court was delivered by\n\nBhargava, J.\n\nThis appeal under section 1l6A of th~ Representation of the People's Act, I 951 (hereinafter referred to as \"the Act\") has been filed by two appellants whose election petition for setting aside the election of respondent No. 1 has been dismissed by the High Court of Mysore.\n\nAppellant No. 1 was one of the candidates who filed his nomination for election to the Mysore Legislative Assembly from Shiggaon Constituency in the District of Dharwar. Appellant No. 2 was a voter in that constituency.\n\nThe notification fixing the time-schedule for the elections was issned on the 13th January, 1967, fixing 20th January. 1967 as the last date for filing nominations, 21st January, 1967 as the date of scrutiny, and 23rd January, 1967 as the last dat~ for withdrawal of candidature. According to the appellants, only eight candidates filed their nominations within time up to 20th\n\nJanuary, 1967. One of them was appellant No. 1.\n\nRespondent\n\no. 1 was not included amongst the seven other candidates and his nomination paper was subsequently introduced amongst the records of the Returning Officer on behalf of respondent No. 1 with the aid of the Returning Officer. The Returning Officer is respondent No. 2 in the appeal, having been impleaded as respondent No. 2 in the election petition alsp. It was further pleaded that, even if any nomination paper was filed by respondent No. l. it was not accompanied by the relevant portion of the electoral roll in which the name of respondent No. 1 appeared as a voter which was necessary, because respondent No. 1 was not a voter in this constituency, but in a different constituency. No deposit as required by s. 34 of the Act was made in time; and, further still. respondent No. 1 was not qualified to be chosen to fill the seat in the Legislature, because he had not made and subscribed before the person authorised in that behalf by the Election Commission\n\nan oath or affirmation according to the form set out for the purpo., e in the Third Schedule to the Constitution as required by Article 173 (a).\n\nTt was alleged that. despite all these defect<. respondent No. 1 was declared elected unopposed on the date of scrutiny on the incorrect ground that all other candidates had withdrawn their candidature. The appellants accepted the\n\nA genuineness and validity of the withdrawals by the seven other Eandidates, leaving appellant No. 1 as the sole contesting candidate.\n\nThe further case was that, in order to have respondent No. 1 returned unopposed, corrupt practices were committed to obtain a withdiawal fonn signed by appellant No. 1 and it was filed illegally before the Returning Officer.\n\nB The version relating to the commission of corrupt practices and to the filing of the withdrawal fonns of appellant No. 1 ma)' now be stated. The appellants allege that the whole manoeuvring was done by one Patil Puttappa, Member of Parliament, who was a staunch supporter of respondent No. 1, and by Mahalinga Shetty, the son-in-law of respondent No. 1: These two persons c caught hold of two other persons, Hotti Peerasabnavar Chamensab Ghudusab (hereinafter referred to as \"P. W. 3\"), and Nadaf Mohamad. Jafar Saheb (hereinafter referred to as \"P. W. 4\"), and through thein, attempted to induce appellant No. 1 to withdraw his nomination by promising to get him a long-awaited huller licence and also to get him better patronage for his book-selling business and for\n\n0 receiving other aid and support for his matepal prosperity. The appellants allege that this inducement was offered without disclosing that respondent No. l's candidature was spurious. For this purpose,· on 20th January, 1967, at about 8.30 p.m., while appellant No. 1 was sitting at th!' shop of one Joshi, a car arrived from which P.W. 4. got down, came to appellant No. I and told\n\nE him that Patil Puttappa was calling him an.d requesting him to go with him.\n\nAppellant No. 1 went with P. W. 4 towards the car in which Patil Puttappa was sitting. The latter asked appellant No. 1 why he should further' trouble himself with election matters when he had enough work in c<; mnection with the shop, flour miII\n\nand his garoen lands. He added that it will be to the advantage of appellant No. 1 to withdraw his nomination, promising that F he would assist him in his trade, get him an agency for paper and would help him to secure a licence for his huller which, he said, he had heard he was trying to obtain without success. Appellant No. 1 replied that he had filed his nomination with a view to contest the elections as his candidature had been sponsored by many people and he was not willing to withdraw his nomination.\n\nIn spite of requests having been made two or three times, appellant No. 1 refused. At a later stage, when he asked why he should withdraw his nomination, Patil Puttappa told him that they desired uncontested return of resPondent No. 1, and that was the reason why they were making that request.\n\nAppellant No. I then objected saying that resJ)Ondent No. I had not filed his nomination.\n\nH whereuoon Patil Puttappa stated that every necessary arrangement would be made to secure the uncontested return of respondent No. 1. At the time of this talk, Mahalinga Shettv was also sittinrr in the car. When appellant No. I continued to be hesitant, Patil\n\nPuttapim asked him to go with him in the car and, in this\n\n0 UPREME COURT REPORTS\n\n[1969] 3 S.C.R.\n\nsuggestion, P. Ws. 3 and +supported him. Appellant No. 1 first declined to do so because he was not prepared to accede to the request for withdrawing his nomination, but, on Patil Puttappa's persistence, he agreed to go along, provided appellant No. 2 also. accompanied him. Appellant No. 1 then went to the shop bf appellant No. 2 and, thereafter, both of them got into the car and were taken to the house of one Hanumanthagouda Ayyangouda Patil (hereinafter referred to as \"R. W. 3\"). Patil Puttappa, Mahalinga Shelly and the two appellants all went inside the house of R. W. 3 and sat there when Patil Puttappa once again made a request to appellant No. l to withdraw his nomination. Appellant No. 1 refused, while appellant No. 2 also supported him by stating that appellant No. I had full support of the Muslims of the locality and that there was every chance of his success, so that there was no point in his withdrawing the nomination.\n\nThereafter, Patil Puttappa changed his tactics and told appellant No. l that it would neither be good nor safe for him to continue to refuse his request and threatened him by asking whether he would like to go on with the election or prefer to live in safely. He added that he was a Member-· of Parliament and, therefore, he could do anything to appe!lant No. l. He also produced a blank printed form and two blank sheets of white paper and asked appellant No. I to sign them, giving the threat that he will. not be allowed to go, unless he affixd hi,, signatures to them.\n\nWhen a; ipcllant No. 1 looked for support to appellant No. 2, the latter was also similarly threatened, whereupon he said that there was no escape and, consequently. appellant No. 1 should sign the papers as desired by Patil Puttappa. Against his will and submitting to the pressure of Puttappa, appellant No.· 1 signed the papers which were taken away by Puttappa who left asking R. W. 3 not to permit the two appellants to go away, unless Puttappa himself told hini to let them go. The two appellants, according to them, were kept confined in the house of R. W. 3 throughout the night of 20th January and again throughout the day and night of 21st January,\n\n1967. They were only allowed to leave the house at about 4-30 a.m. on 22nd January, 1967, when a servant of R. W. 3 woke them up and told them that they could go away. The charge put forward on the basis of these facts was that an attempt was made to bribe appellant No. I to withdraw his nomination by offering him help in obtaining the licence for the huller and in getting him agency for paper, with the further charge that signatures on the withdrawal form were obtained by undue influence. lt was further plead'ed that that withdrawal form was filed before the Returning Officer hy some one other than appellant No. 1 or his election agent. The case put forward in the election petition, thus, was that the withdrawal from candidature of appellant No. 1 was attempted to be obtained by offering inducements and by subjecting him to threats and by exercise of undue influence in\n\n--- ·,,,\n\nHUSSAIN KHAN V. NJJALJNGAPPA (Bhargava, l.) 529\n\nwhich assistance of the Returning Officer was procured. In the co=ission of these corrupt practices, there was consent of . rependent No. 1, so that the election of respondent No. 1 was void. In order to prove the consent of respondent No. 1 to the commission of the corrupt practices, the case put forward was that, subsequent to the alleged withdrawal of candidature by all the other candidates including appellant No. 1, leaving respondent No. 1 as the sole candidate, respondent No. 1 met P. Ws .. 3 and 4 and gave them an assurance that the promises which had already been made to assist appellant No. 1 will be honoured.\n\nThe further version put forward on behalf of the appellants, subsequent to. their release from the house of R. W. 3, is that, .. when they came out of the house towards the Poona-Bangalore Road, they felt ashamed to show their faces in their own town of Shiggaon and, consequently, decided to gn. to Hubli for a few days .. A truck happened to pass there carrying some goods and, since they had some money, they took a lift in the truck and went\n\nto H ubli.\n\nThey went to a apteen for refreshm, ents and on the table they found an issue of a newspaper 'Samyukta- Karnataka' in which appeareii a news item stating that respondent No. 1 had been returned uncontested at Shiggaon.\n\nAppellant .No .. 1 felt surprised, because he had. not withdrawn his nomination.\n\nHe consulted appellant No. 2 and the two o! them, after thinking over, realised that advantage must have been taken against them of the papers which appellant No. 1 had been made to sign at the house of R. W. 3. They, therefore, decided to see a lawyer and selected Sadashiv Shankarappa Settar (hereinafter referred to as 'P. W. 2\") because, besides being a lawyer, he y; as also a candidte b the election. They went to his house twice at about 9 a.m. and again at about 12-30 or 1-00 p.m., but he was not at home.\n\nThey waited on the second occasion until about 2-30 p.in. when he returned and, after taking his meals, he ultimately talked . to them at 3 p.m. As a result of the consultation P. W. 2 drafted a telegram which was despatched by the appellants at about 4-35 p.m. to the Returning Officer. In the telegram, it was mentioned by appellant No. 1 that he had read in a newspaper that he had withdrawn which was false as he had not withdrawn. and the withdrawal form was not presented by him.\n\nHe added tliat he did not know who had filled in the contents of the withdrawal form and who had presented it and, consequently, wanted the Returning Officer to treat it as invalid, adding that he was still contesting the election . from the . Shiggaon constituency. The Returning Officer .received it on the same evening, i.e., on 22nd January, 1967. but noted on it that, since it was a telegram, it could not be acted upon or considered.\n\nThereafter, appellant No. 1 addressed a meeting late at night in a locality called 'Durgada Bailu' in .Hubli where election propaganda was going on.\n\nAfter taking further steps next day, the appellants continued to stay in\n\nHubli for 2 or 3 days and they ultimately returned to Shiggaon on the 25th January, 1967.\n\nOn these pleadings, the case put forward was that appellant No. 1 had never withdrawn his candidature and that, since respondent No. 1 had never filed his nomina tion paper and all other candidates had withdrawn, appellant No. 1 was entitled to be Cleclared elected unopposed.\n\nIn the election petition, therefore, in addition to the relief for declaration of the election of respondent No. 1 as void, appellant No. 1 also claimed a declaration that he was the duly elected candidate from the Shiggaon constituency.\n\nThe point that was put in the fore-front by Mr. B. S. Patil, learned counsel for the appellants, and was argued first relates to the challenge of the validity of the election of respQ11dent No. 1 on the ground that he was disqualified for failure to make or subscribe an oath or affirmation in accordance with the provisions of Art. 173 (a) of the Constitution. In the election petition, it was pleaded that the oath ot affirmation should have preceded the filing of the nomination paper, so that, even if any oath or affirmation was made subsequent to the filing of the nomination paper, it would be invalid and would not avoid the disqualification.\n\nOn behalf of respondent No. 1, the reply in the written statement was that respondent No. 1 did, in fact, make an affirmation before the Returning Officer of this very constituency of Shiggaon on the date of the scrutiny, viz .. 21st January, 1967, before the Returning Officer scrutinised the nomination paper of respondent No. 1. Evidence was also led to show that, on 2 lst January, 1967, respondent No. 1 did arrive at the office of the Returning Officer just before the scrutiny of his nomination paper was being taken up and he immediately proceeded to make the affirmation. Prior to his arrival, his nomination paper for another constituency Kunda.gaol was rejected by the Returning Officer on the ground that no affirmation had been made and respondent No. I was disqualified under Art. 173 (a) . It may be mentioned that thls Returning Officer was functioning as such for three different constituencies, Shiggaon, Kundagol and Shirahatti, though his Headquarters were temporarily located at Shiggaon.\n\nSince the affirmation w:\\s made before the Returning Officer by respondent No. 1 prior to the scrutiny of his nontinatlon paper for Shiggaon Constituency, the Returning Officer held that respon-. dent No. 1 was not disqualified under Art. 173 (a:), and declared his nomination as valid.\n\nThese facts were accepted by the High Court in this case and the High Court upheld the view of the Returning Officer tltat the affirmation made prior to the scrutiny of his own nontination paper by respondent No, 1 was full compliance with , tlte requirements of Article 173 (a). The High Court repelled the argument advanced on behalf of the appellants that the affirmation should have been made before the\n\nHUSSAIN !WAN V. NLJALINGAPPA (Bhargava, J.) 531\n\nA filing of the nomination paper. In course of arguments on this point before us, however, neither party stuck to the position that was taken up by it before the High Court. On behalf of the appellants, the alternative legal position relied upon was that, in any case, the affirmation should have been made before the date of scrutiny, so that, in the present case, it should have been latest B by the midnight between 20th and 21st January, 1967.\n\nThi& plea for challenging the validity of the election of respondent No. 1 was not taken either in the pleadings or even at any later stage in the High Court. In fact, it was taken here for the first time on the basis of a decision of this Court in Pashupati Nath Singh v.\n\nHarihar Prasa4 Singh. (1 ) In that case, this Court has clearly C held that the effect of the provision contairied in s. 36(2)(a) of the Act is that the oath or affirmation must be before the date fixed for scrutiny, so that the candidate possesses the qualification under Art. 173 (a) of the Constitution on the whole of the day on which the scrutiny of nomination has to take place.\n\nEven though this ground was not raised in the High Court, we consider that we cannot now i¥11ore it and we have to hold that the High D Court was incorrect m rejecting the plea of the appellants on the ground that a valid affirmation had been made by respondent No. 1 on 21st January, 1967 just before the scrutiny of his nomination paper.\n\nIn view of this position taken up on behalf of the appellants, E Mr. A. K. Sen, learned counsel for respondent No. 1, put forward the alternative plea that respondent No. 1 was not disqualified under Art. 173(a) of the Constitution, because he had villidly made affirmations at two other places on the 19th and 20th January, 1967.\n\nFor this purpose, reliance was placed on the statements made by respondent No. 1 when he was cross-examined on behalf of the appellants. Respondent No. 1 at one stage F stated that he filed his nomination at Bagalkot on the 19th January, 1967 between 2 and 3-00 p.m. in the afternoon. On further cross-examination came his statement that, at Bagalkot he subscribed to the affirmation on the very day on which he presented his nomination pape!i and he also confirmed that he was in a position to affirm on personal knowledge that he had filed G his nomination at Bagalkot on the 19th January, 1967. Similarly, he also stated that he filed his nomination for the Hoovinahadagali Constituency at Hospet and, though he could not giVe the exact date on which he filed the nomination paoer, he remembered that he subscribed to the affirmation there on the night of 20th\n\nJanuary, 1967. It W!\\S urged by Mr. Sen that, having made affir-\n\nH mation once either at Bagalkot or at Hospet in accordance with the requirements of law, respondent No. 1 became qualified under Art. 173 (a) of the Constitution to be a candidate for the Legisla\n\n(1) A.I.R.1968S.C. !064.\n\ntive Assembly and, therefore, it was immaterial that he did not again make an affirmation in time before the Returning Officer of Shiggaon Constituency.\n\nThis claim was resisted by Mr. Patil 011 two grounds. The first point urged was that this was a new case being set up on behalf of respondent No. 1 for the first time in this Court and it should not, therefore, be taken into account.\n\nThe second was that, in any case, the affirmation at Bagalkot or Hospet could not enure to the benefit of respondent No. l for holding him to be qualified under An. 173(a) of the Constitution to stand as a candidate from Shiggaon Constituency. On the first point, we consider that, in view of the position noticed by us earlier, respondent No. l is fully justified on relying on this alternative case in this Court, even though it as not put forward during the trial in the High Court. While the case was being tried in the High Court, the plea put forward by the appellants themselve; was different from the plea on the basis of which the affirmation made by respondent No. 1 at Shiggaon on 21st January, 1967 is being held to be insufficient for conipliailcc. with the requirements of Art. 173 (a). In the High Court, that affirmation was challenged solely on the ground that it should have been made prior ti> the filing of the nomination paper; and that ground, of course, had no force, because the form of affirmation given in the Third Schedule to the Constitution itself makes it manifest that the affirmation must be made after the nomination paper has been filed. Now that we have permitted the appellants to raise a new ground and rely on the decision given by this Court in Pashupati Nath Singh's case('), there is no justification for debarring respondent No. 1 from putting forward the alternative case 'JD the basis of the affirmations made at Bagalkot and Hospet.\n\nThe fact of affirmations having been made by respondent No. 1 at those two places before the Returning Officers of those Constituencies was elicited by the counsel for the appellants themselves in the crossexamination.\n\nThe facts, having come on record, cannot be ignored, so that reliance has rightly been placed on !hose fact< on behalf of respondent No. 1.\n\nOn the second point, the argument has proceeded primarily on the language of the notification issued by the Election Commission in pursuance of clause (a) of Art. 173 of the Constitution.\n\nArticle 173(a) is as follows:-\n\n\"173. A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he,-\n\n(a) is a citizen of India, and makes and sub-\n\ncribes before some person authorized in that behalf by H the Election Commission an oath or affirmation ccord-\n\n(1) A.LR. 1968 S.C. 1064.\n\nA ing to the form set out for the purpose in the Third Schedule.\"\n\nThe notification issued by the Election Commission, which is No. 3/130/65(2), dated 2nd January, 1965, is to the following effect:-\n\n\"In pursuance of clause (a) of Article 17 3 of the Constitution, and in supersession of its notification No. 3/130/63(2), dated the 15th November, 1963, the Election Commission hereby directs (a) that candidate for election to the Legislature of a State by an assembly constituency, or a council constituency, shall make and subscribe the oath or affirmation according to the form set out for the purpose in the Third Schedule to the Constitution, before the Returning Officer or an Assistant Returning Officer for that constituency; and\n\n(b) that a candidate for election to fill a seat or seats in the Legislative Council of a State by the members of the Legislative Assembly of the State, shall make\n\nand subscribe the said oath or affirmation before the Returning Officer or the Assistant Returning Officer for that election :\n\nProvided that if any such candidate is at the time confined in a prison or under preventive detention, he may make and subscribe the said oath or affirmation before the Superintendent of the prison or Commandent of the detention camp in which he is so confined or under such detention.\"\n\nThe controversy between the panies has arisen because of the language used by the Election Commission in this notification.\n\nThe notification requires that a .candidate for election to a Legislature of a State by an Assembly Constituency or a Council Constituency must make and subscribe the oath or affirmation before the Return4ig Officer or an Assistant Returning Officer for that Constituency. Mr. Sen urged that this notification can be interpreted in two ways.\n\nThe first interpretation sought to be put on it was that, according to this notification, if a person is a candidate for election to the Legislature of a State by an Assembly Constituency, all that it requires is that the affirmation mast be made before the Returning Officer of an Assembly Constituency, while, if he is seeking election to a Council Constituency, then the affirmation must be made before the Returning Officer of a Council Constituency. In putting this interpretation, learned counsel wants us to hold that the expressiop \"Returning Officer for that Constituency\" refers to any Returning Officer of a Legislative Assembly or a Legislative Council, as the case may be.\n\nWe do not think that this interpretation can be accepted by us.\n\nIn using the expression \"that Constituency\", it is clear that he intention of the Election Commission was that the affirmation must be made before the Returning Officer of that particular constituency from which the candidate is seeking election. to the Legislature of the State, whether it be an Assembly Constituency or a Council Constituency.\n\nThis was the second interpretation which Mr. Sen himself accepted as a possible one. This is also the interpretation which was sought to be put on this notification by Mr. B. S. Patil on behalf of the appellants. We think that this interpretation is correct, so that, in order to get over the disqualification laid dowfl in Art. 173(a), a candidate must make an affirmation before the Returning Officer or an Assistant Returning Officer of that particular constituency from which he is a candidate.\n\nMr. Sen's case is that, even on this interpretation, respondent No. 1 had qualified to be a candidate, because, when he made the affirmation tdore the Returning Officer at Bagalkot, he was already a candidate nominated for election from that constituency.\n\nSimilarly, when he made the affirmation before the Returning Officer at Hospet, he had already been nominated as a candidate for the Hoovinahadagali Constituency.\n\nThe argument was that, once respondent No. l had made an affirmation, as required by Art. 173(a) of the Constitution, before one of the persons authorised by the Elcsticn Commission, he hr'd fully complied with the requirements of Art. 173(a) and, thereupon, he bacame qualified to be a candidate for election to the Mysore Legislative Assembly.\n\nThere was no Tequirement that that qualification must be acquired separately in respect of each constituency from which respondent No. J was seeking election. We are of the view that this submission must be accepted. The purpose of Art. 173(a) is to ensure that any person, who wants to be a member of a Legislature of a State, must bear true faith and allegiance to the Constitution of India as by law established and undertake to uphold the sovereignty and integrity of India, and, to ensure this, he must make an oath or affirmation. Once such an oath or affinnation is made before a competent authority in respect of one constituency, he becomes bound by that oath or affirmation even if he gets elected to the Legislature from a different constituency, so ihat there is no necessity that he must make oath or affirmation repeatedly on his being nominated from more than one constituency.\n\nThe language of Art. 173 (a) also makes this very clear, because all that it rquires is one oath or affirmation in accordance with the form set out in the Third Schedule to the Constitution so as to remove the disqualification from being a candidate for election to the Le?islature of the State. The Article does not mention that the making of oath or affirmation is to be preliminary to the validity of candidature. in each constituency, and\n\nA recognises the fact that, once the necessary qualification is obtained,. that qualification removes the bar laid down by that Article.\n\nIn these circumstances, this ground of disqualification for challenging the validity of the election of respondent No. 1 fails and must be rejected.\n\nWe may next take up the question of the charges of corrupt practices alleged to have been committed with the consent of respondent No. I relating to bribery, undue influence and obtaining of assistance from a Government servant, viz., the Returning Otlicer.\n\nIn support of these charges, only six witnesses were examined on behalf of the appellants. Two of them, P. W. 5 and P.\n\nW. 6, are appellant No. 2 and appellant No. 1 respectively.\n\nTwo other witne<>es are Cha:nan Sab, P. W. 3, and Mohammad Jaffar Saheb, P. W. 4; and the fifth witness is Sadashiv Shankarappa Settar. P. W. 2.\n\nWe have already referred to alt these witnes; es when giving the version put forward on behalf of the appellants. The only other witness who remains to be mentioned is Hanumamhasa Pawar. P. W. 1, a photographer, who came forward to state that he took a photograph in the office of the Returning Officer at about 5 p.rn. on the 21st January 1967. when respondent No. I and the Returning Officer were sitting close to each mher after the scrutiny of the nomination papers.\n\nHe was examined primarily to show the close connection between respondent No. 1 and the Returning Officer, respondent No. 2. As against these witnesses examined on behalf of the appellants. respondent No. I examined five witnesses.\n\nR. W. 1 is respondent \"<o. 1 himself, and R. W. 5 is Hanumanthappa Shivabasappa Hosamani, respondent No. 2, who was the Returning Officer. A third witness for the respondents is Gadigeppagouda Channabasanagouda Patil. R. W. 2, who was first put forward as the official. candidate by the Congress from this Shiggaon Constituency, but who himself took active part in persuading resp-ondent No. 1 to be a candidate on behalf of the Congress from this Constituency.\n\nThe next witness examined is Hanumanthagouda Ayyangouda Patil, R. W. 3, who was the proposer of respondent No. 1 in the nomination paper filed in this Constituency and in whose house. the appellants alleged, they were kept confined from the night of 20th January up to the early hours of the morning of 22nd January. 1967. The fifth witness is Gurupadappa Basappa Mahalinga Shetty, R. W. 4, the son-in'law of respondent No. 1.\n\nThe High Court, in assessing the'value of the evidence given on behalf of the two parties, has expressed the ooinion that all the witnesses examined by either side are persons interested in the two rival candidates, except the Returning Officer, R. W. 5, in whose case the High Court has not accepted the charge of partiality brought by the appellants in the election petition~ The High Court, therefore, perferred to rely on the evidence of R.W. 5, and\n\nattached very little value to the evidence of the Oilier witnCMCS A examined by the two sides.\n\nWe are inclined to agree with the 'High Curt with regard to the assessment of the value of the evidence of the witnesses examined by both sides and, even with regard to the evidence of the Returning Officer, R. W. 5, we have the feeling that his evidence miist also be accepted with great caution, because it cannot be said that he was totally disinterested and independent.\n\nSo far as the witnesses examined on behalf of the appellants are concerned, the two appellants themselves' are the election petitioners and, very clearly, their testimony has only the value that can be attached to evidence of contesting parties themselves who are bound to speak in support of their case. Mr. Patil .particularly relied on the evidence of P. Ws 3 and 4 who, according to the part played by them envisaged in the version put forward on behalf of the appellants, were in a position to state to facts showing that there was offer of bribery to appellant No. 1 and undue influence was also exercised against them.\n\nThese witnesses are also admittedly highly interested.\n\nAppellant N'o. 1 in. his statement has come forward with the plea that P. W. 4, Mohammad Jaffar, was one of the persons who was sponsoririg his candidature for this election, so that there was a close bond between them.\n\nIn fact, the appellants\" further case itself was that appellant No. 1 was approached by Patil Puttappa through P. W. 4 because of the close relations between them.\n\nP. W. 3 also, according to appellant No. 1, was brought in by Patil Puttappa because he was a great friend of P. W. 4 and was expected to inlluence him in his attempts to persuade appellant No. 1 to withdraw.\n\nThus. in putting forward their own case, the appellants have shown that P.Ws. 3 and 4 are not independent persons.\n\nP. W. 2 was the lawyer engaged by the , appellants for the purpose of putting forward their case that the withdrawal of his CllJldidature by appellant No. I was not genuine and had been manoeuvred by persons acting on behalf of respondent No. 1. Being their lawyer, he cannot be held to be beyond the influence of the appellants.\n\nSo far as P.W. l, the Photographer, is concerned, the High Court has found that there is material in his own evidence indicating that he is not a very reliable person and we find no reason at a II to differ from the view taken by the High Court on this point.\n\nSimilarly, amongst the witnesses examined on behalf of . respondent No. I, R. W. I is respondent No. 1 himself and, consequently, the view we have expressed with reganj to aopel- Jants 1 and 2 will equally apply to him. R. W. 2 was the official Congress candidate. He withdrew his candidature and 'took an active part in persuading respondent No. I to be a candidate in his place.\n\nHe was, therefore, clearly a person interested in the candidature of respondent No. I. R. W. 3 was the proposer\n\nwho nominated respondent No. 1 as the candidate in this Shiggaon Constituency and this manifests his interest in the candidature of respondent No. l. R.W. 4 is the son-in-law of respondent No. I who also took active part in arranging that the official candidate R.W. 2 withdrew from candidature and respondent No. I was made the candidate on behalf of the Congress in this Constituency in his place.\n\nNone of these four witnesses can, therefore, be said to be independent.\n\nSo far as the Returning Officer, R. W. 5, is concerned, he was a Government servant and was acting in his official capacity as Returning Officer in this Constituency. In assessing the value of his evidence, however, one fact prominently brought out is that he was in the service of the Government of the State of Mysore, while respondent No. I was the Chief Minister of the State. R. W. 5 himself admitted that, earlier, when he was posted at Bagalkot as Assistant Commissioner in July, 1963, he had collected gold for the National Defence Fund and on the occasion of a visit, Smt. Indira Gandhi and the Chief Minister, respondent No. I, were weighed against gold collected for the purpose of National Defence Fund. The weighment of the Chief Minister against gold indicates the attempt made by this witness to please the Chief Minister.\n\nThen, there seems to be some force in the suggestion made that, on the day of scrutiny, the Returning Officer delayed the scrutiny of the nomination paper of respondent No. 1 for the Shiggaon Constituency probably at the suggestion of the workers of respondent No. 1 in order to give as much time as possible to respondent No. 1 to come and make an affirmation as required by Art. 173 (a), under the impression that such an affirmation made even on that day would be valid and would remove the disqualification under that Article.\n\nOn that day, scrutiny of nomination papers of all the three Constituencies, for which R. W. 5 was the Returning Officer, was to take place. The scrutiny was begun not at the time fixed for it, but at a later hour and, even in that scrutiny, the nomination papers for Shiggaon Constituency were taken up last of all.\n\nIt .is true that he rejected the nomination paper of respondent No. I for the Kundagol Constituency, because respondent No. 1 did not arrive before the scrutiny of his nomination paper for that Constituency in order to make the affirmation; but even that does not show that the Returning Officer was not trying to assist respondent No. 1 as far as possible. Then, there is the circumstance that respondent No. 1 and this witness were photographed together by P. W. 1.\n\nOf course, the photogranhs produced bv P. W. I r~ not .of a very reliable character, because the negative'., or the ongmal-s1zed photographs have not been produced by the photographer. The suggestion by Mr. Sen on behalf of respondent No. 1 was that the photographs were actually taken of a number of people who happened to be in the office of the Returning Officer by this photographer, but, for the purpose of urging the argument of close contact between R. W. 5 and respondent No. l, only a small part of that photograph was enlarged and has been put forward as Exhibit in this case.\n\nThe part of the photograph brought before the Court is confined to that in which respondent No. 1 and the Returning Officer appeared, while others on both sides of them were excluded. The photographer, in order to justify his evidence that his photographs included only these two persons, had per force to give an explanation for non-production of the negatives and the original-sized positives which might have been prepared by him, because the negatives and those prints would have clearly shown other persons also in the photographs.\n\nDespite these , !acts, we still think that the photographs do give. some indication that the Returning Officer was showing special consideration to respondent No, 1 because he was the Chief Minister and at least gave him a scat close to himself inside his office.\n\nJn all these circumstances, it is not possible to hold that the Returning Officer is a totally independent witness; but, in .our opinion, these few circumstances would not justify our rejecting the evidence of this witness in toto. The evidence will have to be scrutinised carefully and must be accepted 'It least to the extent to which it may be supported by circumstantial evidence.\n\nJn connection with the examination of witnesses, great emphasis was laid by Mr. Patil on the fact that Patil Puttappa, who, according to the appellants, was the chief architect in manoeuvring the unopposed return of respondent No. 1 from the Shiggaon Constituency, was not examined as a witness. It appears that the appellants themselves first summoned Patil Puttappa to produce certain documents for the purpose of showing that he was under great obligation to respondent No. 1 making it likely that he might have resorted to all kinds of practices in order to ensure uncontested return of respondent No. 1 to the Legislature.\n\nPatil Puttappa produced a statement showing the income that he received from advertisement• given on behalf of the State Government during the period from 1962-63 to 1966-67.\n\nPatil Puttappa was running two papers 'Viswavani' and 'Prapancha' during thi, period.\n\nFor the newspaper 'Viswavani', the total advertisement charges paid to him by the Government in the first year 1962-63 were in the region of Rs. 27 ,000. The amount progressively increased in the next four years; and in the last year 1966-67, it rose to about Rs. 81,000. It was urged that this shows that he had been receiving Patronage from the Government of Mysore of which, during this period, respondent No. 1 was the Chief Minister.\n\nFurther, he was elected as a Member of the Rajya Sabha and was an active worker of the Congress. The argument was that,\n\nin these circumstances, when the charge in the election petition was that Patil Puttappa was the main instrument in the commission of corrupt practices, he should have been examined as a witness.\n\nThe appellants themselves, no doubt, summoned hin1 to produce the statement of accounts, as mentioned above, but they could not examine him as a witness, because he would have been clearly hostile and, by examining him as their witness, the appellants would have conceded to the counsel for respondent No. I the advantage of being legally entitled to cross-examine him.\n\nRespondent No. 1 also cited Patil Puttappa as one of the witnesses in the list of witnesses filed, but, later, gave him up and did not examine him as a witness.\n\nAfter this failure on the part of respondent No .. 1 to examine hinl, the appellants moved an application to the Court to take his evidence under 0.16, r. 14 of the Code of Civil Procedure as a Court witness.\n\nThis application was not accepted by the High Court and, after a long discussion as to the motives which had impelled the appellants to move this application, the High Court rejected it.\n\nMr. Patil, in this connection, relied on a decision of the Assam High Court in Nani Gopal Swami v. Abdul Hamid Choudhury and Another(') to urge that, though the burden of proof in the present .:ase in respect of the corrupt practices was initially on the appellants, respondent No. 1 was not altogether absolved from his responsibility to assist the Court by producing the best evidence available after the appellants had tendered their own evidence. lt was urged that, on the failure of respondent No. 1 to examine Patil Puttappa, an adverse inference should be drawn against hinl.\n\nReference was also made to a recent decision of this Court in Dr. M. Chenna Reddy v. V. Ramachandra Rao and Another(') where the non-examination of the best person who' could have come and given evidence in favour of the candidate who was charged with corrupt practice was taken as one of the circumstances justifying the belief of witnesses examined to prove the corrupt practice on behalf of the opposite party. This inference was, however, drawn by this Court on the basis that the Court first found the testimony of witnesses examined against the successful candidate as acceptable, so that the initial burden which lay on the election petitioner was discharged to the satisfaction of the Court.\n\nThe third case, to which reference was made, is also a recent decision of this Coun in R. M. Seshadri\n\nv. G. Vasan_tha Pai('), where this Court dealt with the question of the erc1se .of power by the. Coun tryin 0 the election petition to examme a witness as court witness. It was held that the Court has the power to summon a court witness if it thinks that the ends of justice require or that the case before it needs that kind of evidence.\n\nIt was explained that the policy of election law\n\n(!) A.l.R. 1959 Assam 200.\n\n(2) [1969] S.C.R.\n\n(J) [1969J 2 S.C.R. 1019.\n\nseems to be that, for the establishment of purity of elections, A all allegations of mal-practices, including corrupt practices at elections, should be thoroughly investigated. On these principles, the Court held that the trial Judge of the High Court had properly exercised the power of summoning and examining some persons as court witnesses.\n\nOn the basis of these cases, it was argued thl!t it was the duty of respondent No. 1 to examine Patil Puttappa in this case because he was in the best position to deny the allegations which had been made, in respect 'of the corrupt practices, by the appellants and that, in any case, the Court should have summoned him as a witness when an application was presented in that behalf by the appellants invoking the power of the Conrt under 0.16, r. 14, C.P.C. It appears that, in this case, respondent No. l considered it unnecessary to produce Patil Puttappa as a witness because of the view that the evidence, which had been given on behalf of the appellants to prove the corrupt practices, was of a very unsatisfactory nature and that even circumstantial evidence was available to show that the version put forward could not be true. The High Court also considered it unnecessary to summon Patil Puttappa as a court witness for similar reasons. In this connection, we may cite further remarks made by this Court in the case of R. M. Seshadri(') to the fo!lowi1ng effect :-\n\n\"Although we would say that the trial should be at arms length and the Court should not really enter into the dispute as a third party, but it is not to be understood that the Court never has the power to summon a witness or to call for a document which wbuld throw light upon the matter, particularly of corrupt practice which is alleged and is being sought to be proved. If the Court was satisfied that a corrupt practice had in fact been perpeterated, may be by one side or the other, it was absolutely necessary to find out who was the author of that corrupt practice.\"\n\nIt was on this principle that this Court upheld the course adopted by the High Court by summoning court witnesses in order to satisfy itself that the corrupt practice had in fact been committed.\n\nIn the present case, as we shall presently show, there was plenty of circumstantial evidence indicating that the version put forward on behalf of the 'appellants could. not be true and the High Court could justifiably take the view that it had not been proved to its satisfaction, so that there was no compelling reason for the High Court to examine Patil Puttappa as a court\n\n(t) [19691 2 S.C.R. 1019.\n\nHUSSAIN KltAN v. NIJAtINGAPPA (Bhargava, I.) 541\n\nA witness or even to draw any inference against respondent No. 1 for his failure to examine Patil Puttapp_a as a witness.\n\nWe proceed to indicate our reasons for the '?ew: that the version relating to the commission of corrupt practtces has been rightly rejected by the High Court. The story that has been put\n\n9. forward on beha!f of the appellants has already been described by us in detail when giving the facts o~ the case. The appellants alleged that they were taken to the house of R. W. 3 in the early. hours of the night of 20th January, .1967 and were kept in confinement till the morning of 22nd January, 1967.\n\nAccording to the appellants, though they were kept at the house of R. W. 3 and were told that they wollld not be allowed to leave, there was C actually no use of force at all against them. In fact, the version given by the two appellants of their confinement in the house of R W. 3 is that they remained there throughout the night of 20th\n\nJanuary and throughout the day hours <!f 21st January, 1967, without making any attempt to leave the house of R. W. 3 .. They expect the Court to believe that no such attempt was made by D them simply because, at one stage, Patil Puttappa had said that appellant No. 1 had the option of either remaining a candidate for election, or of continuing to live.\n\nApart from this verbal threat, there is no suggestion that any act was committed by any one there winch could put the appellants in fear of their life or of being hurt if they tried to leave the house of R. W. 3. Accords. ing to their version, they guietly stayed in the house without even making a pretence of leaving it simply because Patil Puttappa, when going away, had told R. W. 3 not to let them go until he gave permission.\n\nThe first attempt, according to them, was made some time late in the night of 21st January and that attempt was foiled because of the barking of a dog.\n\nEven, I' when relating this part of their story, the appellants did not say that the dog was ferodous or tried to bite them, or that any of the servants woke up and came to stop them from going away.\n\nIn fact, the initial story that like simpletons these two persons, one of whom was a 1; andidate for membership of a legislature, entered the car of Patil Puttappa and quietly went with him to the residence of R.W. 3 appears to be highly improbable. Their G conduct, after their release from the alleged confinement, also seems to be highly improbable. -According to them, they did not go back to their village because they were feeling ashamed.\n\nWhy there should have been any feeling of shame is incomprehensible.\n\nIf they were kept in confinement under threats of injury,.there would have been no shame in going home and dis- H cl.osing s circumstance. In fact, according to appellant No. l,\n\n~1s can~1dature had be1:1 sponsored by quite a large number of\n\nin!Juentlal persons of Shiggaon and, consequently, it would have been quite _natural for him to go to Shiggaon, as soon as he was\n\nSSupCJ/69-16\n\n542 SUPREME COURT REPORTi [ 1969] 3 s.c.R.\n\nreleased from confinement, and seek their assistance against whatever course might have been adopted in order to defeat his candidature.\n\nHaving ben absent from their houses from the night of 20th January until the early hours of 22nd January, it would have been natural for them to go back to their homes and relieve the anxiety of t\\le members of their families who must have been wondering where they had gone away.\n\nAccording to the appellants, they did not return to their village until the 24th of January and sent no message to their houses that tbey were safe and were in Hubli.\n\nThe whole conduct appears to be very impro)lable.\n\nApart from this, there are admissions made by the witnesses of the appellants themselves and some documentary evidence which show that the appellants could not have been in confinement in the house of R. W. 3 from the night of 20th January up to the morning of 22nd January, 1967.\n\nP. W. 3 in his examination-in-chief itself, when relating the. incident of 21st January, 1967, stated that on that day respondent No. 1 sent for him and P. W. 4 and told them that whatever promises had been made by Patil Puttappa would be fulfilled and they could give that information to appellant No. 1.\n\nThereafter, they went to the house of appellant No. 1 and passed on this information to him.\n\nThus, P. W. 3 admitted that appellant No. 1 was at his house on the evening of 21st January which completely negatives the case that he and appellant No. 2 were both in confinement at the house bf R. W., 3.\n\nWhen this statement was made by this witness, counsel for tlie appellants intervened and put a question whether appellant No. 1 was at home and what happened after they went to his house.\n\nWhen answering these questions, the witness realised that he had given a stateme.nt negativing the appellants' case and, therefore, he changed his statement and said that the mother of appellant No. 1 told him that appellant No. 1 was not in the house. We are inclined to agree with the High Court that this witness, in fact,· gave away the truth inadvertently disproving the appellants' case when he stated that be and P. W. 4 bad gone to the house of appellant No. 1 on the 21st January, 1967 and informed him of what respondent No. 1 had told them.\n\nIn this connection, there. is the circumstance that another' witness examined by the appellants themselves also supports the version that appellant No. 1 must have been at his house on-the evening of 21st January .. That witness is P. W. 1, the photographer.\n\nHe was asked in his cross-examination as •to when appellant No. 1 had taken the photos from him, and bis answer was that it was on the same day when the photograph was taken.\n\nHe had earlier staled that the photograph was taken in the office of the Returning Officer at about 5 p.m. on 21st January, 1967.\n\nThis answer given by this witness also belied the case put forward on behalf of the appellants about their confinement in the house of R. W. 3.\n\nAt the stage of this answer given by the witness, the counsel for the appellants had also intervened and suggested that the witness had been pointing to the Returning Officer who was sitting in Court and not to appellant No. 1.\n\nThe Court thereupon repeated the question to the witness and the note by the Court shows that the witness was quite clear that the copies which were retained by him in his Studio were taken by appellant No. 1 whom he identified by sight in Court. It appears that he also got a hint at this stage and, therefore, added that he was not sure of the exact date on which appellant No. 1 took the copies from him.\n\nThis attempt of the witness to get out of the admission made by him contradicting the case put forward by the appellants has rightly been disregarded by the High Court, and the conclusion follows that P. W. 1 has also given evidence which shows the falsity of the story of confinement put forward by the appellants.\n\nAnother circumstance that points in the same direction is that the appellants, if they were in fact kept in illegal confinement, made no attempt at all to file any complaints either with the Police or before a Magistrate so as to seek redress against this criminal offence committed against them.\n\nEven on 22nd January, 1967, when appellant No. 1 addressed the meeting at 'Durgada Bailu' in Hubli, he did not tell the people about his illegal confinement and the corrupt practice committed by the workers of respondent No. 1 in order to obtain his withdrawal.\n\nThe most telling circumstance, however, which leaves no room for doubt that the version of the appellants about their confinement in the house of R. W. 3 until the early hours of 22nd January, 1967, is false, is that an item appeared in the newspaper 'Vishal Karnataka' in the morning issue of 22nd January, 1967, saying that one only out of the five candidates who had withdrawn their candidature had been made to withdraw his nomination pape~ by use of force and great threat; and it was learnt that, as against this, a notice had been caused to be\n\ngiven through a Pleader.\n\nAppellant No. 1 himself admitted that this newspaper is a daily morning paper so that this particular issue came out on the morning of 22nd January, 1967.\n\nAccording to the version given by appellants 1 and 2, they were kept in confinement at the residence of R. W. 3 until released at about 4-30 a.m. on 22nd January whereafter they proceeded to Hubli and, for the first time, gave their version of confinement to their lawyer, P. W. 2, at about 3 p.m.\n\nAccording to them, they did not mention their confinement and use of force or of threats against them to anyone else until they were able to consult P, W. 2 at about 3 p.m. lf this evidence was true, it is\n\n; rincomprehensible how the news of obtaining withdrawal of a nomination paper by use of force and great threat could appear in the morning issue of 22nd January, 1967 which came out several hours earlier.\n\nMr. Patil, learned. counsel for the appellants, tried to explain away this news by comparing it with another item of news appearing in an issue of the newspaper 'Prajavani' published from Bangalore on the morning of 22nd January, 1967. The news item in it purports to be dated 20th January, 1967 and is to the effect that the Chief Minister is about to bring about the first and the most important success to the Mysore Pradesh Congress by his uncontested election from the Shiggaon Assembly Constituency. It mentions that, as the other contestants had withdrawn their candidature, only the candidature of respondent No. I was remaining in Shiggaon Constituency and he was going to be declared elected uncontested on the 23rd January, 1967, which was the last date fixed for withdrawal of candidature.\n\nFrom the fact that this news item was published as an item of 20th January, it was argued that there must have been a pre-arranged plan to manoeuvre the withdrawal of all candidates from the Shiggaon Constituency for the purpose of achieving uncontested return of respondent No. 1, because there could not be and there were no withdrawals on' 20th January which was the date for filing nominations, and the evidence also proves clearly that the withdrawals, in fact, took place on 21st January, 1967, which was the date of scrutiny.\n\nIt, however, appears to us that, in th.is newspaper, the date January 20 as the date of the news item is incorrect.\n\nIf, in Bangalore, this news item had been received by the newspaper , on 20th January, it would surely have been published in the issue of 21st January. The very fact that it was published in the issue of .22nd January shows that this news must have been received by the newspaper on 21st January and the date January 20 printed in it is an error in printing.\n\nNo newspaper would unnecessarily delay such a news item by full 24 hours. On the 21st January, according to the evidence given by the Returning Officer and other witnesses examined on behalf of respondent No. l, all the withdrawals had taken place by about to 4 p.m.\n\nOf course, thereafter, this news about withdrawals could have been flashed to Bangalore and received there later in the evening of 21st January, so that it could be published in the morning issue of 'Prajavani' of 22nd January, 1967.\n\nThe publication of this news is, therefore, not at all comparable with the publication in Vishal Karnatajca, to which we referred earlier.\n\nIt is significant that the newspaper Vishal Kamataka, which is published at Hubli, was inierested in appellant No. 1. This is clear from the circumstance that, after printing this news item about use of force and great threat to induce a candidate to withdraw his nomination, this very newspaper published a number of\n\nc . .\n\nappeals to raise funds in order to support the case of appellant No. 1 for challenging the uncontested election of respoi; ident No. I. The publication of these appeals in subsequent issues of Vishal Karnataka has been admitted by appellant No. 1. The subscriptions were to be sent to Vishal Karnataka Office.\n\nIn these circumstances, an inference clearly follows that, in fact, appellants No. 1 and 2 were not kept in confinement at the residence of 'R. W. 3 and they deliberately made out this story to challenge the uncontested election of respondent No. 1 some time on the evening of 21st January, 1967.\n\nHaving decided that the election shguld be challenged on such a ground, they gave out this news item to Vishal Karnata.ka; but they did not realise that the publication of this news item would itself betray them and make it clear that they could not have been kept in confinement up to the early hours of 22nd January, 1967, which was the version they decided to put forward against respondent No. I. Mr. Patil, learned counsel for the appellants, also tried to suggest that this news item might refer to the withdrawal of candidature of some candidate other than appellant No. l, but we can see no basis for such a suggestion. No witness has made any statement indicating that any candidate other than appellant No. 1 had the grievance that the withdrawal of his nommation had been obtained by use of force or threats.\n\nNone of the witnesses of the appellants, including P.W. 2, S.S. Sattar, their legal adviser, have stated that any other candidate was made to withdraw in that manner. On the other hand, in the election petition itself, the appellants have come Jorward with the case that the withdrawals of all other candidates, except his OWn, were voluntary and valid.\n\nThis plea was put forward in order to claim the seat for appellant No. 1 himself on the election of respondent No. 1 being declared void; but this pleading clearly negatives any possible suggestion that there was some other candidate who was also subjected to threats and use of force to induce him to withdraw his candidature.\n\nObviously, this news item could refer to no one else, except appellant No. 1 and it could only appear in the morning issue of 22nd January, because the appellants were not under confinement on the 21st January, 1967. This piece of evidence, thus leaves no room for\n\noubt that the entire story of use of inducements, threats and Illegal confinement has been concocted by the appellant so that the witnesses examined in support of it cannot be at all relied upon.\n\nIn these circumstances, we hold, as we have indicated earlier, .that the H.igh Court was justified in not iusisting on the production of Patil Puttappa as a witness on behalf of respondent. No. 1 or in not examining him as a court witness.\n\nThe\n\nves1on put forward by the appellants was controverted in his\n\nev1deince by R. W. 4, Malral.inga Shetty who, according to the appellants, was in the company of Patil Puttappa at both stages\n\nwhen bribe was offered to appellant No. 1 and, later, when he was induced by threats and illegal confinement to withdraw his candidature.\n\nFurther, R. W. 3 was examined to controvert the version of the incident alleged to have taken place at his residence during the illegl confinement of the appellants.\n\nSuch evidence being avail.able and the version put forward on behalf of the appellants having been shown to be false by various circumstances indicated by us above, there could be no need for the Court to take the step of examining Patil l'uttappa as .a court witness. The High Court was fully justified in holding that the charges of corrupt practices of undue influence and bribery had not been proved against respondent No. 1.\n\nThe additional charge of obtaining assistance from a Government servant, viz., the Returning Officer, respondent No. 2, is also linked up with the same version of the appellants which we have above held to be false. Respondent No. 2 was said to have assisted in illegally obtaining the withdrawal of the candidature of appellant No. 1 by being a party to a faked withdrawal form being accepted by him. The case was that the withdrawal fonn of appellant No. 1 was not presented either by appellant No. 1 himself or by his election agent having been obtained in the circumstances indicated by the appellants Jn their version.\n\nRespondent No. 2 has, however, clearly stated that this withdrawal form of appellant No. 1 was presented by appellant No. I himself, and we find no reason to disbelieve his evidence in view of our finding about the falsity of the version of the appellant.\n\nIt is also significant that no witness was sought to be examined on behalf of the appellants to prove who in fact presented the withdrawal form on his behalf if appellant No. 1 did not do so.\n\nIn view of the circumstantial evidence being in favour of the version put forward by the respondents, we consider that the High Court was right in accepting .the evidence of respondent No. 2 on this point and rejecting the plea of the appellants that the withdrawal form of appellant No. 1 had been wrongly manoeuvred and had not been presented by him.\n\nLastly, we may take notice of the thre further allegations that the nomination paper of respondent No. 1 y; as, in fact, riot presented, on 20th January, 1967; secondly, that, if at all it was presented, it was not accompanied by a copy of the electoral roll showing that respondent No. 1 was entered as an elector in another constituency; and, thirdly, that it was not accompanied by a receipt showing the deposit of the security money as required by. law.\n\nOn all these points, there is the clear evidence of the Returning Officer as well as that of R.W. 3 who proposed the name of respondent No. 1 and who presented the nomination paper to the Returning Officer.\n\nThere is no reason at all to disbelieve their evidence on these points, particularly when their\n\nevidence is also supported by the documents maintained in the office of the Returning Officer as well as i.n the Sub-Treasury.\n\nThere is further the fact that no direct evidence has been led on behalf of the appellants to show that the nomination paper of respondent No. 1 was presented at some other time after the expiry of the date fixed for nomination and that, when so presented at the later stage, it was not accompanied by the two neces sary documents.\n\nThese pleas taken for challenging the validity of the election of respondent No. 1 have also, therefore, been rightly rejected by the High Court.\n\nThe appeal fails and is dismissed with costs. There will be one set of costs for hearing.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 129, "entities": [{"text": "KHAJE KHANAVAR KHADERKHAN JIUSSAJN KHAN A\n\nAND OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "KHAJE KHANAVAR KHADERKHAN HUSSAIN KHAN AND OTHERS", "offset_not_found": false}}, {"text": "SIDDAV ANBALLI NUALINGAPPA & ANR", "label": "RESPONDENT", "start_char": 58, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "SIDDAVANBALLI NIJALINGAPPA & ANR", "offset_not_found": false}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 115, "end_char": 124, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT*", "offset_not_found": false}}, {"text": "Art. 173(a)", "label": "PROVISION", "start_char": 199, "end_char": 210, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Practice and Procedure-Representation of the People Act", "label": "STATUTE", "start_char": 260, "end_char": 315, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 116A", "label": "PROVISION", "start_char": 332, "end_char": 339, "source": "regex", "metadata": {"linked_statute_text": "Practice and Procedure-Representation of the People Act", "statute": "Practice and Procedure-Representation of the People Act"}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 365, "end_char": 388, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 113(a)", "label": "PROVISION", "start_char": 509, "end_char": 520, "source": "regex", "metadata": {"linked_statute_text": "Practice and Procedure-Representation of the People Act", "statute": "Practice and Procedure-Representation of the People Act"}}, {"text": "Art. 173(a)", "label": "PROVISION", "start_char": 1161, "end_char": 1172, "source": "regex", "metadata": {"linked_statute_text": "Practice and Procedure-Representation of the People Act", "statute": "Practice and Procedure-Representation of the People Act"}}, {"text": "Art. 173(a)", "label": "PROVISION", "start_char": 1722, "end_char": 1733, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Shiggaon constituency", "label": "GPE", "start_char": 1772, "end_char": 1793, "source": "ner", "metadata": {"in_sentence": "173(a) before filing the nomination paper in Shiggaon constituency, that the withdrawal from candidature of the first appellant was attempted to be obtained by inducement, threats and undue inftuence and was in fact pro-."}}, {"text": "Pashupatl Nath Singh", "label": "OTHER_PERSON", "start_char": 3646, "end_char": 3666, "source": "ner", "metadata": {"in_sentence": "HELD : ( 1) (a) Since the first appellant was permitted to raise the new gromd based upon the decision in Pashupatl Nath Singh's case, the first respondent should not be debarred from putting forward his alternative plea that Art.", "canonical_name": "Pashupatl Nath Singh"}}, {"text": "Art. 173(a)", "label": "PROVISION", "start_char": 3766, "end_char": 3777, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 173(a)", "label": "PROVISION", "start_char": 3936, "end_char": 3947, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Bagalkot", "label": "GPE", "start_char": 4550, "end_char": 4558, "source": "ner", "metadata": {"in_sentence": "[534 A-BJ\n\n(c) When the first respondent made bis affirmations on the 19th and 20th before the Returning Officer at Bagalkot and Hospct respectively."}}, {"text": "Art. 173(a)", "label": "PROVISION", "start_char": 4798, "end_char": 4809, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Mysore Legislative Assembly", "label": "ORG", "start_char": 4881, "end_char": 4908, "source": "ner", "metadata": {"in_sentence": "173(a), and thereupon, became qualified to be a candidate for election to the Mysore Legislative Assembly."}}, {"text": "Art. 173(a)", "label": "PROVISION", "start_char": 4936, "end_char": 4947, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "India", "label": "GPE", "start_char": 5170, "end_char": 5175, "source": "ner", "metadata": {"in_sentence": "173(a) is to ensure that any person, who wants to be a member of a Legislature of a State, must be<.1r true faith and allegiance to the Constitution as by law established and undertake to uphol<l the sovereignty and integrity of India, and, to ensure this, he must make an oath or affirmation."}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 5327, "end_char": 5341, "source": "regex", "metadata": {"statute": null}}, {"text": "ClvIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 6704, "end_char": 6732, "source": "ner", "metadata": {"in_sentence": "ClvIL APPELLATE JURISDICTION: Civil Appeal No."}}, {"text": "s. 116", "label": "PROVISION", "start_char": 6796, "end_char": 6802, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 6812, "end_char": 6850, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "B. S. Patel", "label": "LAWYER", "start_char": 6970, "end_char": 6981, "source": "ner", "metadata": {"in_sentence": "B. S. Patel, S. Paramila and R. B. Datar, for the ppellants.", "canonical_name": "B. S. Patel"}}, {"text": "S. Paramila", "label": "LAWYER", "start_char": 6983, "end_char": 6994, "source": "ner", "metadata": {"in_sentence": "B. S. Patel, S. Paramila and R. B. Datar, for the ppellants."}}, {"text": "R. B. Datar", "label": "LAWYER", "start_char": 6999, "end_char": 7010, "source": "ner", "metadata": {"in_sentence": "B. S. Patel, S. Paramila and R. B. Datar, for the ppellants."}}, {"text": "A. K. Sen", "label": "LAWYER", "start_char": 7032, "end_char": 7041, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, S. S. Jara/i and M.\n\nVeerappa, for respondent H No.", "canonical_name": "A. K. Sen"}}, {"text": "S. S. Jara", "label": "LAWYER", "start_char": 7043, "end_char": 7053, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, S. S. Jara/i and M.\n\nVeerappa, for respondent H No."}}, {"text": "M.\n\nVeerappa", "label": "LAWYER", "start_char": 7060, "end_char": 7072, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, S. S. Jara/i and M.\n\nVeerappa, for respondent H No."}}, {"text": "Shyamala Papp11", "label": "LAWYER", "start_char": 7099, "end_char": 7114, "source": "ner", "metadata": {"in_sentence": "I.\n\nShyamala Papp11 and S. P. Nayar, for respondent No."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 7119, "end_char": 7130, "source": "ner", "metadata": {"in_sentence": "I.\n\nShyamala Papp11 and S. P. Nayar, for respondent No."}}, {"text": "Bhargava", "label": "JUDGE", "start_char": 7199, "end_char": 7207, "source": "ner", "metadata": {"in_sentence": "The Judgment of ihe Court was delivered by\n\nBhargava, J.\n\nThis appeal under section 1l6A of th~ Representation of the People's Act, I 951 (hereinafter referred to as \"the Act\") has been filed by two appellants whose election petition for setting aside the election of respondent No."}}, {"text": "section 1", "label": "PROVISION", "start_char": 7231, "end_char": 7240, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "High Court of Mysore", "label": "COURT", "start_char": 7466, "end_char": 7486, "source": "ner", "metadata": {"in_sentence": "1 has been dismissed by the High Court of Mysore."}}, {"text": "Dharwar", "label": "GPE", "start_char": 7650, "end_char": 7657, "source": "ner", "metadata": {"in_sentence": "1 was one of the candidates who filed his nomination for election to the Mysore Legislative Assembly from Shiggaon Constituency in the District of Dharwar."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 8863, "end_char": 8868, "source": "regex", "metadata": {"statute": null}}, {"text": "Election Commission", "label": "ORG", "start_char": 9093, "end_char": 9112, "source": "ner", "metadata": {"in_sentence": "1 was not qualified to be chosen to fill the seat in the Legislature, because he had not made and subscribed before the person authorised in that behalf by the Election Commission\n\nan oath or affirmation according to the form set out for the purpo.,"}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 9192, "end_char": 9206, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 173", "label": "PROVISION", "start_char": 9242, "end_char": 9253, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Patil Puttappa", "label": "PETITIONER", "start_char": 10062, "end_char": 10076, "source": "ner", "metadata": {"in_sentence": "The appellants allege that the whole manoeuvring was done by one Patil Puttappa, Member of Parliament, who was a staunch supporter of respondent No.", "canonical_name": "Patil\n\nPuttapim"}}, {"text": "Parliament", "label": "GPE", "start_char": 10088, "end_char": 10098, "source": "ner", "metadata": {"in_sentence": "The appellants allege that the whole manoeuvring was done by one Patil Puttappa, Member of Parliament, who was a staunch supporter of respondent No."}}, {"text": "Mahalinga Shetty", "label": "PETITIONER", "start_char": 10156, "end_char": 10172, "source": "ner", "metadata": {"in_sentence": "1, and by Mahalinga Shetty, the son-in-law of respondent No.", "canonical_name": "Mahalinga Shetty"}}, {"text": "Hotti Peerasabnavar Chamensab Ghudusab", "label": "WITNESS", "start_char": 10264, "end_char": 10302, "source": "ner", "metadata": {"in_sentence": "1: These two persons c caught hold of two other persons, Hotti Peerasabnavar Chamensab Ghudusab (hereinafter referred to as \"P. W. 3\"), and Nadaf Mohamad."}}, {"text": "Nadaf Mohamad. Jafar Saheb", "label": "WITNESS", "start_char": 10347, "end_char": 10373, "source": "ner", "metadata": {"in_sentence": "1: These two persons c caught hold of two other persons, Hotti Peerasabnavar Chamensab Ghudusab (hereinafter referred to as \"P. W. 3\"), and Nadaf Mohamad."}}, {"text": "20th January, 1967", "label": "DATE", "start_char": 10834, "end_char": 10852, "source": "ner", "metadata": {"in_sentence": "For this purpose,· on 20th January, 1967, at about 8.30 p.m., while appellant No."}}, {"text": "Joshi", "label": "WITNESS", "start_char": 10928, "end_char": 10933, "source": "ner", "metadata": {"in_sentence": "shop of one Joshi, a car arrived from which P.W. 4."}}, {"text": "H whereuoon Patil Puttappa", "label": "OTHER_PERSON", "start_char": 12239, "end_char": 12265, "source": "ner", "metadata": {"in_sentence": "H whereuoon Patil Puttappa stated that every necessary arrangement would be made to secure the uncontested return of respondent No."}}, {"text": "Mahalinga Shettv", "label": "PETITIONER", "start_char": 12400, "end_char": 12416, "source": "ner", "metadata": {"in_sentence": "At the time of this talk, Mahalinga Shettv was also sittinrr in the car.", "canonical_name": "Mahalinga Shetty"}}, {"text": "Patil\n\nPuttapim", "label": "PETITIONER", "start_char": 12494, "end_char": 12509, "source": "ner", "metadata": {"in_sentence": "I continued to be hesitant, Patil\n\nPuttapim asked him to go with him in the car and, in this\n\n0 UPREME COURT REPORTS\n\n[1969] 3 S.C.R.\n\nsuggestion, P. Ws.", "canonical_name": "Patil\n\nPuttapim"}}, {"text": "Hanumanthagouda Ayyangouda Patil", "label": "OTHER_PERSON", "start_char": 13015, "end_char": 13047, "source": "ner", "metadata": {"in_sentence": "2 and, thereafter, both of them got into the car and were taken to the house of one Hanumanthagouda Ayyangouda Patil (hereinafter referred to as \"R. W. 3\")."}}, {"text": "Patil Puttappa", "label": "PETITIONER", "start_char": 13088, "end_char": 13102, "source": "ner", "metadata": {"in_sentence": "Patil Puttappa, Mahalinga Shelly and the two appellants all went inside the house of R. W. 3 and sat there when Patil Puttappa once again made a request to appellant No.", "canonical_name": "Patil\n\nPuttapim"}}, {"text": "Mahalinga Shelly", "label": "PETITIONER", "start_char": 13104, "end_char": 13120, "source": "ner", "metadata": {"in_sentence": "Patil Puttappa, Mahalinga Shelly and the two appellants all went inside the house of R. W. 3 and sat there when Patil Puttappa once again made a request to appellant No.", "canonical_name": "Mahalinga Shetty"}}, {"text": "Parliament", "label": "ORG", "start_char": 13840, "end_char": 13850, "source": "ner", "metadata": {"in_sentence": "He added that he was a Member-· of Parliament and, therefore, he could do anything to appe!lant No."}}, {"text": "Puttappa", "label": "OTHER_PERSON", "start_char": 14405, "end_char": 14413, "source": "ner", "metadata": {"in_sentence": "Against his will and submitting to the pressure of Puttappa, appellant No.·"}}, {"text": "hini", "label": "OTHER_PERSON", "start_char": 14582, "end_char": 14586, "source": "ner", "metadata": {"in_sentence": "1 signed the papers which were taken away by Puttappa who left asking R. W. 3 not to permit the two appellants to go away, unless Puttappa himself told hini to let them go."}}, {"text": "22nd January, 1967", "label": "DATE", "start_char": 14849, "end_char": 14867, "source": "ner", "metadata": {"in_sentence": "They were only allowed to leave the house at about 4-30 a.m. on 22nd January, 1967, when a servant of R. W. 3 woke them up and told them that they could go away."}}, {"text": "Bangalore", "label": "GPE", "start_char": 16529, "end_char": 16538, "source": "ner", "metadata": {"in_sentence": "their release from the house of R. W. 3, is that, .. when they came out of the house towards the Poona-Bangalore Road, they felt ashamed to show their faces in their own town of Shiggaon and, consequently, decided to gn."}}, {"text": "Shiggaon", "label": "GPE", "start_char": 16604, "end_char": 16612, "source": "ner", "metadata": {"in_sentence": "their release from the house of R. W. 3, is that, .. when they came out of the house towards the Poona-Bangalore Road, they felt ashamed to show their faces in their own town of Shiggaon and, consequently, decided to gn."}}, {"text": "Hubli", "label": "GPE", "start_char": 16650, "end_char": 16655, "source": "ner", "metadata": {"in_sentence": "to Hubli for a few days .. A truck happened to pass there carrying some goods and, since they had some money, they took a lift in the truck and went\n\nto H ubli."}}, {"text": "Sadashiv Shankarappa Settar", "label": "WITNESS", "start_char": 17377, "end_char": 17404, "source": "ner", "metadata": {"in_sentence": "They, therefore, decided to see a lawyer and selected Sadashiv Shankarappa Settar (hereinafter referred to as 'P. W. 2\") because, besides being a lawyer, he y; as also a candidte b the election."}}, {"text": ".Hubli", "label": "GPE", "start_char": 18658, "end_char": 18664, "source": "ner", "metadata": {"in_sentence": "1 addressed a meeting late at night in a locality called 'Durgada Bailu' in .Hubli where election propaganda was going on."}}, {"text": "25th January, 1967", "label": "DATE", "start_char": 18850, "end_char": 18868, "source": "ner", "metadata": {"in_sentence": "After taking further steps next day, the appellants continued to stay in\n\nHubli for 2 or 3 days and they ultimately returned to Shiggaon on the 25th January, 1967."}}, {"text": "B. S. Patil", "label": "LAWYER", "start_char": 19436, "end_char": 19447, "source": "ner", "metadata": {"in_sentence": "The point that was put in the fore-front by Mr. B. S. Patil, learned counsel for the appellants, and was argued first relates to the challenge of the validity of the election of respQ11dent No.", "canonical_name": "B. S. Patel"}}, {"text": "Art. 173", "label": "PROVISION", "start_char": 19716, "end_char": 19724, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "2 lst January, 1967", "label": "DATE", "start_char": 20411, "end_char": 20430, "source": "ner", "metadata": {"in_sentence": "Evidence was also led to show that, on 2 lst January, 1967, respondent No."}}, {"text": "Art. 173", "label": "PROVISION", "start_char": 20830, "end_char": 20838, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Kundagol", "label": "GPE", "start_char": 20963, "end_char": 20971, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that thls Returning Officer was functioning as such for three different constituencies, Shiggaon, Kundagol and Shirahatti, though his Headquarters were temporarily located at Shiggaon."}}, {"text": "Shirahatti", "label": "GPE", "start_char": 20976, "end_char": 20986, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that thls Returning Officer was functioning as such for three different constituencies, Shiggaon, Kundagol and Shirahatti, though his Headquarters were temporarily located at Shiggaon."}}, {"text": "Art. 173", "label": "PROVISION", "start_char": 21285, "end_char": 21293, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 173", "label": "PROVISION", "start_char": 21602, "end_char": 21613, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "20th and 21st January, 1967", "label": "DATE", "start_char": 22216, "end_char": 22243, "source": "ner", "metadata": {"in_sentence": "On behalf of the appellants, the alternative legal position relied upon was that, in any case, the affirmation should have been made before the date of scrutiny, so that, in the present case, it should have been latest B by the midnight between 20th and 21st January, 1967."}}, {"text": "s. 36(2)(a)", "label": "PROVISION", "start_char": 22638, "end_char": 22649, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 173", "label": "PROVISION", "start_char": 22793, "end_char": 22801, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "21st January, 1967", "label": "DATE", "start_char": 23177, "end_char": 23195, "source": "ner", "metadata": {"in_sentence": "1 on 21st January, 1967 just before the scrutiny of his nomination paper."}}, {"text": "A. K. Sen", "label": "LAWYER", "start_char": 23316, "end_char": 23325, "source": "ner", "metadata": {"in_sentence": "In view of this position taken up on behalf of the appellants, E Mr. A. K. Sen, learned counsel for respondent No.", "canonical_name": "A. K. Sen"}}, {"text": "Art. 173(a)", "label": "PROVISION", "start_char": 23447, "end_char": 23458, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "19th and 20th January, 1967", "label": "DATE", "start_char": 23549, "end_char": 23576, "source": "ner", "metadata": {"in_sentence": "173(a) of the Constitution, because he had villidly made affirmations at two other places on the 19th and 20th January, 1967."}}, {"text": "Sen", "label": "OTHER_PERSON", "start_char": 24480, "end_char": 24483, "source": "ner", "metadata": {"in_sentence": "It W!\\S urged by Mr. Sen that, having made affir-\n\nH mation once either at Bagalkot or at Hospet in accordance with the requirements of law, respondent No."}}, {"text": "Art. 173", "label": "PROVISION", "start_char": 24640, "end_char": 24648, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Patil", "label": "RESPONDENT", "start_char": 24919, "end_char": 24924, "source": "ner", "metadata": {"in_sentence": "This claim was resisted by Mr. Patil 011 two grounds.", "canonical_name": "Patil"}}, {"text": "Art. 173", "label": "PROVISION", "start_char": 25910, "end_char": 25918, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 26159, "end_char": 26173, "source": "regex", "metadata": {"statute": null}}, {"text": "Pashupati Nath Singh", "label": "OTHER_PERSON", "start_char": 26408, "end_char": 26428, "source": "ner", "metadata": {"in_sentence": "Now that we have permitted the appellants to raise a new ground and rely on the decision given by this Court in Pashupati Nath Singh's case('), there is no justification for debarring respondent No.", "canonical_name": "Pashupatl Nath Singh"}}, {"text": "Art. 173", "label": "PROVISION", "start_char": 27122, "end_char": 27130, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 173(a)", "label": "PROVISION", "start_char": 27153, "end_char": 27167, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 27529, "end_char": 27543, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 17", "label": "PROVISION", "start_char": 27711, "end_char": 27721, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 28092, "end_char": 28106, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 173(a)", "label": "PROVISION", "start_char": 30691, "end_char": 30702, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 173(a)", "label": "PROVISION", "start_char": 31373, "end_char": 31384, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Elcsticn Commission", "label": "ORG", "start_char": 31450, "end_char": 31469, "source": "ner", "metadata": {"in_sentence": "173(a) of the Constitution, before one of the persons authorised by the Elcsticn Commission, he hr'd fully complied with the requirements of Art."}}, {"text": "Art. 173(a)", "label": "PROVISION", "start_char": 31519, "end_char": 31530, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 173(a)", "label": "PROVISION", "start_char": 31867, "end_char": 31878, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 32006, "end_char": 32027, "source": "regex", "metadata": {}}, {"text": "Art. 173", "label": "PROVISION", "start_char": 32545, "end_char": 32553, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 32684, "end_char": 32698, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Cha:", "label": "WITNESS", "start_char": 33725, "end_char": 33729, "source": "ner", "metadata": {"in_sentence": "Two other witne<>es are Cha:nan Sab, P. W. 3, and Mohammad Jaffar Saheb, P. W. 4; and the fifth witness is Sadashiv Shankarappa Settar."}}, {"text": "nan Sab", "label": "WITNESS", "start_char": 33729, "end_char": 33736, "source": "ner", "metadata": {"in_sentence": "Two other witne<>es are Cha:nan Sab, P. W. 3, and Mohammad Jaffar Saheb, P. W. 4; and the fifth witness is Sadashiv Shankarappa Settar."}}, {"text": "Mohammad Jaffar Saheb", "label": "WITNESS", "start_char": 33751, "end_char": 33772, "source": "ner", "metadata": {"in_sentence": "Two other witne<>es are Cha:nan Sab, P. W. 3, and Mohammad Jaffar Saheb, P. W. 4; and the fifth witness is Sadashiv Shankarappa Settar."}}, {"text": "Hanumamhasa Pawar", "label": "WITNESS", "start_char": 34015, "end_char": 34032, "source": "ner", "metadata": {"in_sentence": "The only other witness who remains to be mentioned is Hanumamhasa Pawar."}}, {"text": "Hanumanthappa Shivabasappa Hosamani", "label": "WITNESS", "start_char": 34605, "end_char": 34640, "source": "ner", "metadata": {"in_sentence": "R. W. 1 is respondent \"<o. 1 himself, and R. W. 5 is Hanumanthappa Shivabasappa Hosamani, respondent No."}}, {"text": "Gadigeppagouda Channabasanagouda Patil", "label": "WITNESS", "start_char": 34730, "end_char": 34768, "source": "ner", "metadata": {"in_sentence": "A third witness for the respondents is Gadigeppagouda Channabasanagouda Patil."}}, {"text": "Hanumanthagouda Ayyangouda Patil", "label": "WITNESS", "start_char": 35044, "end_char": 35076, "source": "ner", "metadata": {"in_sentence": "The next witness examined is Hanumanthagouda Ayyangouda Patil, R. W. 3, who was the proposer of respondent No."}}, {"text": "Gurupadappa Basappa Mahalinga Shetty", "label": "WITNESS", "start_char": 35359, "end_char": 35395, "source": "ner", "metadata": {"in_sentence": "The fifth witness is Gurupadappa Basappa Mahalinga Shetty, R. W. 4, the son-in'law of respondent No."}}, {"text": "Mohammad Jaffar", "label": "WITNESS", "start_char": 37133, "end_char": 37148, "source": "ner", "metadata": {"in_sentence": "his statement has come forward with the plea that P. W. 4, Mohammad Jaffar, was one of the persons who was sponsoririg his candidature for this election, so that there was a close bond between them."}}, {"text": "Patil Puttappa", "label": "WITNESS", "start_char": 37362, "end_char": 37376, "source": "ner", "metadata": {"in_sentence": "1 was approached by Patil Puttappa through P. W. 4 because of the close relations between them."}}, {"text": "Indira Gandhi", "label": "OTHER_PERSON", "start_char": 39908, "end_char": 39921, "source": "ner", "metadata": {"in_sentence": "Indira Gandhi and the Chief Minister, respondent No."}}, {"text": "Art. 173", "label": "PROVISION", "start_char": 40541, "end_char": 40549, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s1", "label": "PROVISION", "start_char": 41606, "end_char": 41608, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of Mysore", "label": "ORG", "start_char": 44499, "end_char": 44519, "source": "ner", "metadata": {"in_sentence": "It was urged that this shows that he had been receiving Patronage from the Government of Mysore of which, during this period, respondent No."}}, {"text": "Congress", "label": "ORG", "start_char": 44679, "end_char": 44687, "source": "ner", "metadata": {"in_sentence": "Further, he was elected as a Member of the Rajya Sabha and was an active worker of the Congress."}}, {"text": "Patil Puttappa", "label": "RESPONDENT", "start_char": 45309, "end_char": 45323, "source": "ner", "metadata": {"in_sentence": "1 also cited Patil Puttappa as one of the witnesses in the list of witnesses filed, but, later, gave him up and did not examine him as a witness.", "canonical_name": "Patil\n\nPuttapim"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 45604, "end_char": 45631, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Assam High Court", "label": "COURT", "start_char": 45900, "end_char": 45916, "source": "ner", "metadata": {"in_sentence": "Mr. Patil, in this connection, relied on a decision of the Assam High Court in Nani Gopal Swami v. Abdul Hamid Choudhury and Another(') to urge that, though the burden of proof in the present .:ase in respect of the corrupt practices was initially on the appellants, respondent No."}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 48489, "end_char": 48494, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "R. M. Seshadri", "label": "OTHER_PERSON", "start_char": 49066, "end_char": 49080, "source": "ner", "metadata": {"in_sentence": "In this connection, we may cite further remarks made by this Court in the case of R. M. Seshadri(') to the fo!lowi1ng effect :-\n\n\"Although we would say that the trial should be at arms length and the Court should not really enter into the dispute as a third party, but it is not to be understood that the Court never has the power to summon a witness or to call for a document which wbuld throw light upon the matter, particularly of corrupt practice which is alleged and is being sought to be proved."}}, {"text": "Patil Puttapp_a", "label": "PETITIONER", "start_char": 50430, "end_char": 50445, "source": "ner", "metadata": {"in_sentence": "1 for his failure to examine Patil Puttapp_a as a witness.", "canonical_name": "Patil\n\nPuttapim"}}, {"text": "20th\n\nJanuary", "label": "DATE", "start_char": 51294, "end_char": 51307, "source": "ner", "metadata": {"in_sentence": "In fact, the version given by the two appellants of their confinement in the house of R W. 3 is that they remained there throughout the night of 20th\n\nJanuary and throughout the day hours <!"}}, {"text": "Vishal Karnataka", "label": "ORG", "start_char": 58145, "end_char": 58161, "source": "ner", "metadata": {"in_sentence": "The most telling circumstance, however, which leaves no room for doubt that the version of the appellants about their confinement in the house of R. W. 3 until the early hours of 22nd January, 1967, is false, is that an item appeared in the newspaper 'Vishal Karnataka' in the morning issue of 22nd January, 1967, saying that one only out of the five candidates who had withdrawn their candidature had been made to withdraw his nomination pape~ by use of force and great threat; and it was learnt that, as against this, a notice had been caused to be\n\ngiven through a Pleader."}}, {"text": "Mysore Pradesh Congress", "label": "ORG", "start_char": 59753, "end_char": 59776, "source": "ner", "metadata": {"in_sentence": "The news item in it purports to be dated 20th January, 1967 and is to the effect that the Chief Minister is about to bring about the first and the most important success to the Mysore Pradesh Congress by his uncontested election from the Shiggaon Assembly Constituency."}}, {"text": "23rd January, 1967", "label": "DATE", "start_char": 60061, "end_char": 60079, "source": "ner", "metadata": {"in_sentence": "I was remaining in Shiggaon Constituency and he was going to be declared elected uncontested on the 23rd January, 1967, which was the last date fixed for withdrawal of candidature."}}, {"text": "Vishal Karnatajca", "label": "OTHER_PERSON", "start_char": 61748, "end_char": 61765, "source": "ner", "metadata": {"in_sentence": "The publication of this news is, therefore, not at all comparable with the publication in Vishal Karnatajca, to which we referred earlier.", "canonical_name": "Vishal Karnata.ka;"}}, {"text": "Vishal Kamataka", "label": "OTHER_PERSON", "start_char": 61835, "end_char": 61850, "source": "ner", "metadata": {"in_sentence": "It is significant that the newspaper Vishal Kamataka, which is published at Hubli, was inierested in appellant No.", "canonical_name": "Vishal Karnata.ka;"}}, {"text": "Vishal Karnataka Office", "label": "ORG", "start_char": 62409, "end_char": 62432, "source": "ner", "metadata": {"in_sentence": "The subscriptions were to be sent to Vishal Karnataka Office."}}, {"text": "Vishal Karnata.ka;", "label": "OTHER_PERSON", "start_char": 62837, "end_char": 62855, "source": "ner", "metadata": {"in_sentence": "Having decided that the election shguld be challenged on such a ground, they gave out this news item to Vishal Karnata.ka; but they did not realise that the publication of this news item would itself betray them and make it clear that they could not have been kept in confinement up to the early hours of 22nd January, 1967, which was the version they decided to put forward against respondent No.", "canonical_name": "Vishal Karnata.ka;"}}, {"text": "Patil", "label": "RESPONDENT", "start_char": 63138, "end_char": 63143, "source": "ner", "metadata": {"in_sentence": "I. Mr. Patil, learned counsel for the appellants, also tried to suggest that this news item might refer to the withdrawal of candidature of some candidate other than appellant No.", "canonical_name": "Patil"}}, {"text": "S.S. Sattar", "label": "WITNESS", "start_char": 63613, "end_char": 63624, "source": "ner", "metadata": {"in_sentence": "None of the witnesses of the appellants, including P.W. 2, S.S. Sattar, their legal adviser, have stated that any other candidate was made to withdraw in that manner."}}, {"text": "Malral.inga Shetty", "label": "WITNESS", "start_char": 65031, "end_char": 65049, "source": "ner", "metadata": {"in_sentence": "The\n\nves1on put forward by the appellants was controverted in his\n\nev1deince by R. W. 4, Malral.inga Shetty who, according to the appellants, was in the company of Patil Puttappa at both stages\n\nwhen bribe was offered to appellant No."}}, {"text": "Patil l'uttappa", "label": "WITNESS", "start_char": 65675, "end_char": 65690, "source": "ner", "metadata": {"in_sentence": "Such evidence being avail.able and the version put forward on behalf of the appellants having been shown to be false by various circumstances indicated by us above, there could be no need for the Court to take the step of examining Patil l'uttappa as .a court witness."}}]}
{"document_id": "1969_3_548_556_EN", "year": 1969, "text": "ltAILWA\\' BOARl>, REPRESENTING TliE UNION or A\n\nINDIA, NEW DELHI AND ANR •.\n\nNIRANJAN SINGH\n\nFebruary 4, 1969\n\n[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.J\n\nConstitution of India, Art. 226-Whether High Court, in exercise of certiorari jurisdiction can interfere with finding of disciplinary authority- Art. !9(l)(a), (b) (c) and (3)-lf violated by General Manager of Rail- ..\n\nway prohibiting meetings of employees on , Railway premises.\n\nRemoval-Order of-Based on a numb.er of grounds -of which one not sustainable-If order liable to , be struck down.\n\nThe respondent Was a permanent employee of the Northern Railway and was served with a charge sheet in November, 1956, which levelled two charges against him. He was accused of having been instrumental in compelling the shut.<fown of an air comptessor and, in contravention of a direction given by the General Manager; Northern Railway, on June 19, 1956, of having addressed a number <If meetings within the Railway premises.\n\nAn enquiry committee after investigating the charges came to the conclusion that the first charge was not proved beyond all reasonable doubt but that the respondent was guilty of the second charge. The General Manager, who was the disciplinary authority, after examining the report of the cor:bmittee, accepted its findings on the second charge but differing from its conclusion on the first charge tentatively came to the conclusion that the respondent was guilty of that charge as well. After the issue of a show-cause notice to the respondent and the. rejection of his explanation, the General Manager directed, by an order of August 20,\n\n1957, that the respondent be removed from service.\n\nThe respondent challenged the order of his removal by a writ petition.\n\nThe petition was allowed and an appeal to a Division Bench was dismissed.\n\nThe questions for decision in the appeal to this Court ivere' (i) whether the High Court was within its jurisdiction in the exercise of its powers under Art. 226 of the Constitution to set aside the conclusion reached by the General Manager on the first charge; (ii) whether the appellate court was right in its view that i'f an order of removal is based on number of grounds and one or more of those grounds are fotmd to be unsustainable, the order is liable to be struck down; and (iii} whether the direction issued by the General Manager on June 19, 1956 was violative of Art. 19(1)(a) to (c) and (3).\n\nIt was contended on behalf of the appellant that the rights guranteed under Art. 19(1)(a), (b) & (c) are inviolable and they cannot be interferred with except in. accordance with sub-articles 2, 3 & 4 of Art. 19; that the Railway workers had a right to assembly in any place they chose and cpuld express their views so long they did not disturb the work going on in the premises.\n\nHELD : Allowing the appeal and dismissing the writ petition : (i) H The High Court exceeded its powers in interfering with the findings of the .\n\nGeneral Manager on the first charge. It was open to the General Manager to accept the evidence which the Enquiry Committee had rejected on the first charge and he was not bound by the conclusions reached by the com\n\nRLY. BOARD V, NJRANJAN SINGH (Hegde, J.) 54&\n\nmittec. On tho facts in the present case it could not be said that the ftnd. ing of the disciplinary authority was not supported by any evidence nor could it be said that no reasonable person could have reached such a find. ing.\n\nHenee the conclusion reached by the disciplinary authority . must prevail and the High Court in the exercise of its certiorari jurisdiction could not have interferred with its conclusion. (552 A-CJ\n\nUnion of India v. H. C, Goel, [1964] 4 S.C.R. 718; Syed Yakoob v.\n\nK. S. Radhakrf.>:hnan & Ors., (1964] 5 S.C.R. 64; relied pn.\n\n(ii) There was no force in the contention that the punishment imposed could not be sustained if it was held that one of the two charges on the basis of which it was imposed, was unsustainable. Ilf the order in an enquiry under Art. 311 can be supported on any finding as substantial misdemeanour for which the punishment imposed can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed )Vith the authority in imposing the punishment in question [552 0]\n\nState of Orissa v. Bidyabhan Mohapatra, [1962] Suppl. 1 S.C.R. 648; followed.\n\n(iii) The General Manager's direction prohibiting the holding of meetings within the Railway premises was not violative of Art. 19(1).\n\nThe Northern Railway was the owner of the premises in '1, Uestion and was entitled to enjoy its property in the same manner as any pnvate individual subject to only such restriction as the law or the usage may place oo them. There is no 'fuiidamental right for any one to hold meetings in Government premises. Freedom of speech, freedom to assemble peac&- fully and the freedom to form Associations or Unions does not mean that these rights can be exercised by the citizen• in whatever place they please.\n\nThe exercise of those freedoms will come to an end as soon as the right of some one else to hold rus prop<; rty intervenes.\n\nSuch a limitation is inherent in the exercise of those nghts. The validity elf that limitation is not to be judged by the tests prescribed by Sub-Arts. (2) and (3) of Art.\n\n19, (554 D]\n\nMarsh v. Alabama, 90 Law &In. p. 265; Tucker v. State of Texas. 90 Law &In. p. 274); distinguished.\n\nCML APPELLATE JURISDICTION : Civil Appeal No. 1206 of 1966.\n\nAppeal from the judgment and order dated January 14, 1963 of the Punjab High Court in Letters Patent Appeal No. 36-D of\n\n196:2.\n\nG. R. Rajagopaul, A. S. Nambiar and S. P. Nayar:, for the appellants.\n\nR. K. Garg ·~ S. C. Agarwal, for the respondent.\n\nThe I udgment of the Court was delivered by Begde, J. This appeal was brought after obtaining from the High-Court a certificate uner Art. 13~ and ! ~3(l)(c) oft~~ Co~ stitution.\n\nBefore formulating the pomts ansmg for dec1S1on, 1t would be convenient to set out the necessary facts.\n\n. The respondent was holding a permanent post in the Northern Railway.\n\nHe was a Trade Union worker.\n\nOn November 7, 195.6 a c?arge-sheet was served on him levelling two charges agamst him.\n\nUnder the first charge, he was accused of having been instrumental in compelling the air compressor being shut down at about 8.15 a.m. on May 31, 1956. Under the second charge he was accused of having contravened the direction given by the General Manager, Northern Railway as per his letter No. 961/E/O(Evi) dated June 19, 1956 by addressing meetings within the railway premises on June 23, 1956, June 25, 1956, July 24, 1956, July 25, 1956 and July 27, 1956. On these charges he was called upon to show-cause why he should not be removed from service under Rule 1708 of the Indian Railway Establishment Code Vol. I or punished with any lesser penalties specified in Rule 1702. After receiving his explanation an enquiry committee consisting of three officers was appointed to enquire into the charges. The said committee came to the conclusion that the first charge was not proved beyond all reasonable doubt but he was guilty of the second charge. The Disciplinary Authority i.e. the General Manager remitted the case back to the enquiry committee for submitting a fresh report after examining the witnesses* mentioned in his order.\n\nEven after examining those witnesses the enquiry committee adhered to its earlier conclusions.\n\nAfter examining the reports. of the enquiry committee, the General Manager as per his order of May 25, 1957 accepted its finding on the second charge but differing from its conclusion on the first charge tentatively came to the conclusion that the respondent was guilty of that charge as well.\n\nAs a result thereof he ordered the issue of a notice to the respondent to show-cause why he should not be removed from service. The respondent submitted his explanation to the show-cause notice. The General Manager did not accept his explanation and by his order of August 20, 1957 he directed that the respondent be removed from service. The respondent challenged that decision before the High Court of Punjab by means of a :writ petition under Art. 226 of the Constitution.\n\nThe single judge of the High Court who heard the petition opined that the General Manager was not right in holding on the material on record that the first charge is established and on the second charge he held that the General Man ager' s direction as per his letter of June 19, 1956 is void as being violative of Art. 19(1) of the Constitution.\n\nOn appeal the appellate court upheld the conclusion of the learned single judge on the first charge but it was unable to accept his finding that the order of the General Manager of June 19, 1956 was violative of Art. 19(1) of the Constitution. All the same it affirmed the decision of the learned single judge with these observations : ''It is by now a generally recognised principle that where an order such as an order of detention or removal\n\nllLY. BOARD V, NlllANJAN SINGH (Hegde, J.) 551\n\nfrom service is based on a number of grounds, and one or more of these grounds disappear it becomes difficult to uphold the order when it is not clear to what extent it was based on the ound found to be bad.\"\n\nThe findings of the learned single judge as well as the judges of the appellate court were challenged before us by the appellant.\n\nIt was urged on its behalf that the finding of the General Manager on the first charge being a finding of fact, the same not having been held either not supported by any evidence or as perverse, it was not open to the High Court to review the evidence afresh and come to a conclusion of its own. It was further urged on its behalf that the opinion of the Appellate Court that if one of the several charges on the basis of which a punishment is imposed is held to be unsustainable, the punishment imposed should be set aside as it is not known whether the authority in question would have imposed the impugned punishment without that charge having been established, does not represent the correct J_egal position as epounded by this Court. The learned Counsel for the respondent not only supported the conclusions of the appellate court, he also strongly commended for our acceptane the finding of the learned single judge that General Manager's direction contained in his letter of June 19, 1956 was violative of Art. 19(1)\n\n(a) to (c).\n\nThe questions. that arise for decision in this appeal are (!) whether the High Court was within its jurisdiction in the exercise of its powers under Art. 226 of the Constitution to set aside the conclusion reached by the General Manager on the first charge,\n\n(2) whether the direction issued by the General Manager on June 19, 1956 is violative of Art. 19(1) a to (c) and (3) whether the appellate court was right in its view that if an order of removal is based on number of .grounds and one or more of those grounds are found to be unsustainable, the order is liable to be struck down.\n\nNow coming to the first charge, we may first set out the undisputed facts.\n\nOn May 31, 1956, the Union of which the respondent was the Vice-President declared a token strike.\n\nThe strike in question was declared by the respondent and he took a leading part in it. During the time of the strike the compressor was not worked. The enquiry committee came to the conclusion and that conclusion was neither challenged before the High Court nor before this Court that the compressor driver must have started the compressor in the East Compressor House at 8-00 hrs. and there must have been certain circumstances which made the driver to shut it off at 8-15 hrs. The only question for decision is whether the respondent was responsible for shutting it off. Two witnesses namely Subrati, the compressor Driver and Rameshwar. his Assistant emphatically stated before the enquiry committee\n\nthat it was the respondent who led a group of strikers and compelled them to close down the eompressor. The enquiry committee felt that their evidence cannot be . accepted at its face value as they were not able to name any other person in the group. But the General Manager did not agree with the enquiry on that point.\n\nHe fully accepted their evidence.\n\nIt was open to the General Manager to do so. He was not bound by the conclusions reached by the enquiry committee, see Union of India v. H. C. Goel(').\n\nThis is not a case where it can be said that the finding of the Disciplinary Authority is not supported by any evidence nor can it be said that no reasonable person could have reached such a finding. Hence the conclusion reached by the Disciplinary Autho- .. rity should prevail and the High Court in the exercise of its Certiorari jurisdiction could not have interfered with its conclusion, see Syed Yakoob v. K. S. Radhakrishnan and Ors.( 2 ).\n\nIt was next contended that in arriving at his conclusion on the first charge the General Manager had relied on the hearsay evidence given by De Mellow and hence his conclusion is vitiated.\n\nThe evidence of the witnesses examined during the enquiry is not before us.\n\nHence it is not possible to accept the contention that De Mellow's evidence was hearsay. In this view it is not necessary to go into the question whether hearsay evidence can be relied on at all in an enquiry under Art. 311. and if so within what limits.\n\nSome of the inferences drawn by the General Manager were objected to by the larned Counsel for the respondent. They appear to be inferences of fact, evidently drawn from the material before him and ns such cannot be properly objected to. It was open to him to draw those inferences.\n\nFor the reasons mentioned above, we hold that thel High Court exceeded its powers in interfering with the finding of the General Manager on the first charge.\n\nBefore we take up for consideration point No. 2 formulated above, it would be convenient to deal with point No. 3. It was not disputed before us that the first charge levelled against the respondent is a serious charge and it would have been appropriate for the General Manager to remove the respondent from service on the basis of his finding on that charge. But we were told that we cannot assume that the General Manager would have inflicited that punishment solely on the basis of that charge and consequently we cannot sustain the punishment imposed if we hold that one of the two charges on the basis of which it was imposed is unsustainable. This contention cannot be accepted in view of the decision of this Court in State of Orissa v.\n\nBidyabhan Mohapatrp(3) wherein it was held that if the order in an enquiry under Art. 31 I can be supported on any finding as substantial mis-\n\n\n(3) [1962] Supp, I S.C.R. 648.\n\ndemeanour for which the punishment imposed can lawfully be imposed it is not for the Court to consider whether that ground alone would have weighed with the authority in imposing the punishment in question.\n\nNow we come to the second charge. In order to examine the contentions of Mr. Garg, the learned Counsel for the respondent relating to that charge, it is necessary to set out the circular issued by the General Manager on June 19, 1956. That was a circular issued to all the heads of the departments.\n\nIt reads : \"It has been brought to notice that in a number of cases railway employees have held meetings inside railway premises such as inside workshops, inside stores depots and within office compounds. It may be pointed out that this practice is extremely objectionable and has to be stopped forthwith. All staff may be warned that if any one of them is found organising or attending a meeting inside railway premises or at places of work, he will render himself liable to severe disciplinary action as such action on his part will amount to misconduct arising out of violation of administrative insructions.\n\nMeetings of workers can be held on open grounds away from places of work with the permission of the railway authorities concerned if such open grounds fall within railway boundary.\n\nYou are to note these instructions very carefully and to ensure their strict compliance in future.\n\nPlease acknowledge receipt.\"\n\nThe direction with which we are concerned in this appeal is that which prohibits the holding of meetings within the railway premises including open grounds forming part of those premises.\n\nThat direction does not deprive the workers any of the freedoms guaranteed to them under Art. 19(1). It merely prohibits them from exercising any of them within the railway premises. What is prohibited is the holding of meetings for any purpose within the railway premises.\n\nThe question is whether such a direction is violative of Art. 19(1) ? In the instant case we are concerned with the meetings held outside the main time office and it was not denied that that place formed part of the railway premises.\n\nIt was strenuously urged on behalf of the respondent that the rights guaranteed under Art. 19(l)(a), (b) and (c) are inviolable and they cannot be interfered with excepting in accordance with sub-Arts. 2, 3 and 4 of the said Art. According to Mr. Garg the railwav workers have a right to assemble in any place they choose\n\n1111d give expression to their views so long as they do not disturb the work going on in the premises and that right is guaranteed to them under our Constitution.\n\nIt was not disputed that the Northern Railway is the owner of the premises in question. The fact that the Indian Railways are State Undertakings does not affect their right to enjoy their properties in the same manner as any private individual may do subject only to such restrictions as the law or the usage may place on them. Hence unless it is shown that either under law or because of some usage the railway servants have a right to holdtheir meetings in railway premises, we see no basis for objecting to the direction given by the_ General Manager. There is no fundamental right for anyone to hold meetings in government premises. If it is otherwise there is bound to be chaos in our offices. The fact that those who work in a public office earl go there does not confer on them the right of holdfug a meeting at that office even if it be , the most convenient place to do so. . -~-\n\nIt is true that the freedoms guaranteed under our Constitution . are very valuable freedoms and thjs Court would resist abridging the ambit of those freedoms except to the extent permitted by the Constitution. The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to forrii. associations or unions does not mean that they can exercise those. freedoms in whatever place they please. _ The exercise of those freedoms will come to an end as soon as the right of someone else to hold his property intervenes. Such a limitation is inherent in the exercise of those rights. The validity of that !imitation is not to be judged by the tests prescribed by Sub-Arts. (2) and (3) of Art. 19. In other words the contents of the freedoms guaranteed under els. (a), (b) and (c), the only freedoms with which we are concerned in this appeal, do not include the right to exercise them in the properties belnging to others. If Mr. Garg is right in his contentions then a citizen of this country in the exercise of his right under els. (d) and (e)' of Art. 19(1) could move about freely in a public office or even reside there unless there exists_-some Jaw imposing reasonable restrictions on the exercise of those rights. _ ·\n\nIn support of his contention Mr. Garg strongly relied on the decisions of the Supreme Court of United States of America in Marsh v. A/abama(1) and Tucker v. State of Texas(') Tuckers . case was decided on the basis of the rule lrud down in Marsh's case. - Hence it is not necessary to consider _it separately. In Marsh's case the Supreme Court laid down that the constitutional guarantee$ of freedoms of s and of religion precludes the enforcement against one who undertook to distribute religious literature on a street of a company-owned town, contrary to the wishes of the town's management, of a state statute makin\" it a crime to enter or remain on the premises of another after 'having been\n\n(1) 90, Law ed. p. 265.\n\n(2) 90, Law ea. p. 274.\n\nwarned not to do so. In order to appreciate this decision it is ne=ary to bear in mind the facts of the case.\n\nThe appellant therein was a Jehovah's Witness who came into the sidewalk of a private town situate near the post office and undertook to distribute religious literature. In the store the corporation had posted a notice which read as follows :-\n\n\"This Is Private Property and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted.\"\n\nThe appellant was warned that she should not distribute the literature without a permit and told that no permit would be issued to her. She protested that the company rule could not be constitutionally applied so as to prohibit her from distributing religious writings. When she was asked to leave the sidewalk and Chickasaw she declined.\n\nThe deputy sheriff arrested her and she was charged in the state court for violating the law.\n\nThe town in question is described in the judgment thus :\n\n\"The town, a suburb of Mobile, Alabama, known as Chickasaw, is owned by the Gulf Ship building Corporation. Except for that it has all the characteristics of any other American town.\n\nThe property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a \"business block\" on which business places are situated.\n\nA deputy of the Mobile County Sheriff, paid by the company, serves as the town's policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six c:miers deliver mail to the people of Chickasaw and the adjacent area.\n\nThe town and the Sllfl'Ounding neighbourhood, which cannot be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet.\n\nThere is nothing to stop highway traffic from coming into the business block and upon arrival a traveller may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish\n\nthem from any other town and shopping centre except the fact that the title to the property belongs to a private corporation.\" From the .above description it is clear that the roads and sidewalks in that town had been dedicated for public use. It is in that context Justice Black observed :\n\n\"The more an owner, for his advantage, opens up his property for use by the public in general, the more do 'his rights become circumscribed by the statutory and constitutional rights of those who use it.\" The learned Judge further observed :\n\n\"We do not think it makes any significant constitutional difference as to the relationship between the rights of the owner and those of the public that here the State, instead of permitting the corporation to operate a highway, permitted it to use its property as a town, operate a 'business block' in the town and a street and sidewalk on that business block ....\n\nAs we have heretofore stated, the town of Chickasaw does not function differently from any other town.\n\nThe \"business block\" serves as the community shopping centre and is freely accessible and open to the people in the area and those passing through. The managers appointed by the corporation cannot curtail the liberty of press and religion of these people consistently with the purposes of the constitutional guarantees and a state statute, as the one here involved, which enforces such action by criminally punishing those who attempt to distribute religious literature clearly violates the First and Fourteenth Amendments to the Constitution.\" In our opinion the rule laid down in Marsh's case does not apply to the fact~ of this case. The premises with which we are concerned in this appeal unlike the roads and sidewalks of Chickasaw town were not open for use of the general public. They were intended for certain specified public purposes. They could not be used for any other purpose except with the permission of the concerned authority.\n\nNeither the language of Art. 19(1) nor the purpose behind it lend support to the contentions of Mr. Garg. On the other hand their acceptance might lead to the confusion in public offices.\n\nHence we are unable to accept them.\n\nIn the result the appeal is allowed and the writ petition dismissed but in the circumstances of the case we direct the parties to bear their own costs throughout.\n\nR.K.P.S.\n\nAppeal allowed.", "total_entities": 72, "entities": [{"text": "ltAILWA\\' BOARl>, REPRESENTING TliE UNION or A\n\nINDIA, NEW DELHI AND ANR", "label": "PETITIONER", "start_char": 0, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "RAILWAY BOARD, REPRESENTING THE UNION OF INDIA, NEW DELHI AND ANR", "offset_not_found": false}}, {"text": "NIRANJAN SINGH", "label": "RESPONDENT", "start_char": 77, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "NIRANJAN SINGH", "offset_not_found": false}}, {"text": "February 4, 1969", "label": "DATE", "start_char": 93, "end_char": 109, "source": "ner", "metadata": {"in_sentence": "ltAILWA\\' BOARl>, REPRESENTING TliE UNION or A\n\nINDIA, NEW DELHI AND ANR •.\n\nNIRANJAN SINGH\n\nFebruary 4, 1969\n\n[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.J\n\nConstitution of India, Art."}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 112, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 125, "end_char": 139, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "K. S. HEGDE, JJ", "label": "JUDGE", "start_char": 144, "end_char": 159, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 163, "end_char": 184, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 186, "end_char": 194, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "August 20,\n\n1957", "label": "DATE", "start_char": 1616, "end_char": 1632, "source": "ner", "metadata": {"in_sentence": "rejection of his explanation, the General Manager directed, by an order of August 20,\n\n1957, that the respondent be removed from service."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 1980, "end_char": 1988, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "June 19, 1956", "label": "DATE", "start_char": 2371, "end_char": 2384, "source": "ner", "metadata": {"in_sentence": "226 of the Constitution to set aside the conclusion reached by the General Manager on the first charge; (ii) whether the appellate court was right in its view that i'f an order of removal is based on number of grounds and one or more of those grounds are fotmd to be unsustainable, the order is liable to be struck down; and (iii} whether the direction issued by the General Manager on June 19, 1956 was violative of Art."}}, {"text": "Art. 19(1)(a)", "label": "PROVISION", "start_char": 2402, "end_char": 2415, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19(1)(a)", "label": "PROVISION", "start_char": 2509, "end_char": 2522, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "articles 2, 3 & 4", "label": "PROVISION", "start_char": 2616, "end_char": 2633, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 2637, "end_char": 2644, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "RLY. BOARD", "label": "JUDGE", "start_char": 3176, "end_char": 3186, "source": "ner", "metadata": {"in_sentence": "It was open to the General Manager to accept the evidence which the Enquiry Committee had rejected on the first charge and he was not bound by the conclusions reached by the com\n\nRLY."}}, {"text": "NJRANJAN SINGH", "label": "JUDGE", "start_char": 3190, "end_char": 3204, "source": "ner", "metadata": {"in_sentence": "BOARD V, NJRANJAN SINGH (Hegde, J.) 54&\n\nmittec.", "canonical_name": "NIRANJAN SINGH"}}, {"text": "Hegde", "label": "JUDGE", "start_char": 3206, "end_char": 3211, "source": "ner", "metadata": {"in_sentence": "BOARD V, NJRANJAN SINGH (Hegde, J.) 54&\n\nmittec."}}, {"text": "[1964] 4 S.C.R. 718", "label": "CASE_CITATION", "start_char": 3681, "end_char": 3700, "source": "regex", "metadata": {}}, {"text": "(1964] 5 S.C.R. 64", "label": "CASE_CITATION", "start_char": 3748, "end_char": 3766, "source": "regex", "metadata": {}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 4007, "end_char": 4015, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 4485, "end_char": 4495, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Northern Railway", "label": "ORG", "start_char": 4502, "end_char": 4518, "source": "ner", "metadata": {"in_sentence": "The Northern Railway was the owner of the premises in '1, Uestion and was entitled to enjoy its property in the same manner as any pnvate individual subject to only such restriction as the law or the usage may place oo them."}}, {"text": "Art.\n\n19", "label": "PROVISION", "start_char": 5296, "end_char": 5304, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "R. Rajagopaul", "label": "LAWYER", "start_char": 5609, "end_char": 5622, "source": "ner", "metadata": {"in_sentence": "G. R. Rajagopaul, A. S. Nambiar and S. P. Nayar:, for the appellants."}}, {"text": "A. S. Nambiar", "label": "LAWYER", "start_char": 5624, "end_char": 5637, "source": "ner", "metadata": {"in_sentence": "G. R. Rajagopaul, A. S. Nambiar and S. P. Nayar:, for the appellants."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 5642, "end_char": 5653, "source": "ner", "metadata": {"in_sentence": "G. R. Rajagopaul, A. S. Nambiar and S. P. Nayar:, for the appellants."}}, {"text": "R. K. Garg", "label": "LAWYER", "start_char": 5677, "end_char": 5687, "source": "ner", "metadata": {"in_sentence": "R. K. Garg ·~ S. C. Agarwal, for the respondent."}}, {"text": "S. C. Agarwal", "label": "LAWYER", "start_char": 5691, "end_char": 5704, "source": "ner", "metadata": {"in_sentence": "R. K. Garg ·~ S. C. Agarwal, for the respondent."}}, {"text": "Begde", "label": "JUDGE", "start_char": 5771, "end_char": 5776, "source": "ner", "metadata": {"in_sentence": "The I udgment of the Court was delivered by Begde, J. This appeal was brought after obtaining from the High-Court a certificate uner Art."}}, {"text": "Art. 13", "label": "PROVISION", "start_char": 5860, "end_char": 5867, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "November 7, 195.6", "label": "DATE", "start_char": 6116, "end_char": 6133, "source": "ner", "metadata": {"in_sentence": "On November 7, 195.6 a c?arge-sheet was served on him levelling two charges agamst him."}}, {"text": "May 31, 1956", "label": "DATE", "start_char": 6340, "end_char": 6352, "source": "ner", "metadata": {"in_sentence": "Under the first charge, he was accused of having been instrumental in compelling the air compressor being shut down at about 8.15 a.m. on May 31, 1956."}}, {"text": "June 23, 1956", "label": "DATE", "start_char": 6585, "end_char": 6598, "source": "ner", "metadata": {"in_sentence": "961/E/O(Evi) dated June 19, 1956 by addressing meetings within the railway premises on June 23, 1956, June 25, 1956, July 24, 1956, July 25, 1956 and July 27, 1956."}}, {"text": "June 25, 1956", "label": "DATE", "start_char": 6600, "end_char": 6613, "source": "ner", "metadata": {"in_sentence": "961/E/O(Evi) dated June 19, 1956 by addressing meetings within the railway premises on June 23, 1956, June 25, 1956, July 24, 1956, July 25, 1956 and July 27, 1956."}}, {"text": "July 24, 1956", "label": "DATE", "start_char": 6615, "end_char": 6628, "source": "ner", "metadata": {"in_sentence": "961/E/O(Evi) dated June 19, 1956 by addressing meetings within the railway premises on June 23, 1956, June 25, 1956, July 24, 1956, July 25, 1956 and July 27, 1956."}}, {"text": "July 25, 1956", "label": "DATE", "start_char": 6630, "end_char": 6643, "source": "ner", "metadata": {"in_sentence": "961/E/O(Evi) dated June 19, 1956 by addressing meetings within the railway premises on June 23, 1956, June 25, 1956, July 24, 1956, July 25, 1956 and July 27, 1956."}}, {"text": "July 27, 1956", "label": "DATE", "start_char": 6648, "end_char": 6661, "source": "ner", "metadata": {"in_sentence": "961/E/O(Evi) dated June 19, 1956 by addressing meetings within the railway premises on June 23, 1956, June 25, 1956, July 24, 1956, July 25, 1956 and July 27, 1956."}}, {"text": "May 25, 1957", "label": "DATE", "start_char": 7530, "end_char": 7542, "source": "ner", "metadata": {"in_sentence": "of the enquiry committee, the General Manager as per his order of May 25, 1957 accepted its finding on the second charge but differing from its conclusion on the first charge tentatively came to the conclusion that the respondent was guilty of that charge as well."}}, {"text": "August 20, 1957", "label": "DATE", "start_char": 7996, "end_char": 8011, "source": "ner", "metadata": {"in_sentence": "The General Manager did not accept his explanation and by his order of August 20, 1957 he directed that the respondent be removed from service."}}, {"text": "High Court of Punjab", "label": "COURT", "start_char": 8120, "end_char": 8140, "source": "ner", "metadata": {"in_sentence": "The respondent challenged that decision before the High Court of Punjab by means of a :writ petition under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 8176, "end_char": 8184, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 8522, "end_char": 8532, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 8767, "end_char": 8777, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "NlllANJAN SINGH", "label": "JUDGE", "start_char": 9016, "end_char": 9031, "source": "ner", "metadata": {"in_sentence": "BOARD V, NlllANJAN SINGH (Hegde, J.) 551\n\nfrom service is based on a number of grounds, and one or more of these grounds disappear it becomes difficult to uphold the order when it is not clear to what extent it was based on the ound found to be bad.\""}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 10403, "end_char": 10413, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 10577, "end_char": 10585, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 10776, "end_char": 10786, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Subrati", "label": "WITNESS", "start_char": 11788, "end_char": 11795, "source": "ner", "metadata": {"in_sentence": "Two witnesses namely Subrati, the compressor Driver and Rameshwar."}}, {"text": "Rameshwar", "label": "WITNESS", "start_char": 11823, "end_char": 11832, "source": "ner", "metadata": {"in_sentence": "Two witnesses namely Subrati, the compressor Driver and Rameshwar."}}, {"text": "De Mellow", "label": "OTHER_PERSON", "start_char": 12996, "end_char": 13005, "source": "ner", "metadata": {"in_sentence": "It was next contended that in arriving at his conclusion on the first charge the General Manager had relied on the hearsay evidence given by De Mellow and hence his conclusion is vitiated."}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 13337, "end_char": 13345, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 14647, "end_char": 14654, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Garg", "label": "OTHER_PERSON", "start_char": 15028, "end_char": 15032, "source": "ner", "metadata": {"in_sentence": "In order to examine the contentions of Mr. Garg, the learned Counsel for the respondent relating to that charge, it is necessary to set out the circular issued by the General Manager on June 19, 1956."}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 16454, "end_char": 16464, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 16697, "end_char": 16707, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19(l)(a)", "label": "PROVISION", "start_char": 16961, "end_char": 16974, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Arts. 2, 3 and 4", "label": "PROVISION", "start_char": 17071, "end_char": 17087, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Indian Railways", "label": "ORG", "start_char": 17468, "end_char": 17483, "source": "ner", "metadata": {"in_sentence": "The fact that the Indian Railways are State Undertakings does not affect their right to enjoy their properties in the same manner as any private individual may do subject only to such restrictions as the law or the usage may place on them."}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 18979, "end_char": 18986, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 19341, "end_char": 19351, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Supreme Court of United States of America", "label": "COURT", "start_char": 19595, "end_char": 19636, "source": "ner", "metadata": {"in_sentence": "In support of his contention Mr. Garg strongly relied on the decisions of the Supreme Court of United States of America in Marsh v. A/abama(1) and Tucker v. State of Texas(') Tuckers ."}}, {"text": "Marsh", "label": "OTHER_PERSON", "start_char": 19757, "end_char": 19762, "source": "ner", "metadata": {"in_sentence": "case was decided on the basis of the rule lrud down in Marsh's case. -"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 19847, "end_char": 19860, "source": "ner", "metadata": {"in_sentence": "In Marsh's case the Supreme Court laid down that the constitutional guarantee$ of freedoms of s and of religion precludes the enforcement against one who undertook to distribute religious literature on a street of a company-owned town, contrary to the wishes of the town's management, of a state statute makin\" it a crime to enter or remain on the premises of another after 'having been\n\n(1) 90, Law ed."}}, {"text": "Mobile", "label": "GPE", "start_char": 21278, "end_char": 21284, "source": "ner", "metadata": {"in_sentence": "The town in question is described in the judgment thus :\n\n\"The town, a suburb of Mobile, Alabama, known as Chickasaw, is owned by the Gulf Ship building Corporation."}}, {"text": "Gulf Ship building Corporation", "label": "ORG", "start_char": 21331, "end_char": 21361, "source": "ner", "metadata": {"in_sentence": "The town in question is described in the judgment thus :\n\n\"The town, a suburb of Mobile, Alabama, known as Chickasaw, is owned by the Gulf Ship building Corporation."}}, {"text": "Mobile County Sheriff", "label": "ORG", "start_char": 21619, "end_char": 21640, "source": "ner", "metadata": {"in_sentence": "A deputy of the Mobile County Sheriff, paid by the company, serves as the town's policeman."}}, {"text": "United States", "label": "ORG", "start_char": 21805, "end_char": 21818, "source": "ner", "metadata": {"in_sentence": "Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six c:miers deliver mail to the people of Chickasaw and the adjacent area."}}, {"text": "Chickasaw", "label": "GPE", "start_char": 21912, "end_char": 21921, "source": "ner", "metadata": {"in_sentence": "Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six c:miers deliver mail to the people of Chickasaw and the adjacent area."}}, {"text": "Black", "label": "JUDGE", "start_char": 23166, "end_char": 23171, "source": "ner", "metadata": {"in_sentence": "It is in that context Justice Black observed :\n\n\"The more an owner, for his advantage, opens up his property for use by the public in general, the more do 'his rights become circumscribed by the statutory and constitutional rights of those who use it.\""}}, {"text": "Chickasaw town", "label": "GPE", "start_char": 24624, "end_char": 24638, "source": "ner", "metadata": {"in_sentence": "The premises with which we are concerned in this appeal unlike the roads and sidewalks of Chickasaw town were not open for use of the general public."}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 24867, "end_char": 24877, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}]}
{"document_id": "1969_3_557_564_EN", "year": 1969, "text": "HOOGLY TRUSf (PRIVATE) LID.\n\nCOMMis.SIONER OF INCOME-TAX, WEST BENGAL AND\n\nANDAMAN AND NICOBAR ISLANDS\n\nFebruary 4, 1969\n\n(J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]\n\nrncome-tax Act (11 of 1922), s. 24(2) (before its amendment by the Finance Act of 1955)-Business in several commodities--Lcss in one- Set off claimed against profits in others--QuesUon of fact-When High Court can examine its correctness.\n\nThe asses.see carried on. business in several commodities including cloth.\n\nIn tlie assessment years 1953-54 and 1954-55 the assessee suffered loss in cloth business, and it was determined for the purposes of s. 24(2) of the\n\nIncome-tax Act, 1922 (as it stood before the amendment in 1955). During the subsequent three assessment years, the Income-tax Officer refused to allow the carry forward of these losses and their set off against the business profits of th°\"\" years on the ground that the losses determined in the preceding years arose out of the cloth business which was different from the other business carried on by the assessee.\n\nHe held that since the cloth business was not carried on during the relevant year of account the loss therefrom in preceding years could not be carried 'forward and set off against profits o( other business.\n\nThe Appellate Assistant Commissioner agreed with the Income-tax Officer. The Tribunal found (i) that the asscssce's dealings in cloth started very early and the introduction of control only changed the prooedure of carrying on the business, (ii) that the assessee has been doing business in several commodities and its trading in each commodity did not constitute separate business, (iii) that the cloth business never assumed the proportion or the stature of a distinct and separate business and (iv) that there was evidence to show dovetailing of cloth business into the general section. The question, as to whether on the facts and in the circumstances of the case, the cloth business and the business j.n the general section constituted the same business within the meaning elf s. 24(2) as it stood then, was referred to the High Court.\n\nRelying on most of the facts determined by the Appellate Assistant Commissioner, the High Court answered the question against the asse>See.\n\nIn appeal, to this Court, the assessee contended that (i) the findings on questions of fact given by the Tribunal were final and it was not open to the High Court to examine their ccrrectness in the absence of any proper question on the point; and (ii) on the findings of the Tribunal the losses on account of cloth business were liable in law to be carried forward and set off against the profits during the relevant assessment years.\n\nHELD : The question must be answered in the affirmative and in favour of the assessee.\n\n(i) In spite of the form in which the question had been referred it was not open to the High Court to examine the correctness of the conclmioos of the Tribunal on facts. If the Tribunal does not consider the evidence covering all the matters and bases its findings upon some evidence only ignoring other essential material that would amount to a misdirection in law and the findings would give rise to a qu.,., tion liable to be referred to the High .Court. But it is equally well settled that if the question about the validity of the findings of fact is sought to be raised for one reason or\n\nI another, reference of a proper question' challenging those findings must first be sought before those findings can l)e challenged before the High Court.\n\nNo attempt was made before the Tribunal to have any such question referred and in the absence of a proper question it was not open to the High Cowt to accept the findings of the Appellate Assistant Commissioner in preference to those given by the Tribunal or to come to any independent conclusion itself on the facts.\n\nThe Tribunal does not appear to have di<- cussed the entire evidenee on which the findings were based but the order of the Appellate Assistant Commissioner and his findings as also the entire record were before it and there is nothing to suggest that all the material 'facts were not present to its mind except that they are not mentioned in detail.\n\nIts findings, therefore. must be accepted as final and the only question which it was open to the High Court to examine was whether the cloth business could be regarded as the same business within the meaning of s. 24(2) of the Act.\n\n[563 B-D; 563 G]\n\nIndia Cement Ltd. v. Commissioner of Income-tax, Madras, 60 I.T.R. 52, 64 and Hazarar Pir Mahomed Shah Saheb Roza Committee v. Commissioner of Income-tax, Gujarat, 63 I.T.R. 490, 496, referred to.\n\n(ii) The question whether on the application of the settled tests dilferent ventures carried on by the assessee from the same business for the purpose cif •. 24(2) is a mixed question of law and fact The fair test is whether there was any inter-connection, any inter-lacing, any inter-dependence, any unity were found to exist by virtue of the common mge ment, common business organisation, common administration, common fund and common place of business. [564 D-E]\n\nSetabganj Sugar Mills Ltd. v. Commissioner 'of Income-tax, Central.\n\nCalcutta, 41 I.T.R. 272, 274, Scale! v. George Thomp, Pn &Co. Ltd., [19271 13 T.C. 83; Manila/ Dahyabhai v. Commissioner of Income-tax, Bombay City, 37 l.T.R. 398 and Commissioner of Income-tax,· Madras v. Prithvi Insurance Co. Ltd. 63 I.T.R. 632, 637, refetred to.\n\nApplying these principles the conclusions which the Tribunal arri•ed at were correct.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals No. 1659 to 1661 of 1968.\n\nAppeals from the Judgment and order dated March 26, 1965 of the Calcutta High Court in Income-tax Reference No. 130 of 1961.\n\nSukumar Mitra and D. N. Mukherjee, for the appellant (in all the appeals).\n\nS. T. Desai, S. K. Aiyar, R. H. Dhebar and B. D. Sharma, for the respondent (in all the appeals).\n\nThe Judgment of the Court was delivered by Grover, J.\n\nThese three appeals are by certificate from a common judgment of the Calcutta High Court answering .the f?llowing question referred to it by the Income Ta'I: Appellate Tnbunal in the negative and against the assessee :\n\n\"Whether on the facts and in the circumstances of the case, the cloth business of the assessee and its business in the General Section constituted the rune business\n\nHOOGLX TRUST v. C.I.T. (Grover, /.)\n\nwithin the meaning of s. 24(2) of the Indian Income-tax Act as it stood at the material time.\"\n\nAccording to the statement of the case the assessee is a private limited company owning shares and securities and also doing business. The relevant assessment years are 1955-56, 1956-57, 1957- 58, the corresponding accounting years being the calendar years\n\n1954, 1955 and 1596. In the assessment for the years 1953-54 and 1954-55 losses amounting to Rs. 2,13,898 and Rs. 46,050 respectively were determined for the purposes of s. 24(2) of the Income tax Act 1922, hereafter called the \"Act''.\n\nIn the first year a loss of Rs. 2,08,686/- arose in cloth business whereas the balance of the loss occurred in the General section and the manure section. In the second year a loss of Rs. 46,050 occurred mainly in cloth business. During the three assessment years in questio~ the Income tax Officer refused to allow the carry forward of these losses and their set off against the busines~ profits of those years on the ground that the losses determined in the preceding yea-TS arose out of the cloth business which was different from the other business carried on by the assessee'and since the cloth business was not carried on during the relevant year of accoljllt the loss therefrom in pre.; eding years could not be carried forward and set off against profits of the other business. The Appellate Assistant Commissioner agreed with the cr , 'usion of the Income tax Officer. He rejected the contention of the asessee that common ownership, common direction and control. common financial arrangement, common staff and common balance sheet necessarily established that the business was single.\n\nHe took the view that the character of the cloth business carried on by the assessee was entirely different from the other business. He laid particular emphasis on the fact that the assessee acted as a dhtributing agent on behalf of the Government for cloth and cement and the mode of carrying on of that business was altogether different from that of its ordinary business.\n\nHe referred to the fact that the cloth business had a separate overdraft account with the Bank with which stocks of cloth had been pledged and there was separate staff for the cloth busjness even though the assessee claimed that a part of the staff in the General section also looked after the cloth business.\n\nThe assessee contended before the Tribunal in aopeal that till the end of 1945 its business was confined only to shares and the management of zamindari properties and that dealin!( in cloth began only in 1946 and in 1950 the a'sessee was droling in manure and in 1952, in paints as well.\n\nAfter the introrluction of control on cloth in 1948 the company was appointed a~ a nominated buyer approved bv the Government doing busine<s at ji, own risk under conditions prescribed by the Government bv whom prices at which the goods were to be sold were fixed.\n\nC'ertain expenses relating to the cloth business like motor car and godown\n\nexpenses were charged to the General account, whereas certain expenoes relating to the General section like rent and telephone charges were charged to the cloth account while audit fees were allocated to a different department.\n\nThe control over the different activities of the assessee was not exercised by the Director but by common mana7erial staff and there was sufficient financial inter-relation between the cloth business and the General section.\n\nThe Tribunal held that the assessee's dealings in cloth started as early as 1946 and that the introduction of control by the Government changed the procedure of carrying on the business. It was further found that the assessee had been doing business in several commodities one after the other or along with the other and apart from the fact that a separate profit and trading account was maintained for cloth business there was nothing to suggest that the cloth business assumed the proportion or the stature of a distinct and separate business.\n\nIt was accordingly held that the transactions in cloth were part and parcel of a single business carried on by the assessee and the loss therefrom could not be segregated as a loss from a distinct business for the purpose of s. 24(2) of the Act.\n\nThe High Court referred to certain other facts as found by the Appellate Assistant Commissioner. It had been found by him that the assessee was mainly dolJ11 banking business from 1942 to 1948 although it had, during that period, income from other sources.\n\nIn the year 1948 it started acting as the distributing agent of cloth on behalf of the Government. That business continued till the year 1952 when control on cloth was lifted. The assessee disposed of in retail stocks left over during the first few months of the year 1953. Thereafter the assessee ceased to have any dealings in cloth.\n\nThe High Court quoted extensively from the order of the Appellate Assistant Commissioner.\n\nIt felt that the Tribunal had not dealt with the matter in a satisfactory way.\n\nReference was made to its own decision in another case in which it had been held by the High Court that in order to find out whether the business of an assessee was the same in two different years the . prin1ary consideration was the nature of the business and the way it was conducted. Merely because the assessee's business was one of a dealer in several kinds of commodities it could not be said that it has only one business for the purpose of s. 24(2) when a part of its activities had come to an end. Relying on most of the facts determined by the Appellate Assistant Commissioner the High Court found difficulty in agreeing with the view on the Tribunal that there was any dovetailing of the cloth business into the General section. This is what the High Court said finally :\n\n\"In our opinion, (i) that the inference drawn by the appellate tribunal was not warranted by the facts on record and (2) that the cloth business was separate from\n\nA the assessee's business in general section notwithstanding that there was some interconnection of expenses or control.\"\n\nIn order to decide the points raised before us it is necessary first to refer to the relevant provisions of the Act. Section 6 gives six heads of income profits and gains which shall be chargeable to income tax. Out of these the fourth head is \"profits and gains of business, profession or vocation\".\n\nSection 10 taxes the profits of business, profession or vocation carried on by the assessee. Sec tion 24(1) provides that where any assessee sustains a loss of profits or gains for any year under any of the heads mentioned in s. 6, he shall be entitled to have the amount of the loss set off against his income profits or gains under any other head in that year. It is unnecessary to refer to the proviso and the Explanations). Prior to its amendment by the Finance Act 1955, sub-s. (2) of s. 24 ran as follows :-\n\n\"(2) Where any assessee sustains a loss of profits or gains in any year, being a previous year not earlier than the previous year for the assessment for the year ending on the 31st day of March, 1940, in any business, profession or vocation, and the loss cannot be wholly set off under sub-section (I), so much of the loss as is not so set off or the whole loss where the asscssee had no other head of income shall be carried forward to the following year and set off against the profits and gains, if any, of the assessee from the same business, profession or vocation of that year ...... \"\n\nSub-s. (2) of s. 24 was substituted by s. 16 of the Finance Act of 1955 the material portion for our purposes being :\n\n\"(2) Where any assessee sustains a loss of profits or gains in any year, being a previous year not earlier than the previous year for the assessment for the year ending on the 31st day of March, 1940, in any business, profession or vocation, and the loss cannot be wholly set off under subs. (1), so much of the loss as is not set oil' or the whole loss where the assessee had no other head of income shall be carried forward rt> the following year, and\n\n(i) ................................... .\n\n(Ii) where the loss was sustained by him in any other business, profession or vocation, it shall be set off against the profits and gains, if any, of any business, profession or vocation carried on by him in that year; provided that the business, profession or vocation in\n\nwhich the loss was originally sustained continued to be A carried on by him in that year; and\n\n( ''') tt\n\n1U ............................ ..\n\nThe argument before us has proceeded on the footing that the matter has to be decided under sub-s. (2) as it stood before its amendment in 1955. The principle contentions on behalf of the appellant-assessee are two-fold. It is urged firstly that the findings on questions of fact given by the Tribunal were final and it was not open to the High Court to examine their correctness in the absence of any proper question on the point. Secondly, on the findings of the Tribunal the losses on account of cloth business were liable in Jaw to be carried forward and set off against the profits during the relevant assessment years.\n\nOn the other hand counsel for the respondent maintains that it was open to the High Court to prefer the findings of the Appellate Assistant Commissioner to those of the Tribunal because the Tribunal had based its conclusions on a misreading of evidence and on a consideration of irrelevant evidence.\n\nCounsel further says that the Tribunal's decision was hardly a decision in the eye of law and that it had been rightly held by the High Court that th~ cloth business did not fall within the meaning of the expression \"the same business\" in s. 24(2) of the Act as it stood before the amendment of 1955. It has been held by this Court in Setabganj Sugar Mills Ltd. v. Commissioner of Income tax Central, Calcutta\n\n( 1 ) that the question whether on the application of the settled tests different ventures carried on by the asessee form the same business for the purpose of s. 24(2) is a mixed question of Jaw and fact. Reference was made in this case to the principle stated by Rowlatt, J. in Scales v. George Thompson & Co, Ltd.{') that the real question is whether there was any inter-connection, any interlacing, any inter-dependence, any unity at all embracing those two businesses. The following observations from the judgment of this court may be reproduced :\n\n\"No doubt, findings of fact are involved because a variety of matters bearing on the unity of the business have to be investigated, such as unity of control and management, conduct of the business through the same\n\nagency, the inter-relation of the businesses, the employment of same capital, the maintenance of common books of account, employment of same staff to run the business, the nature of the different transactions, the pos\" sibility of one being closed without affecting the texture of the other and so forth. When, however, the true facts have been determined, the ultimate conclusion is a legal inference from proved facts, and it is one of mixed law\n\n(I) 41I.T.R.272,'274.\n\n(2) [1927] 13 T.C. 83.\n\nand fact, on which depends the application of s. 24(2) of the Act. ............. \"\n\nIt is not possible to accept the submission made on behalf of the respondent that in spite of the form in which the q_uestion had been referred it was open to the High Court to examme the correctness of the conclusions of the Tribunal on facts.\n\nThere can be no dispute that if the Tribunal does not consider the evidence covering all the matters and bases its findings upon some evidence only ignoring other essential material that would amount to a misdirection in law and the findings would give rise to a question liable to be referred to the High Court. But it is equally well settled that if it is sought to raise the question about the validity of the findings on fact for one reason or another, reference of a proper question challenging those findings must first be sought before those findings can be challenged before the High Court : See India Cement Ltd. v. Commissioner of Income tax, Madras(') and Hazarat Pir Malwmed Shah Saheb Roza Committee v. Commissioner of Income tax, Gujarat('). No attempt was made before the Tribunal to have any such question referred and in the absence of a proper question it was not open to the High Court to accept the findings of the Appellate Assistant Commissioner in preference to those given by the Tribunal or to come to any independent n clusion itself on facts.\n\nThe Tribunal gave the following findings : (1) The appellant's dealings in cloth started as early as 1946 and the introduction of control only changed the procedure of carrying on the business in the sense that the appellant became the nominated buyer .approved by the Government.\n\n(2) The appellant had been doing business in several commodities one after the other or along with the other and its trading in each commodity did not constitute separate business.\n\n(3) The cloth business never assumed the proportion or the stature of a distinct and separate business. ( 4) There was sufficient evidence to show dovetailing of the cloth section into the General section. The conclusion of the Tribunal on these findings was that the transactions in cloth were part and parcel of a single business carried on by the appellant and did not constitute a distinct business for the purpose of s. 24(2), The Tribunal does not appear to have discussed the entire evidence m which the findings were based but the order of the Appellate Assistant Commissioner and his findings as also the entire record were before it and there is nothing to suggest that all the material facts were not present to its mind except that they are not mentioned in detail.\n\nIts fin.dings, therefore, must be accepted as final and the only question which it was open to the High Court to examine wa~ whether the cloth business could be regarded as the same businesi\n\n(l) 601.T.R. 52, 64.\n\n(2) 631.T.R. 490, 496.\n\nwithin the meaning of s. 24(2) of the Act. A great deal of reliance has been placed on a decision of the Bombay High Court in Manila! Dahyabhai v. Commissioner of Income tax, Bombay City(').\n\nThere the claim that the businesses were the same was sought to be substantiated on the ground that only one set of accounts was being maintained; that both the businesses were carried on in the same premises with the help of the same staff; that the capital employed was the same, the receipts in respect of one of them being utilized for the purpose of the other and that the terms of overhead and other expenses were common. It was held that the aforesaid factors did not necessarily lead to the inference that the businesses must be regarded as one and the same. It was observed that though not conclusive but an important test was whether one of the two businesses conducted by the assessee could be stopped without affecting the texture or framework of the other. However in Commissioner of Income-tax, Madras v. Prithvi Insurance Co.\n\nLtd. (2) this Court said \"we are unable to agree with counsel for the Commissioner that, the test, whether one of the businesses can be closed without affecting the conduct of the other business, is a decisive test in determining whether the two constitute the same business within the meaning of s. 24(2).\" In that very case the test laid down by Rowlatt, J., in Scales v. George Thompson & Co.\n\nLtd., (') was accepted as a fair test and inter-connection, interlacing, inter-dependence and unity were found to exist by virtue of the common management, common business organisation, common administration, common fund and common place of business .\n\n. . We have no manner of doubt that on applying these principles the conclusion at which the Tribunal arrived was correct and the question referred should have been answered in the affirmative and in favour of the assessee.\n\nThe appeals are consequently allowed with costs throughout and the answer returned by the High Court is hereby discharged. One hearing fee.\n\nY.P.\n\n(1) 371.T.R. 398.\n\n(2) 63 I.T.R. 632,637.\n\n(3) [1927]13 T.C, 83\n\nLS Sup CI/69=2, S00-13-3-70-GIPF.\n\nAppeals allowed.", "total_entities": 43, "entities": [{"text": "HOOGLY TRUSf (PRIVATE) LID", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "HOOGLY TRUST (PRIVATE) LTD", "offset_not_found": false}}, {"text": "COMMis.SIONER OF INCOME-TAX, WEST BENGAL AND\n\nANDAMAN AND NICOBAR ISLANDS", "label": "RESPONDENT", "start_char": 29, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, WEST BENGAL AND ANDAMAN AND NICOBAR ISLANDS", "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": "V. RAMASWAMI", "label": "JUDGE", "start_char": 135, "end_char": 147, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 152, "end_char": 169, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 201, "end_char": 209, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 620, "end_char": 628, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 637, "end_char": 657, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 2044, "end_char": 2052, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 4403, "end_char": 4411, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 5531, "end_char": 5559, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeals No."}}, {"text": "Sukumar Mitra", "label": "LAWYER", "start_char": 5729, "end_char": 5742, "source": "ner", "metadata": {"in_sentence": "Sukumar Mitra and D. N. Mukherjee, for the appellant (in all the appeals)."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 5747, "end_char": 5762, "source": "ner", "metadata": {"in_sentence": "Sukumar Mitra and D. N. Mukherjee, for the appellant (in all the appeals)."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 5805, "end_char": 5816, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, S. K. Aiyar, R. H. Dhebar and B. D. Sharma, for the respondent (in all the appeals)."}}, {"text": "S. K. Aiyar", "label": "OTHER_PERSON", "start_char": 5818, "end_char": 5829, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, S. K. Aiyar, R. H. Dhebar and B. D. Sharma, for the respondent (in all the appeals)."}}, {"text": "R. H. Dhebar", "label": "OTHER_PERSON", "start_char": 5831, "end_char": 5843, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, S. K. Aiyar, R. H. Dhebar and B. D. Sharma, for the respondent (in all the appeals)."}}, {"text": "B. D. Sharma", "label": "OTHER_PERSON", "start_char": 5848, "end_char": 5860, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, S. K. Aiyar, R. H. Dhebar and B. D. Sharma, for the respondent (in all the appeals)."}}, {"text": "Grover", "label": "JUDGE", "start_char": 5947, "end_char": 5953, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Grover, J.\n\nThese three appeals are by certificate from a common judgment of the Calcutta High Court answering .the f?llowing question referred to it by the Income Ta'I: Appellate Tnbunal in the negative and against the assessee :\n\n\"Whether on the facts and in the circumstances of the case, the cloth business of the assessee and its business in the General Section constituted the rune business\n\nHOOGLX TRUST v. C.I.T. (Grover, /.)\n\nwithin the meaning of s. 24(2) of the Indian Income-tax Act as it stood at the material time.\""}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 6028, "end_char": 6047, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Grover, J.\n\nThese three appeals are by certificate from a common judgment of the Calcutta High Court answering .the f?llowing question referred to it by the Income Ta'I: Appellate Tnbunal in the negative and against the assessee :\n\n\"Whether on the facts and in the circumstances of the case, the cloth business of the assessee and its business in the General Section constituted the rune business\n\nHOOGLX TRUST v. C.I.T. (Grover, /.)\n\nwithin the meaning of s. 24(2) of the Indian Income-tax Act as it stood at the material time.\""}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 6404, "end_char": 6412, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 6427, "end_char": 6441, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 6906, "end_char": 6914, "source": "regex", "metadata": {"statute": null}}, {"text": "Income tax Act 1922", "label": "STATUTE", "start_char": 6922, "end_char": 6941, "source": "regex", "metadata": {}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 10614, "end_char": 10622, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 11850, "end_char": 11858, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 12590, "end_char": 12599, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 10", "label": "PROVISION", "start_char": 12775, "end_char": 12785, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 13001, "end_char": 13005, "source": "regex", "metadata": {"statute": null}}, {"text": "Prior to its amendment by the Finance Act 1955", "label": "STATUTE", "start_char": 13203, "end_char": 13249, "source": "regex", "metadata": {}}, {"text": "s. 24", "label": "PROVISION", "start_char": 13265, "end_char": 13270, "source": "regex", "metadata": {"linked_statute_text": "Prior to its amendment by the Finance Act 1955", "statute": "Prior to its amendment by the Finance Act 1955"}}, {"text": "31st day of March, 1940", "label": "DATE", "start_char": 13466, "end_char": 13489, "source": "ner", "metadata": {"in_sentence": "Prior to its amendment by the Finance Act 1955, sub-s. (2) of s. 24 ran as follows :-\n\n\"(2) Where any assessee sustains a loss of profits or gains in any year, being a previous year not earlier than the previous year for the assessment for the year ending on the 31st day of March, 1940, in any business, profession or vocation, and the loss cannot be wholly set off under sub-section (I), so much of the loss as is not so set off or the whole loss where the asscssee had no other head of income shall be carried forward to the following year and set off against the profits and gains, if any, of the assessee from the same business, profession or vocation of that year ...... \"\n\nSub-s. (2) of s. 24 was substituted by s. 16 of the Finance Act of 1955 the material portion for our purposes being :\n\n\"(2) Where any assessee sustains a loss of profits or gains in any year, being a previous year not earlier than the previous year for the assessment for the year ending on the 31st day of March, 1940, in any business, profession or vocation, and the loss cannot be wholly set off under subs. ("}}, {"text": "s. 24", "label": "PROVISION", "start_char": 13897, "end_char": 13902, "source": "regex", "metadata": {"linked_statute_text": "Prior to its amendment by the Finance Act 1955", "statute": "Prior to its amendment by the Finance Act 1955"}}, {"text": "s. 16", "label": "PROVISION", "start_char": 13922, "end_char": 13927, "source": "regex", "metadata": {"linked_statute_text": "Prior to its amendment by the Finance Act 1955", "statute": "Prior to its amendment by the Finance Act 1955"}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 16082, "end_char": 16090, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 16413, "end_char": 16421, "source": "regex", "metadata": {"statute": null}}, {"text": "Rowlatt", "label": "JUDGE", "start_char": 16518, "end_char": 16525, "source": "ner", "metadata": {"in_sentence": "Reference was made in this case to the principle stated by Rowlatt, J. in Scales v. George Thompson & Co, Ltd.{') that the real question is whether there was any inter-connection, any interlacing, any inter-dependence, any unity at all embracing those two businesses."}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 17564, "end_char": 17572, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 19805, "end_char": 19813, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 20422, "end_char": 20430, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 20505, "end_char": 20522, "source": "ner", "metadata": {"in_sentence": "A great deal of reliance has been placed on a decision of the Bombay High Court in Manila!"}}, {"text": "Manila", "label": "GPE", "start_char": 20526, "end_char": 20532, "source": "ner", "metadata": {"in_sentence": "A great deal of reliance has been placed on a decision of the Bombay High Court in Manila!"}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 21731, "end_char": 21739, "source": "regex", "metadata": {"statute": null}}, {"text": "S00", "label": "PROVISION", "start_char": 22537, "end_char": 22540, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_565_573_EN", "year": 1969, "text": "NATIONAL & GRINDLAYS BANK LTD. v.\n\nTHE MUNICIPAL CORPORATION OF GREATER\n\nBOMBAY\n\nFebruary 5, 1969\n\n [V. RAMASWAMI AND. A. N. GROVER, JJ.)\n\nBombay Muaisipa/ Corparation Act 3 of 1888, S. 14&-Landlord leasi11g land to tenant who constructs thereon-Whether seti?n conte1nplates conzposite assess.men! of property tax on land and bulldlng-If prin1ary liability to tax that of landlord.\n\nThe appellant had leased a plot of land situated in the Malad Area in Greater Bombay at a rental on a monthly basis.\n\nThe lessee had constructed a house on the plot of land at his own cost. Prior to the merger of the Malad Area into Greater Bombay in February, 1947, the Malad District Municipality assessed and levied taxes on the land and the structures separately and recovered the same from the landlo:-d and the tenant.\n\nAfter the merger, the respondent Bombay Municipal Corporation issued a notice to the appellant upcter section 167 of the Bombay Municipal Corporation Act No. 3 of 1883, informing him that there would be a composite assessment on him.\n\nAn appeal against the order to the Chief Judge, Small Causes Court. Bombay, under section 217 of the Act was dismissed.\n\nA single bench of the High Court dismissed a further appeal on the view that it was bound by the decision in Rcmji Keshavji v . . \\fonicipal Corporation of Bombay 56 B.L.R. 1132.\n\nA Letters Patent appeal \\Vas also dismissed.\n\nIn the appeal to this Court it was contended on behalf of the appellant that on a prope'r construction of section 146 (2) of th::: Act there should have been a separate assessment in respect of the building and the land; alternatively even if section 146(2) contemplates a composite assessment of the building and the land, a preliminary liability should be imposed upon the owner of the building in whom the right to let the building vests and not on the owner of the land; the appellant c; oud not be treated as a lessor under section 146(2) because it did not let the land with the building thereon as one unit to the lessee.\n\nHELD : (I) The scheme under section 146 is that when the land is let a:id the tenant has built upon the land, there should be a composite assessment of tax: upon the land and the building taken together. In the case of such a composite unit the p'rimary liability of assessment of tax is intended to be on the lessor of the land under section 146 (2) (a) of the Act. [57 J F]\n\nIn .section 146(1) and (2) the word \"premises\" is used in contrast to section 146( 3) where the words \"la!!d and building\" are separately mentioned.\n\nSection 146(3) which is admittedly not applicable in the present c'.ascs. furnishes a key to the interpretation of ~ction 146(2) (a) . . In the. contxt of section 146(3) the lessor of the premises, as mentioned n1 -; ectio:i 146('.!)(a) must be construed to mean the lessor Of the land on \"hich the building has been constructed by the tenant. [571 DJ\n\nSection 147 ptQvides for an apportionment of responsibility to property tx when the 'premises are let or sub-let; it is clear the intention of the legislature was to 'impose the primary liability for payment of property\n\ntax upon the kssor of'the land to facilitate its collection and to give him the right to recoupment under section 147. [571 Fl\n\nRt11njl Keshavji v.\n\nMuncicipal Corporation for Gr<'ater Bo111hay, 56 A B&m. L.R. 1132. approved.\n\n(2) Even assuming that the meaning of section 146(2) is obscure and that it is possible to interpret it as throwing the primary liability for pa)' meat of property tax upon the lessee who has constructed a buildini on the laod, this was not a case where the law expressed by the High Court in Ra111ji Kt!shavji's case, should be interfered with.\n\nThat is the construction which the authorities have put upon it by their usage and con- B duct for a long period of time. and the Court may. the'refore resort tL1 contemporary construction by applying the principle \"'optilnr. fegz1111 in- 1erpres est cons11et11do\". [572 E]\n\nOh/son's case, [1891) I Q.B. 485, 489: Clyde Navigation Tm.Wes \\'.\n\nLaird, 8 A.C. 658, 670, referred to.\n\nCIVIL APP ELLA TE JuRISDICTION : Civil Appeal No. 46.2 of 1966.\n\nAppeal by special leave from the order dated March 25, 1964 -Of the Bombay High Court in Letters Patent Appeal No. 28 of 1964.\n\nS. V. Gupte, P. P. Khambatta, D. P. 'Mehta, Bhuvnesh Kumari and O. C. Mathur, for the appellant.\n\nM. C. Chagla and I. N. Shroff, for the respondent. '\n\nThe Judgment of the Court was delivered by Ramaswami, J.-The question of law involved in this appeal is whether the primary liability is imposed on the appellant under the Bombay Municipal Corporation Act, 1888 (Act No. 3 of\n\n1888) to pay property taxes to the r, spondent i.e .. the Municipal Corporation of Greater Bombay in respect of lam!\" owned by the appellant and let on a monthly basis to a third party who has constructed a building thereon.\n\nThe appellant is a banking company incorporated in the United Kingdom and has established places of business in India. The appellant is the sole trustee of the estate of the late Mr. F. E. Dinshaw and in that capacity is the owner of a plot of land at Manchubhai Road. Malad. Greater Bombay in the State of Maharashtra. bearing No. P-Ward No. 6418, Street No. 299B.\n\nThe said plot of land had been leased by the former trustee of the estate to one Mr. R. R. Pande (hereinafter referred to as the lessee) since a number of years at a monthly rent of Rs. 12.50.\n\nThe Jessee had constructed at his own cost a tiled house on the said plot of land. The Malad area merged into Greater Bombay on !st February. 1957. Upto the date of the merger the Malad District Municipality was assessing and levying taxes on the land and the structure separately and recovering the same from the landlord and the tenant.\n\nAfter the merger, the Bombay Municipal Corporation issued a notice to the appellant under section\n\n167 of the Act informing him that the assessment book had been amended by inserting the name of the appellant and that the rateable value of the house had been fixe~ at Rs. 43'0/-. Being aggrieved by this order the appellant preferred an apal to the Chief Judge, Small Causes Court, Bombay under section 217 of the Act.\n\nThe appeal was dismissed by the Chief Judge, Small Causes Court by his order dated 3rd August, 1960. The appellant took the matter in further appeal to the Bombay High Court.\n\nThe appeal was heard by Mr. Justice Patel and was dismissed on the 14th January, 1964. The learned Judge felt that he was bound by the decision of Chagla, C.J. and Shah, J. in Ramji li.eshav11 v. Municipal Corporation for Greater Bombay('). fhe appellant thereafter preferred a Letters Patent Appeal 1'/o. 28 of 1964 which was summarily dismissed by Chief Justice H. K.\n\nChainani and Mr. Justice Gokhale on 25th March, 1964. The pr=nt appeal is brought by special leave from the judgment of the Bombay High Court dated 25th March, 1964.\n\nSection '3(r) of the Bombay Municipal Corporation Act, 1888 (Act No. 3 of 1888) (hereinafter called the Act) defines 'land' as including \"land which is being built upon or is built upon or covered with water ...... \". Section 3(s) defines 'buildings' as including a house, out-house, stable. shed, hut and every other such structure. whether of masonry bricks, wood. mud, metal or llllY other material whatever.\n\nSection 3(gg) defines 'premises' as including messuages, buildings and lands of any tenure, whether\n\nOJJOll or enclosed, whether built on or not and whether public or private. Section 140 states :\n\n\"140. The following taxes shall be levied on buildings and lands in Greater Bombay and shall be cal~ \"property taxes\", namely :-\n\n(a) a water tax of so many pet centum of their rateable value as the corporation shall deem reasonable for providing a water-supply for Greater Bombay.\n\n(b) a halalkhor-tax of so many per centum, not ex- ding five of their. rateable value as will, in the opimo~ of the corporatton, suffice to provide for the collectmn, remoyl and disposal, by municipal agency, of all. excrement11tous and polluted matter from privies,\n\nurml~ and cessP<J<?l~ and for efficiently maintaining and repamng the mumc1pal drains constructed or used for the receiptions or conveyance of such matter, subject however, to the provisions that the minimum amount of\n\nuch tax to be levied in respect of any one separate hold-\n\n1g of land'. o_r of ay one building or of any one portion of a bmldmg which is let as a separate holding, shall (I) 56 Born. L.R. 1132.\n\nbe six annas per month, and that the amount of such tax to be levied in respect of any hotel, club or other large premises may be. specially fixed under section 172;\n\n( c) a general tax of not less than eight and not more than twenty-six per centum of their rateable value, together with not less than one-eighth and not more than three-quarters per centum of their rateable value added thereto in order to provide for the expense necessary for fulfilling the duties of the corporation arising under clause (k) of section 61 and Chapter XIV;\n\n(ca) the education cess leviable under s. 195E;\n\n(d) betterment charges leviable under Chapter XII-\n\nA.\"\n\nSection 146 provides :-\n\n. \"146. ( 1) Property taxes shall be leviable primarily from the actual occupier of the premises upon which the said taxes are assessed, if such occupier holds the said premises immediately from the Government or from the corporation or from a fazend\\lf.\n\nProvided that the property taxes due in respect of any premises owned by or vested in the Government and occupied by a Government servant or any other person on behalf of the Government for residential purposes shall be le viable primarily from the Government and not the occupier thereof.\n\n(2) Otherwise the said taxes shall be primarily leviable as follows, namely :-\n\n(a) if the premises are let, from the lessor;\n\n(b) if the premises are sub-let, from the superior lessor; and\n\n(c) if the premises are unfet, from the person in whom the right to let the same vests.\n\n(3) But if any land has been let for any term exceeding one year to a tenant, and such tenant on any person deriving title howsoever from such tenant has built upon the land, the property taxes assessed upon the said land and upon the building erected thereon shall be leviable primarily from the said tenant or such person,· whether or not the premises be in the occupation of the said tenant or such person\".\n\nGR!NDLAYS BANK v. MUNIC. CORP, (Ramaswami, J.) 569\n\nSection 14 7 states :\n\n\"147. (1) If any premises assessed to any property tax are let, and their rateable value exceeds the amount of rent payable in respect thereof to the person from whom, undmthe provisions of the last preceding section, the said tax is leviable, the said person shall be entitled to receive from his tenant the difference between the amount of the property tax levied from him, and the amount of which would be leviable from him it the said tax were calculated on the amount of rent payable to him.\n\n(2) If the premises are sub-let and their rateable value exceeds the amount of rent payable in respect thereof to the tenant by his sub-tenant, or the amount of rent payable in spect thereof to a sub-tenant by the person holding under him, the said tenant shall be entitled to receive from his sub-tenant or the said subtenant shall be entitled to receive from the person holdin.1t under him, as the case may be, the difference between any sum recovered under this section from such tenant or sub-tenant and , the amount of property-tax which would be leviable in respect of the said premises if the rateable value thereof were equal to the difference between the amount of rent which such tenant or subtenant receives and the amount of rent wpich he pays.\n\n(3) Any person entitled to receive any sum under this section shall have, tor the recovery thereof, the same rights and remedies as if such sum were rent payable to him by the person from whom he is entitled to receive the same\".\n\nSection 154(1) enacts as follows:-\n\n\"In order to fix the rateable value of any building or land assessable to a property-tax, there shall be deducted from the amount of the annual rent for which such land or building might reasonably be expected to let fro?J year to year a sum equal to ten per centum of 1!1e said annual rent and the said deduction shall be in heu of all allowances for repairs or on any other account whatever\".\n\nSection 155 enacts :-\n\n\"155. (1) To enable him to determine the rateable\n\nalue of any bu.ilding or land and the person primarily hable for the payment of any property tax leviable in respect ereof the Commissioner may require the owner or occupier of sch building or land, or of any portion thereof, to furmsh him, within such reasonable period\n\nas the Commissioner prescribes in this behalf, with in- \"formation or with a written return signed by such owner or occupier-\n\n(a) as to the name and place of abode of the owner or occupier, or of both the owner and occupier of such building or land; and\n\n(b) as to the dimensions of such building or lnd, or of any portion thereof, and the rent, if a!/-Y, obtamed for such building, or -land, or any portion therc; of.\n\n(2) Every owner or occupier on whom any such requisition is made shall be bound to comply with the same and, to give true information or to make a true return to the best. of his knowledge or belief.\n\n(3) The Commissioner may also for the purpose aforesaid make an inspection of any such building or land\".\n\nSection 156 states:\n\n\"The Commissioner shall keep a book, to be called \"the assessment book\" in which shall be entered every official year- ( a) a list of all buildings and lands in Greater Bombay distinguishing each either by name or number, as he shall think fit;\n\n(b) the rateable value of each such building and land determined in accordance with the foregoing provisions of this Act;\n\n(c) the name of the person primarily liable for the payment of the pro'perty taxes, if any, leviable on each such building or land ..... .\n\nIt was contended by Mr. Khambatta that on a proper COllStruction of section 146(2) of the Act there should have been separate assessments in respect of the building and the fand in the present case. It was argued in the alternative that even if section 146(2) of the Act contemplates a composite assessment of th.e building and the land, the primary liability should be imposed upon the owner of the building and not on the owner of the land.\n\nIt was said that the right to Jet the building vests in the les$ce of the land and not in the appellant, and so, the primary liability was upon the Jessee under section 146(2) of the Act. The argument was pressed that the appellant cannot be treated as a lessor under section 146(2) of the Act, because the appellant has not let the\n\nland with the building thereon as one unit to the lessee. The opposite viewpoint was presented on behalf of the respondent. It was argued, in the first place, that section 146(2) of the Act c0ntemplates that there should be a composite assement of the land and the building taken as one unit. In the case of such a composite assessment, the primary liability of the pyment of tax was on the.landlord under sub-section (2)(a) of section 146 except in the case referred to in sub-section (3) where the primary liability was upon the tenant and not upon the landlord. Admittedly, the present case did not fall under section 146(3), and, therefor7, the primary liability was placed upon the appellant. In our op~ nion, .the argument put forward on behalf of the respondent is well-founded and must be accepted as correct. In the first place, the language of section 146(2) indicates that the Legislarure contemplated that in a case where the land and the building are owned by different persons there should be a composite assessment of property tax. The reason is that in section 146( 1) and (2) the word 'premises' is used in contrast to section 146(3) where the words 'land and building' are separately mentioned. . In section 154( 1) of the Act again, the Legislature uses the expression 'building or land'.\n\nThen section 155 provides for the right of the Commissioner to call information from the owner or the occupier in order to enable him to determine the rateable value of any building or land and the person primarily liable for the payment of any property tax levied in respect thereof.\n\nSection 156 provides that the CommiSsioner shall maintain a book to be called 'the assessment book' which book is to contain among other things a list of all lands and buildings. Therefore, the scheme of section 146 is hat when the land is let and the tenant has built upon the land, there should be a composite assessment of tax upon the land and building taken together. We are further of opinion that in the case of such a composite unit the primary liability of\n\nassessment of tax is intended to be on the lessor of the land under section ! 46(2)(a) of the Act. It was objected by Mr. Khambatta that the appellant was only the lessor of the land and not of the building, and so, the appellant cannot be held to be the lessor within the meaninl( of s.ection 146(2) (a). We do not think that there is any merit in this objection.\n\nSection 146(3) of the Act furnishes the key to the interpretation of section 146(2)(a). In the context of section 146 ( 3) the lessor of the premises as mentioned in section 146(2)( a) must be construed as to mean the lessor of the land on which the building has been constructed bv the tenant. In this connection. reference should be made to section 14 7 which provides for an apportionment of responsibility for property tax when the premises assssed are let or sub-let.\n\nThe language of this sub-section uggests that the lessor of the land has the right of recovering from his tenant the amount of tax\n\nwhich he has paid in excess of the tax which the property is liable to pay on the basis of the rent recovered by the lessor. It is also clear that the intention of the Legislature in fixing the primary liability of property tax upon the owner of the land in a case not falling under s. 146(3) of the Act is to facilitate the collection of property tax. In the case of a monthly tenant who puts up a temporary shack or asbestos shed on the land and who may at any time terminate the lease at a short notice, it is not always possible for the Corporation to keep track of the lessee and to collect the property tax from him. It is 'not unreasonable therefore that in a case of this description the Legislature should impose the primary liability for the payment of the property tax upon the lessor of the land and to give him the right of recoupment under section\n\n147. A similar view with regard to the interpretation of section 146 of the Act was expressed by a Division Bench of the Bombay High Court consisting of Chagla, C.J. and Shah, J. in Ramji Keshavji's(') case. It was held by the learned judges in that case that where the owner of a land had leased it to a tenant for a period of one year and the tet had put up a structure upon the land, the owner of the land was primarily liable to pay property tax together with the. structure constructed thereon.\n\nCounsel on behalf of the appellant challenged the correctness of this decision, but for the reasons already expressed we hold that the ratio of this decisiQn is correct.\n\nWe shall, however, assume in favour of the appellant that the meaning of section 146(2) ot the Act is obscure and that it is possible to interpret it as throwing the primary liability for payme¢1.t\n\nof property tax upon the lessee who has constructed a building on the land.\n\nEven upon that assumption we think that the view of the law expressed by the Bombay High Court in this case ought not to be interfered with. The reason is that in a case where the meaning of an enactment is obscure, the Court may resort to contemporary construction, that is the construction which the authorities have put upon it by their usage and conduct for a long period of time. The principle applicable is \"optima /egum interpres est\n\nconsuetudo\"('). In Oh/son's case('), \"in dealing with the interpretation of section 39 of the Pawnbrokers Act, 1872, Stephen, J. said :\n\n\"What weighs with rile very greatly in coming to the present conclusion is the practice of the Inland Revenue Commissioners for the past sixteen year>.\n\nSo Jong ago as f874 this very point was decided by Sir Thomas Henry, for whose decisions we all have very great respect; and the least that can be said with regard to the\n\n(1) 56 Born. L. R. 1132.\n\n(2) 2Co.Rep.81.\n\n(3) (18911 1 Q.B. 485, 489.\n\nGRINDLAYS BANK v. MUNIC. COllP, (Ramaswami, J.) 573\n\nA case before him is that he pointedly called the attecition of the commissioners to the case-the learned magistrate having offered to state a case-an offer refused by the commissioner, who by their refusal must be taken to have acquiesced in the decision.\n\nThat is a very strong contemporaneous exposition of the meaning of the Act\".\n\nB The same principle was referred .to by Lord Blackburn iin Clyde Navigation Trustees v. Laird('). The question in dispute in that case was whether the Clyde Navigation Consolidation Act, 185 8\n\n(repealing eight' prior Acts) imposed navigation dues on timber floated up the Clyde in logs chained together. From 1858 to 1882 dues had been levied on this class of timber Without resistance from C the owners; aild some judges in the Court of Session suggested that this non-resistance might be considered in construing the statute. On this point Lord Blackbum said :\n\n\"I think that submission raises a strong prima facie ground for thinking that there must exiSt some legal ground on which they (the owners) could not resist, And I think a court should be cautious, and not decide unnecessarily that there is no such ground. If the Lord President (Inglis) means no more than this when he calls it 'contemporanea exposito of the statutes which is almost irresistible', I agree with him. I do not think that he mean's that enjoyment at least for llllY period short of that which gives rise to prescription, if founded on a mistaken construction of a statute, binds the court so as to prevent it from gi~ the true construction. If he did, I should not agree with him, for whom I know of no !1uthority, and am not aware of any principle, for so saymg\".\n\nF In our opinion, the principle of contemporanea exposito applies to the present case. The Act was passed in the year 18 8 8 aind there appears to be a practice followed by the Bombay Municipal\n\norporation for a very long time of treating the land and the buildmg cnstructed upon it as single unit and charging the property tax upon the owner of the lllllld in a case where the land is let for G a od of less than one year to a tenant who has constructed a bwlding thereon [See Ramji Keshavji's case(2 )].\n\nFor the re115ons expressed, we hold that there is no merit in this appeal which is accordingly dismissed with costs. ·\n\nR.K.P.S.\n\nAppeal dismissed.\n\n(H SA.C.658,670.\n\n(2) 56 Bom. L.R. 1132.\n\nLIOSup./69-2", "total_entities": 98, "entities": [{"text": "NATIONAL & GRINDLAYS BANK LTD", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "NATIONAL & GRINDLAYS BANK LTD", "offset_not_found": false}}, {"text": "THE MUNICIPAL CORPORATION OF GREATER\n\nBOMBAY", "label": "RESPONDENT", "start_char": 35, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "THE MUNICIPAL CORPORATION OF GREATER BOMBAY", "offset_not_found": false}}, {"text": "February 5, 1969", "label": "DATE", "start_char": 81, "end_char": 97, "source": "ner", "metadata": {"in_sentence": "v.\n\nTHE MUNICIPAL CORPORATION OF GREATER\n\nBOMBAY\n\nFebruary 5, 1969\n\n [V. RAMASWAMI AND."}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 101, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 119, "end_char": 136, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "S. 14", "label": "PROVISION", "start_char": 183, "end_char": 188, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay", "label": "GPE", "start_char": 624, "end_char": 630, "source": "ner", "metadata": {"in_sentence": "Prior to the merger of the Malad Area into Greater Bombay in February, 1947, the Malad District Municipality assessed and levied taxes on the land and the structures separately and recovered the same from the landlo:-d and the tenant."}}, {"text": "Malad District Municipality", "label": "ORG", "start_char": 654, "end_char": 681, "source": "ner", "metadata": {"in_sentence": "Prior to the merger of the Malad Area into Greater Bombay in February, 1947, the Malad District Municipality assessed and levied taxes on the land and the structures separately and recovered the same from the landlo:-d and the tenant."}}, {"text": "section 167", "label": "PROVISION", "start_char": 911, "end_char": 922, "source": "regex", "metadata": {"statute": null}}, {"text": "Small Causes Court. Bombay", "label": "COURT", "start_char": 1092, "end_char": 1118, "source": "ner", "metadata": {"in_sentence": "An appeal against the order to the Chief Judge, Small Causes Court."}}, {"text": "section 217", "label": "PROVISION", "start_char": 1126, "end_char": 1137, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146", "label": "PROVISION", "start_char": 1497, "end_char": 1508, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146(2)", "label": "PROVISION", "start_char": 1634, "end_char": 1648, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146(2)", "label": "PROVISION", "start_char": 1920, "end_char": 1934, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146", "label": "PROVISION", "start_char": 2049, "end_char": 2060, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146", "label": "PROVISION", "start_char": 2356, "end_char": 2367, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146(1)", "label": "PROVISION", "start_char": 2402, "end_char": 2416, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146( 3)", "label": "PROVISION", "start_char": 2468, "end_char": 2483, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 146(3)", "label": "PROVISION", "start_char": 2548, "end_char": 2562, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146(3)", "label": "PROVISION", "start_char": 2703, "end_char": 2717, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 147", "label": "PROVISION", "start_char": 2901, "end_char": 2912, "source": "regex", "metadata": {"statute": null}}, {"text": "section 147", "label": "PROVISION", "start_char": 3228, "end_char": 3239, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146(2)", "label": "PROVISION", "start_char": 3387, "end_char": 3401, "source": "regex", "metadata": {"statute": null}}, {"text": "Ra111ji Kt!shavji", "label": "OTHER_PERSON", "start_char": 3642, "end_char": 3659, "source": "ner", "metadata": {"in_sentence": "(2) Even assuming that the meaning of section 146(2) is obscure and that it is possible to interpret it as throwing the primary liability for pa)' meat of property tax upon the lessee who has constructed a buildini on the laod, this was not a case where the law expressed by the High Court in Ra111ji Kt!shavji's case, should be interfered with."}}, {"text": "Clyde Navigation", "label": "ORG", "start_char": 4010, "end_char": 4026, "source": "ner", "metadata": {"in_sentence": "572 E]\n\nOh/son's case, [1891) I Q.B. 485, 489: Clyde Navigation Tm."}}, {"text": "Laird", "label": "RESPONDENT", "start_char": 4039, "end_char": 4044, "source": "ner", "metadata": {"in_sentence": "Laird, 8 A.C. 658, 670, referred to."}}, {"text": "S. V. Gupte", "label": "OTHER_PERSON", "start_char": 4270, "end_char": 4281, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, P. P. Khambatta, D. P. 'Mehta, Bhuvnesh Kumari and O. C. Mathur, for the appellant."}}, {"text": "P. P. Khambatta", "label": "OTHER_PERSON", "start_char": 4283, "end_char": 4298, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, P. P. Khambatta, D. P. 'Mehta, Bhuvnesh Kumari and O. C. Mathur, for the appellant."}}, {"text": "D. P. 'Mehta", "label": "OTHER_PERSON", "start_char": 4300, "end_char": 4312, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, P. P. Khambatta, D. P. 'Mehta, Bhuvnesh Kumari and O. C. Mathur, for the appellant."}}, {"text": "Bhuvnesh Kumari", "label": "OTHER_PERSON", "start_char": 4314, "end_char": 4329, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, P. P. Khambatta, D. P. 'Mehta, Bhuvnesh Kumari and O. C. Mathur, for the appellant."}}, {"text": "O. C. Mathur", "label": "OTHER_PERSON", "start_char": 4334, "end_char": 4346, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, P. P. Khambatta, D. P. 'Mehta, Bhuvnesh Kumari and O. C. Mathur, for the appellant."}}, {"text": "M. C. Chagla", "label": "LAWYER", "start_char": 4368, "end_char": 4380, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla and I. N. Shroff, for the respondent. '"}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 4385, "end_char": 4397, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla and I. N. Shroff, for the respondent. '"}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 4465, "end_char": 4474, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Ramaswami, J.-The question of law involved in this appeal is whether the primary liability is imposed on the appellant under the Bombay Municipal Corporation Act, 1888 (Act No.", "canonical_name": "V. RAMASWAMI"}}, {"text": "Municipal Corporation of Greater Bombay", "label": "ORG", "start_char": 4706, "end_char": 4745, "source": "ner", "metadata": {"in_sentence": "3 of\n\n1888) to pay property taxes to the r, spondent i.e .. the Municipal Corporation of Greater Bombay in respect of lam!\""}}, {"text": "United Kingdom", "label": "GPE", "start_char": 4929, "end_char": 4943, "source": "ner", "metadata": {"in_sentence": "The appellant is a banking company incorporated in the United Kingdom and has established places of business in India."}}, {"text": "India", "label": "GPE", "start_char": 4986, "end_char": 4991, "source": "ner", "metadata": {"in_sentence": "The appellant is a banking company incorporated in the United Kingdom and has established places of business in India."}}, {"text": "F. E. Dinshaw", "label": "OTHER_PERSON", "start_char": 5057, "end_char": 5070, "source": "ner", "metadata": {"in_sentence": "The appellant is the sole trustee of the estate of the late Mr. F. E. Dinshaw and in that capacity is the owner of a plot of land at Manchubhai Road."}}, {"text": "Maharashtra", "label": "GPE", "start_char": 5181, "end_char": 5192, "source": "ner", "metadata": {"in_sentence": "Greater Bombay in the State of Maharashtra."}}, {"text": "R. R. Pande", "label": "OTHER_PERSON", "start_char": 5326, "end_char": 5337, "source": "ner", "metadata": {"in_sentence": "299B.\n\nThe said plot of land had been leased by the former trustee of the estate to one Mr. R. R. Pande (hereinafter referred to as the lessee) since a number of years at a monthly rent of Rs."}}, {"text": "Bombay Municipal Corporation", "label": "ORG", "start_char": 5797, "end_char": 5825, "source": "ner", "metadata": {"in_sentence": "After the merger, the Bombay Municipal Corporation issued a notice to the appellant under section\n\n167 of the Act informing him that the assessment book had been amended by inserting the name of the appellant and that the rateable value of the house had been fixe~ at Rs."}}, {"text": "section\n\n167", "label": "PROVISION", "start_char": 5865, "end_char": 5877, "source": "regex", "metadata": {"statute": null}}, {"text": "Chief Judge, Small Causes Court, Bombay", "label": "COURT", "start_char": 6124, "end_char": 6163, "source": "ner", "metadata": {"in_sentence": "Being aggrieved by this order the appellant preferred an apal to the Chief Judge, Small Causes Court, Bombay under section 217 of the Act."}}, {"text": "section 217", "label": "PROVISION", "start_char": 6170, "end_char": 6181, "source": "regex", "metadata": {"statute": null}}, {"text": "3rd August, 1960", "label": "DATE", "start_char": 6278, "end_char": 6294, "source": "ner", "metadata": {"in_sentence": "The appeal was dismissed by the Chief Judge, Small Causes Court by his order dated 3rd August, 1960."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 6351, "end_char": 6368, "source": "ner", "metadata": {"in_sentence": "The appellant took the matter in further appeal to the Bombay High Court."}}, {"text": "Patel", "label": "JUDGE", "start_char": 6407, "end_char": 6412, "source": "ner", "metadata": {"in_sentence": "The appeal was heard by Mr. Justice Patel and was dismissed on the 14th January, 1964."}}, {"text": "14th January, 1964", "label": "DATE", "start_char": 6438, "end_char": 6456, "source": "ner", "metadata": {"in_sentence": "The appeal was heard by Mr. Justice Patel and was dismissed on the 14th January, 1964."}}, {"text": "Chagla", "label": "JUDGE", "start_char": 6518, "end_char": 6524, "source": "ner", "metadata": {"in_sentence": "The learned Judge felt that he was bound by the decision of Chagla, C.J. and Shah, J. in Ramji li.eshav11 v. Municipal Corporation for Greater Bombay(')."}}, {"text": "Shah", "label": "JUDGE", "start_char": 6535, "end_char": 6539, "source": "ner", "metadata": {"in_sentence": "The learned Judge felt that he was bound by the decision of Chagla, C.J. and Shah, J. in Ramji li.eshav11 v. Municipal Corporation for Greater Bombay(')."}}, {"text": "H. K.\n\nChainani", "label": "JUDGE", "start_char": 6735, "end_char": 6750, "source": "ner", "metadata": {"in_sentence": "28 of 1964 which was summarily dismissed by Chief Justice H. K.\n\nChainani and Mr. Justice Gokhale on 25th March, 1964."}}, {"text": "Gokhale", "label": "JUDGE", "start_char": 6767, "end_char": 6774, "source": "ner", "metadata": {"in_sentence": "28 of 1964 which was summarily dismissed by Chief Justice H. K.\n\nChainani and Mr. Justice Gokhale on 25th March, 1964."}}, {"text": "25th March, 1964", "label": "DATE", "start_char": 6778, "end_char": 6794, "source": "ner", "metadata": {"in_sentence": "28 of 1964 which was summarily dismissed by Chief Justice H. K.\n\nChainani and Mr. Justice Gokhale on 25th March, 1964."}}, {"text": "Bombay Municipal Corporation Act, 1888", "label": "STATUTE", "start_char": 6930, "end_char": 6968, "source": "regex", "metadata": {}}, {"text": "Section 3(s)", "label": "PROVISION", "start_char": 7127, "end_char": 7139, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Municipal Corporation Act, 1888", "statute": "the Bombay Municipal Corporation Act, 1888"}}, {"text": "Section 3(gg)", "label": "PROVISION", "start_char": 7322, "end_char": 7335, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Municipal Corporation Act, 1888", "statute": "the Bombay Municipal Corporation Act, 1888"}}, {"text": "Section 140", "label": "PROVISION", "start_char": 7498, "end_char": 7509, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Municipal Corporation Act, 1888", "statute": "the Bombay Municipal Corporation Act, 1888"}}, {"text": "section 172", "label": "PROVISION", "start_char": 8639, "end_char": 8650, "source": "regex", "metadata": {"statute": null}}, {"text": "section 61", "label": "PROVISION", "start_char": 9000, "end_char": 9010, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 195E", "label": "PROVISION", "start_char": 9068, "end_char": 9075, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 146", "label": "PROVISION", "start_char": 9135, "end_char": 9146, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14", "label": "PROVISION", "start_char": 10451, "end_char": 10461, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 154(1)", "label": "PROVISION", "start_char": 11961, "end_char": 11975, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 155", "label": "PROVISION", "start_char": 12393, "end_char": 12404, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 156", "label": "PROVISION", "start_char": 13468, "end_char": 13479, "source": "regex", "metadata": {"statute": null}}, {"text": "Khambatta", "label": "OTHER_PERSON", "start_char": 14022, "end_char": 14031, "source": "ner", "metadata": {"in_sentence": "It was contended by Mr. Khambatta that on a proper COllStruction of section 146(2) of the Act there should have been separate assessments in respect of the building and the fand in the present case."}}, {"text": "section 146(2)", "label": "PROVISION", "start_char": 14066, "end_char": 14080, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146(2)", "label": "PROVISION", "start_char": 14243, "end_char": 14257, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146(2)", "label": "PROVISION", "start_char": 14603, "end_char": 14617, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146(2)", "label": "PROVISION", "start_char": 14710, "end_char": 14724, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146(2)", "label": "PROVISION", "start_char": 14940, "end_char": 14954, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146", "label": "PROVISION", "start_char": 15204, "end_char": 15215, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146(3)", "label": "PROVISION", "start_char": 15389, "end_char": 15403, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146(2)", "label": "PROVISION", "start_char": 15630, "end_char": 15644, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146( 1)", "label": "PROVISION", "start_char": 15845, "end_char": 15860, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146(3)", "label": "PROVISION", "start_char": 15912, "end_char": 15926, "source": "regex", "metadata": {"statute": null}}, {"text": "section 154( 1)", "label": "PROVISION", "start_char": 15994, "end_char": 16009, "source": "regex", "metadata": {"statute": null}}, {"text": "section 155", "label": "PROVISION", "start_char": 16090, "end_char": 16101, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 156", "label": "PROVISION", "start_char": 16371, "end_char": 16382, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146", "label": "PROVISION", "start_char": 16575, "end_char": 16586, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 146(3)", "label": "PROVISION", "start_char": 17204, "end_char": 17218, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146(2)(a)", "label": "PROVISION", "start_char": 17273, "end_char": 17290, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146", "label": "PROVISION", "start_char": 17310, "end_char": 17321, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146(2)( a)", "label": "PROVISION", "start_char": 17370, "end_char": 17388, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 17547, "end_char": 17557, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 146(3)", "label": "PROVISION", "start_char": 18093, "end_char": 18102, "source": "regex", "metadata": {"statute": null}}, {"text": "section\n\n147", "label": "PROVISION", "start_char": 18664, "end_char": 18676, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146", "label": "PROVISION", "start_char": 18730, "end_char": 18741, "source": "regex", "metadata": {"statute": null}}, {"text": "Ramji Keshavji", "label": "OTHER_PERSON", "start_char": 18855, "end_char": 18869, "source": "ner", "metadata": {"in_sentence": "A similar view with regard to the interpretation of section 146 of the Act was expressed by a Division Bench of the Bombay High Court consisting of Chagla, C.J. and Shah, J. in Ramji Keshavji's(') case."}}, {"text": "section 146(2)", "label": "PROVISION", "start_char": 19418, "end_char": 19432, "source": "regex", "metadata": {"statute": null}}, {"text": "section 39", "label": "PROVISION", "start_char": 20139, "end_char": 20149, "source": "regex", "metadata": {"statute": null}}, {"text": "Pawnbrokers Act, 1872", "label": "STATUTE", "start_char": 20157, "end_char": 20178, "source": "regex", "metadata": {}}, {"text": "Stephen", "label": "JUDGE", "start_char": 20180, "end_char": 20187, "source": "ner", "metadata": {"in_sentence": "In Oh/son's case('), \"in dealing with the interpretation of section 39 of the Pawnbrokers Act, 1872, Stephen, J. said :\n\n\"What weighs with rile very greatly in coming to the present conclusion is the practice of the Inland Revenue Commissioners for the past sixteen year>."}}, {"text": "Thomas Henry", "label": "OTHER_PERSON", "start_char": 20408, "end_char": 20420, "source": "ner", "metadata": {"in_sentence": "So Jong ago as f874 this very point was decided by Sir Thomas Henry, for whose decisions we all have very great respect; and the least that can be said with regard to the\n\n(1) 56 Born."}}, {"text": "Blackburn", "label": "OTHER_PERSON", "start_char": 21032, "end_char": 21041, "source": "ner", "metadata": {"in_sentence": "B The same principle was referred .to by Lord Blackburn iin Clyde Navigation Trustees v. Laird(').", "canonical_name": "Blackburn"}}, {"text": "Blackbum", "label": "OTHER_PERSON", "start_char": 21535, "end_char": 21543, "source": "ner", "metadata": {"in_sentence": "On this point Lord Blackbum said :\n\n\"I think that submission raises a strong prima facie ground for thinking that there must exiSt some legal ground on which they (the owners) could not resist, And I think a court should be cautious, and not decide unnecessarily that there is no such ground.", "canonical_name": "Blackburn"}}, {"text": "Inglis", "label": "OTHER_PERSON", "start_char": 21832, "end_char": 21838, "source": "ner", "metadata": {"in_sentence": "If the Lord President (Inglis) means no more than this when he calls it 'contemporanea exposito of the statutes which is almost irresistible', I agree with him."}}, {"text": "Bombay Municipal\n\norporation", "label": "ORG", "start_char": 22511, "end_char": 22539, "source": "ner", "metadata": {"in_sentence": "The Act was passed in the year 18 8 8 aind there appears to be a practice followed by the Bombay Municipal\n\norporation for a very long time of treating the land and the buildmg cnstructed upon it as single unit and charging the property tax upon the owner of the lllllld in a case where the land is let for G a od of less than one year to a tenant who has constructed a bwlding thereon [See Ramji Keshavji's case(2 )]."}}]}
{"document_id": "1969_3_574_580_EN", "year": 1969, "text": "SAMPAT PRAKASH\n\nSTATE OF JAMMU & KASHMIR\n\nFebruary 6, 1969\n\n[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.)\n\nJammu and Kashmir Preventi.-e Detention Act (! & K 13 of 1964) as amended by Amending Act 8 of 1967, ss. 8(2) & 10--0rder of detention without reference to Advisory Board-Crder revoked at the end of 6 months c-nd fresh order passed with new grourtds-If mala fidr--Indefiniteness due to withholding of facts under s. 8(2)-/f order vague.\n\nOn March 16, 1968, the petitioner was anested and orderOd to be detained under.•. 3(1)(a)(i) of the Jammu and Kashmir Preventive Detention Act, 1964.\n\nOn September 16,, 1968, the order was revoked and another order was served on him.\n\nOn September 24, 1968 the peti tioner was served with the jlTounds for the fresh order of detention. His case was reforred to the Advisory Board on October 26, 1968 and the Board recommended his detention. Under s. 10 of the Act, as amended by s. 13A, of the Amcndfu~ Act 8 of 1967, the Government is required to refer a case to the Advisory Board within 60 days from the date of detention.\n\nIn a petition for the issue of a writ of habeas corpus, it was contend cd that : (! ) Since the case of the petitioner was not referred to the Advisory Board within 60 days of the date of detention (March 16, 1968) the detention was invalid; (2) The authorities acted ma/a fide in making the detention order; ( 3) The grounds in suppolrt of the order were vague and indefinite; and ( 4) Ti..at his being subjected to solitary conftnement while in detention was illegal.\n\nHELD : ( 1) There was no reason for not accepting the statement of the State that it was not intended, when the detention order of March 16, 1968 was passed that theo petitioner was to be 'kept in detention for a period longer than 6 months. Therefore, his case fell within the terms of s. 13A(I) which provides that 'notwithstanding anything contained in this A~', a person may be detained for a period not longer than 6 months without obtaining the opinion of the Advisory Board.\n\nIn the present case, the petitioner was detained under the first order only for .a period of 6 months when that order was revoked by the second order of deten\n\ntin. [579. CJ ( 2) The grounds for the Jwo orders are not identical.\n\nWben the first order was passed the petitioner was not intended to be detained for a period exceeding 6 months. Thereafter, in consequence of forther in formation that the petitioner was violent by nature and was a perpetual threat to the maintenance of public order, the Government had to issue a fresh order.· Therefore, it could not be said that the Government acted ma/a fide in making either the original or the fresh order. [579\n\nG-H;\n\n580 A-BJ\n\n (3) The order clearly stated faclts relevant to the grounds. of deten tion except those which Govelrnment considered to be against public in terest to disclose. Under s. 8(2) it is open to the Government to with\n\nhold such facts.\n\nBecause of the withholding of such facts the 1gronnd,, in the order of detention could not be said to be vague or indefinite.\n\n[580 C-E] .\n\n( 4) Notwithstanding the broad principles of the rule of law, equality and liberty of the individual enshrined in the Constitution, it tolerates on account of the peculiar conditions prevailing, legislation in relation to preventive detention, which is a negation of the rule of law, equality and liberty. But it is implicit in the Constitutional scheme that the power to detain is not a power to publish and .the restrkti_ons plac.ed must. consi~ tently with the effectjveness of detention, be m101mal. Smee a detenu is\n\nnot a convict he cannot be subjected to solitary confinement. [580 E-G]\n\nORIGINAL JURISDICTION : Writ Petition No. 361 of 1968.\n\nPetition under Art. 32 of the Constitution of India for writ iin the nature of habeas corpus.\n\nM. K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for the petitioner.\n\nR. Gopalakrishnan and R. N. Sachthey, for the respondent.\n\nThe Judgment of the Court was delivered by Shah, J, On March 16, 1968 the petitioner was arrested and ordered to be detained u?Jer s. 3 (1 )(a)( i) of the J amrnu and Kashmir Preventive Detention Act 13 of 1964. On March 26, 1968, he was served witl:i the grounds of detention.\n\nOn May 3, 1968, the petitioner moved a petition for a writ of habeas corpus in this Court. • The petition was rejected by this Court on October 10, 1968. In the mea; tiWhile the order dated March 16, 1968, was revoked on September 16., 1968, and another order was served upon the petitioner on the same day.\n\nOn September 24, 1968, he was siirved with the grounds of detention for the fresh order, and his case was referred to the Advisory Board on October 26, 1968. On October 30, 1968, the Advisory Board recommended that the petitioner be detained.\n\nThe petitioner then moved this petition on November 11 1968 for a writ of habeas corpus. '\n\n. Tv.:o contentions in the. 1;1ature of preliminary objections were\n\nr~J.Sed m suport .of the petitin. It was urged that ( 1) the petitioner was, m spite of a specific request, denied a personal hearing before the Advisory Board, and ( 2) that the Chief Minister w.ho was in chaFge ?f the portfolio relating to preventive detention did not apPly his m!Dd to the case of the petitioner before making the order of detention.\n\nAn affidavit is filed by the Secretary to the Government of J ammu & Kashmir affirming that the petitiQ\\DCr mad~ no request for production before the Board for a personal heanng. He has also affirmed that the Chief Minister did consider _the cse of the petitioner and directed that the petitioner be detained in custody under the Preventive DetentiQ!li Act. In view of this affidavit, counsel for the petitioner did not press the two preliminary contentions.\n\nCounsel urged that the order of dettion was invalid because A ( 1) that the case of the petitioner was not referred to the Advisory Board till September 24, 1968 and' on that account bis detention was invalid, and he could not be continued in detention thereafter; (2) that in makiing the detention order the authorities acted ma/a fide; and ( 3) the grounds in support of the order were vague and indefinite.\n\nBy Art. 22 of the Constitution certain protection is conferred upon persons who are detained under orders of preventive detejn• tion.\n\nBut Art. 35 ( c) in its application to the State of Jammu & Kashmir provides :\n\n\"no law with respect to preventive detention made by the Legislature of the State of Jammu and Kashmir, whether before or after the commencement of the Constitution (ApplicatiQII to Jammu and Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with any of the provisions of this (Pan ID) Part, but any such law shall, to the extent of such inconsistency, cease to have effect on the expiration of fifteen years from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof.\"\n\nThe protection of els. ( 5) , ( 6) & ( 7) of Art. 22 insofar the provisions of the Act enacted by the Jammu and Kashmir Legislature are inconsistent therewith does not avail the petitioner.\n\nBy s. 3 the Government of Jammu and Kashmir is emtitled, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, to make an order direct- that such person be detained.\n\nBy s. 8 it is provided :\n\n\"(1 ) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has beeon made, and shall afford him the earliest opportunity of making a representation against the order to the Government. ( 2) Nothing in sub-section ( 1 ) shall require the authority to disclose facts whih it considers to be against the public interest to dlSClose.\"\n\nSection 9 provides for the constitution of Advisory Board allkl s. 10 deals with references to the Advisory Board. By that sec- H tion the Government is required within thirty days from the .date of detention under the order to place before the AdVJSory Board the grounds on which the order has been made and the\n\nrepresentatiQD,, if any, made by the person affected by the order.\n\nBy s. 12 it is provided :\n\n\"( 1) In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it ):hinks fit. ( 2) In any case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the persqn concerned, the Government shall revoke the detention order and cause the person to be released forthwith.\" Section 13 prescribes the maximum period of detention for which any person may be detained in pursuance of any detention order.\n\nSection 13A which was added by Act 8 of 1967 enables the State to detain a person for a period of two years.\n\nSection l 3A provides :\n\n\" ( 1) Notwithstanding anything contaii!led in this Act, any person detained under a detention order made in any of the following classes of cases or under any of the following circumstances niay be dotalned for a\n\nperiod longer than three months, but not longer than six months, from the date of detention, without o~ ing the opinion of any Advisory Board, namely, when such person has been detained with a view to preventing him from acting in any manner prejudicial to-\n\n(i) the security of the State;\n\n(ii) the maintenance of public order; Provided that where any such person has been detained with a view to preventing him from acting ili. any manner prejudicial to the security of the State aiid the grounds on which the detention order has been made are not communicated to him under the proviso to tion 8 ( 1 ) , such person may be detained for a period of two years from the date of detention without obtaining the opinion of the Advisory Board. . (2) In the .case ?f evC!)' person detained with a view to preventing him . from acting in any manner prejudicial to the security of the State or the maintonance Of public order, the provisions of this Act shall have effect subject to the following modifications, namely:-\n\n(a) in sub-section ( 3) of section 3 for the words 'twelve days', the words 'tWenty-four days' shall be substituted.\n\n( b) in sub-section ( 1 ) of section 8,- A\n\n(i) for the words 'five days' the words 'ten day's shall be substituted;\n\n(ii) the following proviso shall be inserted at the end, namely :-\n\n'Provided that nothing in this sub-section shall apply to the case of any p.erson detained with a view to preventing him from acting in any manner prejudicial to the security of the State, if the authority making the order, by the same or a subsequent order directs that the person detained may be informed that it would be against public interest to communicate to him the grounds on which the detention order has been made.'\n\n(c) in section 10,-\n\n( i) after the words, 'In every case where a detention order has been made under this Act' . occurring in the beginning, the brackets and words '[other than a case to which the proviso to section 8 (1) applies]' shall be inserted, and\n\n(ii) for the words 'thirty days' the words 'sixty days' shall be substituted;\n\n(b) in section 11, for the words 'ten weeks' the words 'five months' shall be substituted.\"\n\nThe effect of s. 13A insofar as it is relevant to this case is to authorise the State in the cases specifii!d to detain a person without obtaining the opinion of the Advisory Board, if he is to be detained for a period longer than three months, but not longer than six months from the date of detention. By sub-s. (2) the periods prescribed for the various steps under the Act are doubled; for making report to the District Magistrate when he exercises the power of detention the period is extended to twenty-four days : for the Government to serve the grounds of the order under s. 8( 1) the period is extended to ten days; and for the Advisory Board to make its report in cases covered by s. l 3A the period is extended to .sixty days.\n\nAgain by the proviso to s. 8 ( 1) the Government is entitled to withhold in serving grounds upon the detenu that it would be against public mterest to communicate to him the grounds on which the detention order has been made.\n\nRelying upon the terms of s. 10 ( 1) as ameinded by s. 13A it was urged that the Government was bound to refer the case of the petitioner within sixty days from the date of detention and since no reference was made the detention of the petitioner under the order dated March 16, 1968, was unauthorised. This argument is plainly unsustainable.\n\nSection 13A opens with the words \"Notwithstanding anything contained in this Act\", and provides that a person may be detained for a period not longer than Six\n\nmonths without obtaining the opinion of the Advisory Board. It is plainly contemplated thereby that the Government may deoide not to refer the case of the detenu to the Advisory Board; because the period for which he is to be detained is not to exceed six months.\n\nSection 13A is an exception to s. 10 as well as to all other relevant provisions of the Act, and in case of conflict s. 13A prevails.\n\nThe petitioner was detained for six months from March 16, 1968 to September 16, 1968 without obtaining the opinion of the Advisory Board.\n\nWe wi!J be justified in acceptin'g the contention of the State tlrat it was intended, when the order was passed detaining the petitioner, that he was not to be kept in detention for a period longer tha.n. six months and his case fell within the terms of s. 13A (1) and on that account it was not necessary to obtain the opinion of the Advisory Board.\n\nIt was said by counsel for the petitioner that the plea of the State was inconsisteot with the course of events, and the State Government had taken shelter under the provisions of s. 13A ( 1) even though they had at no stage any desire to release the petitioner from jail at the expiry of or within six months.\n\nThe Court will not be justified in assuming from the circumstance\n\nthat a fresh order has been issued that the Government acted ma/a fide in making the original order or the fresh order. The only plea raised by the l_)Ctitioner in support of that plea is in paragraph-15 of the petitton, that the cancellation of the earlier order of detention and the service of the fresh order of detention on the petitioner was \"a part and parcel of the scheme cf the State to suppress the peaceful trade umon movement\", and that the fresh order of detention was passed ma/a fide.\n\nNo particulars are furnished which justify an inference that in resorting to the provisions of the Act the Government's action was actuated by ill-will or taken for some collateral purpose.\n\nReliance was also placed upon the recitals in the grounds supplied to the petitioner on March 16, 1968 and under the fresh detention order dated September, 16, 1968, and it was contended that the grounds bei1ng identical an inference followed that the previous detention order was continued on the same grounds on\n\nhich the original order was passed.\n\nOn comparing the grounds 1t cannot be said that they are identical.\n\nIt is stated in the last pan of the Annexure to the grounds of detention under order dated September 16, 1968, that from the middle of January to March 1968 the petitioner went underground and during that period he used to attend secret meetings in which he used to stress upon the Government employees that their demands cannot be\n\nconceded by the GoveJiliment unless they resort to violence that the petitioner was violent by nature and was a perpetual threat to the maintenance of public order. It cannot also be said that merely because the previous order had been passed under which the petitjoner was intended to be detained for a period of six months thereafter in consequence of further information the Government was required to issue a fresh order, the original order or the fresh order was illegal.\n\nThe plea that the grounds were vague and indefinite cannot also be accepted.\n\nIt is recited in the order that the petitiOjler was informed that his detention was ordered on grounds specified in the Annexure appended thereto, which also contained facts relevant thereto except those which the Government considered to be against public interest to disclose.\n\nBy virtue of sub-s. (2) of s. 8, it is open to the Government not to disclose facts which it considers to be against the public interest to disclose.\n\nIn the pre5ent case the order clearly states that the Government were of the view that facts relevant to the grounds except those which the Government considered to be against public interest to disclose were intimated to the petitioner.\n\nThe Annexure may appear somewhat indefinite . and vague.\n\nBut that is obviously because facts which in the view of the Government, were against public interest to disclose, were withheld from the petitioner. The Government have p0wer to withhold information about those facts, and they did so.\n\nThe grounds cannot in the circumstances be said to be vague and indefinite.\n\nOne more question peeds to be dealt with.\n\nThe petitioner who was present in the Court atthe time of hearing of this petition complained that he is subjected to solitary confinement while in detention. It must be emphasized that a detenu is not a F convict.\n\nOur Constitution, notwithstandiing the broad principlei of the rule of Jaw, equality and liberty of the individual enshrined therein, tolerates, on account of peculiar conditions prevailing, legislation which is a negation of the rule of law, equality and liberty.\n\nBut it is implicit in the CQ!lstitutional scheme that the power to detain is not a power to punish for offences which an executive authority in his subjective satisfaction believes a citizen G to have committed.\n\nPower to detain is primarily intended to be exercised in those rare cases when the larger interest of the State demand that restrictions shall .be placed upqjl> the liberty of a citiren curbing his future activities.\n\nThe restrictions so placed must, consistently with the effectiveness of detention, be minimal.\n\nThe petition fails and is dismissed.\n\nV.P.S.\n\nPetition dismissed.", "total_entities": 66, "entities": [{"text": "SAMPAT PRAKASH", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "SAMPAT PRAKASH", "offset_not_found": false}}, {"text": "STATE OF JAMMU & KASHMIR", "label": "RESPONDENT", "start_char": 16, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "STATE OF JAMMU & KASHMIR", "offset_not_found": false}}, {"text": "February 6, 1969", "label": "DATE", "start_char": 42, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "SAMPAT PRAKASH\n\nSTATE OF JAMMU & KASHMIR\n\nFebruary 6, 1969\n\n[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.)"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 64, "end_char": 71, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 73, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 90, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "ss. 8(2) & 10", "label": "PROVISION", "start_char": 211, "end_char": 224, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8(2)", "label": "PROVISION", "start_char": 423, "end_char": 430, "source": "regex", "metadata": {"statute": null}}, {"text": "Jammu and Kashmir Preventive Detention Act, 1964", "label": "STATUTE", "start_char": 548, "end_char": 596, "source": "regex", "metadata": {}}, {"text": "September 16,, 1968", "label": "DATE", "start_char": 602, "end_char": 621, "source": "ner", "metadata": {"in_sentence": "On September 16,, 1968, the order was revoked and another order was served on him."}}, {"text": "September 24, 1968", "label": "DATE", "start_char": 686, "end_char": 704, "source": "ner", "metadata": {"in_sentence": "On September 24, 1968 the peti tioner was served with the jlTounds for the fresh order of detention."}}, {"text": "October 26, 1968", "label": "DATE", "start_char": 831, "end_char": 847, "source": "ner", "metadata": {"in_sentence": "His case was reforred to the Advisory Board on October 26, 1968 and the Board recommended his detention."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 895, "end_char": 900, "source": "regex", "metadata": {"linked_statute_text": "the Jammu and Kashmir Preventive Detention Act, 1964", "statute": "the Jammu and Kashmir Preventive Detention Act, 1964"}}, {"text": "s. 13A", "label": "PROVISION", "start_char": 927, "end_char": 933, "source": "regex", "metadata": {"linked_statute_text": "the Jammu and Kashmir Preventive Detention Act, 1964", "statute": "the Jammu and Kashmir Preventive Detention Act, 1964"}}, {"text": "March 16, 1968", "label": "DATE", "start_char": 1274, "end_char": 1288, "source": "ner", "metadata": {"in_sentence": "Since the case of the petitioner was not referred to the Advisory Board within 60 days of the date of detention (March 16, 1968) the detention was invalid; (2) The authorities acted ma/a fide in making the detention order; ( 3) The grounds in suppolrt of the order were vague and indefinite; and ( 4) Ti..at his being subjected to solitary conftnement while in detention was illegal."}}, {"text": "s. 13A(I)", "label": "PROVISION", "start_char": 1833, "end_char": 1842, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8(2)", "label": "PROVISION", "start_char": 2879, "end_char": 2886, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 3749, "end_char": 3756, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 3764, "end_char": 3785, "source": "regex", "metadata": {}}, {"text": "M. K. Ramamurthi", "label": "LAWYER", "start_char": 3829, "end_char": 3845, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for the petitioner."}}, {"text": "Shyamala Pappu", "label": "LAWYER", "start_char": 3847, "end_char": 3861, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for the petitioner."}}, {"text": "Vineet Kumar", "label": "LAWYER", "start_char": 3866, "end_char": 3878, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for the petitioner."}}, {"text": "R. Gopalakrishnan", "label": "LAWYER", "start_char": 3901, "end_char": 3918, "source": "ner", "metadata": {"in_sentence": "R. Gopalakrishnan and R. N. Sachthey, for the respondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3923, "end_char": 3937, "source": "ner", "metadata": {"in_sentence": "R. Gopalakrishnan and R. N. Sachthey, for the respondent."}}, {"text": "Shah", "label": "JUDGE", "start_char": 4003, "end_char": 4007, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J, On March 16, 1968 the petitioner was arrested and ordered to be detained u?Jer s. 3 (1 )(a)( i) of the J amrnu and Kashmir Preventive Detention Act 13 of 1964."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 4091, "end_char": 4095, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Kashmir Preventive Detention Act", "label": "STATUTE", "start_char": 4127, "end_char": 4159, "source": "regex", "metadata": {}}, {"text": "March 26, 1968", "label": "DATE", "start_char": 4175, "end_char": 4189, "source": "ner", "metadata": {"in_sentence": "On March 26, 1968, he was served witl:i the grounds of detention."}}, {"text": "May 3, 1968", "label": "DATE", "start_char": 4242, "end_char": 4253, "source": "ner", "metadata": {"in_sentence": "On May 3, 1968, the petitioner moved a petition for a writ of habeas corpus in this Court. •"}}, {"text": "September 16., 1968", "label": "DATE", "start_char": 4460, "end_char": 4479, "source": "ner", "metadata": {"in_sentence": "In the mea; tiWhile the order dated March 16, 1968, was revoked on September 16.,"}}, {"text": "October 30, 1968", "label": "DATE", "start_char": 4709, "end_char": 4725, "source": "ner", "metadata": {"in_sentence": "On October 30, 1968, the Advisory Board recommended that the petitioner be detained."}}, {"text": "November 11 1968", "label": "DATE", "start_char": 4835, "end_char": 4851, "source": "ner", "metadata": {"in_sentence": "The petitioner then moved this petition on November 11 1968 for a writ of habeas corpus. '"}}, {"text": "Government of J ammu & Kashmir", "label": "ORG", "start_char": 5354, "end_char": 5384, "source": "ner", "metadata": {"in_sentence": "An affidavit is filed by the Secretary to the Government of J ammu & Kashmir affirming that the petitiQ\\DCr mad~ no request for production before the Board for a personal heanng."}}, {"text": "Art. 22", "label": "PROVISION", "start_char": 6182, "end_char": 6189, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 35", "label": "PROVISION", "start_char": 6318, "end_char": 6325, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "State of Jammu & Kashmir", "label": "ORG", "start_char": 6357, "end_char": 6381, "source": "ner", "metadata": {"in_sentence": "35 ( c) in its application to the State of Jammu & Kashmir provides :\n\n\"no law with respect to preventive detention made by the Legislature of the State of Jammu and Kashmir, whether before or after the commencement of the Constitution (ApplicatiQII to Jammu and Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with any of the provisions of this (Pan ID) Part, but any such law shall, to the extent of such inconsistency, cease to have effect on the expiration of fifteen years from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof.\""}}, {"text": "Jammu and Kashmir", "label": "GPE", "start_char": 6479, "end_char": 6496, "source": "ner", "metadata": {"in_sentence": "35 ( c) in its application to the State of Jammu & Kashmir provides :\n\n\"no law with respect to preventive detention made by the Legislature of the State of Jammu and Kashmir, whether before or after the commencement of the Constitution (ApplicatiQII to Jammu and Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with any of the provisions of this (Pan ID) Part, but any such law shall, to the extent of such inconsistency, cease to have effect on the expiration of fifteen years from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof.\""}}, {"text": "Art. 22", "label": "PROVISION", "start_char": 6999, "end_char": 7006, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Jammu and Kashmir Legislature", "label": "ORG", "start_char": 7056, "end_char": 7085, "source": "ner", "metadata": {"in_sentence": "22 insofar the provisions of the Act enacted by the Jammu and Kashmir Legislature are inconsistent therewith does not avail the petitioner."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 7148, "end_char": 7152, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of Jammu and Kashmir", "label": "ORG", "start_char": 7157, "end_char": 7188, "source": "ner", "metadata": {"in_sentence": "By s. 3 the Government of Jammu and Kashmir is emtitled, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, to make an order direct- that such person be detained."}}, {"text": "s. 8", "label": "PROVISION", "start_char": 7439, "end_char": 7443, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 9", "label": "PROVISION", "start_char": 7966, "end_char": 7975, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 8030, "end_char": 8035, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 8351, "end_char": 8356, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 13", "label": "PROVISION", "start_char": 8884, "end_char": 8894, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 13A", "label": "PROVISION", "start_char": 9013, "end_char": 9024, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 10405, "end_char": 10414, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 10525, "end_char": 10534, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 11117, "end_char": 11127, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 11319, "end_char": 11328, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 11453, "end_char": 11463, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13A", "label": "PROVISION", "start_char": 11553, "end_char": 11559, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8( 1)", "label": "PROVISION", "start_char": 12119, "end_char": 12127, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 12302, "end_char": 12306, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 12531, "end_char": 12536, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13A", "label": "PROVISION", "start_char": 12557, "end_char": 12563, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 13A", "label": "PROVISION", "start_char": 12849, "end_char": 12860, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 13A", "label": "PROVISION", "start_char": 13274, "end_char": 13285, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 13305, "end_char": 13310, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13A", "label": "PROVISION", "start_char": 13391, "end_char": 13397, "source": "regex", "metadata": {"statute": null}}, {"text": "September 16, 1968", "label": "DATE", "start_char": 13475, "end_char": 13493, "source": "ner", "metadata": {"in_sentence": "The petitioner was detained for six months from March 16, 1968 to September 16, 1968 without obtaining the opinion of the Advisory Board."}}, {"text": "s. 13A", "label": "PROVISION", "start_char": 13802, "end_char": 13808, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13A", "label": "PROVISION", "start_char": 14080, "end_char": 14086, "source": "regex", "metadata": {"statute": null}}, {"text": "September, 16, 1968", "label": "DATE", "start_char": 15116, "end_char": 15135, "source": "ner", "metadata": {"in_sentence": "Reliance was also placed upon the recitals in the grounds supplied to the petitioner on March 16, 1968 and under the fresh detention order dated September, 16, 1968, and it was contended that the grounds bei1ng identical an inference followed that the previous detention order was continued on the same grounds on\n\nhich the original order was passed."}}, {"text": "s. 8", "label": "PROVISION", "start_char": 16588, "end_char": 16592, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_581_585_EN", "year": 1969, "text": "VISWESARDAS GOKULDAS v.\n\nB. K. NARAYAN SINGH & ANR.\n\nFebruary 6, 1969\n\n[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.]\n\nContract Act, 1872 (9 of 1872), ss. 2 (6), 3 and ?-Suit. for specific performance of contract-Contract whether concluded-Acceptance of offer through plaint filed in another suit whether constitutes proper acceptance-Service of copy of plaint whether constitutes communication of acceptance.\n\nUnder a contract dated August 3, 1957 the defndant agreed to sell to the plaintiffs 40,000 tons of float iron lying in a mining area in the Hooadurgo Taluka in Mysore State, and gave them a right to win and remove iron ore.\n\nOn September 2, 1957, the defendant wrote to the plaintiffs that further to the agreement dated August 3, 1957, he agreed to assign the said lease area of 184 acres for iron and manganese ores to the plaintiffs subject to their paying one lakh and eighty thousand rupees within three months. The three months expired on November 6, 1957 without the offer being accepted by the plaintiffs orally or by letter.\n\nOn October 31, 1957 the defendant posted a letter to the plaintiffs revoking the offer, which reached them on November 6, 1957. The plaintiffs instituted a suit (0.S. No. 55 of 1957) against the defendant alleging that by contract dated September 2, 1957 the defendant had agreed to aasign to the plaintiffs his leasehold interest in the aforesaid 184 acres of land and claiming specific\\ performance of the contract.\n\nThe trial court decreed the suit. The defendant appealed to the High Court.\n\nOn the question whether the offer made in the defendant's letter of September 2, 1957 had been accepted by the plaintiffs the High Court held that the plaintiffs had accepted the said offer in their plaint in anothe'r suit relating to the possession of the same land (O.S. No. 46 of 1957) a copy of which was served On the defendant on November 5, 1957 a day earlier than the defendant's letter revoking the offer reached the plaintiffs. Despite this finding, on another ground, the High Court allowed the defendant's appeal and dismissed the suit, namely, O.S. No. 55 of 1957. The plaintiff appealed with certificate to this Court.\n\nHELD : The appeal must be dismissed on the ground that Ihm was no concluded contract between the parties. [585 C-Dl\n\nThe letter dated September 2, 1957 sent by the defendant to the plainti1fs, though worded as an agreement was in point of law an offer only.\n\nThe defendant was at liberty to revoke the offer at any time before its acceptance by the plaintiffs.\n\nThe defendant's letter revoking the offer reached the plaintiifs on Novembe'r 6, 1957. Before that date the plaintilh did not accept the offer either orally or by letter. The High Court\n\nas wrong in holding that the plaintiffs accepted the offer by their plaint m O.S. No. 46 of 1957 and that this acceptance was communicated to the defendant before November 6, 1957. [583 B-E]\n\nH . Considering the contents of its relevant paragraphs the plaint in question was not in point of law an acceptance of the offer, nor was it intended .to be an acceptance. It is not usual to accept a business offer by a plamt; nor is it usual to communicate an acceptance by serving a copy\n\nof the plaint through the medium of the Court. To hold thu8 would be A straining the language of ss. 2(6), 3 and 7 of the Contract Act. [585 A-Bl\n\nThe old chancery practice under which the mere filing of a bill in a suit to enforce specific performance was regarded as sufficient acceptance of the defendant's offe'r unless the offer had been withdrawn before the filing of the suit, cannot be applicable under the present Indian praci- B tice and procedure. [585 C-EJ The argument based on Bloum's case that the communication of an assent was not necessary and mere mental assent of the plaintiffs to the defendant's proposal was sufficient. was misconceived. [585 Fl\n\nBoys v. Ayerst, (1822) 6 Madd. 316, 326=56 E.R. 1112, 1115, Agar\n\nv. Biden, (1833) 2 L.J. Ch. 3 and Bloxam's case, 33 Beav 529, distinguished.\n\nC In re : Pe/latt' s case, L.R. 2 Ch. App. 527, applied.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1851 of 1968.\n\nAppeal from the judgment and decree dated June 19, 1963 of the Mysore High Court in Regular Appeal No. 231 of 1960.\n\nD Sltyamala Pappu and Vineet Kumar, for the appellant.\n\nK. R. Chaudhuri and K. Rajendra Chaudhuri, for respondent No. 1.\n\nS. V. Gupte, G. R. Ethirajulu Naidu, B. N. Sen, 0. P. Khaitan, A. N. Parikh, K. 1?.. Chaudhuri and K.. Rajendra Chaudhuri, for E respondent No. 2.\n\nThe Judgment of the Court was delivered by\n\nBachawat J. The plaintiffs instituted a suit (O.S. No. 55 of 1957 against the defendant alleging that by a contract dated September 2, 1957 the defendant had agreed to assign to the plaintiffs his leasehold interest under a mining lease in respect of 184 acres of land in Kudrekainave Kava!, Hosadurga Taluk, and claiming specific performance of the contract.\n\nThe Trial Court decreed the suit. The defendant filed an appeal against the decree. The High Court allowed the appeal and dismissed the suit.\n\nThe present appeal has been filed by the plaintiffs after obtaining a certificate under Art. 133 of the Constitution.\n\nThe main question arising in this appeal is whether therr. was a contract as alleged in the plaint.\n\nUnder a contract dated August 3, 1957, the defendant agreed to sell to the plaintiffs 40000 tons of float iron lying in the aforesaid mining area and gave them the right to win and remove the iron ore.\n\nWe are not directly concerned with this contract in this appeal.\n\nOn September 2, 1957 the defendant wrote the following letter to the plaintiffs :-\n\n\"Further to our agreement dated 3rd August 1957 I hereby agree to assign the said lease area of 184 acres for iron and manngase ores, in your favour, subject to your paying me one lakh and eighty thousand rupees at your option to be decided by you within three months from this date.\"\n\nThis document though worded as an agreement wasi in point of law an offer only.\n\nAs a matter of fact, on September 2, 1957 the plaintiffs had not agreed to purchase the mining lease.\n\nUntil both parties were bound there could be no coDcluded contract. The promise to keep the offer open for three months was not supported by any consideration. The defendant was at liberty to revoke the offer at any time before its acceptance by the plaintiffs. On October 31, 1957, the defendant posted a letter to the plaintiffs revoking the offer.\n\nThis letter reached the plaintiffs on November 6, 19S'l. Before that date the plaintiffs did not accept the offer either orally or by any letter sent to the defendant.\n\nOn November 1, 1957, the plaintiffs filed a suit (0.S. No. 46 of 1957) against the defendant claiming a declaration that they were entitled to remain in possession of the mining area. The primary object of the suit was to enforce the plaintiffs' right under the contract dated August 3, 1957. The defendant filed his written statement in that suit on November 5, 1957. The High Court held that the plaintiffs accepted the offer of September' 2, 1957 by their plaint in O.S. No. 46 of 1957 and that this acceptance was communicated to the defendant before November 6, 1957.\n\nWe are unable to agree with this finding.\n\nThe pleadings and issues raised the question whether a contract was made 001 September 2, 1957. If the plaintiffs desired to set up a new case that the contract was concluded in November 1957 they should have amended their pleadings accordingly.\n\nWe need not say anything more on this point because we find that the plaintiffs have failed to establish the new case.\n\nIn paragraphs 14 and 19 of the plaint in O.S. . No. 46 of 1957 the plaintiffs alleged that by the letter dated September 2, 1957 the defendant agreed to assign the mining lease, that they were read:,: and willing to perform the CQntract and that they reserved their right to file a suit for specific performance. The suggestion was that the contract was concluded on September 2, 1957 and that in breach of the contract the defendant failed to apply for a00 obtain the necessary consent of the central government to the assignment of the mining lease. Paragraph 17 and the. prayer portion of the plaint suggested that by virtue of this contract and the earlier contract dated August 3, 1957 they were entitled to remain in possession of the mining area.\n\nThe suggestion was an atempt to add to the terms of the offer of September 12, 1957. On acceptance of the offer according to its !erms the plaintiffs could not get a possessory ri$ht before executl?n of a conveyance of the mining lease. :fjit pomt of law, the plamt was not an acceptance of the offer, not was it intended to be an acceptance.\n\nIt is not usual to accept a business offer by plaint; nor is it usal to commujllicate an acceptance by servmg a copy of the plamt through the medium of the Court.\n\nWe shall e straining the language of ss. 2(6), 3 & 7 the Contract Act 1f we were to hold that the plaint was an acceptance and that the service of a copy of the plaid! along with the writ of summons was 'a communication of the acceptance.\n\nUnder the old chancery practice the mere filing of a bill in C a suit to enforce specific performance was regarded as sufficient acoeptance of the defendant's offer unless the offer had been withdrawn before the filing of the suit, see Boys v. Ayerst('), Agar v. Biden(2 ); Fry ori Specific Performance, 8th ed., art. 306, page 142, Pomeroy on Specific Performance, :!rd ed., art. 66, pp. 169-170. It may well be doubted whether this rule can apply under our present practice and procedure.\n\nA plaint in a suit for specific performance should allege a concluded contract, see the Code of Civil Procedure Ist Schedule Appendix A, Form No. 48.\n\nThe offer as well as the acceptance should precede the institutioo of the suit.\n\nHowever, the precise paint does not arise in this case. 0.S. No. 46 of 1957 was not a suit for specific performance of the contract.\n\nBefore the present suit for specific performance of the contract was institllted, the offer had been withdrawn.\n\nCounsel for the appellant relyilllg on Bloxam's Case( 3 ) submitted that the communication of an acceptance was not necessary.\n\nThe argument is misconceived.\n\nWe have held that the plaint in O.S. No. 46 of 1957 was not an acceptance.\n\nThere was no other acceptance either oral or in writing.\n\nMere mental assent of the plaintiffs to the defendant's proposal is not sufficient. In the peculiar facts of B/oxam's case a contract to take shares was concluded by an oral -application for shares followed by allotment though no notice of allotment was given t? the applica.nt.\n\nOrdinarily there is Olb contraot unless there is an acceptance of the application for shares and the acceptance is communicated to the applicant, see In re: Pe/latfs Case(').\n\nIn the last case Lord Cairns, L.J.' pointed out that B/oxam's case tllmed on its own special facts.\n\nBloxam was orally informed that if he did not receive 3ill answer within a certain tinte he was to consider , his application granted. In the peculiar cir-\n\n(1) 1822 6 Madd. 316, 326=56 E.R.1112, 1115..\n\n(2) 1833 2 L. J. Ch. 3.\n\n(3) 33 Beav. 529.\n\n(4) L.R. 2 Ch. App, 527.\n\nA cumstances, Bloxam could be regaided as having dispensed with the necessity of the communication Oif the acceptance: In the\n\npresent case we are not concerned with a contract to take shares.\n\nThe defendant made an offer to assign a minfug lease.\n\nNo acceptance was made or communicated to the defendant before he withdrew the offer.\n\nThere was no concluded contract ai:id B the appeal must .fail on this ground.\n\nThe High Court held that the assignment of the mining lease could not be lawfully made without the sanction of the State Government and the approval of the 'Central Government d that as the governments concerned could not be compelled to . accord the necessary sanction and approval, the contract to assign the minipg lease could not be specifically pcrf ormed and on this ground the High Court dismissed the suit- We do not think it necessary to express any opinion on . this question.\n\nThe appeal is liable to be dismissed in view of our conclusion that 1Aere was no .concluded contract between the parties.\n\nIn the result, the appeal is dismissed. The appellant will pay one set of costs to the respondents.\n\nG.C.\n\nAppeal dismissed.", "total_entities": 42, "entities": [{"text": "VISWESARDAS GOKULDAS", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "VISWESARDAS GOKULDAS", "offset_not_found": false}}, {"text": "B. K. NARAYAN SINGH & ANR", "label": "RESPONDENT", "start_char": 25, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "B. K. NARAYAN SINGH & ANR", "offset_not_found": false}}, {"text": "February 6, 1969", "label": "DATE", "start_char": 53, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "February 6, 1969\n\n[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.]"}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 72, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "R. S. 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No."}}, {"text": "Kudrekainave Kava", "label": "GPE", "start_char": 4850, "end_char": 4867, "source": "ner", "metadata": {"in_sentence": "55 of 1957 against the defendant alleging that by a contract dated September 2, 1957 the defendant had agreed to assign to the plaintiffs his leasehold interest under a mining lease in respect of 184 acres of land in Kudrekainave Kava!,"}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 5170, "end_char": 5178, "source": "regex", "metadata": {"statute": null}}, {"text": "August 3, 1957", "label": "DATE", "start_char": 5325, "end_char": 5339, "source": "ner", "metadata": {"in_sentence": "Under a contract dated August 3, 1957, the defendant agreed to sell to the plaintiffs 40000 tons of float iron lying in the aforesaid mining area and gave them the right to win and remove the iron ore."}}, {"text": "3rd August 1957", "label": "DATE", "start_char": 5687, "end_char": 5702, "source": "ner", "metadata": {"in_sentence": "On September 2, 1957 the defendant wrote the following letter to the plaintiffs :-\n\n\"Further to our agreement dated 3rd August 1957 I hereby agree to assign the said lease area of 184 acres for iron and manngase ores, in your favour, subject to your paying me one lakh and eighty thousand rupees at your option to be decided by you within three months from this date.\""}}, {"text": "November 6, 19S'l", "label": "DATE", "start_char": 6515, "end_char": 6532, "source": "ner", "metadata": {"in_sentence": "This letter reached the plaintiffs on November 6, 19S'l."}}, {"text": "November 1, 1957", "label": "DATE", "start_char": 6649, "end_char": 6665, "source": "ner", "metadata": {"in_sentence": "On November 1, 1957, the plaintiffs filed a suit (0.S. No."}}, {"text": "September' 2, 1957", "label": "DATE", "start_char": 7077, "end_char": 7095, "source": "ner", "metadata": {"in_sentence": "The High Court held that the plaintiffs accepted the offer of September' 2, 1957 by their plaint in O.S. No."}}, {"text": "September 12, 1957", "label": "DATE", "start_char": 8450, "end_char": 8468, "source": "ner", "metadata": {"in_sentence": "The suggestion was an atempt to add to the terms of the offer of September 12, 1957."}}, {"text": "ss. 2(6), 3 & 7", "label": "PROVISION", "start_char": 8930, "end_char": 8945, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 306", "label": "PROVISION", "start_char": 9446, "end_char": 9454, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 66", "label": "PROVISION", "start_char": 9509, "end_char": 9516, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 9709, "end_char": 9736, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Cairns", "label": "JUDGE", "start_char": 10875, "end_char": 10881, "source": "ner", "metadata": {"in_sentence": "In the last case Lord Cairns, L.J.' pointed out that B/oxam's case tllmed on its own special facts."}}, {"text": "oxam", "label": "OTHER_PERSON", "start_char": 10908, "end_char": 10912, "source": "ner", "metadata": {"in_sentence": "In the last case Lord Cairns, L.J.' pointed out that B/oxam's case tllmed on its own special facts."}}, {"text": "Central Government", "label": "ORG", "start_char": 11800, "end_char": 11818, "source": "ner", "metadata": {"in_sentence": "The High Court held that the assignment of the mining lease could not be lawfully made without the sanction of the State Government and the approval of the 'Central Government d that as the governments concerned could not be compelled to ."}}]}
{"document_id": "1969_3_586_591_EN", "year": 1969, "text": "COMMISSIONER OF INCOMETAX, BANGALORE A\n\nSHRI D. C. SHAH February 6, 1969\n\n[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.) B\n\nJncome-tcx-Hindu undivided fami(v invested funds in firm-Remuneration earned by member as offker of the firm-Whether income of family or individ11al member.\n\nThe assessee-a Hindu undivided family-through its karta was a partner in two firms. The Karta had rich experience in the line of business carried on by the fil'llls. In oile of the films, the Karta was appointed as its Managiag Partner and paid .a remuneration as Managing 'Partner in addition to the benefits enjoyed as a partner.\n\nIn the other firm, another partner was appointed as the Managing Partner, and it was provided that on his retirement, the Karta was to be appointed as the Managing Partner. and entitled to the remunerations. The Karta was appointed the Managing Partner of the se<Pnd firm also on the retirement of its earlier Managing Partner. The assessee-family claimed that the remunerations received by the Karla as Managing Partner should be deleted from the assessment of the assessee, and they were the personal income of the Karta.\n\nHELD : The remuneration of the Karta was not earned on account of any detriment to the joint family assets and the accounts received by the Karta as the Managing Partner of the two partnerships were not assessable as tbe income of the Hindu undivided family. [591 Fl\n\nUpon the facts of the case, there was no real or sufficient connection between the investment of the joint family funds and the remuneration paid. by the partners to the Karta.\n\nThe remuneration was paid not because of the family funds invested in the partnership, but for the personal qualifications of the Karta. [591 D-F]\n\nS. R. M.CT. PL. Pa/aniappa Chettiar v. Commissioner of Income-tax, F 68 I.T.R. 221, followed.\n\nGurunnth V.. Dhakappa v. Commissioner of Income-tax, Mysore, 53 J.T.R. 575; V. D. Dhanwatey v. Commissioner of Income.tax, 68 J.T.R. 365; M. D. Dlianwate, v v. Commissioner of Income-tax, 68 J.T.R. 285; P. N. Krishna Iyer v. Com1nissioner of Inco1ne-tax Kera/a, [1969) 1 S.C.R. 943 and Co1nn1issioner of Jnco1ne-tax, Mysore v. G V. Dhakappa, Civil Appeal No. 713 of 1965 decided on 23-7-1968, referred to.\n\nCIVIL APPELI.ATE JURISDICTION: Civil Appeals Nos. 817 and 818 of.1966.\n\nAppeals by special leave from the judgment and order dated January 19, 1965 of the Mysore High Court itn. I.T.R.C. No. 1 of 19~ H Niren De, Attorney-General, S. C. Manchanda and R. N. Sachthey, for the appellant.\n\nM. C. Chagla, Sharad !. Mhaispurkar, 0. P. Malhotra and\n\n0. C. Mathur, for the respondent.\n\nThe Judgment of the Court was delivered by Ramaswami, J, The respondent is a Hindu Undivided Family (hereinafter called the assessee) of which Shri D. C. Shah is the karta. The assessment years are 1959-60 and 1960-61 and the relevant accounting periods are Samvat years 2014 and 2015.\n\nThe assessee through its karta Shri D. C. Shah was a partner in the firms of (1) M/s C. U. Shah and Co. and (2) M/s Oriental Can Manufacturing Co. as per terms and conditions set out in th\": Instruments of Partnership dated 5-6-1961 and 11-9-1957. Shn\n\nD. C. Shah was paid a remuneration of Rs. 12,000/- per year for both the assessment years by M/s C. U. Shah and Company. He was paid Rs. 10,000/- for the assessment year 1959-60 by the Oriental Can Manufacturing Company. The amounts received by\n\nShri D. C. Shah were shown by the assessee in its returns of income along with balanc.~ of the share income from the aforesaid firms. The Income Tax Officer in assessing the Hindu Undivided Family included the iemuneration received by Shri D. C. Shah as a part of the share income from the respective firms. Before the Appellate Assistant Commissioner the assessee contended that the remuneration received by Shri D. C. Shah was his personal income and the amounts were wrongly shown in the returns of the Hindu Undivided Family as its income and should not have been included in the assessment. In so contending the assessee relied on clauses 8, 9 and 10 of the Instrument of Partnership dated 5-6-1961 by which the firm of Mis C. U. Shah and Company was constituted. The assessee also relied on clauses 14, 15 and 16 of the Instrument of Partnership dated 11-9-1957 by which the firm of Mis Oriental Can Manufacturing Company was constituted.\n\nClauses 8, 9 and 10 of the Instrument of Partnership dated 5-6-1961 are to the following effect :\n\n\"8. The partner No. 1 Shri D. C. Shah who has been managing the business of this firm shall hereinafter also cntinu~ to act as Managing partner for conducting the said busmess free from any interference of other partners, of whatsoever nature.\n\nThe said Managing partner shall manage, direct, appoint and/or remove any one of the employees, and/or do all other things which include right to raw cheques, to make, delive; and accept documents either legal or commercial in respect of the partnership business as may be deemed\n\nnecssary for effetively carrying on the partnership busmess.\n\nThe said Managing partner shall be paid Rs .. ~,000/- (Rupees one thousand only) per month in addition to all other benefits that he is entitled to enjoy as a partner of the firm.\n\n9. The said Managing partner shall continue to be the Managing Partner for his life time or his retirement whichever is earlier.\n\n10. All other partners shall devote as much time to the furtherance of the partnership business as they think proper, necessary and advisable\".\n\nClauses 14, 15 and 16 of the Instrument of Partnership dated 11-9-1957 are to the following effect :\n\n\"14. The partner No. 2 shall be the Managing Partner for conducting the said business free from any interference of whatsoever nature by others. The said Managing Partner shall manage, carry, direct, appoint and/ or remove any of the employees and/ or Agent and do all other things, as may be deemed necessary, for effectively carrying on the Partnership business. The said Managing Partner shall be entitled, in addition to all other benefits, to a monthly remuneration of Rs. 2,000/- (Rupees two thousand only).\n\n15. The Parmer No. 2 shall continue to be the Managing Partner for his ljfetime or retirement. In. the event of Partner No. 2's demise or retirement, whichever is earlier, the Partner No. 1 shall then act and perform duties and functions of Managing Partner. In the event of the demise or retirement of Partner No. 1, the Ml!llaging Partner shall be appointed by the remaining partners or their legal representatives, as the case may be.\n\n16. Partner No. 3 shall be responsible for the duties and functions to be performed under the direction of No. 2, the Managing Partner. In the event of failure on the part of No. 3 to perform duties and functions or otherwise entrusted by No. 2, the Managing Partner, the matter shall be referred to No. 2 and his decision shall be binding on No. 3\".\n\nThe Appellate Assistant Commissioner accepted the conten• tion of the assessee and held that the remuneration paid and received by Shri D. C Shah should be deleted from the assessment G of the assessee. The Income Tax Officer thereafter preferred appeals to the Income Tax Tribunal which set aside the order of the Appellate Assistant Commissioner and held that the remuneration paid should be included in the total income of the assessee. At the instance of the assessee, the Income Tax Appel late Tribunal stated a case to the High Court on .the following question of law :- a \"Whether on the facts and in the circumstances of the case. was the salary -received by D. C. Shah from the\n\ntwo firms of M/s C. U. Shah & Co. and M/s Oriental Can Manufacturing Co., includible in the assessment of the H.U.F. of which Shri D. C. Shah was the Karta'?\"\n\nThe High Court relying upon its earlier decision in Gurunath V. Dhakappa v. Commissioner of Income-tax, Mysore(') held that the salary received by Shri D. C. Shah from the aforesaid firms cannot be included in the assessment of the Hindu Undivided Family of which he was the karta. These appeals are brought by special leave on behalf of the Commissioner of Income Tax, Bangalore from the judgment of the Mysore High Court, dated 19th January, 1965 in Income Tax Referen'e No. I of 1964.\n\nThe question whether the remuneration earned by a member of a Hindu Undivided Family as an officer of a company or a firm in which the assets of the Hindu Undivided Family have either been invested or the office has been acquired with the aid of the funds of the family is the income of the family or the individual income of the member has been the subject matter of consideration in several cases before this Court. In V. D. Dhanwatey v. Commissioner of Income-tax('), V the karta of a Hindu Undivided Family contributed to the capital of a firm out of the funds of the family. Under the agreement of the partnership the general management and supervision of the partnership business was to be in the hands of V and he was to be paid a monthly remuneration out of the gross earnings of the partnership business.\n\nIt was found that V joined the partinership as representing the family and became a partner on account of the investments of the joint family assets in the capital of the partnership and that the remuneration received by V was only an increased share of the profits paid to him as representing the family.\n\nIn this state of facts it was held by this. Court that the remuneration paid to V\n\nwas directly related to the investments of the assets of the family in the partnership business and \"there was a real and sufficient connection between the investment from the joint family funds and the remuneration paid to V\". It was therefore held by this Court that the salary paid to V was, rightly assessed as the income of the Hindu Undivided Family. In M. D. Dhanwatey v. Commissioner of Income Tax(•) the facts were parallel to the facts in V. D.\n\nDhanwatey's case(') and the salary received by the karta of the Hindu Undivided Family was treated as the income of the family.\n\nIn S. R. M. CT. PL. Palaniappa Chettiar v. Commissioner of Income Tax('), the material facts were different. The karta of a Hindu Undivided Family acquired 90 out of 300 shares in a transport company with the funds of the family. In course of time he\n\n(I) 53 1.T.R. 575.\n\n(3) 68 l.T.R. 285.\n\nLIOSup./69--3\n\n(2) 68 LT.R. 365.\n\n(4) 68 1.T.R. 221.\n\nbecame the Managing Director of the Company.\n\nAs Managing Director the katta was entitled to salary and commission on the net profits of the company, and was entrusted with control over the financial and administrative affairs of the company. The only qualification under the. Articles of Association for the .otlii;:e of a Director, was the holdmg of not less than 25 sh; ires m hts own right. It was found that' the shares were acquired by the fanily not with the object that the karta should become the Managmg Director, but in the ordinary course of investment and there was no real connection between 'the investment of the joint family funds in the purchase of the shares and the appointment of the karta as Managing Director of the company.\n\nIt was held therefore that the remuneration of the Managing Director was not earned on account of any detriment to the joint family assets and the amounts received by the karta as Managing Director's remuneration, commission and 'sitting fee' were not assessable as the income of the Hindu Undivided Family.\n\nIn P. N. Krishna Iyer v. Commissioner of Income Tax Kerala(' ), the principle laid down in V. D. Dhanwatey's case(\")\n\nwas applied. It was held that the remuneration received by the assessee from the company of which he was the Managing Director together with commission and 'sitting fee', should be included in the assessment of the Hindu Undivided Family.\n\nIt was pointed out that the shares which qualified the assessee to become a member of the company were purchased with the aid of the joint family funds.\n\nThe shares which were allotted to the assessee in lieu of his services were also treated as shares belonging to the joint family.\n\nThe entire capital assets of the company originally belonged to the joint family and were made available to the company in consideration of a mere promise to pay the amount for which the assets were valued. The income was primarily earned by utilising the joint family assets or funds and the mere fact that in the process of gaining the advantage an element of personal service or skill or labour was involved did not alter the character of the income. . In cases of this class the character of the receipt must be determined by reference to its source, its relation to the assets of the family and the proximity of the connection between the investment from the joint family funds and the remuneration paid.\n\nApplying the principle laid down in V. D. Dhanwatey's case(3 ), it was held that the tribunal was justified in holding that the income from the saJary, commission or 'sitting fee' obtained by the assessee did not represent his individual income but was the income of the Hindu Undivided Family ol which he was the karta.\n\n(1) [196911 S.C.R. 943.\n\n(2) 68 l.T.R. 365.\n\nA In Commissioner of Income Tax, Mysore v. G. V. Dhakap pa('), the principle laid down in V. D. Dhanwatey's(') case was applied again. It was held that there was no finding that the income which was received by G. V. Dhakappa was directly related to any assets of the family utilised in the partnership, and, therefore, the income of G. V. Dhaka pp a cannot be treated B as the income of the Hindu Undivided Family.\n\nIn Olll' opinion, the present case falls within the principle laid down by this Court in S.R.M. CT. PL. Palaniappa Chettiar's case('). It has been found that Shri D. C. Shah was a man of rich experience in the line of business which these two firms were carrying on. Clauses 9 and 10 of the Partnership deed dated .C 5-6-1961 indicate that the remuneration was paid inot because ol the family funds invested in the partnership but for the personal qualification of Shri D. C. Shah. In the case of Oriental Can Manufacturing Company clause 14 provided for Shri K. K. Dhote being appointed .as the Managing partner. After the said Shri lllhote retired Sbri D. C. Shah was appointed as the Managing 8 partner during the assessment year 1959-60. Clause 15 of the partnership deed provided for such an appointment. A reading of clauses 14, 15 and 16 of the Partnership Deed indicate• that the remuneration was paid for the specific acts of management done by Shri D. C. Shah resting on his personal qualification and not because he represented the firm.\n\nIt should also be noticed that no other .partner was paid any salary.\n\nUpon the particular J; facts of this case, it is mainilest that there WJIS no real or sufficient\n\nconnection between the investment of the joint family funds and the remuneration paid by the partnership to Shri D. C. Shah. It follows that the remuneration of Shri D. C. Shah was not earned on account of any detriment to the joint family assets and the\n\namounts of remuneration received by Shri D. C. Shah as the I' Managing partner of the two partnerships were not assessable as\n\nincome of the Hindu Undi'Yided Family.\n\nFor these reasons we hold that there is no merit in these appeals which are accordingly dismissed with costs. There will be one hearing fee.\n\nY.P.\n\nAppeals dismissed.\n\n(I) Civil Appeal No. 713of1965 decided on 23-7 1968. 68 LT.a. :Ms.\n\n(3) 68 LT.It.. 221.", "total_entities": 43, "entities": [{"text": "COMMISSIONER OF INCOMETAX, BANGALORE", "label": "PETITIONER", "start_char": 0, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, BANGALORE", "offset_not_found": false}}, {"text": "SHRI D. C. SHAH", "label": "JUDGE", "start_char": 40, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "February 6, 1969", "label": "DATE", "start_char": 56, "end_char": 72, "source": "ner", "metadata": {"in_sentence": "COMMISSIONER OF INCOMETAX, BANGALORE A\n\nSHRI D. C. SHAH February 6, 1969\n\n[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.)"}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 87, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 104, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Karla", "label": "OTHER_PERSON", "start_char": 1012, "end_char": 1017, "source": "ner", "metadata": {"in_sentence": "The assessee-family claimed that the remunerations received by the Karla as Managing Partner should be deleted from the assessment of the assessee, and they were the personal income of the Karta.", "canonical_name": "Karla"}}, {"text": "Karta", "label": "OTHER_PERSON", "start_char": 1282, "end_char": 1287, "source": "ner", "metadata": {"in_sentence": "HELD : The remuneration of the Karta was not earned on account of any detriment to the joint family assets and the accounts received by the Karta as the Managing Partner of the two partnerships were not assessable as tbe income of the Hindu undivided family. [", "canonical_name": "Karla"}}, {"text": "[1969) 1 S.C.R. 943", "label": "CASE_CITATION", "start_char": 2093, "end_char": 2112, "source": "regex", "metadata": {}}, {"text": "Co1nn1issioner of Jnco1ne-tax, Mysore v. G V. Dhakappa", "label": "RESPONDENT", "start_char": 2117, "end_char": 2171, "source": "ner", "metadata": {"in_sentence": "Gurunnth V.. Dhakappa v. Commissioner of Income-tax, Mysore, 53 J.T.R. 575; V. D. Dhanwatey v. Commissioner of Income.tax, 68 J.T.R. 365; M. D. Dlianwate, v v. Commissioner of Income-tax, 68 J.T.R. 285; P. N. Krishna Iyer v. Com1nissioner of Inco1ne-tax Kera/a, [1969) 1 S.C.R. 943 and Co1nn1issioner of Jnco1ne-tax, Mysore v. G V. Dhakappa, Civil Appeal No."}}, {"text": "CIVIL APPELI.ATE JURISDICTION", "label": "PETITIONER", "start_char": 2238, "end_char": 2267, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELI.ATE JURISDICTION: Civil Appeals Nos."}}, {"text": "S. C. Manchanda", "label": "LAWYER", "start_char": 2468, "end_char": 2483, "source": "ner", "metadata": {"in_sentence": "1 of 19~ H Niren De, Attorney-General, S. C. Manchanda and R. N. Sachthey, for the appellant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 2488, "end_char": 2502, "source": "ner", "metadata": {"in_sentence": "1 of 19~ H Niren De, Attorney-General, S. C. Manchanda and R. N. Sachthey, for the appellant."}}, {"text": "M. C. Chagla", "label": "LAWYER", "start_char": 2524, "end_char": 2536, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, Sharad !."}}, {"text": "Sharad !. Mhaispurkar", "label": "LAWYER", "start_char": 2538, "end_char": 2559, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, Sharad !."}}, {"text": ". P. Malhotra", "label": "LAWYER", "start_char": 2562, "end_char": 2575, "source": "ner", "metadata": {"in_sentence": "Mhaispurkar, 0."}}, {"text": "C. Mathur", "label": "LAWYER", "start_char": 2584, "end_char": 2593, "source": "ner", "metadata": {"in_sentence": "C. Mathur, for the respondent."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 2659, "end_char": 2668, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Ramaswami, J, The respondent is a Hindu Undivided Family (hereinafter called the assessee) of which Shri D. C. Shah is the karta.", "canonical_name": "V. RAMASWAMI"}}, {"text": "D. C. Shah", "label": "RESPONDENT", "start_char": 2764, "end_char": 2774, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Ramaswami, J, The respondent is a Hindu Undivided Family (hereinafter called the assessee) of which Shri D. C. Shah is the karta.", "canonical_name": "D. C. SHAH"}}, {"text": "C. U. Shah and Co.", "label": "PETITIONER", "start_char": 2988, "end_char": 3006, "source": "ner", "metadata": {"in_sentence": "The assessee through its karta Shri D. C. Shah was a partner in the firms of (1) M/s C. U. Shah and Co. and (2) M/s Oriental Can Manufacturing Co. as per terms and conditions set out in th\": Instruments of Partnership dated 5-6-1961 and 11-9-1957."}}, {"text": "Oriental Can Manufacturing Co.", "label": "ORG", "start_char": 3019, "end_char": 3049, "source": "ner", "metadata": {"in_sentence": "The assessee through its karta Shri D. C. Shah was a partner in the firms of (1) M/s C. U. Shah and Co. and (2) M/s Oriental Can Manufacturing Co. as per terms and conditions set out in th\": Instruments of Partnership dated 5-6-1961 and 11-9-1957."}}, {"text": "5-6-1961", "label": "DATE", "start_char": 3127, "end_char": 3135, "source": "ner", "metadata": {"in_sentence": "The assessee through its karta Shri D. C. Shah was a partner in the firms of (1) M/s C. U. Shah and Co. and (2) M/s Oriental Can Manufacturing Co. as per terms and conditions set out in th\": Instruments of Partnership dated 5-6-1961 and 11-9-1957."}}, {"text": "11-9-1957", "label": "DATE", "start_char": 3140, "end_char": 3149, "source": "ner", "metadata": {"in_sentence": "The assessee through its karta Shri D. C. Shah was a partner in the firms of (1) M/s C. U. Shah and Co. and (2) M/s Oriental Can Manufacturing Co. as per terms and conditions set out in th\": Instruments of Partnership dated 5-6-1961 and 11-9-1957."}}, {"text": "C. U. Shah", "label": "ORG", "start_char": 3253, "end_char": 3263, "source": "ner", "metadata": {"in_sentence": "12,000/- per year for both the assessment years by M/s C. U. Shah and Company."}}, {"text": "Oriental Can Manufacturing Company", "label": "ORG", "start_char": 3341, "end_char": 3375, "source": "ner", "metadata": {"in_sentence": "10,000/- for the assessment year 1959-60 by the Oriental Can Manufacturing Company."}}, {"text": "Mis C. U. Shah", "label": "ORG", "start_char": 4127, "end_char": 4141, "source": "ner", "metadata": {"in_sentence": "In so contending the assessee relied on clauses 8, 9 and 10 of the Instrument of Partnership dated 5-6-1961 by which the firm of Mis C. U. Shah and Company was constituted."}}, {"text": "-9-1957", "label": "DATE", "start_char": 4262, "end_char": 4269, "source": "ner", "metadata": {"in_sentence": "The assessee also relied on clauses 14, 15 and 16 of the Instrument of Partnership dated 11-9-1957 by which the firm of Mis Oriental Can Manufacturing Company was constituted."}}, {"text": "Mis Oriental Can Manufacturing Company", "label": "ORG", "start_char": 4291, "end_char": 4329, "source": "ner", "metadata": {"in_sentence": "The assessee also relied on clauses 14, 15 and 16 of the Instrument of Partnership dated 11-9-1957 by which the firm of Mis Oriental Can Manufacturing Company was constituted."}}, {"text": "D. C. Shah", "label": "RESPONDENT", "start_char": 4474, "end_char": 4484, "source": "ner", "metadata": {"in_sentence": "1 Shri D. C. Shah who has been managing the business of this firm shall hereinafter also cntinu~ to act as Managing partner for conducting the said busmess free from any interference of other partners, of whatsoever nature.", "canonical_name": "D. C. SHAH"}}, {"text": "D. C Shah", "label": "RESPONDENT", "start_char": 7035, "end_char": 7044, "source": "ner", "metadata": {"in_sentence": "The Appellate Assistant Commissioner accepted the conten• tion of the assessee and held that the remuneration paid and received by Shri D. C Shah should be deleted from the assessment G of the assessee.", "canonical_name": "D. C. SHAH"}}, {"text": "C. U. Shah & Co.", "label": "ORG", "start_char": 7604, "end_char": 7620, "source": "ner", "metadata": {"in_sentence": "was the salary -received by D. C. Shah from the\n\ntwo firms of M/s C. U. Shah & Co. and M/s Oriental Can Manufacturing Co., includible in the assessment of the H.U.F. of which Shri D. C. Shah was the Karta'?\""}}, {"text": "Bangalore", "label": "GPE", "start_char": 8117, "end_char": 8126, "source": "ner", "metadata": {"in_sentence": "These appeals are brought by special leave on behalf of the Commissioner of Income Tax, Bangalore from the judgment of the Mysore High Court, dated 19th January, 1965 in Income Tax Referen'e No."}}, {"text": "Mysore High Court", "label": "COURT", "start_char": 8152, "end_char": 8169, "source": "ner", "metadata": {"in_sentence": "These appeals are brought by special leave on behalf of the Commissioner of Income Tax, Bangalore from the judgment of the Mysore High Court, dated 19th January, 1965 in Income Tax Referen'e No."}}, {"text": "19th January, 1965", "label": "DATE", "start_char": 8177, "end_char": 8195, "source": "ner", "metadata": {"in_sentence": "These appeals are brought by special leave on behalf of the Commissioner of Income Tax, Bangalore from the judgment of the Mysore High Court, dated 19th January, 1965 in Income Tax Referen'e No."}}, {"text": "V. D.\n\nDhanwatey", "label": "OTHER_PERSON", "start_char": 9890, "end_char": 9906, "source": "ner", "metadata": {"in_sentence": "In M. D. Dhanwatey v. Commissioner of Income Tax(•) the facts were parallel to the facts in V. D.\n\nDhanwatey's case(') and the salary received by the karta of the Hindu Undivided Family was treated as the income of the family.", "canonical_name": "V. D.\n\nDhanwatey"}}, {"text": "karta", "label": "OTHER_PERSON", "start_char": 11077, "end_char": 11082, "source": "ner", "metadata": {"in_sentence": "It was found that' the shares were acquired by the fanily not with the object that the karta should become the Managmg Director, but in the ordinary course of investment and there was no real connection between 'the investment of the joint family funds in the purchase of the shares and the appointment of the karta as Managing Director of the company.", "canonical_name": "Karla"}}, {"text": "V. D. Dhanwatey", "label": "OTHER_PERSON", "start_char": 11521, "end_char": 11536, "source": "ner", "metadata": {"in_sentence": "In P. N. Krishna Iyer v. Commissioner of Income Tax Kerala(' ), the principle laid down in V. D. Dhanwatey's case(\")\n\nwas applied.", "canonical_name": "V. D.\n\nDhanwatey"}}, {"text": "G. V. Dhakappa", "label": "OTHER_PERSON", "start_char": 13362, "end_char": 13376, "source": "ner", "metadata": {"in_sentence": "It was held that there was no finding that the income which was received by G. V. Dhakappa was directly related to any assets of the family utilised in the partnership, and, therefore, the income of G. V. Dhaka pp a cannot be treated B as the income of the Hindu Undivided Family.", "canonical_name": "G. V. Dhakappa"}}, {"text": "G. V. Dhaka", "label": "OTHER_PERSON", "start_char": 13485, "end_char": 13496, "source": "ner", "metadata": {"in_sentence": "It was held that there was no finding that the income which was received by G. V. Dhakappa was directly related to any assets of the family utilised in the partnership, and, therefore, the income of G. V. Dhaka pp a cannot be treated B as the income of the Hindu Undivided Family.", "canonical_name": "G. V. Dhakappa"}}, {"text": "clause 14", "label": "PROVISION", "start_char": 14100, "end_char": 14109, "source": "regex", "metadata": {"statute": null}}, {"text": "K. K. Dhote", "label": "OTHER_PERSON", "start_char": 14128, "end_char": 14139, "source": "ner", "metadata": {"in_sentence": "In the case of Oriental Can Manufacturing Company clause 14 provided for Shri K. K. Dhote being appointed .as the Managing partner."}}, {"text": "lllhote", "label": "OTHER_PERSON", "start_char": 14202, "end_char": 14209, "source": "ner", "metadata": {"in_sentence": "After the said Shri lllhote retired Sbri D. C. Shah was appointed as the Managing 8 partner during the assessment year 1959-60."}}, {"text": "Clause 15", "label": "PROVISION", "start_char": 14310, "end_char": 14319, "source": "regex", "metadata": {"statute": null}}, {"text": "23-7 1968", "label": "DATE", "start_char": 15420, "end_char": 15429, "source": "ner", "metadata": {"in_sentence": "713of1965 decided on 23-7 1968."}}]}
{"document_id": "1969_3_592_596_EN", "year": 1969, "text": "MODI SPINNING & WEAVING MILLS CO. LTD.\n\nA v.\n\nINCOME-TAX\n\nOFFICER,\n\nSPECIAL\n\nINVESTIGATION\n\nCIRCLE (B), MEERUT\n\nFebruary 10, 1969\n\n[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.J\n\nIncome Tax A.ct, 1922, s. 34(l)(a)-Notlce in respect of incom• escaping assessment--Condition.r precedent to issue of.\n\nThe appellant Company, which was incorporated in 1946, purchased ·· and installed machinery from time to time valued at Rs. 75 lacs.\n\nIn C respect of its assessment to income tax for certain years, it was allowed 'initial depreciation' on new machinery installed in the relevant previous years and was also allowed 'normal depreciation'. at appropriate rates. In the assessment year 1956-57 the aggregate of all depreciation allowances including 'initial depreciation' exceeded the original cost of machinery but in respect of that year as well as for the assessment years 1957-58 and 1958-59, the Income Tax Officer failed to deduct 'initial depreciation' and the company was allowed 'normal depreciation' in excess of the D ainount permissible under proviso (c.) to s. 10(2) (vi) of the Income Tax Act, 1922.\n\nOn November 20, 1964, the Income Tax Officer issued notices of rea,...sment for the three yean under section 148 of the Income Tax Act,\n\n1961. The Company filed returns under protest and thereafter challenged the notices of re-assessment by a writ petition under Art. 226 of the Constitution. It was common llrOUDd that excessive depreciation Was in fact allowed to the Company and that certain income escaped asses!lment, but it was contended on behalf of the appellant that the mcome did not escape assessment \"by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment of that year\".\n\nA Single Judge of the High Court held that while the Company committed no error in failing to take into a<i:ount the 'initial depreciation' while entering the Written down value in its return, it was not open to the Company to set out only those facts which exaggerated its claim.\n\nHe therefore rejected the petition.\n\nIn dismissing a Letters Patent appeal, the High Court took the view that there was apparently \"a mistake and error on the side of the Company as well a• the Income Tax Officer\" and that the Income Tax Officer could reasonably come to the conclusion that it was due to the omission and failure on the part of the assessee in clisclosing fully and truly all material facts necessary for the assessment that the error was committed by the Income Tax Officer as a resu1t of which some income had escaped assessment.\n\nOn an appeal.\n\nHELD : The judgment of the High Court must be set aside and the case remanded.\n\nAlthough the High Court held that the Income Tax Officer had decided that certain income had escaped assessment, it did not consider H whether the income escaped assessment by reason of omission or failure on the part of the Company to disclose fully and truly all material facts necessary for assessment, within the meaning of section 34 of the 1922 Act. [596 Fl\n\n• c\n\nCalcutta Discount Co. Ltd. v, Income Tax Officer, Companies District I, Calcutta and Anr., 41 I.T.R. 191; referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 890 tO 892 of 1968.\n\nAppeals by special leave from the judgment and order dated November 24, 196.7 of the Allahabad High Court in Special Appeals Nos. 476 to 478 of 1965.\n\nS. T. Desai, H. K. Puri and B. N. Kirpa/, for the appellant (in all the appeals) .\n\nSukumar Mitra, S. C. Manchanda, R. H. Dhebar, R. N. Sachthey and B. D. Sharma, for the respondent (in all the appeals).\n\nThe Judgment of the Court was delivered by Shah, J. Mis Modi Spinning & Weaving Mills Co. Ltd.- hereinafter called 'the Company'-was incorporated in 1946.\n\nFrom time to time the Company purchased and installed machinery of the value of Rs. 75 lakhs for its factory. In proceedings for assessment of income-tax, the Company was allowed, in computing its income from business for the assessment years 1950-51, 1951-52 and 1952-53 \"i, nitial depreciation\" aggregating to Rs. 15,91,511/- in respect of new machinery installed in the relevant previous years. The Company was also . allowed \"normal\n\ndepreciation\" at the appropriate rates. In the assessment year 1956-57 the aggregate of all depreciation allowances including \"initial depreciation\" exceeded the original cost of the machinery, but the Income-tax Officer on the written down value of the machinery computed at Rs. 16,48,053/- allowed Rs. 2,59,236/- as normal depreciation. Jn so computing the normal depreciation the Income-tax Officer apparently Jost sight of clause ( c) of the proviso to s. 10(2) (vi) of the Income-tax Act, 1922. Depreciation allowance was also allowed in the assessment years 1957-58 and 1958-59 as a percentage on the appropriate written down value in those years.\n\nThe Income-tax Officer on November 20, 1964, issued notices of re-assessment for the three years under s. 148 of the Indian Income-tax Act, 1961, which had replaced the Act of 1922. The Company filed under protest fresh returns and objected to the issue of the notices of re-assessment.\n\nThe Company also moved petitions in the High Court of Allahabad for writs quashing the three notices, contending ime: alia, that the notices issued more than four years after the expiry of the years of assessment were barred. At the hearina of the petitions counsel for the Company conceded that under proso\n\n(c) to s. 10(2)(vi) of the Indian Income-tax Act, 1922 in the form in which it stood in the assessment year 1956-57 and thereafter, excessive depreciation was in fact allowed to the Company.\n\nIt was also common ground that by virtue of cl. ( c) to Explanation 1 of s. 147 of the Income-tax Act, 1961, income having been made the subject matter of excessive relief under the Indian Income-tax Act, 1922, the income chargeable to tax had escaped assessment. But it was urged that the income had not escaped assessment \"by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment of that year\", for-( 1) the Indian Income-tax Act, 1922, and the forms of returns prescribed under the rules did not require the assessee to disclose that initial depreciation had been allowed in the earlier years; and (2) that in any event the Incometax Officer knew that initial depreciation had been allowed to the Company in the years 1950-51, 1951-52 and 1952-53.\n\nR. S. Pathak, J ., who heard the petitions held that the. Company committed no error in failing to take into account the initial depreciation while entering the written down value in column (2) of Part V of the return. But the learned Judge held that it was incumbent upon the Company to inform the Income-tax Officer of all material facts necessary to make out its claim to depreciation and it was not open to the Company to set out only those facts which exaggerated its claim : the Company was bound to disclose all material facts which went to show what the true amount of the allowance to which it was entitled. The learned Judge accordingly rejected the petitions. The order passed by Pathak, J., was confinned in appeal under the Letters Patent.\n\nBy cl. (vi) of sub-s. (2) of s. 10 of the Income-tax Act, 1922, as amended by Act 8 of 1946, in computing the profits or gains of business, profession or vocation carried on by him, an assessee was entitled to allowances not only of normal depreciation but also initial depreciation at the rates set out in els. (a), (b) & (c) in respect of buildings which had been newly erected, or the machinery or plant being new had been installed after the 31st day of March, 1945. It was, however, expressly enacted that the initial depreciation was not deductible in determining the written down value for the purpose of cl. (vi).\n\nAllowance for initial depreciation was therefore not to be taken into account in determining the written down value for determining the normal depreciation. But on that account proviso (c) to s. 10(2)(vi) was not modified.\n\nThe written down value of the machinery of the Company in the yea.- 1956-57 was Rs. 16,48,053, but for the application of\n\ncl. (c) of the proviso to s. 10(2)(vi) the initial depreciation allowed in the years 1950-51, 1951-52 and 1952-53 had to be taken into account.\n\nThe Income-tax Officer inadvertently failed to take into account the initial depreciation, and the Company was .allowed normal depreciation in the year 1956-57 in excess of the amount permissible under proviso (c) to s. 10(2) (vi). The\n\nIncome-tax Officer later sought to rectify the error and to bring to tax the income which had escaped tax.\n\nBefore R. S. Pathak, J., it was contended that the definition of \"written down value\" ins. 10(5)(b) applies wherever the expression is used ins. 10(2) and on that account the Company in seting out the written down value in column (2) of Part. V of the return was obliged to take into account all the depreciation actually allowed to it including the initial depreciation and as the Company computed 'the written down value only . by deducting the normal depreciation and not the initial depreciation, it failed to disclose fully and truly all material facts necessary for the purpose of assessment. This argument was not accepted by the learned Judge. But he was still of the opinion that the Act imposed upon the Company a duty to disclose all material facts which went to show the true amount of the allowances to which it was entitled, and the Company by failing to disclose that initial depreciation had been allowed in three earlier years, the Company had failed to disclose fully and truly all material facts necessary for assessment, and on that accounts. 147(1) (a) was attracted and the notice was properly issued.\n\nIn app.eal, the High Court observed that the \"only question for consideration\" was whether the Income-tax Officer was justified in issuing a notice under s. 148 of the Income-tax Act, 1961.\n\nAfter stating that there was apparently \"a mistake and error on the side of the Company as well as the Incoine-tax Officer'', the Court observed that the Income-tax Officer could reasonably come to the conclusion that it was due to the omission and failure on the part of the assessee in disclosing fully and truly all material facts necessary for the assessment that the error was committed by the Income-tax Officer as a result of which some income had escaped assessment. The High Court then observed :\n\n\"It is difficult to hold that the Income-tax Officer while issuing the notices under section 148 of the new Act could not reasonably hold the view that prima facie the assessee was responsible for the escape in the assessment.\",\n\nand held that the notices were not liable to be quashed.\n\nSection 34(1 )(a) of the Income-tax Act, 1922, provided :\n\n\"(l) If-\n\n( a) the Income-tax Officer has reason to believe that by reason of the omission or failur~ on the part of an assessee to make a retuqi 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,\n\nincome, profits or gains chargeable to income-tax have escaped assessment for that year, or have been under-·\n\nassessed, 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, or\n\nhe may . proceed to assess or re-assess such income, profits or gains or re-compute the Joss or depreciation allowance; and the provisions of this Act shall. so far as may b.~, apply accordingly as if the notice were a notice issued under that sub-section : \" Section 34 confers jurisdiction upon the Income-tax Officer to issue a notice in respect of the assessment beyond the period of four years, but within a period of eight years, from the end of the relevant year, if two conditions exist ( 1) that the Income-tax -Officer has reason to believe that income, profits or gains chargeable to income-tax had been under-assessed; and (2) that he has also reason to believe that such \"under-assessment\" had occurred by reason of either (i) omission or failure on the part of an assessee to make a return of his income under s. 22, or Iii) omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for that year. These conditions are cumulative and precedent to the exercise of jurisdiction to issue a notice of re-assessment : Calcutta Discount Co.\n\nLtd. v. Income-tax Officer, Companies District I, Calcutta and Anr.(')\n\nIn deciding the appeal, the High Court held that the Incometax Officer did in fact decide that the income had escaped assessment, but the High Court did not consider whether the income escaped assessment by reason of omission or failure on the part of the Company to disclose fully and truly all material facts necessary for assessment.\n\nThe judgment of the High Court is set aside and the case is remanded for determination of the question whether by reason of the omission or failure on the part of the Company to disclose fully and truly all material facts necessary for a5'essment of the Company for the three years in question. any income, profits or gains chargeable to income-tax have escaped assessment or the Company has been given excessive depreciation allowance in computing its income.\n\nCosts of these appeals will be costs in the High Court. One hearing fee.\n\nR.K.P.S.\n\nAppeal allowed and case remanded.\n\n{I) 41 l.T.R. 191.", "total_entities": 52, "entities": [{"text": "MODI SPINNING & WEAVING MILLS CO. LTD", "label": "PETITIONER", "start_char": 0, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "MODI SPINNING & WEAVING MILLS CO. LTD", "offset_not_found": false}}, {"text": "INCOME-TAX\n\nOFFICER,\n\nSPECIAL\n\nINVESTIGATION\n\nCIRCLE (B), MEERUT", "label": "RESPONDENT", "start_char": 46, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "INCOME-TAX OFFICER, SPECIAL INVESTIGATION CIRCLE (B), MEERUT", "offset_not_found": false}}, {"text": "February 10, 1969", "label": "DATE", "start_char": 112, "end_char": 129, "source": "ner", "metadata": {"in_sentence": "A v.\n\nINCOME-TAX\n\nOFFICER,\n\nSPECIAL\n\nINVESTIGATION\n\nCIRCLE (B), MEERUT\n\nFebruary 10, 1969\n\n[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.J\n\nIncome Tax A.ct, 1922, s. 34(l)(a)-Notlce in respect of incom• escaping assessment--Condition.r precedent to issue of."}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 135, "end_char": 142, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "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": "A. N. GROVER, JJ", "label": "JUDGE", "start_char": 161, "end_char": 177, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "s. 34(l)(a)", "label": "PROVISION", "start_char": 204, "end_char": 215, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 1069, "end_char": 1077, "source": "regex", "metadata": {"statute": null}}, {"text": "Income Tax Act, 1922", "label": "STATUTE", "start_char": 1090, "end_char": 1110, "source": "regex", "metadata": {}}, {"text": "November 20, 1964", "label": "DATE", "start_char": 1116, "end_char": 1133, "source": "ner", "metadata": {"in_sentence": "On November 20, 1964, the Income Tax Officer issued notices of rea,...sment for the three yean under section 148 of the Income Tax Act,\n\n1961."}}, {"text": "section 148", "label": "PROVISION", "start_char": 1214, "end_char": 1225, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1922", "statute": "the Income Tax Act, 1922"}}, {"text": "Income Tax Act", "label": "STATUTE", "start_char": 1233, "end_char": 1247, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 1376, "end_char": 1384, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act,\n\n1961", "statute": "the Income Tax Act,\n\n1961"}}, {"text": "section 34", "label": "PROVISION", "start_char": 3034, "end_char": 3044, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 3196, "end_char": 3224, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeals Nos."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 3352, "end_char": 3372, "source": "ner", "metadata": {"in_sentence": "Appeals by special leave from the judgment and order dated November 24, 196.7 of the Allahabad High Court in Special Appeals Nos."}}, {"text": "S. 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{"document_id": "1969_3_597_602_EN", "year": 1969, "text": "SHEIKH ABDUL REHMAN\n\nJAGAT RAM ARYAN\n\nFebruary 11, 1969\n\n[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.]\n\nJammu and Kashmir Constitution, 1957, s. 51(a)-Signed oalh form filed before authorised officer-No oath or affirmation made before the officer nor oath for1n signed before hini-If section con1plied with.\n\nSection 5 l(a) of the Jammu and Kashmir Constitution provides that a person shall not be qualified to be chosen to fill a seat in the State Legislature unless Ile 1nakes and subscribes an oath or affirmation in the prescribed for\"' before the person outhorised in that behalf. The Election Commission nc:ified the Returning Officer and the Assistant Returning Officer as the authorised officers.\n\nWhere a candidate did not sign the oath form before the Assi; tant Returning Officer, nor make oath or affirmation in his presence, but presented to the Assistant Returning Officer the candidate's nomination paper along with the oath form filled up and signed before presentation,\n\nHELD: There was no sufficient compliance with s. 51 (a) and therefore, the candidate was not qualified to be choseri to fill the seat in the Legislature under the section, and his nomination paper \\vas liabl~ to be rejected by the Returning Officer at the time of scrutiny under s. 47(2)\n\n(a) of the Jammu and Kashmir Representation of the People Act, 1957 [601 E-F, H; 602 ABl\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1527 of 1968.\n\nAppeal under s. 123 of the Jammu and Kashmir Representa tion of the People Act,. 1957 from the Judgment and order dated F April 29, 1968 of the Jammu and Kashmir High Court in ElectiOn Petition No. 33 of 1967.\n\nR. N. Bhalgotra and S. S. Khanduja, for the appellant.\n\nR. K. Garg, S. C. Agarwal, D. P. Singh and S. Chakravarti, for the respondent.\n\nG The Judgment of th.~ Court was delivered by Bachawat, J. This appeal is directed against a ju?gent. o~ a Single Judge of the High Court of Jammu and Kashmir dtsm1ssmg an election petition for setting aside th~ election of the respondent Jagat Ram Aryan to the legislative assembly of the State of Jamm~ & Kashmir from the Bhaderwah schedulefl caste assembly consl!- 'H tuency. !\n\nThe last date for filing the nomination papers was January 20,\n\n1967. The date of scrutiny of nomination papers was January 23,\n\n1967. The date of poll was February 21, 1967. The date of counting and dc; claration of result was March l, 1967. Several candidates filed their nomination papers from this constituency.\n\nThe candidates were : {I) Jagat Ram Aryan, (2) Faquir Chand,\n\n(3) Narain Dass, (4) Nikka Ram, (5) Bhagat Ram, (6) Om Parkash and (7) Swami Raj. The first five filed their nomination papers on January 23, 1967 before the Assistant Returning Officer, Kahan Singh, a Tehsildar of Bhaderwah. On scrutiny of the nomination papers, the Returning Officer Abdul Gani accepted as valid the nomination papers of J agat Ram and Faquir Chand and rejected the nominations papers of the remaining candidates for various reasons.\n\nAt the poll the contest was between Jagat Ram, the congress candidate and Faquit\" Chand, the National Conference candidate.\n\nRespondent Jagat Ram having secured larger number of votes was declared elected.\n\nThe appellant, a voter in the constituency, filed the ckction petition for setting aside the respondent's election on the ground that the nomination papers of Narain Dass, Nikka Ram and Bhagat Ram were improperly rejected.\n\nThe High Court found that the nomination paper of Bhagat Ram was properly rejected and this finding is no longer challenged.\n\nThe nomination paper of Nikka Ram was rejected on three grounds : ( 1 ) he did not make and subscribe the oath or affinnation as required by's. 51(a) of the Jammu & Kashmir Constitution; (2) he was not a member of a scheduled caste and (3) his E father\"s name was not correctly shown in the electoral rolls. The nomination paper of Narain Dass was rejected on two grounds : ( 1 ) he did not make and subscribe the oath or affirmation as required bys. 51 (a) and (2) he was not a member pf a scheduled caste. The High Court found that both Narain Dass and Nikka Ram were members of the scheduled caste \"Megh\". It also held that the error in the electoral roll with regard to the name of F Nikka Ram's father was not a ground for rejecting his nomination paper having regard to s. 44 ( 4) of the J. & K. Representation of the People Act, 1957.\n\nThe High Court also rejected the addi tional contention that Narain Dass had not made a deposit of Rs. 125 in conformity with s. 45 (2) of the Act. All these findings are no longer challenged.\n\nG The only point now in issue is whether Narain Dass and Nikka Ram made and subscribed the oath or affirmation as required by s. 51 (a) of the J. & K. Constitution. Section 51 (a) provides :\n\n\"A person shall not be qualified to be chosen to fill a sent in the Legislature unless he-\n\n( a) is a permanent resident of the State, and makes and subscribes before some person authorised in that belialf by the Election Commission of India an oath or\n\n.,...\n\naffirmation according to the form set out for the purpose in the Fifth Schedule.\"\n\nThe Returning Officer and the Assistant Returning Officer were authorised in this behalf by the Election Commission of India bv notification No. 3/ 4 J & K/65 as the persons before whom the oath or affirmation could be made and subscribed. The prescribed form of oath or affirmation to be made by a candidate of the State legislature is :-\n\n\"I, A.B., having been nominated as a candidate to fill a seat in the Legislative Assembly, (or legislative Council) do swear in the name of God/solemnly affirm that I will bear true faith and allegience to the Constitution of the State as by law established and that I will uphold the sovereignty and integrity of India.\"\n\nSection 44 of the J. & K. Representation of the People Act,. 1957 provides for presentation of nomination papers and prescribes certain requirements for a valid nomination.\n\nSection 45 provides for deposits. Section 46 deals with notice of nominations and the time and place for their scrutiny. Section 47 (2)(a)- reads :- ;.The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary enquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds;\n\n(a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of tile provisions of sections 51 and 69 of the Constitution and Part VI of this Act; .... \"\n\nForm 2A of the J. & K. Representation of the People (Conduct of election and election petition) Rules, 1957 prescribes the form of nomination paper for election to the legislative assembly.\n\nIt is common case that along with their nomination papers both Narain Dass and Nikka Ram filed oath forms signed by them.\n\nThe appellant's case is that at the time of the presentation of their nomination papers both Narain Dass and Nikka Ram made oaths and signed the oath forms in the presence of the Assistant Returning Officer. In support of this case, the appellant examined Narain Dass. Nikka Ram. Abdul Qayum and Abdul Rehman.\n\nThe respondent's case ; s that Narain Dass and Nikka Ram did not make or subscribe any oath or affirmation before the Assistant Returning Officer, that the oath forms had been filled up and signed before they were presented to him and were not signed in his\n\npresence.\n\nIn support of his case the respondent examined Kahan A Singh, the Assistant Returning Officer, and Abdul Gani, the Returning Officer.\n\nThe High Court accepted the respondent's case.\n\nIt should be remembered that the requirement of making and subscnbing an oath or affirmation was inserted in s. 51 (a) of the J. & K. Constitution by the Co, nstitution Sixth Amendment Act,\n\n1965. There is ground for believing that Narain Dass and Nikka Ram were not aware of this provision and for this reason they omitted to make or subscribe any oath or affirmation before the Assistant Returning Officer.\n\nOur attention was drawn to Instruction No. 7 ( 7) in Chapter U at p. 19 of the Handbook for Returning Officers, issued by the Election Commission, India, for General Elections, 1967. The aforesaid instruction was as follows :-\n\n\"The oath or affirmation has first to be made and then signed by the candidate before the authorized officer. It should be borne in mind that mere signing on the paper on which the form of oath is written out is not sufficient. The candidate must make the oath before the authorised officer.\n\nAccordingly he will ask the candidate to read aloud the oath or affirmation in English or the regional language and then to sign and date the paper on which the oath or affirmation is written.\n\nIn the case of illiterate persons who want to contest elections, and who cannot properly make and subscribe the oath or affirmation the authorised officer, should read out the prescribed oath and ask the candidate to repe;; t the same and thereafter take his thumb impression on the form on which the oath is printed or cyclostyled in token of his having subscribed the oath. The authorised officer should endorse on this paper that the oath or affirmation has been made and subscribed before the candidate on that day.\n\nHe will immediatelv furnish to the candidate a certified copy thereof keeping a copy for your record. The candidate will produce this copy as evidence before you at the time of scrutiny of nomination papers.\n\nThis copy will be given to the candidate forthwith without his applying for it. nor any fee be charged for it.\"\n\n.Kahan Singh the Assistant Returning Officer was not conversant with these instructions.\n\nHe did not ask either Narain Dass or Nikka Ram to read the oath or to sign the oath form in his presence. But the breach of these instructions does not entitle them to say that they had made and subscribed the oath before the Assistant Returning Officer when in fact they did not make or -subscribe the oath before him.\n\nIt is admitted by the appellant that the oath forms filed by Narain Dass and Nikka Ram did not bear any endorsement of the Assistant Returning Officer stating that the oath or affirma tion had been made and subscribed before him nor was any certificate of such endorsement furnished to them.\n\nThe absence of the endorsement on the oath forms tend to suggest that no oath or affirmation was made and subscribed by them before the Assistant Returning Officer.\n\nNeither Narain Dass nor Nikka Ram could produce before the Returning Officer Abdul Gani any evidence of their making and subscribing the oath or affirmation. Abdul Gani gave them an opportunity to produce affidavits in proof of this fact but they did not file any affidavit or any other evidence before him.\n\nThe appellant examined witnesses to prove that attempts w.ere made to file such affidavits, but the High Court rightly rejected the testimony of these witnesses. The materials on the record corroborate the testimony of Kahan Singh, the Assistant Returning Officer that Narain Dass and Nikka Ram did not sign the oath forms in his presence and did not make the oath or affirmation before him. Narain Dass and Nikka Ram were Jana Sangh candidates. Abdul Qayum and Abdul Rehman were their party men. All of them were interested witnesses. Having regard to all the materials on the record it is impossible to prefer their testimony to that of Kahan Singh.\n\nIn agreement with the High Court we hold that neither Narain Dass and Nikka Ram signed the oath forms before the Assistant Returning Officer nor did they make the oath or affirmation before him.\n\nOn January 23, 1967 both Narain Dass and Nikka Ram filed with the Assistant Returning Officer signed and filled up oath forms along with their nomination papers. In our opinion, this was not sufficient compliance with the requirement of s. 51(a).\n\nIn Pashupati Nath v. Harihar Prasad(') this Court held tllat the nomination paper was liable to be rejected under s. 36(2)(a) of the Representation of the People Act, 1951 corresponding to s. 4712)1a) of the J. & K. Representation of the People Act 1957 if the qualification required by Art. 173(a) of the Constitu: tio.n corresponding to s. 51(a) of the J. & K. Constitution did not\n\ne~1st on the date of scrutiny of nominations. In that case no signed oath form was attach~ to the nomination paper or filed before the date. fixed fr srunny ... In 'the present case signed oath forms alon? with nommat1on papers were filed with the Assistant Returnmg Officer on January 23, 1967 before the date fixed for scrutiny. But this fact mak.es no difference. They neither made nor subscribed the oath or affirmation before the Assistant Returnig Officer a~ re9uired bys. 51 (a). On the date fixed for the scrutmy of nomma!Ions they were not qualified to be chosen to\n\n(I I [1968] 2 S.C.R. 812, A.1.R. 1968 S.C. 1064.\n\n'11--\n\nfill the seat in the legislature under s. 5l(a) of the J. & K. Consti A tution and their nomination papers were liable to be rejected under s. 47(2)(a) of the J. & K. Representation of the People Act, 1957.\n\nIn the result, the appeal is dismissed. There will be no order as to costs.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 73, "entities": [{"text": "SHEIKH ABDUL REHMAN", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "SHEIKH ABDUL REHMAN", "offset_not_found": false}}, {"text": "JAGAT RAM ARYAN", "label": "RESPONDENT", "start_char": 21, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "JAGAT RAM ARYAN", "offset_not_found": false}}, {"text": "February 11, 1969", "label": "DATE", "start_char": 38, "end_char": 55, "source": "ner", "metadata": {"in_sentence": "SHEIKH ABDUL REHMAN\n\nJAGAT RAM ARYAN\n\nFebruary 11, 1969\n\n[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.]"}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 58, "end_char": 69, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 71, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "K. S. HEGDE, JJ.", "label": "JUDGE", "start_char": 90, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "s. 51(a)", "label": "PROVISION", "start_char": 147, "end_char": 155, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5", "label": "PROVISION", "start_char": 314, "end_char": 323, "source": "regex", "metadata": {"statute": null}}, {"text": "Election Commission", "label": "ORG", "start_char": 595, "end_char": 614, "source": "ner", "metadata": {"in_sentence": "The Election Commission nc:ified the Returning Officer and the Assistant Returning Officer as the authorised officers."}}, {"text": "s. 51", "label": "PROVISION", "start_char": 1039, "end_char": 1044, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 47(2)", "label": "PROVISION", "start_char": 1272, "end_char": 1280, "source": "regex", "metadata": {"statute": null}}, {"text": "Jammu and Kashmir Representation of the People Act, 1957", "label": "STATUTE", "start_char": 1293, "end_char": 1349, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 123", "label": "PROVISION", "start_char": 1448, "end_char": 1454, "source": "regex", "metadata": {"linked_statute_text": "the Jammu and Kashmir Representation of the People Act, 1957", "statute": "the Jammu and Kashmir Representation of the People Act, 1957"}}, {"text": "R. N. Bhalgotra", "label": "LAWYER", "start_char": 1646, "end_char": 1661, "source": "ner", "metadata": {"in_sentence": "R. N. Bhalgotra and S. S. Khanduja, for the appellant."}}, {"text": "S. S. Khanduja", "label": "LAWYER", "start_char": 1666, "end_char": 1680, "source": "ner", "metadata": {"in_sentence": "R. N. Bhalgotra and S. S. Khanduja, for the appellant."}}, {"text": "R. K. Garg", "label": "LAWYER", "start_char": 1702, "end_char": 1712, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, S. C. Agarwal, D. P. Singh and S. Chakravarti, for the respondent."}}, {"text": "S. C. Agarwal", "label": "LAWYER", "start_char": 1714, "end_char": 1727, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, S. C. Agarwal, D. P. Singh and S. Chakravarti, for the respondent."}}, {"text": "D. P. Singh", "label": "LAWYER", "start_char": 1729, "end_char": 1740, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, S. C. Agarwal, D. P. Singh and S. 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first five filed their nomination papers on January 23, 1967 before the Assistant Returning Officer, Kahan Singh, a Tehsildar of Bhaderwah."}}, {"text": "Abdul Gani", "label": "OTHER_PERSON", "start_char": 2829, "end_char": 2839, "source": "ner", "metadata": {"in_sentence": "On scrutiny of the nomination papers, the Returning Officer Abdul Gani accepted as valid the nomination papers of J agat Ram and Faquir Chand and rejected the nominations papers of the remaining candidates for various reasons."}}, {"text": "J agat Ram", "label": "OTHER_PERSON", "start_char": 2883, "end_char": 2893, "source": "ner", "metadata": {"in_sentence": "On scrutiny of the nomination papers, the Returning Officer Abdul Gani accepted as valid the nomination papers of J agat Ram and Faquir Chand and rejected the nominations papers of the remaining candidates for various reasons."}}, {"text": "Jagat Ram", "label": "RESPONDENT", "start_char": 3033, "end_char": 3042, "source": "ner", "metadata": {"in_sentence": "At the poll the contest was between Jagat Ram, the congress candidate and Faquit\" Chand, the National Conference candidate.", "canonical_name": "JAGAT RAM ARYAN"}}, {"text": "Faquit\" Chand", "label": "OTHER_PERSON", "start_char": 3071, "end_char": 3084, "source": "ner", "metadata": {"in_sentence": "At the poll the contest was between Jagat Ram, the congress candidate and Faquit\" Chand, the National Conference candidate.", "canonical_name": "Faquit\" Chand"}}, {"text": "Jagat Ram", "label": "RESPONDENT", "start_char": 3133, "end_char": 3142, "source": "ner", "metadata": {"in_sentence": "Respondent Jagat Ram having secured larger number of votes was declared elected.", "canonical_name": "JAGAT RAM ARYAN"}}, {"text": "s. 51(a)", "label": "PROVISION", "start_char": 3695, "end_char": 3703, "source": "regex", "metadata": {"statute": null}}, {"text": "F Nikka Ram", "label": "OTHER_PERSON", "start_char": 4240, "end_char": 4251, "source": "ner", "metadata": {"in_sentence": "It also held that the error in the electoral roll with regard to the name of F Nikka Ram's father was not a ground for rejecting his nomination paper having regard to s. 44 ( 4) of the J. & K. Representation of the People Act, 1957."}}, {"text": "s. 44", "label": "PROVISION", "start_char": 4330, "end_char": 4335, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act, 1957", "label": "STATUTE", "start_char": 4356, "end_char": 4394, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 45", "label": "PROVISION", "start_char": 4523, "end_char": 4528, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act, 1957", "statute": "Representation of the People Act, 1957"}}, {"text": "s. 51", "label": "PROVISION", "start_char": 4717, "end_char": 4722, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act, 1957", "statute": "Representation of the People Act, 1957"}}, {"text": "Section 51", "label": "PROVISION", "start_char": 4756, "end_char": 4766, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act, 1957", "statute": "Representation of the People Act, 1957"}}, {"text": "Election Commission of India", "label": "ORG", "start_char": 4996, "end_char": 5024, "source": "ner", "metadata": {"in_sentence": "Section 51 (a) provides :\n\n\"A person shall not be qualified to be chosen to fill a sent in the Legislature unless he-\n\n( a) is a permanent resident of the State, and makes and subscribes before some person authorised in that belialf by the Election Commission of India an oath or\n\n.,..."}}, {"text": "Fifth Schedule", "label": "PROVISION", "start_char": 5109, "end_char": 5123, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act, 1957", "statute": "Representation of the People Act, 1957"}}, {"text": "India", "label": "GPE", "start_char": 5782, "end_char": 5787, "source": "ner", "metadata": {"in_sentence": "The prescribed form of oath or affirmation to be made by a candidate of the State legislature is :-\n\n\"I, A.B., having been nominated as a candidate to fill a seat in the Legislative Assembly, (or legislative Council) do swear in the name of God/solemnly affirm that I will bear true faith and allegience to the Constitution of the State as by law established and that I will uphold the sovereignty and integrity of India.\""}}, {"text": "Section 44", "label": "PROVISION", "start_char": 5791, "end_char": 5801, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 5817, "end_char": 5849, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 45", "label": "PROVISION", "start_char": 5965, "end_char": 5975, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act", "statute": "Representation of the People Act"}}, {"text": "Section 46", "label": "PROVISION", "start_char": 5999, "end_char": 6009, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act", "statute": "Representation of the People Act"}}, {"text": "Section 47", "label": "PROVISION", "start_char": 6086, "end_char": 6096, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act", "statute": "Representation of the People Act"}}, {"text": "sections 51 and 69", "label": "PROVISION", "start_char": 6602, "end_char": 6620, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act", "statute": "Representation of the People Act"}}, {"text": "Abdul Qayum", "label": "OTHER_PERSON", "start_char": 7268, "end_char": 7279, "source": "ner", "metadata": {"in_sentence": "Abdul Qayum and Abdul Rehman."}}, {"text": "Abdul Rehman", "label": "OTHER_PERSON", "start_char": 7284, "end_char": 7296, "source": "ner", "metadata": {"in_sentence": "Abdul Qayum and Abdul Rehman."}}, {"text": "Kahan A Singh", "label": "OTHER_PERSON", "start_char": 7616, "end_char": 7629, "source": "ner", "metadata": {"in_sentence": "In support of his case the respondent examined Kahan A Singh, the Assistant Returning Officer, and Abdul Gani, the Returning Officer.", "canonical_name": "Kahan A Singh"}}, {"text": "s. 51", "label": "PROVISION", "start_char": 7861, "end_char": 7866, "source": "regex", "metadata": {"statute": null}}, {"text": "Sixth Amendment Act", "label": "STATUTE", "start_char": 7921, "end_char": 7940, "source": "regex", "metadata": {}}, {"text": "Election Commission, India", "label": "ORG", "start_char": 8288, "end_char": 8314, "source": "ner", "metadata": {"in_sentence": "7 ( 7) in Chapter U at p. 19 of the Handbook for Returning Officers, issued by the Election Commission, India, for General Elections, 1967."}}, {"text": ".Kahan Singh", "label": "OTHER_PERSON", "start_char": 9720, "end_char": 9732, "source": "ner", "metadata": {"in_sentence": ".Kahan Singh the Assistant Returning Officer was not conversant with these instructions.", "canonical_name": "Kahan A Singh"}}, {"text": "Kahan Singh", "label": "WITNESS", "start_char": 11118, "end_char": 11129, "source": "ner", "metadata": {"in_sentence": "The materials on the record corroborate the testimony of Kahan Singh, the Assistant Returning Officer that Narain Dass and Nikka Ram did not sign the oath forms in his presence and did not make the oath or affirmation before him."}}, {"text": "Abdul Qayum", "label": "WITNESS", "start_char": 11345, "end_char": 11356, "source": "ner", "metadata": {"in_sentence": "Abdul Qayum and Abdul Rehman were their party men."}}, {"text": "Abdul Rehman", "label": "WITNESS", "start_char": 11361, "end_char": 11373, "source": "ner", "metadata": {"in_sentence": "Abdul Qayum and Abdul Rehman were their party men."}}, {"text": "January 23, 1967", "label": "DATE", "start_char": 11751, "end_char": 11767, "source": "ner", "metadata": {"in_sentence": "On January 23, 1967 both Narain Dass and Nikka Ram filed with the Assistant Returning Officer signed and filled up oath forms along with their nomination papers."}}, {"text": "s. 51(a)", "label": "PROVISION", "start_char": 11985, "end_char": 11993, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36(2)(a)", "label": "PROVISION", "start_char": 12110, "end_char": 12121, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 12129, "end_char": 12167, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 4712", "label": "PROVISION", "start_char": 12185, "end_char": 12192, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "Representation of the People Act 1957", "label": "STATUTE", "start_char": 12212, "end_char": 12249, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 173(a)", "label": "PROVISION", "start_char": 12283, "end_char": 12294, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act 1957", "statute": "Representation of the People Act 1957"}}, {"text": "s. 51(a)", "label": "PROVISION", "start_char": 12335, "end_char": 12343, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act 1957", "statute": "Representation of the People Act 1957"}}, {"text": "[1968] 2 S.C.R. 812", "label": "CASE_CITATION", "start_char": 12962, "end_char": 12981, "source": "regex", "metadata": {}}, {"text": "s. 5", "label": "PROVISION", "start_char": 13053, "end_char": 13057, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act 1957", "statute": "Representation of the People Act 1957"}}, {"text": "s. 47(2)(a)", "label": "PROVISION", "start_char": 13154, "end_char": 13165, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act 1957", "statute": "Representation of the People Act 1957"}}, {"text": "Representation of the People Act, 1957", "label": "STATUTE", "start_char": 13181, "end_char": 13219, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1969_3_603_644_EN", "year": 1969, "text": "SAMANT N. BALAKRISHNA ETC.\n\nGEORGE FERNANDEZ AND ORS. ETC.\n\nFebruary 12, 1969\n\n[M. HlDAYATULLAH, C.J. AND G. K. MITTER, J]\n\nRtpresentation of tile Ptople A.ct (43 of 1951), J's. 81, 86(5), 100\n\n(1) (b) 100( 1 )(d)(ii) artd 123(4)-Difference b•tween 'material facts' and prticulars'-Whal amtrtdmtnts art pmnisslb/e after the p<rlod of /imitation-Candidatt's lack of btlief in stcttments made by agtnts I?, be , stab/ished-Differenct between s. lOO(l)(b) and s. 100(1)(d)(!1)- Necessity of proof that candidate consented to specific corrupt practice- <: Editor of newspaper attacking one ccndidate-When. can be dee'!'ed to be\n\nagent of a rival cartdidate-Consent of candidate, •I can be inferred-\n\nKnowledge if suf!ic,.ent proof of consent-Statements in newspapers, weight of_:_Proof thct result of election was materially affected-Burden of proof.\n\nUnder s. 81 of the Representation of the Peo, Ple Act, 1951, an election can be challenged by means of an election petition filed within 45 days D of the date of election, on the grounds specified in s. 100( 1). Section 100\n\n(l)(b) and (d)(li) deal with corrupt practices, and s. 123 sets out what shall be deemed to be corrupt practices. To establish the corrupt practice under s. 123(4) the election petitioner must prove: (a) the publication of a statement of fact by (i) a candidate, or (ii) his agent, or (iii) any other person with the consent of the candidate or his election aaent; (b) that the statement is false o'r the candidate believes it to be false or does not blieve it to be true; (c) that the statement refers to the personal E character and conduct of another candidate; and (d) that it is reasonably calculated to prejudice that other candidate's pro&pects of election. Under the Explanation to the section, the word 'agent' includes an election agent, a polling agent or any pe'rson who is held to have acted as an agent in connection with the election with the consent of the candidate. If the corrupt practice is committed by the returned candidate or his election agent, .under s. lOO(l)(b), the election is avoided without any further\n\nF condition being fulfilled, but if the petitioner 'relies on a corrupt practice committed by any other agent other than an election agent the petitioner must prove that it was committed with the consent of the returned candidate or his election agent as required bys. lOO(l)(b), or that the corrupt practice which was committed in the interests of the returned candidate materially affected tho result of the election in so far a' It con. ctrntd the ret11mtd rand/date. [617 A-B; 618 B-D]\n\nSection 83 requires that tho petition must contain a concise statement G of tho material facts on which tho petitioner relies and the fullest pouible\n\nparticulars of the corrupt practice alleaod. 'Material facts' and 'particu Ian' may ovtrlap but the word 'material' shows that tho around of corrupt practice and the facts nee.nary to formulate a complete cause of action niust be stated. The funclon ot the pa.fticulan is to present 81 full a picture of the cause of action as to make the opposite party understand the case he will have to meet.\n\nUnder s. 86(5), if a corrupt practice is H alleged in the petition the particulars of suilb corrupt practice may be amended or am, Plifted for ensuring a fair and effective trial, that is, more and better particulars of the char~ may be .Riven later even after the period .o~ limitation; but if a rrut prlctlce fs not previously allepc! in the petition, an amendment which will have the effect of introducina parti\n\nculars of such a corrupt practice will not be permitted, after the period of limitation, because, it would be tantamount to the making of a fresh petition.\n\nMerely repeating the words of the statute does not amount to J. proper statement of material facts where the allegation of co'rn1pt practice is the making of a false statement. The false statement must appear in the petition.\n\nIf the corrupt practice is the publication of an article in a ne\\\\ paper no incorporation of the contents by reference can be allowed, fc1r, if a newspaper is not exhibited and only the date is mentioned, the material fact, namely, the exact offending portion of the newspaper, would not have been stated. If the charge is that c.n agent did something, it cannot be amplified by giving particulars of acts on the part of the candidate or vice versG, because, in the .scheme of eled.tion law, publication of false statements by an agent is one cause of action and publication of false statements by a candidate is quite a different cause of action.\n\nThey are separate corrupt practices which cannot be said to grow out of the material facts related to another person.\n\nSince a single corrupt practice committed by the candidate or by his election agent, or by any other person \\Vith the consent of the candidate of his election agent is fatal tO the election. the case must be specifically pleaded and strictly proved; if not. such corrupt practice cannot be alleged later on after the period of limitation [619 C-H; 621 B-D; 622 A-D, F-G; 623 E-H;\n\n629 A-B] In the present case, the election of the :first respondent to Parliament from Bombay South Pi., liamentary constituency, was challenged by the appellant (an elector in the constituency) on the ground that corrupt practices were committed.\n\nThe result of the poll was declared on February 24, 1967.\n\nThe first respondent secured 1,47.841 votes and his nearest rival. the second respondent. secured 1,18,407 votes.\n\nThe peti tion was filed on April 7, 1967.\n\nThe corrupt practice alleged was that the first respondent made some speeches. and that the first respondent and two others, with the consent and for the benefit of the first respondent, made false statements, casting aspersions on the character and conduct of the second .respondent. and that those and other false statements were published as news items in the daily newspaper 'Maratha'. Extracts from the newspapers. were annexed.\n\nIt was also stated that similar false statements Vt'e're published in some other issues of the ne\\Vspaper but no attempt was made either to specify the offending portions of the newspapers or to file the extracts or the original issues. but only the dates were given. There was also no averment that the first respondent believed the statements to be false or did not believe them to be true. After the period of limitation, the o'riginals of alI the issues of the newspapers were filed and after the examination of the election petitioner as a witness, applications for amendment were made.\n\nThe High Court allo\\\\'ed the following amendments: (a) Speeches attributed to the first respondent and a speech said to ha\\'e been made at a mteting. \\vhen the first rcsoondent presided, casting aspersions on the second respondent. to be included among the list of corrupt practices. Reports of those speeches. appeared in the issues of the 'Maratha' which were filed later.\n\n(b) An article in the 'Blitz' \\Vritten by the first respondent defamatory of the second respondent also to be included in the list of corrupt practices. ( c) An averment that the editor of the newspape'r 'Maratha' and the first respondent believed the statements to be false or that they did not believe them to be true. And ( d) an ave:rment that the editor of the newspaper and the t\\VO others \\Vere the agents of the :first respondent.\n\nThe High Court ho\\vever, dismissed the election petition. [614 E-F: 616 Bl In appeal to this Court, on the questions : ( 1) Whether all or any of the amendments should be allowed: (2\\ Whether the editor of the\n\n~1aratha' and the two others committed corrupt practices under s. 100\n\nIi'\n\nBALAKRISHNA V. FERNANDEZ 605\n\n(I )(b) by publishing the statements about the second respondent with the consent of the first respondent and (3) Whether the result of the election in so far as it concerned the first respondent was materially affected by the publication as required by s. !OO(l)(d) (ii),\n\nHELD : (I) The amendments relating to the speeches of the first respondent and bis article in the Blitz should not be allowed; but the amendments relating to the agency of the editor of the 'Maratha' and the two others, and that seeking to incorporate the averment about the lad of. belief of the editor of 'Maratha' and the first respondent should be allowed. [616 E-G)\n\nIn the petition as originally filed, the agency of the editor of 'Maratha• and the two others was the basis of the charge and the first respondent was left out.\n\nOnly one allegation was made personally against the first respondent namely that be made some speeches but that was not relied upon and no evidence regarding it was adduced. The other allegation m\n\nthe original petition was that he made some statements, and that the 'Maratha' published them; and the extracts from the 'Maratha' were filed as exhibits.\n\nSince publication of a false statement is the gist of the election offence the charge was against the 'Maratha' and its editor. If it was intended that the first respondent shoWd be held responsible then the allegation should have been what statement he made and how it offended the election law. There was however no reference to any statement by the first respondent himself throughout the petition as it was originally filed and in fact there was no charge against him.\n\nDmin11 the election the second respondent did not once protest that the first respondent was spreading false propaganda and even after election he did not attribute anything to the lint respondent. Therefore, the amendments which had the cffec:it of introducing new corrupt practices relating to the candidate himself which had not been pleaded earlier should not be allowed, as that kind of amendment, sought after the l\"'riod of limitation, ia prohibited under the law. But the allegation that m publishing the statements in the 'Maratha' its editor acted as the agent of the first respondent, that the statements were false or were believed to be false by the first respondent and the editor. and that they were calculated to prejudice the second respondent's chances and did so prejudice, should be allowed. 'Ibey are merely particulars to be added for completing the cause of action relating to a corrupt practice already alleged. The result is that the case ia confined to that of a candidate souibt to be made responsible for the acts of his agent other than an election agent. [620 G; 624 A-F; 632 A-B]\n\nJagan Nath v. Jaswant Singh, [19S4] S.C.R. 892-89S, Bhim Sen v.\n\nGpali, [1960] 22 E.D.R. 288 (S.C.), Chandi Prasad Chokani v. Statt of B1har, [1962) 2 S.C.R., 289, Sheopat.Singh v. Ram Pratap, [196S) I S.C.R. 11S and Kumara Nand v. Brij Mohan, [1967) 2 S.C.R. 127, followedc\n\nH<rish Chandra Bajpai v. Triloki Singh, [19S7] S.C.R. 370, explained.\n\n. Din Dlzyal v. Btni Prasad, IS E.LR. 131, Balwant Singh v. Eltetion Tnb.u\"\"!, IS E.L.R. 199, Sasivarna Thevar v. Arunaglri, 17 E.L.R. 313, Har1 Vishnu KllTrlath v. Election Tribunal, 14 E.L.R. 147, Dtvalah v.\n\nNagappa, A.I.R. 196S Mys. 102, Babula! Sharma v. Brijnarain Brait1h, A.I.R. 19S8 M.P. 17S (F.B.), Beal v. Smith, L.R. 4 C.P. HS; Bruct v.\n\nOdhams Press Ltd. [1936) I K.B. 697 and Phillips v. Phillips, (18781 4 Q.B.D. 127, referred to.\n\n(2) Regard however being had to the activities of the editor of 'Maratha' as editor and his own pcl'sonaJ hostility to the second respon- LU&p./69-4\n\n.dent, every act of the editor could not be attributed to the first respon- denl The editor's field of agency must be limited to what he said as the .aaent of the first respondent and would not embrace the field in which .be was acting as editor of his newspaper unless the first respondent's consent to the corrupt practices was established. [636 E-F; 638 B.C]\n\nConsent need not be directly proved and could be inferred from cir- CUmstantial evidence, such as a consistent course of conduct of the candidate.\n\nBut the circumstances must point unerringly to the conclusion and must not admit of any other explanation. Although an election petition is tried in accordance with the Civil Procedure Code, a corrupt practice must be proved in the same way as a criminal charge is proved.\n\nEnglish cases dealing with illeal practices in which the candidate is held reaponsible for the acts of his agent, are not a proper guide, because, English law, unlike Indian law, makes a distinction between 'illegal practices' and 'corrupt practics'. Further, the consent of the candidate must be specific and must be proved for each corrupt practice. If every act of\n\nan agent is presumed to be with the consent of the candidate there would be no room for the application of the extra condition laid down by s. lOO(l)(d), namely, the material effect on the result of the election, be- .cause, whenever agency is proved either directly or ircumstantially, the finding about consent under s. 100(1) (b) will have to follow. [637 A-HJ In the present case, though the newspaper ran a special column as an election front of the fint respondent, no article or comment in that column was relied on for proving a corrupt practice.\n\nIt was not even suggested that the first respondent wrote any article for the 'Maratha'.\n\nThe statements which were relied on as corrupt practices were made by the editor of the newspaper in the normal course of running a newspaper, u news items or in the editorial. They stated the policy of the newspaper and its comments upon the events.\n\nMany of the news items appeared in more than one paper. If it could not be said that the editors of each of those papers acted as an agent for the first respondent there is no reason for holding that the editor of 'Marathil' alone acted as such agent. It was not as if the matter was left entirely in the hands of the editor who acted as a wholetime agent or solely as the agent of the first \\'espondent, nor is it a case of some persons settin!t up the first respondent as a candidate and sponsoring his cause. The editor did not publish any J*opaganda material such as leaftets or pamphlets.\n\nTherefore, though the editor was a supporter and agent of the first respondent, it could not be said that the first respondent consented to each publication as it appeared or even generally consented to the publication of items defaming the charaCler and conduct of the second responden\\. The first respondent denied knowledge of the articles.\n\nFrom his false suppression of some other facts and denial of others, it could not be Hid that his denial of kaowledge of the articles in the 'Maratha' was also false.\n\nBut even if he had knowledge, it would not be sulllcient, becall!e, the law requires some concrete prodf, direct or circumstantial, of consent, and not merely of knowledge or connivance.\n\nFurther, no such inference regardins the 1ir•t respondent's consent could be drawn from the comments and speec:hes\n\nattributed to the first respondent by the 'Maratha' and other neWBpapers dr from any similarity of ideas or language, because, news Items when published are garbled versions and cannot be regarded as proof of what actually happened or was said without other acceptable evidence through proper witnesses. 1629 B-H; 630 A-B; 632 F-H; 633 A-D; 634 A-H; 635 A--0; 636 A-D; 638 A--0; 639 A-Bl\n\nAB regards the other two persons, even evidence regading their agency was non-existent and there was no material on which the first respondent's consent to their statements could be presumed or inferred. [640 A•B]\n\n'fl\n\nBALAKRISHNA v. FERNANDEZ 607\n\nTberefore, since the consent of the candidate to the corrupt pract\\e was not proved the cjise will have to be judged under s. lOO(l)(d)(u) and not under s. !OO(l)(b). [640 DJ\n\nRama Krishn~'s case, C.A. No. 1949/67 dated 23-4-68, Inder Lall Yugal Kishore v. Lal Singh, A.1.R. 1961 Raj. 122, Gopal Swami v. A.bdul Hamid Chowdhury, A.LR. 1959 Assam 200, A.dom.r v. Hon. E. F. uveson Gower, 1 O'Malley & Hardcastle 218, Christie v. Grieve, I O'Malley & Hardcastle 251, Spencer; John Blundell v. Charles Harrison, 3 O'Malley I< Hardcastle 148, Biswanath Upadha, va v. Har<lal Das, A.LR. 1958 Assam 97, A.bdul Majeed v. Bhargavan, A.I.R. 1963 Kerala .18, Rustom Satin v. Dr. Sampoornancnd 20 E.L.R. 221, Sarala Devi Pathak •· Birendra Singh, 20 E.L.R. 275, Krishna Kumar v. Krishna .Gopal, A.l.R: 1964 Raj. 21, Lal Singh v. Vallabhdas, A.LR. 1967 Gu1. 62, Badri Narain v. Karrtdeo Prasad,\n\nA.LR. 1961 Pat. 41, Sarai Chndra v.\n\nKhagendranath, A.LR. 1961 S.C. 334 and Taunton'.' co<e, I O'Malley & Hardcastle 181, 185, referred to.\n\nBayley v. Edmunds, Byron & Marshal/ (1894) 11 T.L.R. 537, distinguished.\n\n( 3) To bring a case under s. 100(1 )( d )(ii) it is not sufficient to ?'rove that a person acted as an agent with the consent of tbe candidate.\n\nTbe petitioner will have to establish that the conditions required by s.\n\nlOO(l)(d)(ii) ands. 123(4) are satisfied, that is: (a) that a false state ment was made by an agent, (b) that the first respondent did not believe the statement to be true or believed it to be false; ( c) that it related to tbe personal character and conduct of the second respondent; ( d) that it was reasonably calculated to harm the chances of the second respondent; and ( e) that it in fact materially affected the result of the election in so far as the first rtspondent was concerned, Conditions (a), (b) and (c) were admitted by the flsst respondent and, since the articles cast violent aspersions on the second respondent and showed a deliberate attempt to lower his character, condition (d} was also satisfied.\n\nBut as condition ( e) was not satisfied, the election petition should be dismissed. [640 D-H]\n\nEven after considering the nature of attacks made on the second respondent, the 'frequency and extent of publicity, the medium of circulation and the kinds of issues raised before the voters, it could not be said in the circumstances of this case, that the result of the election in so f.; .. the flsst respondent was concerned waa materially affected. The matter could not be decided on possibilities rir on a reasonable judicial guess be\n\ncause, the law requires proof, and though s. 100(1) (d} casts a duiicult btlrden on the election petitioner, that burden must be successfully discharged by him. [641 B-D; 644 B-D]\n\nThere was a large difference (about 30,000) between the votes receiv ed by the two rival candidates, namely the first and second reapondenta and as m\"!ly as 38, S6S votes were cast in favour of the remaining candi: dates and It is impossible to say how much the second respondent lost or first respondent gained by reason of the false statement&. After the election the second respondent never for a moment attributed his defeat to the false propangada of the first respondent or his supprirters and even said that the election was conducted with propriety. [643 E-H; 644 D-F)\n\nVashist NGrain Sarma v. Dev Chandra, (1955] 1 S.C.R. 509, Surendra Nath Khosla v. Dalip Singh, [1957] S.C.R. 179 and lnayatullah v Diwan chand Mahajan, IS E.L.R, 219, 235, 236, followed. ·\n\nHackney's case, 2 O'Mallev and Hardcastle, 77, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 895 and 896 of 1968.\n\nAppeals under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated January 29, 1968 of the Bombay High Court in ElectJOn PetitiQJl No. 6 of 1967.\n\nR. Jethama/ani and H. N. Hingorani and K. Hingorani, for the appellant (in C. A. No. 895 of 1968).\n\nC. K. Daphtary, A. K. Sen, K. S. Cooper and K. Hingorani, for the appellant (in C. A. No. 896 of 1968).\n\nA. S. R. Chari, Porus A. Mehta, S. B. Naik, Kumar Mehta, R. Nagaratnam and K. Rajendra Chaudhuri, for respondent No. 1 (in both the appeals).\n\nThe Judgment of the Court was delivered by\n\nHidayatullah, C.J. In the last General Election to Parliament from the Bombay South Parliamentary constituency eight candidates had offered themselves. The answering respondent Mr.\n\nGeorge Fernandez secured 1,47,841 votes as against his nearest rival Mr. S. K. Patil who secured 1,18,407 votes. The remaining candidates secured a few thousand votes between them. The result of the poll was declared on February 24, 1967 and Mr.\n\nGeorge Fernandez was returned.\n\nAn election petition was filed by .Mr. Samant N. Balakrishna, an elector in the constituency. It challenged the election of Mr. Fernandez and was ostensibly in the interest of Mr. S. K. Patil. The election petition was keenly contested and Mr. S, K. Patil gave his full support to the petition.\n\nThe election petition failed and it was dismissed with an order for costs against the election petitioner and Mr. S. K. Patil.\n\nTwo appeals have now been filed against the judgment of the Bombay High Court, one by the election petitioner and the other by Mr.\n\nS. K. Patil. They have been heard together and this judgment will dispose of both of them.\n\nThe petition was based on numerous grounds which were set out in paragraph 2 of the petition. These grounds were shown separately in sub-paragraphs A to J.\n\nSub-paragraphs A to D dealt with the invalidity of the election for non-compliance with s. 62 of the Representation of the People Act and Arts. 326 and 327 of the Constitution.\n\nThese concerned the secrecy of ballot (A), registering of some voters in two constituencies (B), omission of qualified voters from electoral rolls ( C) and impersonation by persons for dead or absent voters (D). These four grounds\n\nBALAKRISHNA v. FERNANDEZ (Hidayatullah, C.l.) 609\n\nwere given up in the High Court itself and we need not say anything about them.\n\nSub-paragraphs E to J contained allegations of corrupt practices. The petition was accompanied by four annexures Nos. A to D which were extracts from newspapers on which the charge of corrupt practices was based. The grounds may now be noticed in detail.\n\nSub-paragraph E dealt with statements made at a meeting dated February 16, 19~ at Shivaji Park by Jagadguru Shankaracharya charging Mr. S. K. Patil with complicity in arson of November 7, 1966 at New Delhi and attack on the residence of the Congress President with injuries caused to people. In these articles from the 'Maratha' and the 'Blitz' extracts of which were quoted and annexed as Annexure A, Mr. Patil was described as hypocrite, insi, ncere and dishonest. Similar speeches by Mr. Madhu Limaye, (another candidate of the S.S.P. by which party Mr. Fernandez was sponsored) were relied upon. The statements were \"inspired by Mr. Fernandez\" and \"with his consent and for his benefit\". It was said that they amounted to a corrupt practice under s. 123(4) of the Representation of the People Act.\n\nIn Sub-paragraph F, a statement of Jagadguru Shankaracharya on cow slaughter was made the ground of attack. It was to the effect that Mr. S. K. Patil only pretended to support the anti-cow-slaughter movement but had done nothing in furtherance of it. It was contended that the cow was used as a religious symbol and the speeches offended against the Election Law as stated in section 123(3). These statements were also said to be inspired by Mr. Fernandez and were made with his consent and for his benefit.\n\nSub-paragraph G referred to speeches of Mr. Fernandez and his workers with his knowledge and consent. In those speeches Mr. Fernandez is said to have described Mr. S. K. Patil as the enemy of Muslims and Christians who only professed to discurage sla?ghter of cows and he was charged with intedering :v1th the atlcles of faith of the Muslims and Christians and seekmg. expulsion of Muslims to Pakistan. This was said to offend agamst s. 123 (3A) of the Representation of the People Act.\n\n. In Sub-paragraph H it was alleged that the 'Maratha' ubhshed a false statement to the effect that Mr. S. K. Patil had paid\n\nrupee~ 15 lacs. to Mr. Ja.ck Sequeira to undo the efforts of Mha ashtnans, for mcoi; poratlon of Goa in Maharashtra. The extract rom the Maratha of January 25, 1967 was annexed as Ex B The speech of Mr. H. R. Gokhale who published a similar state: ment, :vas also referred to.\n\nThese were made the grounds of cAomplamt under s. 123 ( 4) of the Representation of the People ct.\n\nIn Sub-paragraph I four issues of the 'Maratha' of the 5th and 31st January, 1967 and 5th and 8th of February, 1967 were exhibited as Ex. C.\n\nIt was stated in the first two that the Shiv Sena supported the Maharashtra traitor Sadoba Patil and that the Shiv Sena was really Sadoba Sena. A cartoon showing Mr.\n\nS. K. Patil as Vishwamitra and the leader of Shiv Sena as Menka with the caption 'Sadoba denies that he has no connection with Shiv Sena like Vishwamitra Menka episode\", was the third. The last of these articles was headed \"harassment from Gondas of Sadoba Patil Shiv Sena in the service of Sadhshiv (S. K. Patil)\".\n\nThese statements were said to be false and made by the 'Maratha' in favour of respondents other than respondent No. 2 (Mr. S. K.\n\nPatil) or at any rate on behalf of Mr. Fernandez. These were said to prejudice the minority communities and thus to offend section 123( 4) of the Representation of the People Act.\n\nThe statements were said to be made with the knowledge and consent of Mr. Fernandez and for his benefit.\n\nIn Sub-paragraph J three issues of 'Maratha' of the 24th, 28th and 31st December 1966 were referred to. In the first it was stated that \"Shri S. K. Patil will go to Sonapur in the ensuing election. Fernandez says in his Articles Patil mortgaged India's Freedom with America by entering into P. L. 480 agreement and Mr. Patil had no devotion, love, respect for this country at all.\" In the second Mr. Patil was described as Nagibkhan of Maharashtra. The third was a cartoon in which Shankaracharya was depicted as saying \"Cow is my mother. Do not kill her\" and Patil S. K. as saying \"Pig is my father\".\n\nThese extracts were annexed as Ex. D.\n\nThen followed a paragraph in which was said : \"Similar false statements in relation to Respondent No. 2's character and conduct were published in several issues of Maratha Daily\" from December 12, 1966 to February 21, 1967 and 33 issues were mentioned by date.\n\nThese were also said to be Ex. D.\n\nThis was the original material on which the petition filed on April 7, 1967 was based. Mr. Fernandez filed his written statement on June 14, 1967 and Mr. S. K. Patil on July 4, 1967.\n\nLater five amendments were asked for. By the first amendment, which was orally asked and allowed, reference to the 33 articles was altered and they were said to be contained in Ex. E instead of Ex. D. Ex. E was then introduced and gave the list of 33 articles in the 'Maratha' and one article in the Blitz, and the extracts on which reliance was placed. On July 4, 1967 an application for amendment was made seeking to add two Sub-paragraphs 2-K and 2-L. 2-K is not pressed now and need not be mentioned. By 2-L the petitioner asked for addition to the list of corrupt practices of a reference to an article dated November\n\nS 1966 in the Blitz. This article was written by Mr. Fernandez. '\n\nF - G\n\nBALAKRISHNA v. FERNANDEZ (Hidayatullah, C.l.) u 1\n\nOn September 12, 1967, an application was made for seven additions to paragraph 2J.\n\nSeven incidents were sought to be included. Of these four were ordered by tb.e Court to be included in 2-J on September 15, 1967 as Sub-sub-paragraphs (i) to (iv) 3jI1d three were rejected. In the first of the Sub-sub-paragraphs so included, a speech at a public meeting at Shiyaji Park. by Mr.\n\nFernandez on January 31, 1967 was pleaded in which Mr.\n\nFernandez is said to have made a statement that even God could not defeat the second respondent (Mr. S. K. Patil) because unlike the second respondent God was not dishonest. It was alllo alleged that Mr. S. K. Patil won elections by \"tampering with the ballot boxes or substituting the same''. These statements were said to be made by Mr. Fernandez deliberately and pialiciously and that he believed them to be false or did not believe them to be true. The report of the speech was quoted from the 'Ma.ratha' of February 1, 1967 and was included as part of Ex. E. In the second Sub-sub-paragraph a Press Conference at Bristol Grill Restaurant on February 9, 1967 addressed by Mr. Fernandez was referred to.\n\nAt that Conference Mr. Fernandez charged Mr. S. K. Patil with \"unfair and unethical electioneering practices\" and as illustrations of his methods mentioned the release of 70 dangerous characters from jail on parole and the suspension of externment orders against some and the allowing of some otheT externed persons to return, were alleged. It was also said that these persons were being used by Mr. Patil in his campaign.\n\nExtracts from the issues of the 'Maratha' of the 1 Oih and 11th February, 1967 were made part of annexure E.\n\nIn the third Sub-sub-paragraph a public meeting at Sahu Siddik Chaw!, of February 10, 1967 was referred to. At that meeting, it was alleged, Mr. Fernandez described Mr. Patil as an \"American Agent, Dada of Capitalists and Creator of Shiv Sena.\" All these statements were said to be false and to reflect upon personal character and conduct of Mr. Patil and thus to be corrupt practices under s. 123 ( 4) of the Representation of the People Act. In the fourth paragraph a meeting of January 8, 1967 at Chowpati, presided over by Mr. Fernandez was referred to.\n\nMr. Madhu Limaye was said to have addressed that meeting and referred to the incident of November 7, 1966. These statements were also said to be false and to materially affect the prospects of Mr. Patil.\n\nIn this Sub-sub-paragraph it was also alleged that Mr. P. K.\n\nAtrey, Editor and Proprietor of the 'Maratha', Jagadguru Shankaracharya and Mr. Madhu Limaye were agents of Mr.\n\nFernandez and had made these statements in his interest and with his consent.\n\nThe petitioner also asked for addition of three other grounds of corrupt practices, which the Court did nbt allow to be included. Paragraph 2-L to which we have referred was an article by Mr. Fernandez. It was captioned as a fight against \"political\n\nthuggery\" and included the following passage which was made the basis of the following charge :\n\n\"These men (including the 2nd Respondent) from the hard core of the coterie which control the destinies of the nation, even decides who should be the Prime Minister and who should not be, hounds out the few honest Congressmen from Public life, props up the Aminchand Pyarelal and Chamanlal and supports them in all their misdeeds and puts a premium on dishonest businessmen and industrialists.\" This allegation was said to suggest dishonesty in Mr. Patil. The Other amendments which were disallowed referred to a speech at Dr. Vigas !itreet on February 27, 1967, a speech by Dr. Lohia at Chowpati on January l, 1967 published in 'Andolan' of January 9, 1967 and a Press Conference by Mr. Madhu Limaye at Bristol Grill Restaurant on December 10, 1966.\n\nPrior to the application for amendment certain events had happened to which it is necessary to refer.\n\nOn April 7, 1967\n\nthe office objected that the originals of Exs. A, B, C and D had D not been filed.\n\nThe remark of the office is as follows ;- \"Exhibits A, B, C, D are mere repetitions of what is mentioned in the body of the petition. Is it not necessary to annex the original copies of the said newspaper?\"'\n\nMr. Kanuga, one of the Advocates for the petitioner replied to the objection as follows :\n\n\"We undertake to file the original issues and official translations later as the same is (sic) with the Chief translator, High Court, Bombay before the service of Writ of Summons\".\n\nTill July 3, 1967 no effort seems to have been m'.!de to file the originals. On that date the 'Rozanama' read as follows :-\n\n\"Mr. Jethmalani applies for leave to amend the petition by pointing out that 'D' in last sentence of paragraph 2 on page 12 of the petition be corrected and read as 'E' and to annex reports in original P. C. leave to amend granted.\" The issues were settled on the same day and particulars were asked for.\n\nOn July 7, 1967 the 'Rozanama' read as follows \"Mr. Gurushani tenders the original of the exhibits A (Coll) to Exhibit E (Coll) mentioned in para 2J\n\nof page 11 of the petition.\" H A chamber summons was taken out because the particulars were not supplied and on August 4, 1967 the particulars were furnish-\n\nBALAl>R!SHNA v, FERNANDEZ (Hidizyatul/ah, C.l,) 613\n\nA ed. It was then on September 12, 1967 that the application for seven amendments was made, four of which were allowed and three were rejected. This was by an order dated September 15, 1967.\n\nBefore dealing with this appeal it is necessary to clear the question of the amendments and whether they were . properly allowed.\n\nThis question consists of two parts; the first 1s one of fact as to what was exhibited with the petition as materials on which the petition was based. The case of the petitioner before us is that in support of 2J copies of relevant newspapers were filed with the petition. This is denied on behalf of the answering respondent.\n\nMr. Daphtary's contention is that if the originals of the 'Maratha' had not been filed an objection would have been taken in the court and none was taken. Even witnesses were examined and cross-examiined with reference to the statements and the originals must have been in court. This, in our opinion, is not decisive.\n\nThe first witness to be examined was the petitioner himself. Evidence commenced on August 25, 1967. The petitioner proved the copies of the newspapers and they were marked as exhibits. By that date the copies of the 'Maratha' had already been filed, and the petitioner in his evidence referred to all of them.\n\nThe cross-examination, therefore, also referred to these documents.\n\nNothing much turns upon the want of objection because (as is well-known) objection is not taken to some fatal defect in the case of the other side since the party, which can take the objection, wants to keep it in reserve. It is true that if the objection had been taken earlier and had been decided the petitioner would have had no case to prove on the new allegations and might not have led some evidence. But we cannot hold from this that any prejudice was caused to him.\n\nAfter all it was his\n\nrponsibility to. complete , his alleg?tions in the petition by inclusmn of the copies of the Maratha and the other side cannot be\n\nhld to have waived its objection since that objection was in fact raised and has been answered in the High Court. The Rozanam.as clearly show that the copies of the 'Maratha' were not filed\n\nwit~ the el.ec!io~ petition but much later and in fact beyond the pef!od of hm1tat10n. Mr. Daphtary characterises the Rozanamas as maccurate but the internal evidence in the case shows that the Rozanamas were correctly recorded.\n\nThe petition quoted some of the offending statements in the newspapers and exhibited them as Exs. A to D.\n\nJn the petition these 10 extracts are to be found in Sub-paragraphs 2E, H, I and J. The change of Exs. D to E and the filing of E show that the extracts which were with the translator were referable to those. extrl17ts already mentioned in the petition and not those men!Ioned m the last paragraph of 2J. It will be noticed that\n\nthat paragraph refers to 33 numbers of the 'Maratha'. Extracts from those were furnished only on July 3, 1967 when Ex. E was separately filed and according to the Rozanama, the originals were filed on July 7, 1967. Mr. Kanuga could not have referred to all the 3 3 issues of the 'Maratha'. Only 10 extracts from the 'Maratha' were in Exs. A to D and of these eight are included in the list of 33 numbers of the 'Maratha' in the last paragraph of 2J. If they were already filed, Mr. Kanuga would have said so and not promised to file them later. He mentions in his note that they were with the transltion department and would be filed later. If all the 33 issues of the 'Maratha' were already filed there would be no occasion for the office objection and the reply of Mr. Kanuga could apply to two numbers only.\n\nThey were the issues of 25th January and 5th February, 1967. The office noting shows that not a single original was filed with the petition.\n\nThis appears to us to be correct.\n\nWe are satisfied that 10 issues of the 'Maratha' from which extracts were included in the petition in Exs. A to D were the only numbers which were before the translator. Mr. Kanuga's remark applies to these 10 issues. The other issues which were mentioned in the last paragraph of 2J numbering 33 less 8 were neither in the translator's office nor exhibited in the case. Hence the amendment. of the second reference from D to E and the request to file original issues.\n\nIt seems that when the petition was filed a list was hiJrriedly made of all the issues of the 'Maratha' to which reference was likely and that list was included in the last portion of 2J. But no attempt was made either to specify the offending portions of the newspapers or to file the extracts or the original issues. All this was done after the period of limitation.\n\nNo incorporation of the contents of the articles by reference can be allowed because if a newspaper is not exhibited and only the date is mentioned, it is necessary to point out the exact portion of the offendin)( newspaper to which the petition refers. This was not done.\n\nWe have to reach this conclusion first because once we hold that the issues of the 'Maratha' or the extracts referred to in the petition were not filed, the plea as to what was the corrupt practice is limited to what was said in the body of the petition in paragraph 2J and whether it could be amended after the period of limitation was over. The attempt today is to tag on the. new pleas to the old pleas and in a sense to make them grow out of the old pleas.\n\nWhether such an amendment is allowable under the Election Law is therefore necessary to decide.\n\nMr. Daphtary arguing for the appellant contends that he entitled to the amendment since this was no more than an amplifieation of the ground of corrupt practice as defined ins. 123(4) and that the citation of instances or giving of additional parti-\n\nBALAIOllSHNA v. FBaNANDBZ (Hidayatu//ah, C.J.) 61 !>'\n\nculars of which sufficient notice already existed in 2J as it originally stood, is permissible. Accordmg to him, under s. 100 the petition has to show grounds and under s. 83 there should be a concise statement of material facts in support of the ground and full particulars of any corrupt practice alleged. He submits that under s. 86 ( 5) particulars can be amended and amplified, new instances can be cited and it is an essence of the trial of an election petition that corrupt practices should be thoroughly investigated. He refers us to a large body of case law in support of his contention.\n\nOn the other hand, Mr. Chari for Mr. Fernandez contends that there was no reference to the speeches by Mr. Fernandez in the petition. The cause of action was in relation to the publication in the 'Maratha' and not in relation to any statement of Mr. Fernandez himself and that the amendment amounts to making out a new petition after the period of limitation.\n\nTo decide between these rival contentions it is necessary to analyse the petition first.\n\nParagraph 2J as it originally stood read as follows :\n\n\"The Petitioner says that false statements in relation to character and conduct of the Respondent No. 2 were made by the 1st Respondent and at the instance and connivance of the 1st Respondent, Maratha published the following articles, as set out hereinafter. The petitioner says that the said allegations are false and have been made with a view to impair and affect the prospects of' Respondent No. 2's elections to Lok Sabha. Some of the extracts are : etc.\"\n\n(Emphasis added).\n\nHere three issues of the 'Maratha' of 24th, 28th and 31st December, 1966 were referred to.\n\nOf the extracts, the last two make no reference to Mr. Fernandez. Tl\\e first spoke thus : ''Maratha Dated 24-12-66. Pages 1 and 4.\n\nhri S. K. }'atil will go to Sonapur in the ensuing elec:uon. Fernandez says in his Articles Patil mortgaged India's Freedom with America by entering into p .L. 480\n\nagreeent and Mr. Patil had .no devotion, love, respect for this country at all.\" Then followed this paragraph :\n\n\"Similar false statements .ilD relation to Respondent No: 2 character and conduct were published in Maratha Daily dated 12th December 1966 17th December 23rd ber, 24th Deber, 2Sth, 29th and 3 lst December issues, January issues dated 4, 5, 7th, 1oth,\n\n18th, 20th, 21st, 28th, 30th and 31st. February issues.\n\n1st, 2nd, 3rd, 6th, 7th, 8th, 10th, 11th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st ...... These reports in original are filed and true translation are marked Ex. D to the petition.\"\n\nWe have already held that the newspapers mentioned in the last , paragraph were not filed with the petition but on July 7, 1967\n\nafier the period of limitation was over. The allegations thus were that Mr. Fernandez made the false statements and they were published in the 'Maratha' at his instance and with his connivance.\n\nThere is no mention of any speech at Shivaji Park, or at Sabu Siddik Chowk or at Dr. Vigas Street or the press interview at Bristol Grill Restaurant.\n\nAll these statements which are now referred to were said to be made by Mr. Fernandez himself. By the amendment a charge of corrupt practice was sought to be made for the first time in this form. In the original petition (Sub-paragraph 2J) there was no averrnent that Mr.\n\nFernandez believed these statements to be false or that he did not believe them to be true and this was also sought to be introduced by an amendment. It may, however, be mentioned that in an affidavit which accompanied the election petition this averment was expressly made and the appellants desire us to read the affi. davit as supplementing the petition. By another application for amendment the petitioner sought to add a paragraph that the 'Maratha', Jagadguru Shankaracharya and Mr. Madhu Lirnaye wem agents of Mr. Fernandez within the Election Law. By yet another application reference to an article in the 'Blitz' was sought to be included as Sub-paragraph 2L.\n\nAt the conclusion of the arguments on this part of the case we announced our decision that the amendment relating to the speeches of Mr. Fernandez at Shivaji Park, Sabu Siddik Chowk and Dr. Vigas Street and his Press Conferences at Bristol Grill Restaurant and the article in the 'Blitz' ought not to have been allowed but that the amendment relating to the agency of the 'Maratha' etc. and that seeking to incorporate the averrnent about the lack of belief of Mr. Fernandez were proper. We reserved our reasons which we now proceed to give.\n\nThe subject of the amendment of an election petition has been discussed from different angles in several cases of the High Courts and this Court. Each case, however, was decided on its own facts, that is to say, the kind of election petition that was filed, the kind of amendment that was sought, the stage at which the application for amendment was made and the state of the law at the time and so on.\n\nThese cases do furnish some guidance .but it is not to be thought that a particular case is intended to cover all situations. It is always advisable to look at the statute first to see alike what !t authorises and what it prohibits.\n\nBALAKRISHNA v. FERNANDEZ (Hidayatullah, C.J.) 617\n\nSection 81 * of the Representation of the People Act, 1951 enables a petitioner to call in question any election on one or more of the grounds specified in s. 100 ( 1 ) and s. 101 of the Act. The petition must be made within 45 days from the date of election. Sections 100 and 101 enumerate the kind of charges which, if established, lead to the avoidance of the election of a returned candidate and the return of some other candidate. The first sub-section of section 100* • lays down the grounds for dec-\n\n•\"81. Presentation of petitions.\n\n(1) An election Petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates.\n\n(2)\n\nExplanation--In this sub-section, 'elector' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.\n\n(3) Every election petition shall be accompanied by as many copies thereof\n\nas there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.\"\n\n**\"100. Grounds for declaring election to be void.\n\n(1) Subject to the provisions of sub-section (2) if the High Court is of opinion :-\n\n(o) that on te dat.e of his election a returned candidate was not qualified, or was d1squaJ1fied, to be chosen to fill the seat under the Constitution or thi<; Act or the Government of Union Territories Act, 1963, or\n\n(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or\n\n(c) that any nomination has been improperly rejected; or\n\n(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected.\n\n(i) by the impn, per aceeptance of any nomination, or\n\n(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or\n\n(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or\n\n(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.\n\n(2) If in the opinion of the High Court, a returned candidate has been guilty .\n\nby an agent, other than his election agent, of any corrupt practice but the High Court is satisfied :-\n\n(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent of the candidate or his election agent; '\n\n(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election, and\n\n618 SUPllEME COURT llEPORTS\n\n[1969] 3 S.C.R.\n\nlaring an election to be void.\n\nThese include corrupt practices committed by the candidate, his election agent and any person with the consent of the returned candidate or his election agent.\n\nThe second sub-section lays down an additional condition which must be satisfied before the election can be declared to be void\n\nven though the corrupt practice is committed by an agent other than the election agent Section 101 t sets forth the grounds on which a candidate other than the returned candidate may be declared to have been elected.\n\nSection 101 actually does not .add to the grounds ins. 100 and its mention ins. 81 seems somewhat inappropriate.\n\nSections 100 and 101 deal with the substantive law on the subject of elections. These two sections circumscribe the conditions which must be established before an\n\nlection can be declared void or another candidate declared elected. The heads of substantive rights in s. 100(1) are laid down in two separate parts : the first dealing with situations in which the election must te declared void on proof of certain facts, and the second in which the election can only be declared void if the result of the election in so far as it concerns the returned candidate, can be held to be materially affected on proof of some other facts.\n\nWithout attempting critically to sort out the two classes we may now see what the conditions are. In the first part they are that the candidate lacked the necessary qualification or had incurred disqualification, that a corrupt practice was committed by the returned candidate, his election agent or any other person with the consent of a returned candidate or his election agent or that any nomination paper was improperly rejected. These are grounds on proof of which by evidence, the election can be set aside without any further evidence. The second part is conditioned that the result of the election, in so far as it concerns a returned candidate, was materially affected by the improper acceptance of a nomination or by a corrupt\n\n(d) that in all other rcsl!ects tho election was free from any corrupt practice\n\non the part of the candidate or any or his agents, then the High Court may decide that te election of tho returned candidate is not void.\" t\"IOI. Grounds for which a candidate other than the returned candidate may • be declared to have been elected.\n\nIf any person who has lodged a petition has, in addition to calling in qucs-- G tion the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion-\n\n(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or\n\n(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other: candidate would have obtained\n\na majority of the valid votes, H the High Court shall after declaring the election of the returned candi~ date to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected,\"\n\nBALAKRISHNA v. FERNANDEZ (Hidayatullah, C.J.) 619\n\npractice committed in his interest by an agent other than an election agent or by the improper reception, refusal or rejection of votes or by any non-compliance with the provisions of the Constitution or of the Representation of the People Act or _rules or orders made under it.\n\nThis condition has to be establ1Shed by iome evidence direct or circumstantial.\n\nIt is, therefore, clear that the substantive rights to make an election petition are defined in these sections and the exercise of the right to petition is limited to the grounds specifically mentioned.\n\nPausing here, we may view a little more closely the provisions bearing upon corrupt practices in s. 100. There are many kinds of corrupt practices. They are defined later in s. 123 of the Act and we shall come to them later.\n\nBut the corrupt practices are viewed separately according as to who commits them. The first class consists of corrupt practices committed by the candidate or his election agent or any other person with the consent of the candidate or hi~ election agent. These, if established, avoid the election without any further condition being fulfilled.\n\nThen there is the corrupt practice committed by an agent other than an election agent. Here an additional fact has to be proved that the result of the election was materially affected.\n\nWe may attempt to put the same matter in easily understandable language.\n\nThe petitioner may prove a corrupt practice by the candidate himself or his election agent or someone with the consent of the candidate or his election agent, in which case he need not establish what the result of the election would have been without the corrupt praciice. The expression \"Any other person\" in this part will include an agent other than an election agent. This is clear from a special provision later in the section about an agent other than an election agent. The law then is this : If the petitioner does not prove a corrupt practice by the candidate or his election agent or another person with the consent of the returned candidate or his election agent but relies on a corrupt practice committed by an agent other than an election agent, he must additionally prove how the corrupt practice affected the result of the poll. Unless he proves the consent to the commission of the corrupt practice on the part of the candidate or his election agent he must face the additional burden. The definition of agent in this context is to be taken from s. 123 (Explanation)\n\nwhee it is provided that an agent \"includes an election !\\gent, a pollm, g agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.\" In this explanation the mention of \"an election agent\" would appear to be unnecessary because an election agent is the alter ego of the candidate in the scheme of the Act and his acts are the acts of the candidate, consent or no consent on the part of the candidate.\n\nHaving now worked out the substantive rights to the roiling of the petition, we may now proceed to see what the corrupt practices are. Since we are concerned only with one such corrupt practice, we need not refer to all of them. For the purpose of these appeals it is sufficien~ if we refer to the fourth sub-section of s. 123. It reads :\n\n\"123. The following shall be deemed to be corrupt practice for the purposes of the Act :-\n\n( 4) The publication by a candidate or his agent or by any other person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal characier or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.\n\nThis corrupt practice may be committed by :\n\n(a) the candidate\n\n(b) his agent, that is to say-\n\n(i) an election agent\n\n(ii) a polling agent\n\n(iii) any person who is held to have acted as an agent in connection with the election with the consent oi. the candidate. ( c) by any other person with the consent of the candidate or his election agent ..\n\nWe are concerned in this appeal with (a) and (b)(iii) mentioned in our analysis. In the original petition the allegations were made on the basis of corrupt practices committed by a person alleged to have acted as an agent with Mr. Fernandez's consent. In the amendment application the allegation is that the candidate himself committed the corrupt practice under this subsection.\n\nAs we pointed out earlier the difference between the original petition and the amendments will lie in the degree of proof necessary to avoid the election. If the corrupt practice is charged against an agent other thaA the election agent, a further burden must be discharged, namely, that the result of the election was\n\nBALAJWSHNA v. FERNANDEZ (HidayaJullah, C.J.) 621\n\n.l materially affected. If, however, the copt pracce is ch~\n\nagainst the candidate personally (there IS no election agent mvolved here), this further proof is not required.\n\nAnother.~ rence arises in this way. Ins. lOO(l)(b) the word 'agent' IS not to be found.\n\nTherefore an agent other than an election agent will fall to be governed by the expression 'any other person'. To B get the benefit of not hving to prove the effect of .the com!J1t . practice upon the election the coent ?f the candidate o~ his election agent to the alleged pracuce will have to be established.\n\nAgain for the establishment of the corrupt pract!ce nder ~· 123 ( 4), from whatever quarter it may proceed, the election petitioner must establish c\n\n(a) publication of a statement of fact, and\n\n(b) the statement is false or the person making it believes it to be false or does lllOt believe it to be true, and ( c) that the statement refers to the personal character and conduct of the candidate, and\n\n(d) is reasonably calculated to prejudice the candidate's prospects.\n\nIt appears, therefore, that it is a question of different burdens of proof as to whether the offending statement was made by the candidate himself or by an agent other than an election agent.\n\nHaving dealt with the substantive law on the subject of election petitions we may now tum to the procedural provisions in the Representation of the People Act. Here we have to consider sections 81, 83 and 86 of the Act. The first provides the procedure for the presentation of election petitions. The proviso to sub-section alone is material here. It provides that an election petition may be presented on one or more of the grounds specified in sub-section ( I ) of s. l 00 and s.10 I. That as we have shown above creates the substantive right. Section 83 • then provides that the\n\n•Section 83.\n\n(1) An e1ection petition-\n\n(a) sh~I contain a concise statement of the material facts on which the petitioner\n\nrehes :\n\n(b) shall set.forth fu11 particulars of any corrupt pr_actice that the petitioner alleges. 1nclud1ng as fuU a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and\n\n(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings : (Provided that whre the Petitioner a11eges any corrupt practice, the petition shall also be accompa1ned by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.\n\n(2) Any schedule or annexure to the petition shaJI also be singed by the petitioner and verified in the same manner as the petition.\n\nLIOSup.169-.f\n\nelection petition must contain a concise statement of the material facts on which the petitioner relies and further that he must also setforth fuJl particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. The section is mandatory and requires first a concise state- !Jlent of material facts and then requires the fullest possible particulars.\n\nWhat is the difference between material facts and particulars? The word 'material' shows that the facts necessary 'to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad.\n\nThe function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the op;:. \"ite party\n\nunderstand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus the material facts will mention that a statement of fact (which must 'be set out) was made and it must be alleged that it refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and thai it is calculated to prejudice the chances of the petitioner. In the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts it will not do merely to quote the words of the section because then the efficacy of the words 'material facts' will be lost.\n\nThe fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt praciice. Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition ai all.\n\nA petitio1;1 which merely cites the sections cannot be said to disclose a cause of action where the allegation is the making of a false statement. That statement must appear and the particulars must be full as to the person making the statement and the necessary information. Formerly the petition used to be in two parts. The material facts had to be included in the petition and the particulars in a schedule.\n\nIi is inconceivable that a petitioa could be filed without the materiitl facts and the schedule by rnerely citing the corrupt practice from the statute. Indeed the penalty of dismissal summarily was enjoined for petitions which did not comply with the requirement. Today the particulars need not be separately included in a schedule but the distinction remains. The entire and complete cause of action must be in the\n\nBALAKRISHNA v. FERNANDEZ (Hidayatullah, C.J.) 623\n\npetition in the sha~ of material facts, the particulars being the further information to complete the picture. This distinction is brought out by the provisions of section 8 6 although the penalty of dismissal is taken away.\n\nSub-section ( 5) of that section provides :\n\n\"(5) The High Court may, upon such terms as t? costs and otherwise as it may deem fit, allow the paruculars of any corrupt practice alfeged in the petitic_>n .to be amended or amplified in such manner as may m . its opinion be necessary for ensuring a fair and effecUve trial of the petition but shall not allow any amendment of the petition whih will have the effect of introducingparticulars of a corrupt practice not previously alleged in the petition.\" The power of amendment is given in respect of particulars but there is a prohibition against an amendment \"which will have the effect of introducing particulars if a corrupt practice not previously alleged in the petition.\" One alleges the corrupt practice in the material facts and they must show a complete cause of action. If a petitioner has omitted to allege a corrupt practice he cannot be permitted to give particulars of the corrupt practice.\n\nThe argument that the latter part of the fifth sub-section is directory only cannot stand in view of the contrast in the language of the two parts. The first part is enabling and the second part creates a positive bar. Therefore, if a corrupt practice is nor alleged, the particulars cannot be supplied. There is however a difference of approach between the several corrupt practices. If for example the charge is bribery of voters and the particulars give a few instances, other instances can be added; if the charge is use of vehicles for free carriage of voters, the particulars of the cars employed may be amplified.\n\nBut if the charge is that an agent did something, it cannot be amplified by giving particulars of acts on the part of the candidate or vice versa. In the scheme\n\nof election law they are separate corrupt practices which cannot be said to grow out of the material facts related to another person. Publication of false statements by an agent is one cause of action, publication of false statements by the candidate is quite a different cause of action. Such a cause of action must be alleged in the material facts before particulars may be given. One\n\ncanot under the cover of particulars of one corrupt practice give particulars of a new corrupt practice. They constitute different causes of action.\n\nSince a single corrupt practice committed by the candidate, by his election agent or by another person with the consent of the candidate or his election agent is fatal to the election, the case must be specifically pleaded and strictly proved. If it has not been pleaded as part of the material facts, particlilars of such\n\ncorrupt practice cannot be supplied later on. The bar of the latter part of the fifth sub-section to s. 86 then operates. In the petition as originally filed the agency of Jagadguru Shankaracharya, Mr. Madhu Limaye and the Maratha (or Mr. Atrey) was the basis of the charge and the candidate Mr. Fernandez was left out. No allegation was personally made against him. The only allegations against him personally were contained in paragraph 2G. There it was said that Mr. Fernandez had made certain speeches to the effect that Mr. Patil was against the Muslims a, nd Christians. No evidence was led and they were not even referred to at the hearing before us.\n\nThe next reference in 2J is to statements of Mr. Fernandez and published by the Maratha.\n\nThe8e were specified and only three such statements were included. Since the gist of the election offeince is the publication of false statements, the charge is brought home to the candidate through the p\\Jblication by the Maratha. It is to be remembered that even the allegatlon that in doing so the Maratha acted as the agent of Mr. Fernandez, itself came by way of an amendment which we allowed as it completed the cause of action and is permissible. The bar of section 86(5) (latter part) does not apply to it and under Order VI rule 17 of the Code of Civil Procedure which is applicable as far as may be, such an amendment can be made. Similarly the allegations that such statements were false or were believed to be false or were not believed to be true by the Maratha (i.e. Mr. Atrey) and that they were calculated to prejudice Mr. Patil's chances and did so, were allowed by us to be added as completing the cause of action relating to a corrupt practice already alleged.\n\nBut we declined to allow to stand the amendments which had the effect of introducing new corrupt practices relating to the candidate himself which had not been earlier pleaded. This kind of amendment is prohibited under the law when the amendment is sought after the period of limitation.\n\nThe learned Judge in the High Court did not keep the distinction between material facts and particulars in mind although the language of the statute is quite clear and makes a clear cut division between the two. He seems to have been persuaded. to such a course by a reading of the rulings of this Court and the High Courts. These same rulings were presented before us and we may now say a few words about them.\n\nThe learned Judge in the High Court has relied upon Barish Chandra Bajpai v. Triloki Singh (1) and deduced the proposition that where the petition sets out the corrupt practice as a ground, instances of the cQrrupt practices may be added subsequently and even after the period of limitation of filing the petition is over. Following that case the learned Judge has allowed the\n\n(I) [1957) S.C.R. 370,\n\nBALAJWSHNA v. FERNANDEZ (Hidayatul/ah, CJ.) 825\n\namendments as corrupt practice under s. 123 ( 4) was alleged in\n\ntho original petition. We shall come to that case last of all. It seems to have played a great part in moulding opinion in India on the subject of amendment of pleadings in the Election Law.\n\nTo begin with it must be realised that as is stated in Jagan Nath v. Jaswant Singh and Others(') the statutory requirements of the law of Election in India must be strictly observed. It is pointed out in that case that an election contest is not an action at law or a suit in equity but a purely statutory proceeding unknown to common law and that the court possesses no common law power. Although the power of amendment given in the Code of Civil Procedure can be invoked because s. 87 makes the procedure applicable, as nearly, as may be to the trial of election C petitions, the Representation of the People Act itself enacts some rules which override the Civil Procedure Code.\n\nGeneral power of amendment or the power derived from the Code of Civil Procedure must be taken to be overborne in so far as the election law provides. In a large number of cases it has been laid down. by\n\nthe High Courts in India that the material facts, must make out a charge and it is only , then that an amendment to amplify the charge can be allowed or new instances of commission of corrupt\n\npracti~ charged can be given. If no charge is made out in the petition at all the addition of particulars cannot be allowed to include indirectly a new charge. This was laid down in Din Dayal\n\nv. Beni Prasad and A11Dther(2), Balwan Singh v' Election Tribunal, Kanpur and Others(') by the Allahabad High Court, in T. L. Sasivarna Thevar v. V. Arunagiri and Others(') by the Madras High Court and iin Harl Vishnu Karnath v. Election Tribunal; Jaipur and Another(') by the Madhya Pradesh High Co.urt.\n\nAll these cases rely upon Harish (/handra Bajpm's case(') to which we have n,:ferred. Harish Chandra Bajpai's case(1) was based on an Bnglish case Beal v. Smith(1). In that case it was held that under the Parliamentary Election Act of 1868 it was\n\nenough to allege generally in the petition that \"the respondent by himself and other persons on his behalf was guilty of bribery, treatjng and undue infiuence before, during and after the election.\" A summons was taken out calling upon the petitioner to deliver better particuliirs of \"other persons\". Willes, J. after consulting G Martin, B and Blackbum; J. ordered better particulars. It was contended that the petition should be taken off the files since the particulars were lacking.\n\nSection 20 of that Act only provided that an election petition should be in such form and should state ch matters as may be prescribed.\n\nRule 2 DteSCribed that the petition should state (i) the right of the petitioner to petition and (ii) and should state the holding and result\n\n(I) .[1954] S.C.R. 892-895.\n\n(2) IS E.L.R. 131.\n\n(3) IS B'.L.R. 199.\n\n(4) 17. E.L.R. 313.\n\n(S) 14 E.L.R. 147.\n\n(6) [1957] S.C.R. 370\n\n(7) L.R. 4 C.P. llS.\n\nof the election and then should briefly state such facts and grounds relied on to sustain the prayer. Rule 5 prescribed the form which required facts to be stated.\n\nBovill, C.J., said that the form of the petition was proper and it was quite useless to state anything further. But in Bruce v. Odhams Press Ltd.(') the Court of Appeal distinguished 'material facts' from 'particulars' as they occurred in Order XIX of the Rules of the Supreme Court of England. The words there were material facts and particulars and the disti, nction made by Scott, L.J. bears out the distinction we have made between 'material facts' and 'particulars' as used in s. 83 of our statute. The same view was also expressed in Phillips v. Phillips('). The observations of Brett, L.J. in that case also bear out the distinction which we have made.\n\nIt appears that this distinction was not brought to the notice of this Court in Barish Chandra Bajpai (8 ) case.\n\nThe rules on the subject of pleadings in the English statute considered in Beal's case(') were different. We have in our statute an insistence on a concise statement of material facts and the particulars of corrupt practice alleged. These expressions we have explained. However, it is not necessary to go into this question because even on the law as stated in Barish Chandra Bajpai's(8 ) case the amendment allowed in this case annot be upheld. We shall now notice Barish Chandra Bajpai's(8 ) case a little more fully.\n\nIn that case the material allegation was that the appellants \"could in the furtherance of their election enlist the support of certain government servants\" and that the appellant No. I. had employed two persons in excess of the prescribed number for his election pul'IJnses. No list of corrupt practices was attached.\n\nThereafter names were sought to be added.\n\nThe amendment was allowed by the Tribunal after the period of limitation and the addition was treated as mere particulars.\n\nIt was held by this Court that an election petition must specify \"grounds or charges\" and if that was done then the particulars of the grounds or charges could be amended and new instances given but iDO new ground or charge could be lidded after the period of limitation.\n\nThe reason given was that the amendment \"intrpducing a new charge\" altered the character of the petition. Venkatarama Iyyar, J. emphasised over aind over again that new instances could be given provided they related to a 'charge' contained in the petition.\n\nThe result of the discussion in the case was summarised by the learned Judge at page 392 as follows :\n\n\"(l) Under s. 83(3) the Tribunal has power to __ ..cac:::llow particulars in respect of illegal or corrupi prac-\n\n(1) !1936] l K.11. 697.\n\n12) [1878] 4 Q.B.D. 127\n\n(3) [1957] S.C.R. 370.,\n\n14) L.R. 4 C.P. 115.\n\nBALAKRISHNA v. FERNANDEZ (Hidayatullah, C.J.) 627\n\ntices to be amended, provided the petition itself speci fies the grounds or charges, and this power extends to permitting new instances to be given.\n\n(2) The Tribunal has power under O.VI, r. 17 to order amendment of a petition, but that power cannot be exercised so as to permit new grounds or charges to be raised or to so alter its character as to make it in substance a new petition, if a fresh petition on those allegations will then be barred.\" What is meant by 'ground or charge' was not stated. By \"ground\"\n\nmay be meant the kind of corrupt practice which the petitioner alleges but the word \"charge\" means inclusion of some material facts to make out the ground. Applying the same test (although without stating it) the learned Judge pointed out that the charge made in the petition was that the appellants 'could' in furtherance of their election enlist the support of certain government servants and it meant only an ability to enlist support but the 'charge' which was sought to be levelled against the candidate later was that he had in fact enlisted the said support. The learned Judge observed at page 393 as follows :\n\n\"the charge which the respondent sought to level against the appellants was that they moved in public so closely with high dignitaries as to create in the minds of the voters the impression that they were favoured by them. We are unable to read into the allegations in para 7(c) as originally framed any clear and cate\n\ngorical statement of a charge under s. 123 ( 8), or indeed under any of the provisions of the Election law.\" The allegation in the statement was described as worthless and further it was observed at page 395 as follows :\n\n\"But even if we are to read 'could' in para 7 ( c) as meaning 'did', it is difficult to extract out of it a charge under s. 123 ( 8). The allegation is not clear whether the Government servants were asked by the appellants to support their candidature, or whether they were asked to assist them in furtherance of their election prospects, and there is no allegatiorl at all that the Gvernment servants did, in fact, assist the appeJ, !ants m the election.\n\nOn these allegations, it is diffi cult to hold that the petition in fact raised a charge under.s: 123(8). It is a Jong jump from the petition as ongmally laid to the present amendment, wherein for the first time it is asserted that certain Mukhiasno Mukhias are mentioned in \\he petition-assisted the appellants in furtherance of their election prospects, and that thereby the corrupt practice mentioned\n\nin s. 123 (8) had been committed. •The new matters introduced by the amendment so radically alter the character of the petition as originally framed as to make it practically a new petition, and it was not within the power of the Tribunal to allow an amendment of that kind.\" It would, appear from this that to make out a complete charge the facts necessary must be included in relation to a 'ground' as stated in the , Act.\n\nMerely repeating the words of the statute is not sufficient. The petitioner must specify the ground i.e. to say the nature of the corrupt practice and the facts necessary to make out a charge. Although it has been said that the charge of corrupt practice is in the riatnre of quasi criminal charge, the trial of an election petition follows the procedure for the trial of a civil suit. The charge which is included in the petition must, therefore, specify the material facts of which the truth must be established. This is how the case was understood in numerous other cases, some of which we have already referred to. In particular see /. Devaiah v. Nagappa and Others(') and Babula/ Sharma v. Brijnarain Brajesh and Others(').\n\nThree other cases of this Court were also cited. In Chandi Prasad Chokhani v. State of Bihar(8 ) it was held that the powers of amendment were extensive but they were controlled by the\n\nlaw laid down in the Representation of the People Act. It was again emphasised that a new ground or charge could not be E made the ground of attack as that made a new petition. In Bhim Sen v. Gopali and Others(') the scope of Harish Chandra Bajpm\"s(\") case was considered and its narrow application was pointed out. Indeed in that case the observations in Harish Chandra 8ajpai' s ( •) case were not followed to the utter most limit. In Sheopat Singh v. Ram Pratap(•) the only allegation F was thai the appellant (Hariram) got published through him and others a statement but there was no allegation that Hariram believed the statement to be false or did not believe it to be true.\n\nIt was held that' in the absence of such averment it could not be held that there was an allegation of corrupt practice against Hariram.\n\nThe publication with guilty knowledge was equated to a kind of mens rea and this was considered a necessary ingre- G dient to be alleged in the petition.\n\nFrom our examination of all the cases that were cited before us we are satisfied that an election petition must set out a ground\n\nor charge. In other words, the kind of corrupt practice which was perpetrated together with material facts on which a charge\n\n(I) 1965 Mysore, 102.\n\n(2) 1958 Madhya Pralfesh 175 (F.B.).\n\n(3) (1962] 2 S.C.R. 289.\n\n(4) .22 E, L.R. 288.\n\n(5) (1957] S.C.R. 370\n\n(6) (1965] 1 S.C.R. 175.\n\nI F\n\nBALAKRISHNA v. FERNANDEZ (Hidayatullah, C.J.) 629\n\ncan be made out must be stated.\n\nIt is obvious that merely repeating the words of the statute does not amount to a proper statement of facts and the section requires that material facts of corrupt practices must be stated. Ii the material facts of the corrupt practice are stated more or better particulars of the charge may be given later, but where the material facts themselves are missing it is impossible to think that the charge has been made or can be later amplified. This is tantamount to the making of a fresh petition.\n\nReverting therefore to our own case we find that the allegation in paragraph 2J was that Mr. Fernandez made sonre statements and the 'Maratha' published them.\n\nExtracts from the 'Maratha' were filed as Exhibits.\n\nSince publication of a false statement is the gist of an election offence the charge was against the 'Maratha'. If it was intended that Mr. Fernandez should be held responsible for what he said then the allegation should have been what statenrent Mr. Fernandez made and how it offended the election law.\n\nIn 2J itself only three statements were specified and two of them had nothing to do with Mr. Fernandez and the third was merely a news item which the 'Maratha' had published.\n\nThere was no reference to any statement by Mr. Fernandez himself throughout the petition as it was originally filed.\n\nIn fact there was no charge against Mr. Fernandez which could have brought the case within s. 101 (b) of the Act. The attempt was only to make out the case under s. 100 ( 1 )( d) against the 'Maratha' (or Mr. Atrey) pleading Mr. Atrey as agent of Mr.\n\nFernandez. That too was pleaded in the amendments.\n\nThe result is that the case gets confined to that of a candidate responsible for the acts of his agent.\n\nIn the argument before us Mr. Chari for Mr. Fernandez conceded the position that Mr. Atrey could be treated as the agent of Mr. Fernandez. We are therefore relieved of the trouble of determining whether Mr.\n\nAtrey could be held to be an agent or not. The trial Judge was also satisfied that Mr. Atrey could be held to have acted as the agent of Mr. Fernandez.\n\nThe case as originally pleaded fell within s. 100 (I) ( d) with the additional burden. Although Mr.\n\nDaphtary was content to prove that the consent of Mr. Fernandez was immaterial as the corrupt practice of his agent was equally fatal to the election .and attempted to prove his case under s. 100\n\n(l)(d) of the Act, Mr. Jethamalani who took over the argument from him. contended that the case fell to be governed by s. 101\n\n(b) that 1s to say, of any person who did the act with the consent of Mr. Fernandez. It is therefore necessary to pause here to decide whether Mr. Atrey had the consent of Mr. Fernandez to the publications in his newspaper.\n\nThe difference between Mr. Daphtary's argument and that of Mr. Jethamalani lies in this.\n\nIn the latter the consent of the\n\ncandidate must be proved to each corrupt practice alleged, in the former there is only need to prove that a person can be held to have acted as an agent with the consent of the candidate. An agent in this connection is jll.Ot one who is an intermeddler b1~.t\n\none acting with the consent, express or implied, of the candidate. According to Mr. Jethamalani when an agent works regularly for a candidate the consent to all his acts must be presumed and he contends that the court was wrong in requiring proof of prior consent to each publication. On the other hand, Mr.\n\nChari's case is that wjlen Mr. Atrey acted as an agent and when he did not act as an agent, is a question to be considered in respect of each publication in the 'Maratha'. According to him it' is not sufficient merely to say that Mr. Atrey was an agent because Mr. Atrey was also editor of the newspaper and in running his newspaper his activities were his own and not on behalf of Mr.\n\nFernandez.\n\nMr. Jethamalani relies strongly upon the case of Rama Krishna (C.A. No. 1949 of 1967 decided on April 23,\n\n1968) and lnder Lal( Yuga! Kishore v.\n\nLal Singh('). Rama Krishna's case was decided on its special facts. There the agent was one who had been employed regularly by Rama Krishna not only in the last election but also in two previous elections. Rama Krishna stated that the arrangements for his election were completely left in that agent's hands. The agent had got printed some posters which had defaiped the candidate and these posters were exposed on the walls .. Rama Krishna admitted that he had seen these posters and also that he had paid for the posters when the bill was presented to him.\n\nIn fact he included the amount in his return of election expenses. It was from these combined facts that the consent of Rama Krishna to the corrupt practice of making false and defamatory statements was held proved.\n\nThe case therefore is not one in which the person while acting in a different capacity makes a defamatory statement.\n\nIn the case from Rajasthan the rule laid down was that the association of persons or a society or a political party or its permament members, who set up a candidate, sponsor his cause, and work to promote his election, may be aptly called the agent for election purposes. In such cases where these persons commit a corrupt practice unless the exception in s. 100(2) apply the returned candidate should be held guilty. We shall consider this question later.\n\nBefore we deal with the matter further we wish to draw attention to yet another case of this Court reported in Kumara Nand v.\n\nBrijmohan Lal Sharma( 2 ). In that cases. 123(4) was analysed It was held that the belief must be that of the candidate himself.\n\nThe word \"he\" in the sub-section where it occurs for the first time was held to mean the candidate. This Court observed as follows :\n\n(1) A.T.R. 1961 Rajasthan 122.\n\n\nF \\\n\nBALAKRISHNA v. FERNANDEZ (Hidayatullah, C.J.) 6 31\n\n\"The sub-section requires : (i) publication of any statement of fact by a candidate, (ii) that fact is false,\n\n(iii) the candidate believes it to be false or does not believe it to be true, (iv) the statement is in relation to the personal character or conduct of another candidate; and ( v) the said statement is one being reasonably calculated to prejudice the prospects of the other candidate's election. (See Sheopat Singh v. Ram Pratap(') This case thus Jays down that the person with whose belief the provision is concerned is ordinarily the candidate who, if we may say so, is responsible for the publication. The responsibility of the candidate for the publication arises if he publishes the thing himself. He is equally responsible for the publication if it is published by his agent. Thirdly he is also responsible where the thing is published by any other person but with the consent of the candidate or his election agent. In all three cases the responsibility is of the candidate and it is ordinarily the candidate's belief that matters for this purpose. If the candidate either believes the statement to be false or does not believe it to be true he would be responsible under s. 123 ( 4). In the present case the poem was not actually read by the appellant, but .it was read in his presence at a meetin1 at which he was\n\npresiding by Avinash Chander. In thele circumstances the High Court was right in coming to the conclusion that the recitation of the poem by A vinash Chander at the meeting amounted to the publication of the false statement of fact contained in it by another person with the consent of the candidate, and in this case, even of his election agent who was also present at the meeting.\n\nBut the responsibility for such publication in the circumstances of this case is of the candidate and it is the candidate's belief that matters and not the belief of the\n\nprson who actually read it with the consent of the candidate. What would be the position in a case where the candidate had no knowledge at all of the publication before it was made need not be considered for that is not so here. It is not disputed in this case that the statement that the respondent was the greatest of all thieves, was false. It is also not seriously challenged that the appellant did not believe itto be true. The contention that A vinash Chander's belief should have been proved must therefore fail.\" .\n\nFrom this case it follows that to prove a corrupt practice in a_n agent is not enough, the belief of the candidate himself must\n\n(t) (19651 I S C.R. 175.\n\n'SUPllBMB OOUllT llBPOllTS\n\n[1969] 3 S.C:.L\n\nbe investigated with a view to finding out whether he made a state- A .ment which he knew to be, false or did not believe to be trueJ\n\nWhen we come to the facts of the case in hand we shall find that most of the statements were made by a newspaper editor in the normal couse of running a newspaper. Some of the passages which are criticised before us were made as news items and some others we5e put in the editorial. It is to be remembered that . the B newspaper ran a special column called \"George Fernandez's Elec•\n\ntion Front\". No article or comment in that column has been brought before us as an illustration of the corrupt practice. A newspaper publishes news and expresses views and these are functions normal to a newspaper. If the same news appeared in more than one paper, it cannot be said that each editor acted as agent C for Mr. Fernandez and by parity of reasoning a line must be drawn to separate the acts of Mr. Atrey in running his newspaper and in acting as an agent. Mr. Atrey was not a wholetime agent of Mr. Fernandez so that anything that he 'said or did would be treated as bearing upon the belief of Mr. Fernandez as to the truth of the statements made by Mr. Atrey. Therefore, every act of Mr. Atrey could not be attributed to Mr. Fernandez so as tO .D make the latter liable. We have therefore to analyse these articles to find out which of them answers the test which we have propounded here. But the fact remains that the case was pleaded on . the basis of corrupt practices on the part of an agent but by the amendment the candidate was sought to be charged with the corrupt practices personally. As there was no such charge or E ground in the original petition and as the application for amendment was made long after the period of limitation was over the amendment could not be allowed. Accordingly we ruled out the amendments concerning the personal speeches of Mr. Fernandez and the article in the 'Blitz'.\n\nAfter we announced our conclusion about the amendments Mr. Daphtary with the permission of the Court left the case in F the hands of Mr. Jethamalani and the argument to which we have already referred in brief was advanced by him. As pointed out already Mr. Jethamalani attempted to prove that the case would be governed bys. 100(1) (b) that is to say that the statements in the 'Maratha' were published with the consent of Mr. Fernandez.\n\nMr. Jethamalani deduced this from the course of events and argued G that on proof of the corrupt practices committed by the 'Maratha', Mr. Fernandez would be personally liable. He based himself on the following facts. He pointed out that Mr. Fernandez had admitted that he desired that the newspapers should support his candidature and therefore must have been glad that the 'Maratha' was suooorting him. and the articles in the 'Maratha' were uni- H formly for the benefit of Mr. Fernandez. Sampurna Maharashtra Samiti was also supporting the candidature of Mr. Fernandez and the 'Maratba' had made common cause with the Sampurna Maha-\n\nBALAKRISHNA v. FBllNANDBZ (Hidayatul/ah, C./.) 633'\n\n:rashtra Samiti, the offices of both being situated in the same building which was also Mr. Atrey's residence. Mr. Atrey was the editor of the 'Maratha' and Chairman of the Sampurna Maharashtra Samiti. Mr. Atrey was also a candidate supported by the Sampurna Maharashtra Samiti. Mr. Fernandez and Mr. Atrey had a common platform and they supported each other in their respective constituencies. The 'Maratha' carried a column \"George Fernandez's Election Front\" which was intended to be a propaganda column in favour of Mr. Fernandez. He contended that Mr. Fernandez could not be unaware of what Mr. Atrey was doing. He pointed out several statements of Mr. Fernandez in which he sometime unsuccessfully denied the knowledge of various facts.\n\nHe contended lastly that Mr. Fernandez had social contacts with Mr. Atrey and could not possibly be unaware that Mr. Atrey was vociferously attacking Mr. Patil's character and conduct. Mr.\n\nJcthamalani therefore argued that there was knowledge and acquiescence on the part of Mr. Fernandez and as !hero was no rcpu diation of what the 'Maratha' published against Mr. Patil, Mr.\n\nFernandez must be held responsible. The learned trial Judge in his judgment has given a summary of all these things af page 695\n\nand it reads :\n\n\"To sum up, it is clear from the above discussion that respondent No. 1 is a prominent member of the SSP, that the SSP is a constituent unit of the SMS, that both Acharya Atrey and respondent No. 1 participated in the formation of the SMS that they both participated in the inauguration of the election campaign by the SMS, that the SMS, carried on election propaganda for candidates supported by it including respondent No. 1, that Acharya Atre was the president of the Bombay Unit of the SMS and was a prominent and a leading member thereof, that each of them addressed a meeting of the constituency of the other to carry on election propaganda for the other, that Acharya Atre through the columns of his newspaper Maratha carried on intensive and vigorous campai~ for success of candidates supported by the SMS mcluding respondent No. t, that Acharya Atre started a special feature in Maratha under the heading \"George Fernandez Election Front\". These factors amongst others show that Acharya Atre had aufhority to canvass for respandent No. 1 that he made a common cause with respondent No. 1 'tor promoting his election, that to the knowledge of ndent No. 1 and for the purpose of promoting his election, he ( Atre) canvassed and dill various things as tended to promote his election. This in law is sufficient to make Achru; ya Atre . an agent of respondent No. t, as fhat\n\nterm ts, understood under the election law.\"\n\nMr. J ethamaJani contended in further support that there was a clear similarity in the statements and utterances of Mr. Fernandez and Mr. Atrey. He inferred a high probability of concept between them. In this connection he referred in particular to the speech of Mr. Fernandez at Shivaji Park and the conduct of Shanbhag, one of his workers, in following up what Mr. Fernandez had said. We shall refer to this last part later on which a considerable part of the time of the Court was spent, although we had ruled out the amendment with regard to the speech at Shivaji Park. Mr. Jetharnalani referred to the following cases among others in support of his contention that consent in such circumstances may be assumed : Nani Gopal Swami v. Abdul Hamid Choudhury and Another('), Adams and Others v. Hon. E.F.\n\nLeveson GowerC), Christie v.\n\nGrieve(\") and W. F. Spencer; John Blundell v. Charles Harrison('). There is no doubt that\n\nconsent need not be directly proved and a consistent course of conduct in the canvass of the candidate may raise a presumption of consent.\n\nBut there are cases and cases. Even if all this is accepted we are of opinion that consent cannot be inferred. The evidence proves only that Mr. Atrey was a supporter. and that perhaps established agency qf Mr. Atrey. It may be that evidence is to be found supporting the fact that Mr. Atrey acted as ag,:nt of Mr. Ferr.1o1ndez with his consent. That however does not trouble us because Mr. Chari admitted that Mr. Atrey can be treated as an agent of Mr. Fernandez. It is however a very wide jump from this to say that Mr. Fernandez had consented to each publication as it came or ever generally consented to the publication of items defaming the character and conduct of Mr. Patil. That consent must be specific. If the matter was left entirely in the hands of Mr. Atrey who acted solely as agent of Mr. Fernandez, something might be said as was done in Rama Krishna's case ( ') by this Court.\n\nOtherwise there must be some reasonable evidence from which an inference can be made of the meeting of the minds as to these publications or at least a tacit approval of the general conduct of the agent. H we were not to keep this diStinction in mind there would be no difference between s. 100 (I)( b) and 100(1) (d) in so far as an agent is concerned. We have 'hown\n\nabove that a corrupt act per se is enough under s. !OO(l)(b) while under s. l 00 ( l) ( d) the act must directly affect the result of the election in so far as the returned candidate is concerned.\n\nSection IOO(l)(b) makes no mention of an agent whiles. 100\n\n( 1) ( ( d) specifically does. There must be some reason why this is so. The reason is this that an agent cannot make the candidate responsible unless the candidate has consented or the act of the\n\n(I) 1959 1Assa1n 200.\n\n(2) 1 O'Malley and Hardcastle- 218.\n\n(3) I O'Malley and Hardcastle 251.\n\n(4) 3 O'Malley and Hardcastle 148.\n\n(5) C.A. No. 1949of1967 <lccided .on April 23, 1968.\n\nBALAKR!SHNA v. FERNANDEZ (Hidayatullah, C.J.) b35\n\nagent has materially affected the electio, n of the returned cndi\n\ndate. In the case of any person (and he may be an agent) if he does the act with the consent of the returned candidate there is no need to prove the effect on the election. Therefore, either Mr.\n\nJethamalani must prove that there was consent and that would mean a reasonable inference from facts that Mr. Fernandez consented to the acts of Mr. Atrey or he must prove that the result of the election was seriously affected. If every act of an agent must be presumed to be with the consent of the candidate there would be no room for application of the extra condition laid down by s.\n\n100( 1) ( d), because whenever agency is proved either directly or circumstantially, the finding about consent under s. 100(1) (b) will have to follow. We are clearly of opinion that Mr. Jethamalani's argument that s. 100(1) (b) applies can only succeed if he establishes consent on the part of Mr. Fernandez.\n\nWe have already pointed out that Mr. Atrey W\\IS also the editor of a newspaper which, as Mr. Patil has himself admitted, was always attackinJ!: him. Mr. Atrey had opened a column in his newspaper to support Mr. Fernandez's candidature. Although nine articles appeared in the column between December 3, 1966 to February 2, 1967. not a single false statement from this column has been brought to our notice.\n\nTher.~ was not even a suggestion that Mr. Fernandez wrote any article for the 'Maratha' or communicated any fact. It is also significant that although Mr. Atrey addressed meetings in the constituency of Mr. Fernandez, not a single false statement of Mr. Atrey was proved from his speeches on those occasions. The petitioner himself attended one snch meeting on February 4, 1967, but he does not allege that there was any attack on his personal character or conduct. The learned trial Judge has also commented on this fact.\n\nWe think that regard being bad to the activities of Mr. Atrey as editor and his own personal hostility to Mr. Patil on the issue of Sampurna Maharashtra Samiti, we cannot attribute every act of Mr. Atrey to Mr.\n\nFernandez. Mr. Chari is right in bis contention that Mr. Atrey's field of agency was limited to what he said as the agent of Mr.\n\nFerna.ndez an~ did not embrace _the field in which he was acting as editor of his newspaper.\n\nIt 1s also to be noticed that Mr.\n\nAtrey did not publish any article of Mr. Fernandez, nor did he publish any propaganda material.\n\n. The meeting .at Shivaji l'ark about which we shall say some- m.g pesentl~, was not held in Mr. Fernandez's constituency. The s1.m1lanty of ideas or even of words cannot be pressed into service to show con.snt. . There was a lated. policy of Sampuma Maharashtra Sam1t1 which wanted to )Oin m Maharashtra all the areas which had not so far been jomed and statements in that\n\nSUPREME COURT REPORTS [1969) 3 S.C.ll.\n\nbehalf must have been made not only by Mr. Atrey but by several other persons. Since Mr. Atrey was not appointed as agent we cannot go by the similarity of language alone. It is also very significant that not a single speech of Mr. Fernandez was relied upon and only one speech of Mr. Fernandez namely, that\n\nB at Shivaji Park was brought into arguments before us came by an amendment which we disallowed. The best proof would have been his own speech or some propaganda material such as leall.cts or pamphlets etc. bllt none was produced. The 'Maratha' was\n\n11111 independent newspaper not under the control of the Sampuma Maharashtra Samiti or the S.S.P. which was sponsoring Mr. Ferundez or Mr. Fernandez himself. Further we have mlcd out news items whithouh it is thefurthfunction offthef newhaspapehadr to pactuallublish. c A news item wt t any er proo o w t y happened through witnesses is of no value. It is at best a secondhand secondary evidence. It is well-known that reporters collect information and pass it on to the editor who edits the news item and then publishes it In this process the truth might get perverted or garbled. Such news items cannot be said to prove them- . selves although they may be taken into account with other evidence if the other evidence is forcible.\n\nIn the present case the only attempt to prove a speech of Mr. Fernandez was made in connection with the Shivaji Park meeting.\n\nSimilarly the editorials state the policy of the newspaper and its comment upon the events. Many of the news items were published in other papers also. For example Free Press Journal, the Blitz and writers like Welles Hengens had also published similar statements. If they could not be regarded as agents of Mr. Fernandez we do not see any reason to hold that the 'Maratha' or Mr. Atrey can safely be regarded as agent of Mr. Fernandez when ai:tiog for the newspaper so as to prove his consent to the publication of the defamatory matter. We are therefore of opinion that consent cannot F reasonably be inferred to the publications in the 'Maratha'. We are supported in our approach to the problem by a large body of case law to which our attention was drawn by Mr. Chari.\n\nWe may refer to a few cases here : Biswanath Upadhaya v. Hizralal Das and Others(1 ), Abdul Majeed v. Bhargavan (Krishnan) & Others('), Rustom Satin v. Dr. Sampoomanand and Others(•), Sar/a Devi Pathak v. Birendra Singh & Others('.), Krishna Kumar\n\nv. Krishna Gopal(\"), Lalsing Keshrising Rehvar v. Vallabhdas Shanker/al Thekdi and Others(•), Badri Narain Singh and Others\n\nv. Kamdeo Prasad Singh and, Another(') and Sarat Chandra Rabba\n\nv. Khagendran(lth Nath and Others(8). It is not necessary to\n\n(l) (I 9S8) Assam 97.\n\n(3) 20 E.L.R. 221.\n\n(2) A.I.R. 1963 Kerala 18.\n\n(S) A.l.R. 1964 Rajasthan 21.\n\n(7) A.I.R. 1961 Patna 41.\n\n(4) 20 E.L.R. 27S.\n\n(6) A.l.R. 1967 Gujarat 62.\n\n(8) A.l.R. 1961 S.C. 334.\n\nBALAICUSHNA v. Pl!RNANDEZ (Hidayatullah, CJ.) 637\n\nA refer to these cases in detail except to paint out that e Rajasthan case dissents from the case from Assam on which Mr. Jchamalani relied. The principle of law is settled that consent may be inferred from circumstantial evidence but the circumstances must paint unerringly to the conclusio~ and must not admit of llllY other explanation. Although the trial of a~ elec- B tion petition is made in accordance with the Code ?f Civil Procedure, it has been laid down that a corrupt pracuce must be proved in the same way as a criminal charge is proved. In .other words the election petitioner must exclude every hypothesis except that of guilt.on the part of the returned cand!datc:. .o~ his election agent.\n\nSince we have held that Mr. A treys. act1v1t1es must be viewed in two compartments, one connected with Mr.\n\nFer- C nandez and the other connected with the newspaper we have to find out whether there is an irresistible inference of guilt on the part of Mr. Fernandez. Some of the English cases cited by Mr.\n\nJethamalani are not a safeguide because in England a distinction is made between \"illegal practices\" and \"corrupt practices\". Cases dealing with \"illegal practices\" in which the candidate is held D responsible for the acts of bis agent are not a proper guide. It is to be noticed that making of a false statement is regarded as \"illsgal practice\" and not a \"corrupt practice\" and the: tests are different for a corrupt practice. In India all corrupt practices stand on the same footing. The only difference made is that when consent is proved on the part of the candidate or his elec- I tion agent to the commission of corrupt practice, that itself is sufficient.\n\nWhen a corrupt practice is committed by an agent and there is no such consent then the petitioner must go further {l!OVe that the result of the election in so far as the returned candidate is concemed was materially affected. In Bayley v.\n\nEdmunds, Byron and Marshall('), strongly relied upon by Mr.\n\nI' Daphtary the. publicatio.n in the newspaper was not held to be a\n\ncorupt practice but the paragraph taken from a newspaper and printed as a leaflet was held to be a corrupt practice. That is not the cae ere:. Mr. Patil:s own attitude during the election and after IS significant. Dunng the election Ire did not once protest that Mr. Fernandez was spreading false propaganda not even whe.n Mr. Fernandez charged his workers with hooligaism.\n\nG Even after the election Mr. atil did not attribute anything to Mr. Fernand_ez.\n\nHe .even said that the Bombay election was ducfcl! With_ pety. Even at the filing of the election pctiuon he did not thmk of Mr. Fernandez but concentrated on the 'Maratha'.\n\nB Mr. Dapht~ sought strengthen the inference about consent from the mter-connection ol events with the comments in the 'Maratha'. He refers to the news item appearing in the (I) [1894j II T.L.R. S37.\n\nLIOSup./~\n\n'Times of India' of February 10, 1967 in which the letting foose A of bad characters was alleged to be commented upon by Mr.\n\nFernandez.\n\nHe connected. this with the activities of Shanbhag \" who wrote to the Election Commission and then pointed out that the 'Maratha' came out with it. But if the 'Times of India' cannot be regarded as the agent no more can the 'Maratha'. A news paper reporti.ng a meeting does so as part of its own activity and\n\nB , there can be no inference of consent. What was necessary was to plead and prove that Mr. Fernandez said this and this.\n\nThen the newspaper reports could be taken in support but not independently.\n\nHere the plea was not taken at all and the evidence was not direct but indirect.\n\nMr. J ethamalani referred to some similarity in the reaction C of the Maratha' and Mr. Fernandez to the events. The Babubhai Chinai incident was said to be a fake by both the 'Maratha' and Mr. Fernandez, the Sayawadi meeting (not pleaded) was said to be followed by similar statements in the 'Maratha', the Bristol Grill Conference was reported in the 'Maratha'.\n\nAll this shows that the rival party believed in certain facts but it o does not show that the 'Maratha' was publishing these articles with Mr. Fernandez's consent.\n\nIn fact this argument has been designed to get over our finding that the Amendments were wrongly allowed.\n\nBefore this there was not so much insistence upon consent as thereafter.\n\nNow it may be stated that mere knowledge is not enough.\n\nConsent cannot be inferred from knowledge alone. Mr. Jethamalani relied upon the Taunton case (1) where Blackburn. J. said that that one must see how much was being done for the candidate and the candidate then nm.st take the good with the bad.· There is difficulty in accepting this contention.\n\nFormerly\n\ntire Indian Election Law mentioned 'knowledge and connivance' F but now it nsists on consent.\n\nSince reference to the earlier phrase has been dropped it is reasonable to think that the Jaw requires some concrete proof, direct or circumstantial of consent. and not merely of knowledge and connivance. It is significant that the drafters of the election petition use the phrase 'knowledge and connivance' and it is reasonable to think that they consulted the old Act and moulded the case round 'knowledge and connivance' and thought that was sufficient.\n\nWe cannot infer from an appraisal of tire evidence of Mr.\n\nFernandez that he had consented. His denial is there and may be not accurate but the burden was to be discharged by the election petitioner to establish consent. If Mr. Fernandez suppressed H some other facts or denied them, there can be no inference that\n\n(!) t O'Ma!ley and Hardcastle 181, 185.\n\nBALAKlUSHNA V. FERNANDEZ (Hidayatullah, C.J.) 639\n\nhis denial about knowledge of the articles in the 'Maratha was also false. M. Fernandez denied llatly that he saw the articles explaining that there was no time to read newspapers, a fact which has the support of Mr. Patil who also said that he had no time to read even cuttings placed by his secretary for his perusal. We may say here that we are not iJIU>ressed by the testimony of Mr.\n\nFernandez and we are constrained to say the same about Mr.\n\nPatil. We cannot on an appraisal of all the materials and the arguments of Mr. Daphtary reach the conclusio~ tat r. Fernandez was responsible for all that Mr. Atrey did m his newspaper or that his consent can be inferred in each case.\n\nThe most imortant argument was based on the meeting at Shivaji Park on January 31, 1967 where Mr. Fernandez spoke.\n\nAs the subject of the charge in the original petition did not refer to this speech and we disallowed the amendment, Mr. Jethamalani attempted to reach the same result by usinj the speech as evidence of consent to the publication of t)1~ report in th.e 'Maratha'. Here we may say at once that the speech could not be proved because it was not pleaded. Much time was consumed to take us through the evidence of witnesses who gave the exact words of Mr. Fernandez.\n\nMr. Fernandez was alleged to have said that Mr. Patil was not honest and won elections -by changing ballot boxes.\n\nMr. Fernandez did not admit having made the speech. Four witnesses Tanksale, Bhide, Khambata and Bendre who alleged that they were present at the meeting deposed to this fact. We have looked into their evidence and are thoroughly dissatisfied with it Ramkumar, a reporter was also cited.\n\nHe covered the meeting for the 'Indian Express' but his newspaper had not published this part and Ramkumar was examined to prove that it was deleted by Rao the Chief Reporter. The evidence of Ramkumar was so discrepant with that of Rao that the trial Judge could not rely on it and we are of the same opinion.\n\nThe fact that in Ex. 56 Mr. Fernandez had spoken of the 'ways and means' of winning elections of Mr. Patil cannot be held to be proof nor the aciivities of Shanbhag in arranging for a watch of the ballot boxes. Every candidate is afraid that the ballot boxes may be tampered with and there is no inference possible that. because Mr. Fernandez or Shanbhag his worker took precaut10ns, Mr. Fernandez must have made a particular speech. It was said that Randiv~ in his evidence admitted that Mr. Fernandz made such cmments. We do not agree. His version was different. . There is reason to think that there was an attempt to suborn witnesses and make them support this part of the case or to keep awy from the witnes box. One such attempt was made on and1ve We ~e not impressed by the witnesses who ~e to d1Sprove the petitioner's case but. that does not improve 1t either. It seems that attempts were bemg made to enlist support for such a contention and the evidence shows that the witnesses were not free from influence. It is not necessary to ga A into the evidence on the other side such as_ that of Dattu Pradhan and Prafulla Baxi. They do not impress us either. We are accordingly not satisfied that Mr. Fernandez made any such comment. H he did that would be a ground of the very first importance to an election petition. It is a little surprising that it was alleged so late and appears to be an aftef-. thought and intended a•\n\nto put into the mouth of Mr. Fernandez one of the statements of the 'Maratha'. Consent to the making of the siatement in the 'Maratha' had, therefore, to be proved and there is .no such proof.\n\nFor the same reasons we cannot regard J agadguru Shankaracharya or Mr. Madhu Limaye as the agents cJ( Mr. Fernandez.\n\nC The evidence regarding their agency itself is non-existent and there is no material nn which consent can be presumed or inferred.\n\nThe result of the foregoing discussion 1s that this case will have to be judged of under s. lOO(l)(d) a.nd not under s. 100 D ( 1 )(b). In the arguments before us Mr. Chari conceded that some of the articles contain false statements regarding the character and conduct of Mr. Patil. He mentioned in this connection five articles. It is, not, therefore, necessary to (:Xamine, each of the 16 articles separately. H the conditions required by s. 100\n\n(l)(d) read withs. 123(4) are satisfied, a corrupt practice :g avoiding the election will be established. The first condition is that the candidate's belief in the falsity of the statements must be established That was laid down by this Court in Kumara Nantl v.\n\nBrljmoha1' Lal Sharma('). The second condition is that the result of theo election in so far as Mr. Fernandez is concerned must be shown to be materially affected. Thus we have not only to see (a) that the statement was made by an agent, (b) that it was false etc., ( c) that it related to the personal character and conduct of Mr. Patil, (d) that it was reasonably calculated I'\n\nto harm his chances but also ( e) that it in fact materially affected the result of the election in so far as Mr. Fernandez was concerned. Of these (a) and ( c) are admitted 8nd (b) is admitted by Mr. Fernandez because he said that he did not believe that there was any truth 'in these statements. The question next is whether they were calculated to affect the prospects of Mr. Patil.\n\nG Here there can . be no two opinions. These articles cast violent aspersions and were false as admitted by Mr. Fernandez himself.\n\nThe course of conduct shows a deliberate attempt to lower his character and so they must be held to be calculated to harm him . \\n his election. So far the appellants are on firm ground. Even if all these findings are in favour of the appellants, we cannot dee- !are the election to be void under s. 100(1)(d) (ii) unless we H reach the further conclusion ihat the result of the election in so\n\n(I) [19671 2 S.C.R. 127.\n\nBALAKR!SHNA v. FERNANDEZ (Hidayatullah, C.J.) 641\n\nfar as Mr. Fernandez was concerned had been materially affected.\n\nThe section speaks of the returned candidate when it should have really spoken of the candidate who .was defed .or g.enerally about the result. However it be worded, the mtenuon 1s clear.\n\nThe condition is a prerequisite.\n\nMr. J ethamalani argued that the words \"materially affected\" refer to the general result and not how the voting would have gone in the absence of the corrupt practice. According to him s. 94 of the Act bars disclosure of votes and to attempt to prove how the voting pattern would have changed, would involve a violation of s. 94. According to him the court can give a finding by looking to the nature of the attacks made, the frequency and extent of publicity, the medium of circulation and the kind of issue that was raised before the voters. He contends that to tell the Maharashtrians that Mr. Patil paid a bribe to the voters of Goa to keep it centrally administered, to call Mr. Patil a Najibkhan of Maharashtra i.e. a traitor, to dub him as the creator of Shiv Sena which terrorised the minorities, to describe him as a goonda and leader of goondas who organised attacks on voters, to charge him with the responsibility of attack on Parliament and the Congress President's residence and to describe him as dishonest to the extent of switching ballot boxes, is to materially affect the result of the voting.\n\nAccording to him these circumstances furnish a good basis for the finding that the result of the election was positively affected and nothing more is needed.\n\nAccording to Mr. Jethamalani the capacity of Mr. Atrey when making these violent attacks was irrelevant as he was acting in support of the canvass of Mr. Fernandez.\n\nMr. Jethamalani further submits that different false statements were intended to reach different kind of voters.\n\nThe Maharashtrians were affected by the Goa and border issues the minorities by the Shiv Sena allegations, the law-abiding citizens by the allegations about goondaism. Thus there must have been\n\na land-slide in so far as Mr. Patil was concerned and there must have been corresponding gain to Mr. Fernandez. He relies upon Hackney case(') where Grove, J. made the following observauons\n\nat pages 81 and 82 :\n\n\"I have turned. the matter over in my mind, and I cannot see, assumm~ that argument to express the\n\ne.amng of that section, how the tribunal can by possib~!Ity say i:vhat would or might have taken place under\n\nd1fferen~ CIIcumstances. It seems to me to be a problem which the .hum.an mind has not yet been able to\n\nsole, namely, if things had been different at a certain peno.d, what would have been the result of the concatenatmn of events upon that supposed chainge of circum-\n\n(1 l 2 0' Malley and Hardcastle's Election Reports 77.\n\nstances. I am unable at all events to express an opinion upon what would have been the result, that is to say, who would have been elected provided certain matters had been complied with here which were not complied with. It was contended that I might hear evidence on both sides as to how an elector thought he would have voted at such election. That might possibly induce a person not sitting judicially to form some sort of vague guess, out that would be far short of eviden~ which ought to satisfy the mind of a judge of what any individual who might express that opinion would really do under what might have been entirely changed circumstances. But, besides that, one of the principles of the Ballot Act is tliat voting should be secret, and voters are not to be compelled to disclose how they voted except upon a scrutiny after a vote has been declared invalid. Notwithstanding that, I am asked here, assuming the construction for which Mr. Bowen contends to be correct, to ascertain how either the 41,000 electors of this Borough, or any number of them, miht have wished to vote had they had the opportunity of doing so, and what in that event would have been the result of the election. It seems to me that such an inquiry would not only have been entirely contrary to the spirit of the Act, but also that it would be a simple impossibility. I should, the1efore, say that even if the wording of the Act, taking it literally and -grammatically, required me to put such a construction upon it, it would lead to such a manifest absurdity (using now the judicial term which has generally been used with reference to the construction of statutes) that unless I were in some way imperatively obliged, and unless the Act could by no possibility admit of any other construction, I should not put a construction upon it which really reduced the matter to a practical impossibility. Such a construction would practically render it necessary, in the case of any miscarriage at an election, however great the miscarriage might be (if, that is to say, only a very small number of persons had voted, and all the rest of the Borough had been entirely unable to vote) that the judge should then enquire as to bow the election would have gone. As I ventured to remark in the course of the argument, where a miscarriage of this sort took place it would be virtually placing the election not in the hands\n\nof the constituency, but in the hands of the election judge, who is not t.o exercise a judgment as to who is to H\n\nbe the member, but who is only ro see whether the election has been properly conducted according to law.\"\n\nBALAKilISHNA v. FERNANDEZ (Hidayatullah, C.1.) 643\n\nJustice Grove then gave the meaning of the provision at page SS as follows :\n\n\"If I look to the whole, and to the sense of it as a whole it seems to me that the object of the Legislature in thi; provision is to say this-an election is not to be upset for an informality or for a triviality, it is not to be upset because the clerk of one of the polling stations was five minutes too late, or because some of the polling papers were not delivered in a proper 1; llaer, or were not marked in a proper way. The ob1ection must be something substantial, something calculated really to affect the result of the election. I think that that is a way of viewing it which is consistent with the terms of the section. So far as it seems to me, the reasonable and fair meaning of the section is to prevent an election from becomiQg void by trifling objections on the ground of an informality, because the judge has to look to the substance of the case to see whether the informality is of such a nature as to be fairly calculated in a reasonable mind to produce a substantial effect upon the election.\"\n\nMr. Jethamalani invites us to apply the same test and in the light of his facts to say that the result of the election in so far as Mr.\n\nFernandez is concerned was materially affected.\n\nOn the other hand, Mr. Chari relies upon the facts that there was a difference of 30,000 votes between the two rivals and as many as 38,565 votes were cast in favour of the remaining.candidates. He ~ys that Mr. Patil had contested the earlier elections from the same constituency and the votes then obtained by him were not more in fact less. He says it is impossible to say how much Mr. Patil lost or Mr. Fernandez gained by reason of the false statements and whether the affected voters did not give their votes to the other candidates. He argues that the best test would be to see what Mr. Patil's reactions were on hearing of his defeat.\n\nIn this connection he referred to Ex. 120 in which Mr. Patil commented on the elections in Bombay being orderly. In Ex. 128 he said that the voters of Bombay had rejected him and that he has disappointed his supporters and they must pardon him, and that he must have been punished for some sin committed by him. Mr.\n\nChari says that never for a moment did Mr. Patil attribute his defeat to false propaganda by Mr. Fernandez or his supporters, which if it had been a fact Mr. Patil would have Jost no time in\n\nent!oning .. All this shows that Mr. Patil maintained his position m this constituency. Mr. Fernandez had earlier announced that he would organise support for himself from those who had voted in the past for his rivals or had refrained from voting and this Mr.\n\nFernandez was successful in achieving.\n\nMr. Chari relies upon the rulings of this Court where it has been laid down how the\n\nburden of proving the affect on the election must be discharged.\n\nHe referred to the case reported in Vashist Narain Sharma v.\n\nDev Chandra(') and Surendra Nath Khos/a v. Dilip Singh(') and the later rulings of this Court in which Vashist Narain's(') case has. been followed and applied.\n\nIn our opinion the matter cannot be considered on possibility.\n\nVashist Narain's(') case insists on proof. If the margin of votes were small something might be made of the points mentioned by Mr. Jethamalani. But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge.\n\nThere is no room, therefore, for a reasonable judicial guess. The law requires proof. How far that proof should go or what it should contain is not provided by the Legislature. In Vashist's(') case and in Jnayatullah v. Diwanchand Mahajan,(3) the provision was held to prescribe an impossible burden.\n\nThe I aw has however remained as before. We are bound by the rulings of this Court and must say that the burden has not been successfully dis, charged. We cannot overlook the rulings of this Court and follow the English ruling cited to us.\n\nTo conclude and summarize our findings : We are satisfied that Mr. Atrey as the Editor. of the 'Maratha' published false statements relating to the character and conduct of Mr. Patil .. calculated to harm the prospects of Mr. Patil's election, that Mr.\n\nAtrey was the agent of Mr. Fernandez under the election law. but there is nothing to prove that he did so with the consent of Mr.\n\nFernandez, nor can such consent be implied because in making the statements Mr. A trey was acting as the editor of his own news- . paper the 'Maratha' and not acting for Mr. Fernandez. We are further satisfied that the petitioner has failed to establish in the manner laid down in this Court; that the result of the election was materially affected in so far as Mr. Fernandez was concerned. We are also satisfied that if the petitioner had pleaded corrupt practices against Mr. Fernandez personally (which he did not) the result might have been different. The election petition was illconsidered and left out the most vital charges but for that the petitioner must thank himself.\n\nIn the result the appeals failed and as already announced earlier they are dismissed with costs.\n\nV.P.S.\n\nAppeal dismirsed.\n\n(I) (1955] J S.C.R. 509.\n\n(2) [l 957] S.C.R. 179.\n\n(3) 15 E.L.R. 210, 235-236.", "total_entities": 282, "entities": [{"text": "SAMANT N. BALAKRISHNA ETC", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "SAMANT N. BALAKRISHNA ETC", "offset_not_found": false}}, {"text": "GEORGE FERNANDEZ AND ORS. ETC", "label": "RESPONDENT", "start_char": 28, "end_char": 57, "source": "metadata", "metadata": {"canonical_name": "GEORGE FERNANDEZ AND ORS. ETC", "offset_not_found": false}}, {"text": "February 12, 1969", "label": "DATE", "start_char": 60, "end_char": 77, "source": "ner", "metadata": {"in_sentence": "February 12, 1969\n\n[M. HlDAYATULLAH, C.J. AND G. K. MITTER, J]\n\nRtpresentation of tile Ptople A.ct (43 of 1951), J's."}}, {"text": "G. K. MITTER, J", "label": "JUDGE", "start_char": 106, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "G.K. 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Rajendra Chaudhuri", "label": "LAWYER", "start_char": 19640, "end_char": 19661, "source": "ner", "metadata": {"in_sentence": "A. S. R. Chari, Porus A. Mehta, S. B. Naik, Kumar Mehta, R. Nagaratnam and K. Rajendra Chaudhuri, for respondent No."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 19752, "end_char": 19764, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHidayatullah, C.J. In the last General Election to Parliament from the Bombay South Parliamentary constituency eight candidates had offered themselves.", "canonical_name": "M. HIDAYATULLAH*"}}, {"text": "George Fernandez", "label": "RESPONDENT", "start_char": 19934, "end_char": 19950, "source": "ner", "metadata": {"in_sentence": "The answering respondent Mr.\n\nGeorge Fernandez secured 1,47,841 votes as against his nearest rival Mr. S. K. Patil who secured 1,18,407 votes.", "canonical_name": "GEORGE FERNANDEZ AND ORS. ETC"}}, {"text": "S. K. Patil", "label": "RESPONDENT", "start_char": 20007, "end_char": 20018, "source": "ner", "metadata": {"in_sentence": "The answering respondent Mr.\n\nGeorge Fernandez secured 1,47,841 votes as against his nearest rival Mr. S. K. Patil who secured 1,18,407 votes.", "canonical_name": "S. K.\n\nPatil"}}, {"text": "George Fernandez", "label": "RESPONDENT", "start_char": 20181, "end_char": 20197, "source": "ner", "metadata": {"in_sentence": "The result of the poll was declared on February 24, 1967 and Mr.\n\nGeorge Fernandez was returned.", "canonical_name": "GEORGE FERNANDEZ AND ORS. ETC"}}, {"text": "Samant N. Balakrishna", "label": "PETITIONER", "start_char": 20252, "end_char": 20273, "source": "ner", "metadata": {"in_sentence": "Samant N. Balakrishna, an elector in the constituency.", "canonical_name": "SAMANT N. 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K.\n\nPatil"}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 20697, "end_char": 20714, "source": "ner", "metadata": {"in_sentence": "Two appeals have now been filed against the judgment of the Bombay High Court, one by the election petitioner and the other by Mr.\n\nS. K. Patil."}}, {"text": "s. 62", "label": "PROVISION", "start_char": 21106, "end_char": 21111, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 21119, "end_char": 21151, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Arts. 326 and 327", "label": "PROVISION", "start_char": 21156, "end_char": 21173, "source": "regex", "metadata": {"statute": null}}, {"text": "February 16, 19~", "label": "DATE", "start_char": 21878, "end_char": 21894, "source": "ner", "metadata": {"in_sentence": "Sub-paragraph E dealt with statements made at a meeting dated February 16, 19~ at Shivaji Park by Jagadguru Shankaracharya charging Mr. S. K. Patil with complicity in arson of November 7, 1966 at New Delhi and attack on the residence of the Congress President with injuries caused to people."}}, {"text": "Jagadguru Shankaracharya", "label": "OTHER_PERSON", "start_char": 21914, "end_char": 21938, "source": "ner", "metadata": {"in_sentence": "Sub-paragraph E dealt with statements made at a meeting dated February 16, 19~ at Shivaji Park by Jagadguru Shankaracharya charging Mr. S. K. Patil with complicity in arson of November 7, 1966 at New Delhi and attack on the residence of the Congress President with injuries caused to people.", "canonical_name": "J agadguru Shankaracharya"}}, {"text": "November 7, 1966", "label": "DATE", "start_char": 21992, "end_char": 22008, "source": "ner", "metadata": {"in_sentence": "Sub-paragraph E dealt with statements made at a meeting dated February 16, 19~ at Shivaji Park by Jagadguru Shankaracharya charging Mr. S. K. Patil with complicity in arson of November 7, 1966 at New Delhi and attack on the residence of the Congress President with injuries caused to people."}}, {"text": "New Delhi", "label": "GPE", "start_char": 22012, "end_char": 22021, "source": "ner", "metadata": {"in_sentence": "Sub-paragraph E dealt with statements made at a meeting dated February 16, 19~ at Shivaji Park by Jagadguru Shankaracharya charging Mr. S. K. Patil with complicity in arson of November 7, 1966 at New Delhi and attack on the residence of the Congress President with injuries caused to people."}}, {"text": "Patil", "label": "OTHER_PERSON", "start_char": 22222, "end_char": 22227, "source": "ner", "metadata": {"in_sentence": "In these articles from the 'Maratha' and the 'Blitz' extracts of which were quoted and annexed as Annexure A, Mr. Patil was described as hypocrite, insi, ncere and dishonest.", "canonical_name": "Patil"}}, {"text": "Madhu Limaye", "label": "LAWYER", "start_char": 22307, "end_char": 22319, "source": "ner", "metadata": {"in_sentence": "Similar speeches by Mr. Madhu Limaye, (another candidate of the S.S.P. by which party Mr. Fernandez was sponsored) were relied upon.", "canonical_name": "Madhu Lirnaye"}}, {"text": "S.S.P.", "label": "ORG", "start_char": 22347, "end_char": 22353, "source": "ner", "metadata": {"in_sentence": "Similar speeches by Mr. Madhu Limaye, (another candidate of the S.S.P. by which party Mr. Fernandez was sponsored) were relied upon."}}, {"text": "s. 123(4)", "label": "PROVISION", "start_char": 22567, "end_char": 22576, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 22584, "end_char": 22616, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 123(3)", "label": "PROVISION", "start_char": 22995, "end_char": 23009, "source": "regex", "metadata": {"statute": null}}, {"text": "Pakistan", "label": "GPE", "start_char": 23521, "end_char": 23529, "source": "ner", "metadata": {"in_sentence": "expulsion of Muslims to Pakistan."}}, {"text": "s. 123", "label": "PROVISION", "start_char": 23562, "end_char": 23568, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 23581, "end_char": 23613, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ja.ck Sequeira", "label": "OTHER_PERSON", "start_char": 23765, "end_char": 23779, "source": "ner", "metadata": {"in_sentence": "to Mr. Ja.ck Sequeira to undo the efforts of Mha ashtnans, for mcoi; poratlon of Goa in Maharashtra."}}, {"text": "Mha ashtnans", "label": "OTHER_PERSON", "start_char": 23803, "end_char": 23815, "source": "ner", "metadata": {"in_sentence": "to Mr. Ja.ck Sequeira to undo the efforts of Mha ashtnans, for mcoi; poratlon of Goa in Maharashtra."}}, {"text": "Goa", "label": "GPE", "start_char": 23839, "end_char": 23842, "source": "ner", "metadata": {"in_sentence": "to Mr. Ja.ck Sequeira to undo the efforts of Mha ashtnans, for mcoi; poratlon of Goa in Maharashtra."}}, {"text": "Maharashtra", "label": "GPE", "start_char": 23846, "end_char": 23857, "source": "ner", "metadata": {"in_sentence": "to Mr. Ja.ck Sequeira to undo the efforts of Mha ashtnans, for mcoi; poratlon of Goa in Maharashtra."}}, {"text": "H. R. Gokhale", "label": "OTHER_PERSON", "start_char": 23945, "end_char": 23958, "source": "ner", "metadata": {"in_sentence": "The extract rom the Maratha of January 25, 1967 was annexed as Ex B The speech of Mr. H. R. Gokhale who published a similar state: ment, :vas also referred to."}}, {"text": "s. 123", "label": "PROVISION", "start_char": 24067, "end_char": 24073, "source": "regex", "metadata": {"statute": null}}, {"text": "8th of February, 1967", "label": "DATE", "start_char": 24214, "end_char": 24235, "source": "ner", "metadata": {"in_sentence": "In Sub-paragraph I four issues of the 'Maratha' of the 5th and 31st January, 1967 and 5th and 8th of February, 1967 were exhibited as Ex."}}, {"text": "Shiv Sena", "label": "ORG", "start_char": 24302, "end_char": 24311, "source": "ner", "metadata": {"in_sentence": "C.\n\nIt was stated in the first two that the Shiv Sena supported the Maharashtra traitor Sadoba Patil and that the Shiv Sena was really Sadoba Sena."}}, {"text": "Sadoba Patil", "label": "OTHER_PERSON", "start_char": 24346, "end_char": 24358, "source": "ner", "metadata": {"in_sentence": "C.\n\nIt was stated in the first two that the Shiv Sena supported the Maharashtra traitor Sadoba Patil and that the Shiv Sena was really Sadoba Sena.", "canonical_name": "Sadoba Patil Shiv Sena"}}, {"text": "Vishwamitra", "label": "OTHER_PERSON", "start_char": 24444, "end_char": 24455, "source": "ner", "metadata": {"in_sentence": "A cartoon showing Mr.\n\nS. K. Patil as Vishwamitra and the leader of Shiv Sena as Menka with the caption 'Sadoba denies that he has no connection with Shiv Sena like Vishwamitra Menka episode\", was the third.", "canonical_name": "Vishwamitra Menka"}}, {"text": "Sadoba", "label": "OTHER_PERSON", "start_char": 24511, "end_char": 24517, "source": "ner", "metadata": {"in_sentence": "A cartoon showing Mr.\n\nS. K. Patil as Vishwamitra and the leader of Shiv Sena as Menka with the caption 'Sadoba denies that he has no connection with Shiv Sena like Vishwamitra Menka episode\", was the third.", "canonical_name": "Sadoba Patil Shiv Sena"}}, {"text": "Vishwamitra Menka", "label": "OTHER_PERSON", "start_char": 24571, "end_char": 24588, "source": "ner", "metadata": {"in_sentence": "A cartoon showing Mr.\n\nS. K. Patil as Vishwamitra and the leader of Shiv Sena as Menka with the caption 'Sadoba denies that he has no connection with Shiv Sena like Vishwamitra Menka episode\", was the third.", "canonical_name": "Vishwamitra Menka"}}, {"text": "Sadoba Patil Shiv Sena", "label": "OTHER_PERSON", "start_char": 24679, "end_char": 24701, "source": "ner", "metadata": {"in_sentence": "The last of these articles was headed \"harassment from Gondas of Sadoba Patil Shiv Sena in the service of Sadhshiv (S. K. Patil)\".", "canonical_name": "Sadoba Patil Shiv Sena"}}, {"text": "Sadhshiv", "label": "OTHER_PERSON", "start_char": 24720, "end_char": 24728, "source": "ner", "metadata": {"in_sentence": "The last of these articles was headed \"harassment from Gondas of Sadoba Patil Shiv Sena in the service of Sadhshiv (S. K. Patil)\"."}}, {"text": "S. K.\n\nPatil", "label": "LAWYER", "start_char": 24869, "end_char": 24881, "source": "ner", "metadata": {"in_sentence": "2 (Mr. S. K.\n\nPatil) or at any rate on behalf of Mr. Fernandez.", "canonical_name": "S. K.\n\nPatil"}}, {"text": "section 123( 4)", "label": "PROVISION", "start_char": 24999, "end_char": 25014, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 25022, "end_char": 25054, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sonapur", "label": "GPE", "start_char": 25328, "end_char": 25335, "source": "ner", "metadata": {"in_sentence": "In the first it was stated that \"Shri S. K. Patil will go to Sonapur in the ensuing election."}}, {"text": "India", "label": "GPE", "start_char": 25408, "end_char": 25413, "source": "ner", "metadata": {"in_sentence": "Fernandez says in his Articles Patil mortgaged India's Freedom with America by entering into P. L. 480 agreement and Mr. Patil had no devotion, love, respect for this country at all.\""}}, {"text": "America", "label": "GPE", "start_char": 25429, "end_char": 25436, "source": "ner", "metadata": {"in_sentence": "Fernandez says in his Articles Patil mortgaged India's Freedom with America by entering into P. L. 480 agreement and Mr. Patil had no devotion, love, respect for this country at all.\""}}, {"text": "Shankaracharya", "label": "OTHER_PERSON", "start_char": 25645, "end_char": 25659, "source": "ner", "metadata": {"in_sentence": "The third was a cartoon in which Shankaracharya was depicted as saying \"Cow is my mother."}}, {"text": "Patil S. K.", "label": "OTHER_PERSON", "start_char": 25723, "end_char": 25734, "source": "ner", "metadata": {"in_sentence": "Do not kill her\" and Patil S. K. as saying \"Pig is my father\"."}}, {"text": "December 12, 1966", "label": "DATE", "start_char": 25989, "end_char": 26006, "source": "ner", "metadata": {"in_sentence": "2's character and conduct were published in several issues of Maratha Daily\" from December 12, 1966 to February 21, 1967 and 33 issues were mentioned by date."}}, {"text": "February 21, 1967", "label": "DATE", "start_char": 26010, "end_char": 26027, "source": "ner", "metadata": {"in_sentence": "2's character and conduct were published in several issues of Maratha Daily\" from December 12, 1966 to February 21, 1967 and 33 issues were mentioned by date."}}, {"text": "June 14, 1967", "label": "DATE", "start_char": 26234, "end_char": 26247, "source": "ner", "metadata": {"in_sentence": "Mr. Fernandez filed his written statement on June 14, 1967 and Mr. S. K. Patil on July 4, 1967."}}, {"text": "July 4, 1967", "label": "DATE", "start_char": 26271, "end_char": 26283, "source": "ner", "metadata": {"in_sentence": "Mr. Fernandez filed his written statement on June 14, 1967 and Mr. S. K. Patil on July 4, 1967."}}, {"text": "S 1966", "label": "PROVISION", "start_char": 26910, "end_char": 26916, "source": "regex", "metadata": {"statute": null}}, {"text": "Fernandez", "label": "LAWYER", "start_char": 27416, "end_char": 27425, "source": "ner", "metadata": {"in_sentence": "by Mr.\n\nFernandez on January 31, 1967 was pleaded in which Mr.\n\nFernandez is said to have made a statement that even God could not defeat the second respondent (Mr. S. K. Patil) because unlike the second respondent God was not dishonest.", "canonical_name": "Fer- C nandez"}}, {"text": "January 31, 1967", "label": "DATE", "start_char": 27429, "end_char": 27445, "source": "ner", "metadata": {"in_sentence": "by Mr.\n\nFernandez on January 31, 1967 was pleaded in which Mr.\n\nFernandez is said to have made a statement that even God could not defeat the second respondent (Mr. S. K. Patil) because unlike the second respondent God was not dishonest."}}, {"text": "S. K. Patil", "label": "LAWYER", "start_char": 27573, "end_char": 27584, "source": "ner", "metadata": {"in_sentence": "by Mr.\n\nFernandez on January 31, 1967 was pleaded in which Mr.\n\nFernandez is said to have made a statement that even God could not defeat the second respondent (Mr. S. K. Patil) because unlike the second respondent God was not dishonest.", "canonical_name": "S. K.\n\nPatil"}}, {"text": "Bristol Grill Restaurant", "label": "ORG", "start_char": 28090, "end_char": 28114, "source": "ner", "metadata": {"in_sentence": "E. In the second Sub-sub-paragraph a Press Conference at Bristol Grill Restaurant on February 9, 1967 addressed by Mr. Fernandez was referred to."}}, {"text": "February 9, 1967", "label": "DATE", "start_char": 28118, "end_char": 28134, "source": "ner", "metadata": {"in_sentence": "E. In the second Sub-sub-paragraph a Press Conference at Bristol Grill Restaurant on February 9, 1967 addressed by Mr. Fernandez was referred to."}}, {"text": "February 10, 1967", "label": "DATE", "start_char": 28787, "end_char": 28804, "source": "ner", "metadata": {"in_sentence": "of February 10, 1967 was referred to."}}, {"text": "s. 123", "label": "PROVISION", "start_char": 29105, "end_char": 29111, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 29124, "end_char": 29156, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "January 8, 1967", "label": "DATE", "start_char": 29195, "end_char": 29210, "source": "ner", "metadata": {"in_sentence": "In the fourth paragraph a meeting of January 8, 1967 at Chowpati, presided over by Mr. Fernandez was referred to."}}, {"text": "Chowpati", "label": "GPE", "start_char": 29214, "end_char": 29222, "source": "ner", "metadata": {"in_sentence": "In the fourth paragraph a meeting of January 8, 1967 at Chowpati, presided over by Mr. Fernandez was referred to."}}, {"text": "P. K.\n\nAtrey", "label": "LAWYER", "start_char": 29533, "end_char": 29545, "source": "ner", "metadata": {"in_sentence": "In this Sub-sub-paragraph it was also alleged that Mr. P. K.\n\nAtrey, Editor and Proprietor of the 'Maratha', Jagadguru Shankaracharya and Mr. Madhu Limaye were agents of Mr.\n\nFernandez and had made these statements in his interest and with his consent."}}, {"text": "Aminchand Pyarelal", "label": "OTHER_PERSON", "start_char": 30337, "end_char": 30355, "source": "ner", "metadata": {"in_sentence": "It was captioned as a fight against \"political\n\nthuggery\" and included the following passage which was made the basis of the following charge :\n\n\"These men (including the 2nd Respondent) from the hard core of the coterie which control the destinies of the nation, even decides who should be the Prime Minister and who should not be, hounds out the few honest Congressmen from Public life, props up the Aminchand Pyarelal and Chamanlal and supports them in all their misdeeds and puts a premium on dishonest businessmen and industrialists.\""}}, {"text": "Chamanlal", "label": "OTHER_PERSON", "start_char": 30360, "end_char": 30369, "source": "ner", "metadata": {"in_sentence": "It was captioned as a fight against \"political\n\nthuggery\" and included the following passage which was made the basis of the following charge :\n\n\"These men (including the 2nd Respondent) from the hard core of the coterie which control the destinies of the nation, even decides who should be the Prime Minister and who should not be, hounds out the few honest Congressmen from Public life, props up the Aminchand Pyarelal and Chamanlal and supports them in all their misdeeds and puts a premium on dishonest businessmen and industrialists.\""}}, {"text": "Vigas !", "label": "OTHER_PERSON", "start_char": 30607, "end_char": 30614, "source": "ner", "metadata": {"in_sentence": "The Other amendments which were disallowed referred to a speech at Dr. Vigas !"}}, {"text": "February 27, 1967", "label": "DATE", "start_char": 30624, "end_char": 30641, "source": "ner", "metadata": {"in_sentence": "itreet on February 27, 1967, a speech by Dr. Lohia at Chowpati on January l, 1967 published in 'Andolan' of January 9, 1967 and a Press Conference by Mr. Madhu Limaye at Bristol Grill Restaurant on December 10, 1966."}}, {"text": "Lohia", "label": "OTHER_PERSON", "start_char": 30659, "end_char": 30664, "source": "ner", "metadata": {"in_sentence": "itreet on February 27, 1967, a speech by Dr. Lohia at Chowpati on January l, 1967 published in 'Andolan' of January 9, 1967 and a Press Conference by Mr. Madhu Limaye at Bristol Grill Restaurant on December 10, 1966."}}, {"text": "January l, 1967", "label": "DATE", "start_char": 30680, "end_char": 30695, "source": "ner", "metadata": {"in_sentence": "itreet on February 27, 1967, a speech by Dr. Lohia at Chowpati on January l, 1967 published in 'Andolan' of January 9, 1967 and a Press Conference by Mr. Madhu Limaye at Bristol Grill Restaurant on December 10, 1966."}}, {"text": "January 9, 1967", "label": "DATE", "start_char": 30722, "end_char": 30737, "source": "ner", "metadata": {"in_sentence": "itreet on February 27, 1967, a speech by Dr. Lohia at Chowpati on January l, 1967 published in 'Andolan' of January 9, 1967 and a Press Conference by Mr. Madhu Limaye at Bristol Grill Restaurant on December 10, 1966."}}, {"text": "December 10, 1966", "label": "DATE", "start_char": 30812, "end_char": 30829, "source": "ner", "metadata": {"in_sentence": "itreet on February 27, 1967, a speech by Dr. Lohia at Chowpati on January l, 1967 published in 'Andolan' of January 9, 1967 and a Press Conference by Mr. Madhu Limaye at Bristol Grill Restaurant on December 10, 1966."}}, {"text": "Kanuga", "label": "OTHER_PERSON", "start_char": 31250, "end_char": 31256, "source": "ner", "metadata": {"in_sentence": "Mr. Kanuga, one of the Advocates for the petitioner replied to the objection as follows :\n\n\"We undertake to file the original issues and official translations later as the same is (sic) with the Chief translator, High Court, Bombay before the service of Writ of Summons\"."}}, {"text": "High Court, Bombay", "label": "COURT", "start_char": 31459, "end_char": 31477, "source": "ner", "metadata": {"in_sentence": "Mr. Kanuga, one of the Advocates for the petitioner replied to the objection as follows :\n\n\"We undertake to file the original issues and official translations later as the same is (sic) with the Chief translator, High Court, Bombay before the service of Writ of Summons\"."}}, {"text": "July 3, 1967", "label": "DATE", "start_char": 31524, "end_char": 31536, "source": "ner", "metadata": {"in_sentence": "Till July 3, 1967 no effort seems to have been m'.!de to file the originals."}}, {"text": "Jethmalani", "label": "LAWYER", "start_char": 31649, "end_char": 31659, "source": "ner", "metadata": {"in_sentence": "On that date the 'Rozanama' read as follows :-\n\n\"Mr. Jethmalani applies for leave to amend the petition by pointing out that 'D' in last sentence of paragraph 2 on page 12 of the petition be corrected and read as 'E' and to annex reports in original P. C. leave to amend granted.\"", "canonical_name": "J ethamaJani"}}, {"text": "July 7, 1967", "label": "DATE", "start_char": 31953, "end_char": 31965, "source": "ner", "metadata": {"in_sentence": "On July 7, 1967 the 'Rozanama' read as follows \"Mr. Gurushani tenders the original of the exhibits A (Coll) to Exhibit E (Coll) mentioned in para 2J\n\nof page 11 of the petition.\""}}, {"text": "Gurushani", "label": "OTHER_PERSON", "start_char": 32002, "end_char": 32011, "source": "ner", "metadata": {"in_sentence": "On July 7, 1967 the 'Rozanama' read as follows \"Mr. Gurushani tenders the original of the exhibits A (Coll) to Exhibit E (Coll) mentioned in para 2J\n\nof page 11 of the petition.\""}}, {"text": "August 4, 1967", "label": "DATE", "start_char": 32212, "end_char": 32226, "source": "ner", "metadata": {"in_sentence": "H A chamber summons was taken out because the particulars were not supplied and on August 4, 1967 the particulars were furnish-\n\nBALAl>R!SHNA v, FERNANDEZ (Hidizyatul/ah, C.l,) 613\n\nA ed."}}, {"text": "September 12, 1967", "label": "DATE", "start_char": 32332, "end_char": 32350, "source": "ner", "metadata": {"in_sentence": "It was then on September 12, 1967 that the application for seven amendments was made, four of which were allowed and three were rejected."}}, {"text": "September 15, 1967", "label": "DATE", "start_char": 32482, "end_char": 32500, "source": "ner", "metadata": {"in_sentence": "This was by an order dated September 15, 1967."}}, {"text": "Daphtary", "label": "OTHER_PERSON", "start_char": 32966, "end_char": 32974, "source": "ner", "metadata": {"in_sentence": "Mr. Daphtary's contention is that if the originals of the 'Maratha' had not been filed an objection would have been taken in the court and none was taken.", "canonical_name": "I' Daphtary"}}, {"text": "August 25, 1967", "label": "DATE", "start_char": 33365, "end_char": 33380, "source": "ner", "metadata": {"in_sentence": "Evidence commenced on August 25, 1967."}}, {"text": "Rozanama", "label": "OTHER_PERSON", "start_char": 35312, "end_char": 35320, "source": "ner", "metadata": {"in_sentence": "E was separately filed and according to the Rozanama, the originals were filed on July 7, 1967."}}, {"text": "25th January and 5th February, 1967", "label": "DATE", "start_char": 35985, "end_char": 36020, "source": "ner", "metadata": {"in_sentence": "They were the issues of 25th January and 5th February, 1967."}}, {"text": "s. 100", "label": "PROVISION", "start_char": 38236, "end_char": 38242, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 83", "label": "PROVISION", "start_char": 38286, "end_char": 38291, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 86", "label": "PROVISION", "start_char": 38447, "end_char": 38452, "source": "regex", "metadata": {"statute": null}}, {"text": "Chari", "label": "OTHER_PERSON", "start_char": 38738, "end_char": 38743, "source": "ner", "metadata": {"in_sentence": "On the other hand, Mr. Chari for Mr. Fernandez contends that there was no reference to the speeches by Mr. Fernandez in the petition."}}, {"text": "S. K. }", "label": "OTHER_PERSON", "start_char": 39931, "end_char": 39938, "source": "ner", "metadata": {"in_sentence": "hri S. K. }'atil will go to Sonapur in the ensuing elec:uon."}}, {"text": "Madhu Lirnaye", "label": "LAWYER", "start_char": 41939, "end_char": 41952, "source": "ner", "metadata": {"in_sentence": "By another application for amendment the petitioner sought to add a paragraph that the 'Maratha', Jagadguru Shankaracharya and Mr. Madhu Lirnaye wem agents of Mr. Fernandez within the Election Law.", "canonical_name": "Madhu Lirnaye"}}, {"text": "Section 81", "label": "PROVISION", "start_char": 43352, "end_char": 43362, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 43372, "end_char": 43410, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 100", "label": "PROVISION", "start_char": 43508, "end_char": 43514, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "s. 101", "label": "PROVISION", "start_char": 43525, "end_char": 43531, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "Sections 100 and 101", "label": "PROVISION", "start_char": 43612, "end_char": 43632, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "section 100", "label": "PROVISION", "start_char": 43813, "end_char": 43824, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "section 100", "label": "PROVISION", "start_char": 44031, "end_char": 44042, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "section 101", "label": "PROVISION", "start_char": 44047, "end_char": 44058, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "Act or the Government of Union Territories Act, 1963", "label": "STATUTE", "start_char": 45101, "end_char": 45153, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 101", "label": "PROVISION", "start_char": 47052, "end_char": 47063, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 101", "label": "PROVISION", "start_char": 47183, "end_char": 47194, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 100 and 101", "label": "PROVISION", "start_char": 47297, "end_char": 47317, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 100(1)", "label": "PROVISION", "start_char": 47564, "end_char": 47573, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 49966, "end_char": 49998, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 100", "label": "PROVISION", "start_char": 50417, "end_char": 50423, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 50494, "end_char": 50500, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 52212, "end_char": 52218, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 53024, "end_char": 53030, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 56077, "end_char": 56109, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "sections 81, 83 and 86", "label": "PROVISION", "start_char": 56136, "end_char": 56158, "source": "regex", "metadata": {"statute": null}}, {"text": "s.10", "label": "PROVISION", "start_char": 56430, "end_char": 56434, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 83", "label": "PROVISION", "start_char": 56497, "end_char": 56507, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 83", "label": "PROVISION", "start_char": 56535, "end_char": 56545, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Civil Procedure, 1908", "label": "STATUTE", "start_char": 57027, "end_char": 57056, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 8", "label": "PROVISION", "start_char": 60811, "end_char": 60820, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 86", "label": "PROVISION", "start_char": 63574, "end_char": 63579, "source": "regex", "metadata": {"statute": null}}, {"text": "Atrey", "label": "OTHER_PERSON", "start_char": 63712, "end_char": 63717, "source": "ner", "metadata": {"in_sentence": "In the petition as originally filed the agency of Jagadguru Shankaracharya, Mr. Madhu Limaye and the Maratha (or Mr. Atrey) was the basis of the charge and the candidate Mr. Fernandez was left out.", "canonical_name": "A trey"}}, {"text": "Maratha", "label": "ORG", "start_char": 64212, "end_char": 64219, "source": "ner", "metadata": {"in_sentence": "The next reference in 2J is to statements of Mr. Fernandez and published by the Maratha."}}, {"text": "section 86(5)", "label": "PROVISION", "start_char": 64687, "end_char": 64700, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 64766, "end_char": 64793, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 123", "label": "PROVISION", "start_char": 66394, "end_char": 66400, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 67044, "end_char": 67071, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 87", "label": "PROVISION", "start_char": 67095, "end_char": 67100, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 67196, "end_char": 67228, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 67349, "end_char": 67376, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 67982, "end_char": 68002, "source": "ner", "metadata": {"in_sentence": "This was laid down in Din Dayal\n\nv. Beni Prasad and A11Dther(2), Balwan Singh v' Election Tribunal, Kanpur and Others(') by the Allahabad High Court, in T. L. Sasivarna Thevar v. V. Arunagiri and Others(') by the Madras High Court and iin Harl Vishnu Karnath v. Election Tribunal; Jaipur and Another(') by the Madhya Pradesh High Co.urt."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 68067, "end_char": 68084, "source": "ner", "metadata": {"in_sentence": "This was laid down in Din Dayal\n\nv. Beni Prasad and A11Dther(2), Balwan Singh v' Election Tribunal, Kanpur and Others(') by the Allahabad High Court, in T. L. Sasivarna Thevar v. V. Arunagiri and Others(') by the Madras High Court and iin Harl Vishnu Karnath v. Election Tribunal; Jaipur and Another(') by the Madhya Pradesh High Co.urt."}}, {"text": "Harish (/handra Bajpm", "label": "OTHER_PERSON", "start_char": 68219, "end_char": 68240, "source": "ner", "metadata": {"in_sentence": "All these cases rely upon Harish (/handra Bajpm's case(') to which we have n,:ferred.", "canonical_name": "Barish Chandra Bajpai's(8"}}, {"text": "Harish Chandra Bajpai", "label": "OTHER_PERSON", "start_char": 68279, "end_char": 68300, "source": "ner", "metadata": {"in_sentence": "Harish Chandra Bajpai's case(1) was based on an Bnglish case Beal v. Smith(1).", "canonical_name": "Barish Chandra Bajpai's(8"}}, {"text": "Willes", "label": "JUDGE", "start_char": 68743, "end_char": 68749, "source": "ner", "metadata": {"in_sentence": "Willes, J. after consulting G Martin, B and Blackbum; J. ordered better particulars."}}, {"text": "G Martin", "label": "OTHER_PERSON", "start_char": 68771, "end_char": 68779, "source": "ner", "metadata": {"in_sentence": "Willes, J. after consulting G Martin, B and Blackbum; J. ordered better particulars."}}, {"text": "Blackbum", "label": "JUDGE", "start_char": 68787, "end_char": 68795, "source": "ner", "metadata": {"in_sentence": "Willes, J. after consulting G Martin, B and Blackbum; J. ordered better particulars.", "canonical_name": "Blackburn"}}, {"text": "Section 20", "label": "PROVISION", "start_char": 68930, "end_char": 68940, "source": "regex", "metadata": {"statute": null}}, {"text": "Bovill", "label": "JUDGE", "start_char": 69531, "end_char": 69537, "source": "ner", "metadata": {"in_sentence": "Bovill, C.J., said that the form of the petition was proper and it was quite useless to state anything further."}}, {"text": "Order XIX of the Rules", "label": "STATUTE", "start_char": 69770, "end_char": 69792, "source": "regex", "metadata": {}}, {"text": "Supreme Court of England", "label": "COURT", "start_char": 69800, "end_char": 69824, "source": "ner", "metadata": {"in_sentence": "But in Bruce v. Odhams Press Ltd.(') the Court of Appeal distinguished 'material facts' from 'particulars' as they occurred in Order XIX of the Rules of the Supreme Court of England."}}, {"text": "Scott", "label": "JUDGE", "start_char": 69908, "end_char": 69913, "source": "ner", "metadata": {"in_sentence": "The words there were material facts and particulars and the disti, nction made by Scott, L.J. bears out the distinction we have made between 'material facts' and 'particulars' as used in s. 83 of our statute."}}, {"text": "s. 83", "label": "PROVISION", "start_char": 70013, "end_char": 70018, "source": "regex", "metadata": {"linked_statute_text": "Order XIX of the Rules", "statute": "Order XIX of the Rules"}}, {"text": "Brett", "label": "JUDGE", "start_char": 70116, "end_char": 70121, "source": "ner", "metadata": {"in_sentence": "The observations of Brett, L.J. in that case also bear out the distinction which we have made."}}, {"text": "Barish Chandra Bajpai", "label": "OTHER_PERSON", "start_char": 70272, "end_char": 70293, "source": "ner", "metadata": {"in_sentence": "It appears that this distinction was not brought to the notice of this Court in Barish Chandra Bajpai (8 ) case.", "canonical_name": "Barish Chandra Bajpai's(8"}}, {"text": "Beal", "label": "OTHER_PERSON", "start_char": 70381, "end_char": 70385, "source": "ner", "metadata": {"in_sentence": "The rules on the subject of pleadings in the English statute considered in Beal's case(') were different."}}, {"text": "Barish Chandra Bajpai's(8", "label": "OTHER_PERSON", "start_char": 70667, "end_char": 70692, "source": "ner", "metadata": {"in_sentence": "However, it is not necessary to go into this question because even on the law as stated in Barish Chandra Bajpai's(8 ) case the amendment allowed in this case annot be upheld.", "canonical_name": "Barish Chandra Bajpai's(8"}}, {"text": "Venkatarama Iyyar", "label": "JUDGE", "start_char": 71692, "end_char": 71709, "source": "ner", "metadata": {"in_sentence": "Venkatarama Iyyar, J. emphasised over aind over again that new instances could be given provided they related to a 'charge' contained in the petition."}}, {"text": "s. 83(3)", "label": "PROVISION", "start_char": 71958, "end_char": 71966, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 73700, "end_char": 73706, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 74007, "end_char": 74013, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 74751, "end_char": 74757, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 76111, "end_char": 76143, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Harish Chandra Bajpm\"s", "label": "OTHER_PERSON", "start_char": 76316, "end_char": 76338, "source": "ner", "metadata": {"in_sentence": "In Bhim Sen v. Gopali and Others(') the scope of Harish Chandra Bajpm\"s(\") case was considered and its narrow application was pointed out.", "canonical_name": "Barish Chandra Bajpai's(8"}}, {"text": "Harish Chandra 8ajpai", "label": "OTHER_PERSON", "start_char": 76446, "end_char": 76467, "source": "ner", "metadata": {"in_sentence": "Indeed in that case the observations in Harish Chandra 8ajpai' s ( •) case were not followed to the utter most limit.", "canonical_name": "Barish Chandra Bajpai's(8"}}, {"text": "Hariram", "label": "PETITIONER", "start_char": 76604, "end_char": 76611, "source": "ner", "metadata": {"in_sentence": "In Sheopat Singh v. Ram Pratap(•) the only allegation F was thai the appellant (Hariram) got published through him and others a statement but there was no allegation that Hariram believed the statement to be false or did not believe it to be true.", "canonical_name": "Hariram"}}, {"text": "(1962] 2 S.C.R. 289", "label": "CASE_CITATION", "start_char": 77387, "end_char": 77406, "source": "regex", "metadata": {}}, {"text": "(1965] 1 S.C.R. 175", "label": "CASE_CITATION", "start_char": 77458, "end_char": 77477, "source": "regex", "metadata": {}}, {"text": "s. 101", "label": "PROVISION", "start_char": 78970, "end_char": 78976, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 100", "label": "PROVISION", "start_char": 79041, "end_char": 79047, "source": "regex", "metadata": {"statute": null}}, {"text": "Maratha", "label": "RESPONDENT", "start_char": 79071, "end_char": 79078, "source": "ner", "metadata": {"in_sentence": "The attempt was only to make out the case under s. 100 ( 1 )( d) against the 'Maratha' (or Mr. Atrey) pleading Mr. Atrey as agent of Mr.\n\nFernandez.", "canonical_name": "Maratha"}}, {"text": "s. 100", "label": "PROVISION", "start_char": 79692, "end_char": 79698, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 100", "label": "PROVISION", "start_char": 79939, "end_char": 79945, "source": "regex", "metadata": {"statute": null}}, {"text": "Jethamalani", "label": "LAWYER", "start_char": 79970, "end_char": 79981, "source": "ner", "metadata": {"in_sentence": "Although Mr.\n\nDaphtary was content to prove that the consent of Mr. Fernandez was immaterial as the corrupt practice of his agent was equally fatal to the election .and attempted to prove his case under s. 100\n\n(l)(d) of the Act, Mr. Jethamalani who took over the argument from him.", "canonical_name": "J ethamaJani"}}, {"text": "s. 101", "label": "PROVISION", "start_char": 80066, "end_char": 80072, "source": "regex", "metadata": {"statute": null}}, {"text": "Rama Krishna", "label": "PETITIONER", "start_char": 81440, "end_char": 81452, "source": "ner", "metadata": {"in_sentence": "Mr. Jethamalani relies strongly upon the case of Rama Krishna (C.A. No.", "canonical_name": "Rama Krishn~"}}, {"text": "April 23,\n\n1968", "label": "DATE", "start_char": 81487, "end_char": 81502, "source": "ner", "metadata": {"in_sentence": "1949 of 1967 decided on April 23,\n\n1968) and lnder Lal( Yuga!"}}, {"text": "Rajasthan", "label": "OTHER_PERSON", "start_char": 82449, "end_char": 82458, "source": "ner", "metadata": {"in_sentence": "In the case from Rajasthan the rule laid down was that the association of persons or a society or a political party or its permament members, who set up a candidate, sponsor his cause, and work to promote his election, may be aptly called the agent for election purposes."}}, {"text": "s. 100(2)", "label": "PROVISION", "start_char": 82788, "end_char": 82797, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 84562, "end_char": 84568, "source": "regex", "metadata": {"statute": null}}, {"text": "Avinash Chander", "label": "OTHER_PERSON", "start_char": 84720, "end_char": 84735, "source": "ner", "metadata": {"in_sentence": "In the present case the poem was not actually read by the appellant, but .it was read in his presence at a meetin1 at which he was\n\npresiding by Avinash Chander.", "canonical_name": "A vinash Chander"}}, {"text": "A vinash Chander", "label": "OTHER_PERSON", "start_char": 84848, "end_char": 84864, "source": "ner", "metadata": {"in_sentence": "In thele circumstances the High Court was right in coming to the conclusion that the recitation of the poem by A vinash Chander at the meeting amounted to the publication of the false statement of fact contained in it by another person with the consent of the candidate, and in this case, even of his election agent who was also present at the meeting.", "canonical_name": "A vinash Chander"}}, {"text": "SUPllBMB OOUllT llBPOllTS\n\n[1969] 3 S.C:.L", "label": "PETITIONER", "start_char": 85942, "end_char": 85984, "source": "ner", "metadata": {"in_sentence": "'SUPllBMB OOUllT llBPOllTS\n\n[1969] 3 S.C:.L\n\nbe investigated with a view to finding out whether he made a state- A .ment which he knew to be, false or did not believe to be trueJ\n\nWhen we come to the facts of the case in hand we shall find that most of the statements were made by a newspaper editor in the normal couse of running a newspaper."}}, {"text": "Sampurna Maharashtra Samiti", "label": "OTHER_PERSON", "start_char": 88860, "end_char": 88887, "source": "ner", "metadata": {"in_sentence": "Sampurna Maharashtra Samiti was also supporting the candidature of Mr. Fernandez and the 'Maratba' had made common cause with the Sampurna Maha-\n\nBALAKRISHNA v. FBllNANDBZ (Hidayatul/ah, C./.) 633'\n\n:rashtra Samiti, the offices of both being situated in the same building which was also Mr. Atrey's residence."}}, {"text": "Sampurna Maha-", "label": "OTHER_PERSON", "start_char": 88990, "end_char": 89004, "source": "ner", "metadata": {"in_sentence": "Sampurna Maharashtra Samiti was also supporting the candidature of Mr. Fernandez and the 'Maratba' had made common cause with the Sampurna Maha-\n\nBALAKRISHNA v. FBllNANDBZ (Hidayatul/ah, C./.) 633'\n\n:rashtra Samiti, the offices of both being situated in the same building which was also Mr. Atrey's residence."}}, {"text": "Sampurna Maharashtra Samiti", "label": "ORG", "start_char": 89232, "end_char": 89259, "source": "ner", "metadata": {"in_sentence": "Mr. Atrey was the editor of the 'Maratha' and Chairman of the Sampurna Maharashtra Samiti."}}, {"text": "Jcthamalani", "label": "LAWYER", "start_char": 89993, "end_char": 90004, "source": "ner", "metadata": {"in_sentence": "Mr.\n\nJcthamalani therefore argued that there was knowledge and acquiescence on the part of Mr. Fernandez and as !", "canonical_name": "J ethamaJani"}}, {"text": "Acharya Atrey", "label": "RESPONDENT", "start_char": 90490, "end_char": 90503, "source": "ner", "metadata": {"in_sentence": "1 is a prominent member of the SSP, that the SSP is a constituent unit of the SMS, that both Acharya Atrey and respondent No.", "canonical_name": "Acharya Atrey"}}, {"text": "Acharya Atre", "label": "RESPONDENT", "start_char": 90760, "end_char": 90772, "source": "ner", "metadata": {"in_sentence": "1, that Acharya Atre was the president of the Bombay Unit of the SMS and was a prominent and a leading member thereof, that each of them addressed a meeting of the constituency of the other to carry on election propaganda for the other, that Acharya Atre through the columns of his newspaper Maratha carried on intensive and vigorous campai~ for success of candidates supported by the SMS mcluding respondent No.", "canonical_name": "Acharya Atrey"}}, {"text": "Bombay", "label": "GPE", "start_char": 90798, "end_char": 90804, "source": "ner", "metadata": {"in_sentence": "1, that Acharya Atre was the president of the Bombay Unit of the SMS and was a prominent and a leading member thereof, that each of them addressed a meeting of the constituency of the other to carry on election propaganda for the other, that Acharya Atre through the columns of his newspaper Maratha carried on intensive and vigorous campai~ for success of candidates supported by the SMS mcluding respondent No."}}, {"text": "Maratha", "label": "RESPONDENT", "start_char": 91044, "end_char": 91051, "source": "ner", "metadata": {"in_sentence": "1, that Acharya Atre was the president of the Bombay Unit of the SMS and was a prominent and a leading member thereof, that each of them addressed a meeting of the constituency of the other to carry on election propaganda for the other, that Acharya Atre through the columns of his newspaper Maratha carried on intensive and vigorous campai~ for success of candidates supported by the SMS mcluding respondent No.", "canonical_name": "Maratha"}}, {"text": "J ethamaJani", "label": "LAWYER", "start_char": 91757, "end_char": 91769, "source": "ner", "metadata": {"in_sentence": "Mr. J ethamaJani contended in further support that there was a clear similarity in the statements and utterances of Mr. Fernandez and Mr. Atrey.", "canonical_name": "J ethamaJani"}}, {"text": "Shanbhag", "label": "OTHER_PERSON", "start_char": 92065, "end_char": 92073, "source": "ner", "metadata": {"in_sentence": "In this connection he referred in particular to the speech of Mr. Fernandez at Shivaji Park and the conduct of Shanbhag, one of his workers, in following up what Mr. Fernandez had said."}}, {"text": "Jetharnalani", "label": "LAWYER", "start_char": 92331, "end_char": 92343, "source": "ner", "metadata": {"in_sentence": "Mr. Jetharnalani referred to the following cases among others in support of his contention that consent in such circumstances may be assumed : Nani Gopal Swami v. Abdul Hamid Choudhury and Another('), Adams and Others v. Hon.", "canonical_name": "J ethamaJani"}}, {"text": "Ferr.1o1ndez", "label": "LAWYER", "start_char": 93135, "end_char": 93147, "source": "ner", "metadata": {"in_sentence": "It may be that evidence is to be found supporting the fact that Mr. Atrey acted as ag,:nt of Mr. Ferr.1o1ndez with his consent."}}, {"text": "s. 100", "label": "PROVISION", "start_char": 94004, "end_char": 94010, "source": "regex", "metadata": {"statute": null}}, {"text": "Jethamalani", "label": "LAWYER", "start_char": 95041, "end_char": 95052, "source": "ner", "metadata": {"in_sentence": "Therefore, either Mr.\n\nJethamalani must prove that there was consent and that would mean a reasonable inference from facts that Mr. Fernandez consented to the acts of Mr. Atrey or he must prove that the result of the election was seriously affected.", "canonical_name": "J ethamaJani"}}, {"text": "s.\n\n100( 1)", "label": "PROVISION", "start_char": 95425, "end_char": 95436, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 100(1)", "label": "PROVISION", "start_char": 95546, "end_char": 95555, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 100(1)", "label": "PROVISION", "start_char": 95644, "end_char": 95653, "source": "regex", "metadata": {"statute": null}}, {"text": "December 3, 1966", "label": "DATE", "start_char": 96030, "end_char": 96046, "source": "ner", "metadata": {"in_sentence": "Although nine articles appeared in the column between December 3, 1966 to February 2, 1967."}}, {"text": "February 2, 1967", "label": "DATE", "start_char": 96050, "end_char": 96066, "source": "ner", "metadata": {"in_sentence": "Although nine articles appeared in the column between December 3, 1966 to February 2, 1967."}}, {"text": "February 4, 1967", "label": "DATE", "start_char": 96508, "end_char": 96524, "source": "ner", "metadata": {"in_sentence": "The petitioner himself attended one snch meeting on February 4, 1967, but he does not allege that there was any attack on his personal character or conduct."}}, {"text": "s1", "label": "PROVISION", "start_char": 97366, "end_char": 97368, "source": "regex", "metadata": {"statute": null}}, {"text": "Sampuma Maharashtra Sam1t1", "label": "ORG", "start_char": 97482, "end_char": 97508, "source": "ner", "metadata": {"in_sentence": "policy of Sampuma Maharashtra Sam1t1 which wanted to )Oin m Maharashtra all the areas which had not so far been jomed and statements in that\n\nSUPREME COURT REPORTS [1969) 3 S.C.ll."}}, {"text": "Sampuma Maharashtra Samiti", "label": "ORG", "start_char": 98270, "end_char": 98296, "source": "ner", "metadata": {"in_sentence": "The 'Maratha' was\n\n11111 independent newspaper not under the control of the Sampuma Maharashtra Samiti or the S.S.P. which was sponsoring Mr. Ferundez or Mr. Fernandez himself."}}, {"text": "Ferundez", "label": "LAWYER", "start_char": 98336, "end_char": 98344, "source": "ner", "metadata": {"in_sentence": "The 'Maratha' was\n\n11111 independent newspaper not under the control of the Sampuma Maharashtra Samiti or the S.S.P. which was sponsoring Mr. Ferundez or Mr. Fernandez himself.", "canonical_name": "Fer- C nandez"}}, {"text": "Free Press Journal", "label": "ORG", "start_char": 99237, "end_char": 99255, "source": "ner", "metadata": {"in_sentence": "For example Free Press Journal, the Blitz and writers like Welles Hengens had also published similar statements."}}, {"text": "Welles Hengens", "label": "OTHER_PERSON", "start_char": 99284, "end_char": 99298, "source": "ner", "metadata": {"in_sentence": "For example Free Press Journal, the Blitz and writers like Welles Hengens had also published similar statements."}}, {"text": "A.l.R. 1964 Rajasthan 21", "label": "RESPONDENT", "start_char": 100422, "end_char": 100446, "source": "ner", "metadata": {"in_sentence": "(S) A.l.", "canonical_name": "A.l.R. 1964 Rajasthan 21"}}, {"text": "A.I.R. 1961 Patna", "label": "RESPONDENT", "start_char": 100453, "end_char": 100470, "source": "ner", "metadata": {"in_sentence": "(7) A.I.R. 1961 Patna 41."}}, {"text": "A.l.R. 1967 Gujarat 62", "label": "RESPONDENT", "start_char": 100500, "end_char": 100522, "source": "ner", "metadata": {"in_sentence": "(4) 20 E.L.R. 27S.\n\n(6) A.l.", "canonical_name": "A.l.R. 1964 Rajasthan 21"}}, {"text": "Assam", "label": "GPE", "start_char": 100706, "end_char": 100711, "source": "ner", "metadata": {"in_sentence": "637\n\nA refer to these cases in detail except to paint out that e Rajasthan case dissents from the case from Assam on which Mr. Jchamalani relied."}}, {"text": "Jchamalani", "label": "LAWYER", "start_char": 100725, "end_char": 100735, "source": "ner", "metadata": {"in_sentence": "637\n\nA refer to these cases in detail except to paint out that e Rajasthan case dissents from the case from Assam on which Mr. Jchamalani relied.", "canonical_name": "J ethamaJani"}}, {"text": "Fer- C nandez", "label": "LAWYER", "start_char": 101418, "end_char": 101431, "source": "ner", "metadata": {"in_sentence": "act1v1t1es must be viewed in two compartments, one connected with Mr.\n\nFer- C nandez and the other connected with the newspaper we have to find out whether there is an irresistible inference of guilt on the part of Mr. Fernandez.", "canonical_name": "Fer- C nandez"}}, {"text": "England", "label": "GPE", "start_char": 101660, "end_char": 101667, "source": "ner", "metadata": {"in_sentence": "Some of the English cases cited by Mr.\n\nJethamalani are not a safeguide because in England a distinction is made between \"illegal practices\" and \"corrupt practices\"."}}, {"text": "I' Daphtary", "label": "OTHER_PERSON", "start_char": 102583, "end_char": 102594, "source": "ner", "metadata": {"in_sentence": "In Bayley v.\n\nEdmunds, Byron and Marshall('), strongly relied upon by Mr.\n\nI' Daphtary the.", "canonical_name": "I' Daphtary"}}, {"text": "atil", "label": "OTHER_PERSON", "start_char": 103057, "end_char": 103061, "source": "ner", "metadata": {"in_sentence": "G Even after the election Mr. atil did not attribute anything to Mr. Fernand_ez.", "canonical_name": "Patil"}}, {"text": "Fernand_ez", "label": "LAWYER", "start_char": 103096, "end_char": 103106, "source": "ner", "metadata": {"in_sentence": "G Even after the election Mr. atil did not attribute anything to Mr. Fernand_ez.", "canonical_name": "Fer- C nandez"}}, {"text": "Dapht~", "label": "OTHER_PERSON", "start_char": 103290, "end_char": 103296, "source": "ner", "metadata": {"in_sentence": "B Mr. Dapht~ sought strengthen the inference about consent from the mter-connection ol events with the comments in the 'Maratha'."}}, {"text": "S37", "label": "PROVISION", "start_char": 103479, "end_char": 103482, "source": "regex", "metadata": {"statute": null}}, {"text": "J ethamalani", "label": "LAWYER", "start_char": 104231, "end_char": 104243, "source": "ner", "metadata": {"in_sentence": "Mr. J ethamalani referred to some similarity in the reaction C of the Maratha' and Mr. Fernandez to the events.", "canonical_name": "J ethamaJani"}}, {"text": "Taunton", "label": "GPE", "start_char": 105075, "end_char": 105082, "source": "ner", "metadata": {"in_sentence": "Mr. Jethamalani relied upon the Taunton case (1) where Blackburn."}}, {"text": "Blackburn", "label": "JUDGE", "start_char": 105098, "end_char": 105107, "source": "ner", "metadata": {"in_sentence": "Mr. Jethamalani relied upon the Taunton case (1) where Blackburn.", "canonical_name": "Blackburn"}}, {"text": "Fernandez", "label": "WITNESS", "start_char": 105913, "end_char": 105922, "source": "ner", "metadata": {"in_sentence": "We cannot infer from an appraisal of tire evidence of Mr.\n\nFernandez that he had consented."}}, {"text": "BALAKlUSHNA V. FERNANDEZ", "label": "JUDGE", "start_char": 106211, "end_char": 106235, "source": "ner", "metadata": {"in_sentence": "BALAKlUSHNA V. FERNANDEZ (Hidayatullah, C.J.) 639\n\nhis denial about knowledge of the articles in the 'Maratha was also false."}}, {"text": "M. Fernandez", "label": "LAWYER", "start_char": 106337, "end_char": 106349, "source": "ner", "metadata": {"in_sentence": "M. Fernandez denied llatly that he saw the articles explaining that there was no time to read newspapers, a fact which has the support of Mr. Patil who also said that he had no time to read even cuttings placed by his secretary for his perusal.", "canonical_name": "Fer- C nandez"}}, {"text": "Tanksale", "label": "WITNESS", "start_char": 107708, "end_char": 107716, "source": "ner", "metadata": {"in_sentence": "Four witnesses Tanksale, Bhide, Khambata and Bendre who alleged that they were present at the meeting deposed to this fact."}}, {"text": "Bhide", "label": "WITNESS", "start_char": 107718, "end_char": 107723, "source": "ner", "metadata": {"in_sentence": "Four witnesses Tanksale, Bhide, Khambata and Bendre who alleged that they were present at the meeting deposed to this fact."}}, {"text": "Khambata", "label": "WITNESS", "start_char": 107725, "end_char": 107733, "source": "ner", "metadata": {"in_sentence": "Four witnesses Tanksale, Bhide, Khambata and Bendre who alleged that they were present at the meeting deposed to this fact."}}, {"text": "Bendre", "label": "WITNESS", "start_char": 107738, "end_char": 107744, "source": "ner", "metadata": {"in_sentence": "Four witnesses Tanksale, Bhide, Khambata and Bendre who alleged that they were present at the meeting deposed to this fact."}}, {"text": "Ramkumar", "label": "WITNESS", "start_char": 107892, "end_char": 107900, "source": "ner", "metadata": {"in_sentence": "We have looked into their evidence and are thoroughly dissatisfied with it Ramkumar, a reporter was also cited."}}, {"text": "Ramkumar", "label": "OTHER_PERSON", "start_char": 108028, "end_char": 108036, "source": "ner", "metadata": {"in_sentence": "He covered the meeting for the 'Indian Express' but his newspaper had not published this part and Ramkumar was examined to prove that it was deleted by Rao the Chief Reporter."}}, {"text": "Rao", "label": "OTHER_PERSON", "start_char": 108082, "end_char": 108085, "source": "ner", "metadata": {"in_sentence": "He covered the meeting for the 'Indian Express' but his newspaper had not published this part and Ramkumar was examined to prove that it was deleted by Rao the Chief Reporter."}}, {"text": "Randiv~", "label": "OTHER_PERSON", "start_char": 108692, "end_char": 108699, "source": "ner", "metadata": {"in_sentence": "It was said that Randiv~ in his evidence admitted that Mr. Fernandz made such cmments."}}, {"text": "Fernandz", "label": "LAWYER", "start_char": 108734, "end_char": 108742, "source": "ner", "metadata": {"in_sentence": "It was said that Randiv~ in his evidence admitted that Mr. Fernandz made such cmments.", "canonical_name": "Fer- C nandez"}}, {"text": "Dattu Pradhan", "label": "OTHER_PERSON", "start_char": 109342, "end_char": 109355, "source": "ner", "metadata": {"in_sentence": "It is not necessary to ga A into the evidence on the other side such as_ that of Dattu Pradhan and Prafulla Baxi."}}, {"text": "Prafulla Baxi", "label": "OTHER_PERSON", "start_char": 109360, "end_char": 109373, "source": "ner", "metadata": {"in_sentence": "It is not necessary to ga A into the evidence on the other side such as_ that of Dattu Pradhan and Prafulla Baxi."}}, {"text": "J agadguru Shankaracharya", "label": "OTHER_PERSON", "start_char": 109907, "end_char": 109932, "source": "ner", "metadata": {"in_sentence": "For the same reasons we cannot regard J agadguru Shankaracharya or Mr. Madhu Limaye as the agents cJ( Mr. Fernandez.", "canonical_name": "J agadguru Shankaracharya"}}, {"text": "Madhu Limaye", "label": "LAWYER", "start_char": 109940, "end_char": 109952, "source": "ner", "metadata": {"in_sentence": "For the same reasons we cannot regard J agadguru Shankaracharya or Mr. Madhu Limaye as the agents cJ( Mr. Fernandez.", "canonical_name": "Madhu Lirnaye"}}, {"text": "s. 100", "label": "PROVISION", "start_char": 110237, "end_char": 110243, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 100", "label": "PROVISION", "start_char": 110561, "end_char": 110567, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 100(1)(d)", "label": "PROVISION", "start_char": 112029, "end_char": 112041, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 94", "label": "PROVISION", "start_char": 112678, "end_char": 112683, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 94", "label": "PROVISION", "start_char": 112816, "end_char": 112821, "source": "regex", "metadata": {"statute": null}}, {"text": "Grove", "label": "JUDGE", "start_char": 114390, "end_char": 114395, "source": "ner", "metadata": {"in_sentence": "He relies upon Hackney case(') where Grove, J. made the following observauons\n\nat pages 81 and 82 :\n\n\"I have turned."}}, {"text": "Bowen", "label": "OTHER_PERSON", "start_char": 115938, "end_char": 115943, "source": "ner", "metadata": {"in_sentence": "Notwithstanding that, I am asked here, assuming the construction for which Mr. Bowen contends to be correct, to ascertain how either the 41,000 electors of this Borough, or any number of them, miht have wished to vote had they had the opportunity of doing so, and what in that event would have been the result of the election."}}, {"text": "Vashist Narain", "label": "OTHER_PERSON", "start_char": 120579, "end_char": 120593, "source": "ner", "metadata": {"in_sentence": "He referred to the case reported in Vashist Narain Sharma v.\n\nDev Chandra(') and Surendra Nath Khos/a v. Dilip Singh(') and the later rulings of this Court in which Vashist Narain's(') case has.", "canonical_name": "Vashist Narain"}}, {"text": "Vashist", "label": "OTHER_PERSON", "start_char": 121263, "end_char": 121270, "source": "ner", "metadata": {"in_sentence": "In Vashist's(') case and in Jnayatullah v. Diwanchand Mahajan,(3) the provision was held to prescribe an impossible burden.", "canonical_name": "Vashist Narain"}}, {"text": "A trey", "label": "OTHER_PERSON", "start_char": 122091, "end_char": 122097, "source": "ner", "metadata": {"in_sentence": "but there is nothing to prove that he did so with the consent of Mr.\n\nFernandez, nor can such consent be implied because in making the statements Mr. A trey was acting as the editor of his own news- .", "canonical_name": "A trey"}}]}
{"document_id": "1969_3_653_658_EN", "year": 1969, "text": "DELlll ADMINISTRATION\n\n.v.\n\nCHANAN SHAH\n\nFebruary 12, 1969\n\n[S. M, SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.j\n\nPuniab Police Rules 1934, r. 16. 38-Sanction of District Magistrate for departmental inquirJ under said rule-inquiry vitiated when requirement~ of rule not followed.\n\nThe respondent was recruited as a constable in undivided Punjab in 1934 and m 1946 became an Assistant Sub-Inspector. In 1950 he was posted at Delhi. In 1955 he was confirmed in the above rank by the Senior Superintendent .of Police, Delhi. In 1957 there was an accsatio!l against him of having received illegal .gratcation in a ase he was mvetl gating, wheeupon alter a summary mquuy. the Supermtendent. of Pohc.e\n\n(City) Delhi passed an order of censure agamst him. On a review of this order under r. 16.28 of the Punjab Police Rules, 1934 the Deputy Inspector General of Police passed an order cancelling the order of censure and further ordered that the respondent should be dealt with departmentally.\n\nThe conduct of the departmental mquiry was entrusted to the Supenntendent of Police Central District, New Delhi who asked the District Magistrate for the necessary sanction under r. 16.38 of the Punjab Police Rul<S,\n\n1934. On receiving the sanction the J, nquiry Officer proceeded with the inquiry and found that the allegations against the respondent were substantially true. After a show caUSe notice he passed an order in 1958 dismissing the respondent from service.\n\nAn appeal against the order of dismissal was rejected by the Deputy Inspector General and the subsequent revision was dismissed by the Inspector-General.\n\nThe respondent tnere upon filed a writ petition in the Punjab High Court for quashing the\n\ndismissal order. The petition was dismissed by the Single Judge but the Division Bench held that the dismissal order could not be sustained in view of .the fact that the inquiry was made in contravention of Ch. XVI r. 38 of the Punjab Police Rules. The Delhi Administration appealed to this Court.\n\nHELD: The provisions of sub-rr. (I) and (2) of r. 38 are attracted in cases of complaint received by the Superintendent of Police, indicating the commission by a police officer of a criminal offence in connection with his official relations with the public.\n\nIn such a case the superintendent of police is required to bring the complaint to the notice of the District Magistrate who is to decide whether the investigation of the complaint should be made by a selected Magistrate having first class powers or should b.e lef~ to a polic~ officer. If the investigation discloses a prima faci<' case a Judicrnl prosecution should normally follow unless for reasons tG be recorded in writing the District Magistrate directs that the matter should be disposed of departmentally. [657 D-E] ·\n\nIn the present case the complaint received by the Superintendent of Police (City) Delhi indicated the commission by the appellant of a criminal olfonce m \"?\"!'ection with his official relations was the public.\n\nThe H complamt fell withm r, 38(1) and hould have been dealt with accordingly. Nevertheless there was no investigation of the kind prescribed by r, ~8(1). The District Magistrate did not direct any preliminary investigatJOn no! was. any prima fa_cie case against the respondent as a result of such an mvestigalton, established. The District Magistrate was not in- LIOSqp./69-7\n\nformed that the Superintendent of Police held an inquiry and passed an order of censure and that his order was set aside by the Deputy Inspector- Geperal. The inquiry held by the Superintendent of Police was not authorised by the District Magistrate nor did it receive his approval. The District Magistrate gave his sanction without recording any reasons and without applying his mind to the requirement of r. 16.38. In the circumstances the departmental action taken against the respondent was invalid. [657 F; 658 C-Dl\n\nState of Uttar Pradesh v. Babu Ram Upadhya, [1961] 2 S.C.R. 679, 711, 727-728 and Jagan Nath v. Sr. Supdt. of Police, Ferozepur, A.LR. 1962 Punjab 38, referred to.\n\nCIVIL APPELLATE JURISDICTION : , Civil Appeal No. 277 of 1966.\n\nAppeal by special leave from !be judgment and order dated C January 23, 1963 of !be Punjab High Court, Circuit Bench at Delhi in Letters Patent Appeal No. 68-D of 1961.\n\nV. A. Seyid Muhammad, R. N. Sachthey and B. D. Sharma, for !be appellants.\n\n\"f1rank Anthony an<l Harbans Singh, for !be respondent.\n\nD The Judgment of !be Court was delivered by Bachawat, J. The respondent was recruited as a constable in the police service in !be undivided. Punjab on April 3, 1934. By April 1946 he was promoted to the rank of Assistant Sub-Inspector.\n\nIn 1950, he was posted at Delhi.\n\nOn August 26, 1955 he was confirmed in this rank by !be Senior Superintendent of Police, Delhi.\n\nIn !be beginning of 1957 an accusation was made against him that while investigating a case registered by him against one Mohammad Jamil under First Information Report No. 1322 dated November 25, 1956 he had taken one Rame Shah to the Lahori Gate police post without formally arresting him and received from him by way of illegal gratification Rs. 100 which was paid on his behalf by one Roshan Lal.\n\nOn coming to know of Ibis complaint Sri A. C. Chaturvedi, Superintendent of Police\n\n(City), Delbi, made some kind of a summary inquiry into the matter and on February 28, 1957 passed !be following order :-\n\n\"Reference complaint received from S.P.'s Office Vide No. 1212/GB, dated the 12th of January 1957, Integrity of S.I. Chanan Shah No. 112/D was found to be doubtful in connection wilb case F.I.R. 1322 dated 25-11-1956 under section 20/11/78 of\n\nP.S.\n\nKotwali against one Mohd.\n\nJamil a Pakistani National. He is hereby censured.'' On a review of this order under rule 16.28 of !be Punjab Police Rules, 1934, Sri N. S.\n\nSaxena, the\n\nDEIJfi ADMN. v. CHANAN SHAH (Bachawat, I.)\n\n6U\n\nDeputy Inspector General of Police passed the following order on June 12, 1957 :-\n\n\"I have gone through the inquiries made by the city police as well as !>y the Crime Branch and feel that the :S.I. should have been dealt with departmentally for his misconduct and by which course the S.I. could have a chance to prove his innocence. I therefore order under P.R. 16.28 that the censure awarded to officiating Chanan Shah be cancelled and he should be dealt with departmentally.\n\nThe departmental file will be prepared by Sri B. L. Gulati, I.P.S., Superintendent of Police (Traffic) . The relevant papers may be sent to him.\"\n\nThe conduct of the departmental inquiry was entrusted to Sri D. C. Sharma, Superintendent of Police, Central District, Delhi.\n\nOn August 20, 1957 Sri Sharma wrote the following D.O. letter No. 2165-e to Sri C. B. Dube, District Magistrate, Delhi :-\n\n\" 1. On 25-11-56, S.I. Chanan Shah No.\n\n112/D while posted as I/ c PP. Lahori Gate recovered a revolver with 6 rounds from the possession of one Mohd.\n\nJamil alias Mohan Lal of Lahore while the latter was staying at Regal Hotel.\n\nA case FIR No. 1322, dated 25-11-56 u/s. 20-11-78 Arms Act was accordingly registered at P .S. Kotwali. The investigation of this case was carried out by S.I. Chanan Shah. '\n\n2. During the course of investigation, the S.I. raided the house of one Rame Shah owner of shop No. 1387 Lajpat Rai Market.\n\nAlthough nothing incriminating was found, yet he took Rame Shah to the P.P. where it is alleged, he (Rame Shah) was threatened with arrest and later on let off at midnight after he had paid a sum of Rs. 100/- through one Roshan Lal by way of illegal gratification.\n\n3: In th~ course of inquiry it is felt that there is no sufficient evidence to prosecute the S.I. in a court of law under the Prevention of Corruption Act though he can be successfully dealt with departmentally.\n\n4. In v!ew of the above it is proposed that he ma be deal~ with d7partm_entally instead of filing judici~ proceedmgs agamst hun.\n\nNecessary approval under P.P. Rule 16.38 may kindly be accorded.\"\n\nA copy ?f the letter was , Produced in this Court. On Au ust 2 l\n\n~ 957 Sn C. B .. Dube, District Magistrate, Delhi sent theg follo : mg letter to Sn D. C. Sharma:- ' w\n\n\"Please refer to your D.O. letter No. 2165-C, dated A the 20th August, l % 7.\n\nSanction is hereby accorded to the taking of departmental action against S.l. Cilanan Shah as required under Punjab Police Rule 16.38.\"\n\nOn November 15, 1957 Sri Sharma drew up a formal charge sheet On the basis . of the charge-sheet he he1d an inquiry and found that the allegations agamst the respondent were sut>stantially true. On March 18, 19j8 Sri Sharma served a notice on th.e respondent to show cause wny he should not be dismissed.\n\nAfter considering his reply and hearing hlm personally Sri Sharma passed an order on Apnl 12, J9j8 cusmissmg hlm irom service.\n\nAn appeal filed by hlm against the order was rejected by the Deputy Inspector General on February 14, 1959, and a revision peution filed by hlm was rejected by the Inspector General on June 5, 1959.\n\nOn August 18, 1959 the respondent filed a writ petition in the Punjab rligh Court for quashmg the dismissal order. One of the grounds ta.Ken by him was that the departmental inquiry was made in contravention of Chapter 16 rule 38 of the Punjab Police Rules, 1934. Gosain, J. dismissed the petition. The respondent filed a Letters Patent appeal against this order. A Divisional Bench of the High Court allowed the appeal and set aside the order dismissing the respondent from service.\n\nThe Divisional Bench held that the dismissal order could not be sustained in view of the fact that the inquiry was made in contravention of Chapter XVI rule 38. The present appeal has been filed by the Delhi Administration after obtaining special leave.\n\nChapter XVI of the Punjab Police Rules deals with punishments. Rule 1 P.rescribes the punishments and provides that \"no police officer shall be departmentally punished otherwise than as provided in these rules.\" Rule 23 provides for prompt record of complaints against a police ofjicer made by a member of the general public and the transmission of the record to the Superintendent of Police or other gazetted officer under whose immediate control the officer who has recorded the complaint is serving. If such officer is of opinion that the allegations in the record constitute a prima facie case for inquiry, a departmental inquiry as in rule 24 must be held. Rule 38 specially deals with certain types of complaint against a police officer.\n\nSub-Rules (1) and\n\n(2) of Rule 38 are as follows :-\n\n\" ( 1) Immediate information shall be given to the District Magistrate of any complaint received by the Superintendent of Police, which indicates the commission by a police officer of a criminal offence in connec-\n\nDELIU ADMN. v. CHANAN SHAH (Bachawat, I.) 657\n\nlion with his official relations with the public. The District Magistrate, will decide whether the inestigation of the complaint shall be conducted by a police officer, or made over to a selected magistrate having 1st class powers.\n\n ( 2) When investigation of such a complaint establishes a prima facie case, a judicial prosecution shall normally follow; the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded. When it is decided to proceed departmentally the procedure prescribed in rule 16.24 shall be followed. An officer found guilty on a charge of the nature referred to in this rule shall ordinarily be dismissed.\"\n\nThe provisions of sub-rules (1) and (2) of r. 38 are attracted in cases of complaint received by the Superintendent of Police, indicating the commission by a police officer of a criminal offence in connection with his official relations with the public. In such a case, the Superintendent of Police is required .\n\nto bring the complaint to the notice of the District Magistrate who is to decide whether the investigation of the complaint should be made by a selected magistrate having first class powers or should be left to a police officer. If the mvestigation discloses a prima facie case, a judicial prosecution should normally follow unless for reasons to be recorded in writing the District Magistrate directs that the matter should be disposed of departmentally.\n\nIn the present case, the complaint received by the Superintendent of Police (City) Delhi indicated the commission by the respondent of a criminal offence in connection with his official relations with the public. The complaint fell within r. 38(1) and should have been dealt with accordingly. Nevertheless there w:is !10 invtigation .of the knd prescribed by rule 38 (1). The D1strtct Magistrate did not direct any preliminary investigatio~ nor was anr pri\"!a acie case against the respondent as a resu11 of such an mvestigation established.\n\nIn State '!f pttar Pradesh v. Babu Ram Upadhya(') th1 Court by ma1onty held that the provisions of paragraph 486 ruli I of the U.P. P~Iice Re_gulations w_ere mandatory and that i depa:tmetal action gai?st the pohce officer in disregard thereo was mvalid. The mmonty held that the paragraph was director and as there was sustantial compli_ance with its provisions th\n\ndepartmental proceedmgs were not mvalid. In I agan Nath v ff Sr. Supdt. of. o/ice, Ferozepur(') the Punjab High Court belt\n\nthat the provJSJons of rule 16.38 (1) and (2) were mandator\n\n{I) [1961) 2 S.C.R. 679, 711, 727-728,\n\n(2) A.I.R, 1962 Punjab 38,.\n\nand that a departmental inquiry held without following its provisions was illegal.\n\nIt is not necessary to decide in this case whether the provisions of Rule 16.38 of the Punjab Police Rules are mandatory or directory. E, ven assuming that the rule is directory we find that there has been no substantial compliance with its provisions. The B complaint fell within rule 16.38, and it was for the District Magistrate to decide who should investigate the case. No investigation of any kind was made under his directions.\n\nWithout obtajning his directions, the Superintendent of Police held an inquiry and passed an order of censure. The order was set aside by the Deputy Inspector-General. Thereafter by D.O. letter No. 2165-C, the Superintendent of Police, asked for the sanction C of the District Magistrate to proceed departmentally. Even at this stage, the District Magistrate was not informed that the Superintendent of Police held an inquiry and passed an order of censure and that his order was set aside by the Deputy Inspector-General.\n\nThe inquiry held by the Superintendent of Police was not authorised by the District Magistrate nor did it receive his approval.\n\nD The District Magistrate gave his sanction without recording any reasons and without applying his mind to the requirement of r. 16.38. In the! circumstances, we are constrained to hold that the departmental action taken against the respondent is invalid.\n\nIn the result, the appeal is dismissed with costs.\n\nG.C ..\n\nAppeal dismissed.", "total_entities": 57, "entities": [{"text": "CHANAN SHAH", "label": "RESPONDENT", "start_char": 28, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "CHANAN SHAH", "offset_not_found": false}}, {"text": "February 12, 1969", "label": "DATE", "start_char": 41, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "CHANAN SHAH\n\nFebruary 12, 1969\n\n[S. M, SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.j\n\nPuniab Police Rules 1934, r. 16."}}, {"text": "SIKRI", "label": "JUDGE", "start_char": 67, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 74, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "K. S. HEGDE, JJ", "label": "JUDGE", "start_char": 93, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "Puniab Police Rules 1934", "label": "STATUTE", "start_char": 112, "end_char": 136, "source": "regex", "metadata": {}}, {"text": "Delhi", "label": "GPE", "start_char": 702, "end_char": 707, "source": "ner", "metadata": {"in_sentence": "of Pohc.e\n\n(City) Delhi passed an order of censure agamst him."}}, {"text": "Punjab Police Rules, 1934", "label": "STATUTE", "start_char": 795, "end_char": 820, "source": "regex", "metadata": {}}, {"text": "New Delhi", "label": "GPE", "start_char": 1088, "end_char": 1097, "source": "ner", "metadata": {"in_sentence": "The conduct of the departmental mquiry was entrusted to the Supenntendent of Police Central District, New Delhi who asked the District Magistrate for the necessary sanction under r. 16.38 of the Punjab Police Rul<S,\n\n1934."}}, {"text": "Delhi Administration", "label": "PETITIONER", "start_char": 1956, "end_char": 1976, "source": "metadata", "metadata": {"canonical_name": "DELHI ADMINISTRATION", "offset_not_found": true}}, {"text": "[1961] 2 S.C.R. 679", "label": "CASE_CITATION", "start_char": 3943, "end_char": 3962, "source": "regex", "metadata": {}}, {"text": "V. A. Seyid Muhammad", "label": "PETITIONER", "start_char": 4298, "end_char": 4318, "source": "ner", "metadata": {"in_sentence": "V. A. Seyid Muhammad, R. N. Sachthey and B. D. Sharma, for !"}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4320, "end_char": 4334, "source": "ner", "metadata": {"in_sentence": "V. A. Seyid Muhammad, R. N. Sachthey and B. D. Sharma, for !"}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 4339, "end_char": 4351, "source": "ner", "metadata": {"in_sentence": "V. A. Seyid Muhammad, R. N. Sachthey and B. D. Sharma, for !"}}, {"text": "Harbans Singh", "label": "LAWYER", "start_char": 4395, "end_char": 4408, "source": "ner", "metadata": {"in_sentence": "\"f1rank Anthony an<l Harbans Singh, for !"}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 4476, "end_char": 4484, "source": "ner", "metadata": {"in_sentence": "be Court was delivered by Bachawat, J. The respondent was recruited as a constable in the police service in !"}}, {"text": "Punjab", "label": "GPE", "start_char": 4573, "end_char": 4579, "source": "ner", "metadata": {"in_sentence": "Punjab on April 3, 1934."}}, {"text": "April 3, 1934", "label": "DATE", "start_char": 4583, "end_char": 4596, "source": "ner", "metadata": {"in_sentence": "Punjab on April 3, 1934."}}, {"text": "August 26, 1955", "label": "DATE", "start_char": 4706, "end_char": 4721, "source": "ner", "metadata": {"in_sentence": "On August 26, 1955 he was confirmed in this rank by !"}}, {"text": "Mohammad Jamil", "label": "OTHER_PERSON", "start_char": 4922, "end_char": 4936, "source": "ner", "metadata": {"in_sentence": "be beginning of 1957 an accusation was made against him that while investigating a case registered by him against one Mohammad Jamil under First Information Report No."}}, {"text": "Rame Shah", "label": "OTHER_PERSON", "start_char": 5018, "end_char": 5027, "source": "ner", "metadata": {"in_sentence": "1322 dated November 25, 1956 he had taken one Rame Shah to the Lahori Gate police post without formally arresting him and received from him by way of illegal gratification Rs."}}, {"text": "Roshan Lal", "label": "OTHER_PERSON", "start_char": 5188, "end_char": 5198, "source": "ner", "metadata": {"in_sentence": "100 which was paid on his behalf by one Roshan Lal."}}, {"text": "A. C. Chaturvedi", "label": "OTHER_PERSON", "start_char": 5241, "end_char": 5257, "source": "ner", "metadata": {"in_sentence": "On coming to know of Ibis complaint Sri A. C. Chaturvedi, Superintendent of Police\n\n(City), Delbi, made some kind of a summary inquiry into the matter and on February 28, 1957 passed !"}}, {"text": "Delbi", "label": "GPE", "start_char": 5293, "end_char": 5298, "source": "ner", "metadata": {"in_sentence": "On coming to know of Ibis complaint Sri A. C. Chaturvedi, Superintendent of Police\n\n(City), Delbi, made some kind of a summary inquiry into the matter and on February 28, 1957 passed !"}}, {"text": "February 28, 1957", "label": "DATE", "start_char": 5359, "end_char": 5376, "source": "ner", "metadata": {"in_sentence": "On coming to know of Ibis complaint Sri A. C. Chaturvedi, Superintendent of Police\n\n(City), Delbi, made some kind of a summary inquiry into the matter and on February 28, 1957 passed !"}}, {"text": "section 20", "label": "PROVISION", "start_char": 5631, "end_char": 5641, "source": "regex", "metadata": {"statute": null}}, {"text": "Mohd.\n\nJamil", "label": "LAWYER", "start_char": 5678, "end_char": 5690, "source": "ner", "metadata": {"in_sentence": "112/D was found to be doubtful in connection wilb case F.I.R. 1322 dated 25-11-1956 under section 20/11/78 of\n\nP.S.\n\nKotwali against one Mohd."}}, {"text": "Punjab Police Rules, 1934", "label": "STATUTE", "start_char": 5788, "end_char": 5813, "source": "regex", "metadata": {}}, {"text": "N. S.\n\nSaxena", "label": "OTHER_PERSON", "start_char": 5819, "end_char": 5832, "source": "ner", "metadata": {"in_sentence": "be Punjab Police Rules, 1934, Sri N. S.\n\nSaxena, the\n\nDEIJfi ADMN."}}, {"text": "Chanan Shah", "label": "RESPONDENT", "start_char": 6295, "end_char": 6306, "source": "ner", "metadata": {"in_sentence": "I therefore order under P.R. 16.28 that the censure awarded to officiating Chanan Shah be cancelled and he should be dealt with departmentally.", "canonical_name": "CHANAN SHAH"}}, {"text": "B. L. Gulati", "label": "OTHER_PERSON", "start_char": 6411, "end_char": 6423, "source": "ner", "metadata": {"in_sentence": "The departmental file will be prepared by Sri B. L. Gulati, I.P.S., Superintendent of Police (Traffic) ."}}, {"text": "D. C. Sharma", "label": "OTHER_PERSON", "start_char": 6573, "end_char": 6585, "source": "ner", "metadata": {"in_sentence": "The conduct of the departmental inquiry was entrusted to Sri D. C. Sharma, Superintendent of Police, Central District, Delhi.", "canonical_name": "D. C. Sharma:-"}}, {"text": "Central District", "label": "GPE", "start_char": 6613, "end_char": 6629, "source": "ner", "metadata": {"in_sentence": "The conduct of the departmental inquiry was entrusted to Sri D. C. Sharma, Superintendent of Police, Central District, Delhi."}}, {"text": "August 20, 1957", "label": "DATE", "start_char": 6642, "end_char": 6657, "source": "ner", "metadata": {"in_sentence": "On August 20, 1957 Sri Sharma wrote the following D.O. letter No."}}, {"text": "Sharma", "label": "OTHER_PERSON", "start_char": 6662, "end_char": 6668, "source": "ner", "metadata": {"in_sentence": "On August 20, 1957 Sri Sharma wrote the following D.O. letter No."}}, {"text": "C. B. Dube", "label": "JUDGE", "start_char": 6719, "end_char": 6729, "source": "ner", "metadata": {"in_sentence": "2165-e to Sri C. B. Dube, District Magistrate, Delhi :-\n\n\" 1."}}, {"text": "S.I. Chanan Shah", "label": "ORG", "start_char": 6780, "end_char": 6796, "source": "ner", "metadata": {"in_sentence": "On 25-11-56, S.I. Chanan Shah No."}}, {"text": "Mohd.\n\nJamil alias Mohan Lal", "label": "OTHER_PERSON", "start_char": 6907, "end_char": 6935, "source": "ner", "metadata": {"in_sentence": "Lahori Gate recovered a revolver with 6 rounds from the possession of one Mohd."}}, {"text": "Lahore", "label": "GPE", "start_char": 6939, "end_char": 6945, "source": "ner", "metadata": {"in_sentence": "Jamil alias Mohan Lal of Lahore while the latter was staying at Regal Hotel."}}, {"text": "25-11-56", "label": "DATE", "start_char": 7019, "end_char": 7027, "source": "ner", "metadata": {"in_sentence": "1322, dated 25-11-56 u/s. 20-11-78 Arms Act was accordingly registered at P .S. Kotwali."}}, {"text": "s. 20", "label": "PROVISION", "start_char": 7030, "end_char": 7035, "source": "regex", "metadata": {"statute": null}}, {"text": "Arms Act", "label": "STATUTE", "start_char": 7042, "end_char": 7050, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "P .S. Kotwali", "label": "ORG", "start_char": 7081, "end_char": 7094, "source": "ner", "metadata": {"in_sentence": "1322, dated 25-11-56 u/s. 20-11-78 Arms Act was accordingly registered at P .S. Kotwali."}}, {"text": "S.I. Chanan Shah", "label": "OTHER_PERSON", "start_char": 7146, "end_char": 7162, "source": "ner", "metadata": {"in_sentence": "The investigation of this case was carried out by S.I. Chanan Shah. '"}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 7684, "end_char": 7712, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "D. C. Sharma:-", "label": "OTHER_PERSON", "start_char": 8118, "end_char": 8132, "source": "ner", "metadata": {"in_sentence": "On Au ust 2 l\n\n~ 957 Sn C. B .. Dube, District Magistrate, Delhi sent theg follo : mg letter to Sn D. C. Sharma:- ' w\n\n\"Please refer to your D.O. letter No.", "canonical_name": "D. C. Sharma:-"}}, {"text": "Cilanan Shah as required under Punjab Police Rule", "label": "STATUTE", "start_char": 8295, "end_char": 8344, "source": "regex", "metadata": {}}, {"text": "November 15, 1957", "label": "DATE", "start_char": 8357, "end_char": 8374, "source": "ner", "metadata": {"in_sentence": "On November 15, 1957 Sri Sharma drew up a formal charge sheet On the basis ."}}, {"text": "March 18, 19j8", "label": "DATE", "start_char": 8552, "end_char": 8566, "source": "ner", "metadata": {"in_sentence": "On March 18, 19j8 Sri Sharma served a notice on th.e respondent to show cause wny he should not be dismissed."}}, {"text": "February 14, 1959", "label": "DATE", "start_char": 8877, "end_char": 8894, "source": "ner", "metadata": {"in_sentence": "An appeal filed by hlm against the order was rejected by the Deputy Inspector General on February 14, 1959, and a revision peution filed by hlm was rejected by the Inspector General on June 5, 1959."}}, {"text": "5, 1959", "label": "DATE", "start_char": 8978, "end_char": 8985, "source": "ner", "metadata": {"in_sentence": "An appeal filed by hlm against the order was rejected by the Deputy Inspector General on February 14, 1959, and a revision peution filed by hlm was rejected by the Inspector General on June 5, 1959."}}, {"text": "August 18, 1959", "label": "DATE", "start_char": 8991, "end_char": 9006, "source": "ner", "metadata": {"in_sentence": "On August 18, 1959 the respondent filed a writ petition in the Punjab rligh Court for quashmg the dismissal order."}}, {"text": "Punjab rligh Court", "label": "COURT", "start_char": 9051, "end_char": 9069, "source": "ner", "metadata": {"in_sentence": "On August 18, 1959 the respondent filed a writ petition in the Punjab rligh Court for quashmg the dismissal order."}}, {"text": "Punjab Police Rules, 1934", "label": "STATUTE", "start_char": 9225, "end_char": 9250, "source": "regex", "metadata": {}}, {"text": "Gosain", "label": "JUDGE", "start_char": 9252, "end_char": 9258, "source": "ner", "metadata": {"in_sentence": "Gosain, J. dismissed the petition."}}, {"text": "Chapter XVI of the Punjab Police Rules", "label": "STATUTE", "start_char": 9728, "end_char": 9766, "source": "regex", "metadata": {}}, {"text": "[1961) 2 S.C.R. 679", "label": "CASE_CITATION", "start_char": 13342, "end_char": 13361, "source": "regex", "metadata": {}}]}
{"document_id": "1969_3_659_668_EN", "year": 1969, "text": "P. M. MOHAMMAD MEERAKHAN\n\nCOMMISSIONER OF INCOME-TAX, ERNAKULAM\n\nFebruary 12, 1969\n\n(J.C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.)\n\nIncome-tax Act (II of 1922)-Sing/e Transaction to purchase estate-- No means to buy-Purchasers found-Plots sold and one retainedwhether transaction constituted trade-Value of plot retained added for estimate profit., whether correct.\n\nThe assessee entered into an agreement to purchase a land for Rs. 6 lakbs. He paid Rs. 11,000/- as advance and it was agreed that the sale deed was to be executed by a specified date either in favour of the\n\nassessee or his nominees. The assessee did not have resources to buy land even worth a lakb nor could cultivate the land himself. He divided the land into 23 plots and found purchasers for 22 of these plots. These 22 plots were conveyed to the respective purchasers and the 23rd plot was conveyed to the assessee.\n\nThe Income-tax authorities brought to tax the sum representing the assessee's profit (after including the estimated value of the plot retained by him). The assessee contended that ( !) the transaction did not constitute a venture in the nature of trade; and (ii) even if it did, the profits from the adventure were not be properly ascertained as the adventure would terminate after the plots retained by the assessec was also sold and therefore the profits in the adventure e<mld be detennin- ed only at the time of the completion of the sale of the plot. Repelling these contentions, this Court,\n\nHELD: (i) The question whether a transaction is an adventure in the nature of trade must be decided on a consideration of all the relevant factors and circumstances which are proved in the particular case. The answer to the question does not depend upon the application of any abstract rule or prmciple or fonnula but must depend upon the total impression and effect of alJ the relevant facts and circumstances established in the particular case. [662 A]\n\nHaving regard to the total effect of al1 tho circumstances in the present case the transactions of the assessee constituted an adventure in the nature of trade and were in the course of the profit making scheme and were taxable.\n\nCalifornia Copper Syndicate v. Harris, [1904] S S.T.C. 159, 165-6, Martin v. Lowry, 11 Tax Cases 297, Rutledge v. Commissionerr of Inland Revenue, 14 Tax Cases 490, Commissioner of Inland Revenue v. Fraser,\n\n24 Tax Cases 498, Leeming v. Jones, IS Tax Cases 333, Saro; Kumar Mazumdar v. Commr\"ssr\"oner of Income.tax, 37 l.T.R. 242, Venkataswami Naidu cl Co. v. Commissioner of Income-tax, 35 I.T.R. 594 and Raja 1.\n\nRameshwar Rao v. Commissioner of Income-tax, Hyderabad, 42 I.T.R. 179, referred to.\n\n(ii) The profit of the assessee was correctly estimated by treating the land retained by him as stock-in-trade and valuing it according to the nonnal accountancy practice.\n\nUnder the Income-tax Act for the purpose of assessment each year is a self-contained unit and in the case of a trading adventure the profits have to be computed in the manner provided by the statute. It is true that the Income-tax Act makes no express provision with regard lo the value of stock. It charges for payment of tax the\n\nincome, protits and gains which have to be computed in the manner provided by the Income-tax Act. In the case elf a trading adventure the profits have to be calculated and adjusted in the light of the provisions of the Income-tax Act permittiqg allowance pl-escribed thereby. For that purpose it was the duty of the Inel)me-tax Officer to find out whai profits the business has made according to the true accountancy practice. As a normal rule, the profit should be ascertained by valuing the stock-in-trade at the beginning and at the end of .the accounting year. (666 E-H; 668 DJ\n\nWhimsier & Co. v. Commissioner of Inland Revenue 12 Tax Cases 813, Commissioners of Inland Revenue v. Cock, Russell & Co. Ltd., 29 Tax Cases 387 and Comnzissioner of Jncometcx, MadTas v. A. Krishna swami Mudaliar & Ors., 53 L.T.R. 122, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1230 of 1967.\n\nAppeal by special leave from the judgment and order, dated October 10, 1966 of the Kerala High Court in Income-tax Referred Case No. 18 of 1965.\n\nS. T. Desai, Bhuvnesh Kumari, J.B. Dadachanji and 0. C.\n\nMathur, for the appellant.\n\nSukumar Mitra, R. N. Sachthey and B. D. Sharma, for the respondent. ·\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J. In this case the appellant (hereinafter called the assessee) was assessed for the assessment year 1956-57 on a total income of Rs. 8,400.\n\nThe Income Tax Officer later on came to know that the assessee's income from the sale of estates had escaped assessment.\n\nThe Income Tax Officer took action under section 34(1 )(a} of the Income Tax Act, 1922 (hereinafter called the Act) for the assessment year 1956-57 on 13th August, 1959.\n\nUnder an agreement dated 18th May, f955 a company called Mundakayam Valley Rubber Co. Ltd. sold and delivered an estate called Kuttikal Estate to one Mr. A. V. George.\n\nThe area of ihe estate was 477 acres and 71 cents. Mr. A. V. George had entered into the ajO'eernent in his own name and on behalf of another company called the Kailas Rubber Co. Ltd. It was agreed that the vendor would execute the necessary conveyance in favour of Mr. A. V. ('.eorge or his nominees. On 15th August. 1955. the assessee entered into an agreement with Mr. A. V. George whereby the assessee agreed to purchase 477.71 acrea forming part of Kuttikal Estate for Rs. 6 !akhs. An advance of Rs. 11,000 was paid by the assessee.\n\nThe balance of Rs. 5,89,000 was to be paid bv the assessee on or before 25th September; 1955. -It was al!l'eed that Mr. A. V. Geore hould execute a sale-deed himself or cause it to be executed by Kallas Rubber Co. Ltd. on\n\nMEERAKHAN v. C.I.T. (Ramaswa,, ii, J.) 661\n\nwhose behalf he was acting in favour of the assessee or his nominees. The assessee subsequently divided the area of 4 77. 71 acres into 23 plots and found purchasers for 22 of these plots. The total extent of 22 plots for which he found purchasers was 373.58 acres and the total price paid by the 22 purchasers was Rs. 5,18,500.\n\nA sale deed was executed by the Mundakayam Valley Rubber Co. Ltd. on 31st March, 1956.\n\nIt covered all the 23 plots. The 22 plots for which the assessee found purchasers were conveyed to the respective purchasers and the 23rd plot was conveyed to the assesee himself.\n\nMr. A. V. George and th\"; Kailas Rubber Co. Ltd. were parties to this document. The plot which the assessee had retained for himself was 104.13 aci:es in extent.\n\nIts value was estimated bv the Income Tax Officer at Rs. 2,08,000.\n\nThe Income Tax Officer worked out the profit from the transaction ; if purchase and sale of land as follows :\n\n\"Sale price of 373 acres Rs. 5,18,500 Value of 104 acres retained by the assessee at Rs. 2,000 per acre . .\n\nRs. 2,08,000\n\nLess Cost Rs. 7,26,500 Rs. 6,00,000\n\nRs. 1,26,500\n\nThe Income Tax Officer held that a sum of Rs. 1,25,000 in round. figures represented the assessee's profit from an adventure in the nature of trade and included this amount in his total income under section 34 (!)(a) of the Act.\n\nThe assessee appealed to the Appellate Assistant Commissioner who rejected the appeal. The assessee took the matter in further apoeal to the Appellate Tribunal which also rejected the aopeal holding that the amount of Rs. 1,25,000 represented profit from an adventure in the nature of trade. At the instance of the assessee the Appellate Tribunal stated a case to the High Court on. the following question Df Jaw:-\n\n\"Whether on the facts and in the Circumstances of the case, the transactions constituted a venture in the nature of trade and the surplus of Rs. 1,25,000 was assessable to tax ?\"\n\nBy its judgment dated I 0th Oct'.lber, 1966, the Hih Court of Kerala answered the question in the affirmative and against the assessee. Thi• ao:oeal is broueht bv special leave from the iudgment of the High Court of Kerala, dated 10th October, 1966 in Income Tax Reference No. 18 of 1965.\n\nThe question whether a transaction is an adventure in the nature of trade must be decided on a consideration of all the relevant facts and circumstances which are proved in the particular case. The answer to the question does not depend upon the application of any abstract rule or principle or formula but must depend upon the total impression and effect of all the relevant facts and circumstances established in the particular case.\n\nIn California Copper Syndicate v. Harris,(1) Lord Justice Clerk observed:\n\n\"It is quite a well settld principle in dealing with questions of assessment of income tax that where the owner of an ordinary investment chooses to realise it, and obtains a greater price for it .than he originally acquired it at, the enhanced price is not profit .... assessable to income tax: But it is equally well established that enhanced values obtained from realisation or conversion of securities may be so assessable where what is done is not merely a realisation or change of investment, but an act done in what is truly the carrying on, or carrying out, of a business. . . . What is the line which separates the two classes of cases may be difficult to define, and each case must be considered according to its facts; the question to be determined being-Is the sum of gain that has been made a mere enhancement of value by realising a security or is it a gain made in the operation of business in carrying out a scheme for profit making ?\"\n\nBut in judging the character of such transactions several factors have been treated as significant in decided cases.\n\nFor instance, if a transaction related to the business which is normally carried on by the assessee, though not directly a part of it, an intention to launch upon an adventure in the nature of trade may readily be inferred. A similar inference would arise where a commodity is purchased and sub-divided, altered, treated or repaired and sold or is converted into a different commodity and then sold.\n\nThe magnitude of the transaction of purchase, the nature of the commodity, the' subsequent dealings of the assessee, the nature of the organisation employed by the assessee and the manner of disposal may be such that the transaction inay be stamped with\n\nthe character of a trading nature. In Martin v. Lowry,(') the assessee purchased a large quantity of aeroplane linen and sold it in different Jots, and for the purpose of selling it started an advertising campaign, rented offices, engaged an advertising manager, a linen expert and a staff of clerks. maintained account books normally used by a trader, and passed receipts ai!ld payment\n\n(1) [1904] S S.T.C. 159, 165--66.\n\n(2) ll Ta~ cases 297, ,/\n\nin connection with the linen through a separate banking account.\n\nIt was held that the assessee carried on an adventure in the nature of trade and so the profit was liable to be.taxed.\n\nThe same view was taken in Rutledge v. Commissioners of Inland Revenue(') in regard to an assessee who purchased very cheaply a vast quantity of toilet paper and within a short time thereafter sold the whole consignment at a considerable profit. Similarly, in Commissioner of Inland Revenue v. Fraser(') the assessee, a woodcutter, bought for resale, whisky in bond, in three lots.\n\nHe sold it later on at considerable profit. The assessee had never dealt in whisky before, he had no special knowledge of the trade, he did not take delivery of the whisky nor did he have it blended and advertised. Even so it was held that the transaction was an adventure 1n the nature of trade. Lord President Normand observed in the course of the judgment:\n\n\"It is in general more easy to hold that a single transaction entered into by an individual in the line of his own trade (although not part and parcel of his ordinary business) is an adventure in the nature of trade than to hold that a transaction entered into by an individual outside the line of his own trade or occupation is an adventure in the nature of trade. But what is a good deal more important is the nature of the transaction with reference to the commodity dealt in.\n\nThe individual who enters into a purchase of an article or commodity may have in view the resale of it at a profit, and yet it may be that that is not the only purpose for which he purchased the article of the commodity, nor the only purpose to which he might turn it if favourable opportunity of sale does not occur. In some of the cases the purchase of a picture has been given as an illustration. An amateur may purchase a picture with a view to its resale at a profit, and yet he may recognise at the time or afterwards that the possession of the picure will give him aesthetic enjoyment if he is unable ultimately, or at his chosen time, to realise it at a profit. A man may purchase stocks and shares with a view to selling em at an early date at a profit, bnt, if he does so, he rs purchasing something which is itself an investment, a potential source of revenue to him while he holds it. A man may purchase land with a view to realising .it at a prot, but it also .may yield him an income .while he contrnues to hold rt. If he continues to hold rt, there may be also a certain pride of possession\n\nut the. purchaser of a large quantity of a commodity like whisky, greatly in excess of what could be used b)\n\n(!) 14 Tax C3ses 490.\n\n(2) 24 Tax Cases 498.\n\nhimself, his family and friends, a commodity which A yields no pride of possession, which cannot be turned to account except by a process of realisation, I can scarcely consider to be other than an adventure in a transaction in the nature of a trade; and I can find no single fact among those stated by the Commissioners which in any way traverses that view. In my opinion, B the fact that the transaction was not in the way of business (whatever it was) of the respondent in no way alters the character which almost necessarily belongs to a transaction like this''.\n\nThese are cases of commercial commodities but a transaction of purchase of land cannot be assumed without more to be an adventure in the nature of trade. In Leeming v. Jones,(') a syndicate was formed to acquire an option over a rubber estate with a view to resell it at a profit, and finding the estate too small the syndicate acquired another estate and sold the two estates on profit. It was held that the transaction was not in the nature of trade and the profit was not liable to be assessed to tax.\n\nThe same view was expressed in Saroj Kumar Mazumdar v. Commissioner of Tncome Tax(\") in which the assessee who carried 011 business of engineering works purchased land, which was under requisition by the Government, negotiated a sale before the la11d was de-reg•1isitioned and sold it after . the land was released.\n\nBut the circumstances of a particular case mav lead to the conclPsion that the purchase or resale of land is in the nature of trade. Tri Venkataswomi NaiO.u\n\n& Co. v. Commissior>er of Income Tax,(') the appelhnt firm which acted as managing agents purchased. for a total wnsideration of R~. 8.713. four contiguous plots of land adjacent to the olace where the mills of the company mana.ed by it were situatea.\n\nThe first purchase was made in October. 1941 and S1'.bsequent nurchases were made in November, 1941, June 1942 am:l November, 1942. As long as the appellant was in possession of the land it made no effort to cultivate it or erect arv suoerstruc\"1re dn it but allowed the land to remain unutilise'1 excent for the rent received from the house which existed on nne of the plots. The apnellant sold the land to the comnanv ma'1aged bv it in two Jots in Sentember and November, 1947, for a total consideration of Rs. ~2.600. The question was whether the sum of R0 .. 43,887 heinl! the e'.'Ccess realised by the appellant bv the two sales over its nurchase nrice. was. assessable to incowe:tax. The Apoelhte Tribunal reiected the contention of the anrellant that th~ oro., erties were bought as an investment and that the olots were• acauired for bnildin 11 tenements for the labourers or the mills bu• came to the conclusion that the transaction was an adventure in the nature\n\n(1) 15 Tax Cases 333.\n\n(2) 37 I, T.R. 242,\n\n(3) 35 I.T.R. 594.\n\nof trade. On a reference, the High Court _expressed the same view.\n\nIt was held by this Court in appeal that tl)e Appellate Tribunal\n\nwas right in inferring that the appellant knew that it would be able to sell the lands to the managea company whenever it thought it profitable so to do, that the appellant purchased the four plots of land with the sole intention of selling them to the mills at a profit and thaHhe High Court was right in holding that. the tan\n\nsact10n was an adventure in the nature of trade. Agam m Raia J.\n\nRameshwar Rao v. Commissioner of income-tax Hyderabad, (1) the assessee purchased 217 acres of land from the pattadars and on a portion ol the land the assessee constructed a Ganj and shops.\n\nThe rest of the land he laid out as plots which he sold for a sum of Rs. 75,820. In computing the assessable income the Income Tax Officer added a sum of Rs. 75,~20 as receipt from business.\n\nThe decision of the Income Tax Officer was affirmed by the Appellate Commissioner and the Tribunal in appeal.\n\nThe High Court held on a reference by the Appellate Tribunal that there was evidence upon which the Appellate Tribunal could have come to the conclusion that the sum of Rs. 75,820 was the assessee's income from business. It was held by this Court on appeal that when a person acquired land with a view to selling it later after developing it, he was carrying on an activity resulting in profit, and the activity can only be described as a business venture. Where the person goes further and divides the land ii; ito plots, develops the area to make it more attractive and sells the land not as a single unit and as he bought it, but in parcels, he is dealing with land as his stock-in-trade. The decision of the High Court was accordingly affirmed and the appeal to this Court was dismissed.\n\nAs we have already .said it is not possible to evolve any single legal test or formula which can be applied in determining whether a transaction is an adventure in the nature of trade or not. The answer to the question must necessarily depend in each case 01l the total impression and effect of all the relevant factors and circumstances proved therein and which determine the character of the transaction. What then are the material facts found in the present case ?\n\nIt is clear from the recital of the agreement dated 15th October, 1955 that the intention of the assessee in purchasing the est.ate was to resell it at a profit. An advance of Rs. 11,000 was paid by the assessee on that date, the balance of Rs. 5,89,000 was to be paid on or before 25th September, 1955.\n\nIt was one of the terms of th~ agrem.ent that Mr. A. V. George was to execute the sale deed e!lher m tavour of the assessee or his nominees. It was also found that the assessee did not have the resources to buy any estate worth a lakh of rupees when he entered into the\n\nagr~~~t_!_or __ the _p_u_rll.'.1se of Kuttiknl Estate for an amount of\n\nllH~ I.T.R. 179.\n\nRs. 6 lakhs. In the intervening period between 15th August, 1955 and 31st March, 1956 the assessee divided the estate into 23 plots and arranged for the sale of 22 plots to different purchasers.\n\nThe division of the land into 23 plots and the sale to the various purchasers indicate that there was scheming and organisation on . the part of the assessee.\n\nIt was found tnat the assessee did not have the means and resources to cultivate the Jano himself and !hat he had arranged for the sale of 22 plots to different purchasers. Having regard to the total effect of all these circumstances we are of the opinion that the High Court was right in its conclusion that the transactions of the assessee constituted an adventure in the natW:e of trade and were in the course of a profit making scheme and the question was rightly answered by the High Court against the assessee.\n\nIt was then contended on behalf of the appellant that even assuming that there was an adventure in the nature of trade, the profits from such an adventure have not been properly ascertained in the present case. It was said that the Income-tax authorities were wrong in holding that the value of the 23rd plot retained by the assessee represented the profit made in the transaction.\n\nThe argument was that the adventure would terminate after the portion retained by the appellant was also sold and therefor~ the profits in the adventure could be determined only at the time of the completion of the sale of the entire estate. In our opinion, there is no justification for this argument. It is not a correct proposition to say that the profits of the assessee cannot be ascertained even on the assumption that the transaction of the adventure of trade was not completed. Under the Income Tax Act for the purpose of assessment each year is a self-contained unit and in the case of a trading advi:nture the profits have to be computed iri the manner provided by the statute. It is true that the Income Tax Act makes no express provision with regard to the value of stock.\n\nIt charges for payment of tax the income profits and gains which have to be computed in the manner provided by the Income Tax Act. In the case of a trading adventure the profits have to be calculated and adjusted in the light of the provisions of the Income Tax Act permitting allowances prescribed thereby. For that purpose it was the duty of the Income Tax Officer to find out what profit the business has made according to the true accountancy practice.\n\nAs a normal rule, the profit shoula be ascertained by valuing the stock-in-trade at the beginning and at the end of the accounting year, In Whimsier & Co. v. Commissioner of lnland Revenue(') Lord President Clyde observed at page 823 :\n\n\"In computing the balance of profits aRd gains for the purposes of income-tax .... two general and fundamental common places have already to be kept in mind.\n\n(I) 12 Tax Cases 813,\n\nIn the first place, the J?rofits of any pcular year or accounting period must be taken to onsISt of the difference between the receipts from the trade or business during such year or accounting perioo and the expenditure laid out to earn those receipt. In the second place, the account o( profit and loss to be __ made up for the purpose of ascertaining that difference must be framed consistently with the ordinary principles of commercial accounting, so far as applicable, and in conformity wit?\n\nthe rules of the Income Tax Act, or of that Act as modified by the provisions and schedules of the Acts regulating excess profits duty, as the case may be.\n\nFor example, the ordinary principles of commercial accounting require that in the profit, and ioss account of a merchant's ur manufacturer's businllSS the values of the stock-in-trade at the beginning and at the end of the period covered by the account should be entered at cost or market price, whichever is the lower; although there is nothing about this in the taxing statutes\".\n\nIn Commissioners of lnland Revenue v. Cock, Russell & Co.\n\nLtd.(') Croom-Johnson, J. in dealing with valuation of stock-intrade for purposes of taxation stated as follows :-\n\n\"There is no word in .the statutes or rules which deals with this. question of valuin_g stock-in-trade. There is nothing in the relevant legislation which indicates that in computing the profits and gains of a commercial concern the stock-in-trade at the start of the accounting period should be taken in and that the amount of the stock-in-trade at the end of the period should also be taken in.\n\nIt would be fantastic not to do it : it would be utterly impossible accurately to assess profits and gains merely on a statement of receipts and payments or on the basis of turnover.\n\nIt has Jong been recognised that the right method of assessing profits and gains is to take into account the value of the stock-in-trade at the beginning and the value of the stock-in-trade at the end as two of the items in the computation. I need not cite authority for the general proposition which is admitted at the Bar, that for the purposes of ascertaining profits and gains the ordinary principles of commercial accounting should be applied, so long as they do not conflict with any express provision of the relevant statutes.\" In Commissioner of lncome-tax, Madras v.\n\nKrishnaswami Mudaliar and Ors. (2) it was observed by this Court that whiche.ver method of book keeping was adopted in the case of a trading\n\n(I) 29 Tax Cases 387\n\n(2) 53 1.T.R. 122.\n\nventure for computing the true profits of the year the stock-in- A trade must be taken into account.\n\nAt page 132 of the report Shah, J. speaking for the Court stated the principle as follows :-\n\n\"These observations do not affect the true character of the profit of a business. Adjustments may have to be made in the principle having regard to the special character of the assets, the nature of the business and the appropriate allowances permitted, in order to arrive at the taxable profits.\n\nThey do not support the proposition that, in the case of a trading venture, you can arrive at the true profits of a year by ignoring altogether the valuation of the stock-in-trade at the end of the year, while. debiting its value at the commencement of the year as an outgoing; for determination of the profits by ignoring the valuation of the stock at the end of the year and debiting the value of the assets at the commencement of the year would not give a true picture of the profit for the year of account\".\n\nIn view of this principle we are of the opinion that the Incomctax authorities have correctly estimated the profit of the assessee by treating the land as stock-in-trade and valuing it according to the normal accountancy practice.\n\nFor the reasons expressed we hold that the decision of the lligh Court of Kerala, dated 10th October, 1966, is corre\"t and this appeal must be dismissed with costs.\n\nY.P.\n\nAppeal dismissed.", "total_entities": 41, "entities": [{"text": "P. M. MOHAMMAD MEERAKHAN", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "P. M. MOHAMMAD MEERAKHAN", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX, ERNAKULAM", "label": "RESPONDENT", "start_char": 26, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, ERNAKULAM", "offset_not_found": false}}, {"text": "February 12, 1969", "label": "DATE", "start_char": 65, "end_char": 82, "source": "ner", "metadata": {"in_sentence": "P. M. MOHAMMAD MEERAKHAN\n\nCOMMISSIONER OF INCOME-TAX, ERNAKULAM\n\nFebruary 12, 1969\n\n(J.C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.)"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 87, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 96, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 113, "end_char": 130, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 133, "end_char": 147, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 2858, "end_char": 2872, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 3068, "end_char": 3082, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 3262, "end_char": 3276, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 3399, "end_char": 3413, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 4013, "end_char": 4041, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "S. T. Desai", "label": "JUDGE", "start_char": 4222, "end_char": 4233, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, Bhuvnesh Kumari, J.B. Dadachanji and 0."}}, {"text": "Bhuvnesh Kumari", "label": "JUDGE", "start_char": 4235, "end_char": 4250, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, Bhuvnesh Kumari, J.B. Dadachanji and 0."}}, {"text": "J.B. Dadachanji", "label": "LAWYER", "start_char": 4252, "end_char": 4267, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, Bhuvnesh Kumari, J.B. Dadachanji and 0."}}, {"text": ". C.\n\nMathur", "label": "LAWYER", "start_char": 4273, "end_char": 4285, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, Bhuvnesh Kumari, J.B. Dadachanji and 0."}}, {"text": "Sukumar Mitra", "label": "LAWYER", "start_char": 4307, "end_char": 4320, "source": "ner", "metadata": {"in_sentence": "Sukumar Mitra, R. N. Sachthey and B. D. Sharma, for the respondent. ·"}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4322, "end_char": 4336, "source": "ner", "metadata": {"in_sentence": "Sukumar Mitra, R. N. Sachthey and B. D. Sharma, for the respondent. ·"}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 4341, "end_char": 4353, "source": "ner", "metadata": {"in_sentence": "Sukumar Mitra, R. N. Sachthey and B. D. Sharma, for the respondent. ·"}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 4422, "end_char": 4431, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. In this case the appellant (hereinafter called the assessee) was assessed for the assessment year 1956-57 on a total income of Rs.", "canonical_name": "V. RAMASWAMI"}}, {"text": "13th August, 1959", "label": "DATE", "start_char": 4848, "end_char": 4865, "source": "ner", "metadata": {"in_sentence": "The Income Tax Officer took action under section 34(1 )(a} of the Income Tax Act, 1922 (hereinafter called the Act) for the assessment year 1956-57 on 13th August, 1959."}}, {"text": "Mundakayam Valley Rubber Co. Ltd.", "label": "ORG", "start_char": 4925, "end_char": 4958, "source": "ner", "metadata": {"in_sentence": "Under an agreement dated 18th May, f955 a company called Mundakayam Valley Rubber Co. Ltd. sold and delivered an estate called Kuttikal Estate to one Mr. A. V. George."}}, {"text": "A. V. George", "label": "OTHER_PERSON", "start_char": 5022, "end_char": 5034, "source": "ner", "metadata": {"in_sentence": "Under an agreement dated 18th May, f955 a company called Mundakayam Valley Rubber Co. Ltd. sold and delivered an estate called Kuttikal Estate to one Mr. A. V. George.", "canonical_name": "A. V. George"}}, {"text": "Kailas Rubber Co. Ltd.", "label": "ORG", "start_char": 5198, "end_char": 5220, "source": "ner", "metadata": {"in_sentence": "Mr. A. V. George had entered into the ajO'eernent in his own name and on behalf of another company called the Kailas Rubber Co. Ltd. It was agreed that the vendor would execute the necessary conveyance in favour of Mr. A. V. ('.eorge or his nominees."}}, {"text": "A. V.", "label": "OTHER_PERSON", "start_char": 5307, "end_char": 5312, "source": "ner", "metadata": {"in_sentence": "Mr. A. V. George had entered into the ajO'eernent in his own name and on behalf of another company called the Kailas Rubber Co. Ltd. It was agreed that the vendor would execute the necessary conveyance in favour of Mr. A. V. ('.eorge or his nominees."}}, {"text": ".eorge", "label": "OTHER_PERSON", "start_char": 5315, "end_char": 5321, "source": "ner", "metadata": {"in_sentence": "Mr. A. V. George had entered into the ajO'eernent in his own name and on behalf of another company called the Kailas Rubber Co. Ltd. It was agreed that the vendor would execute the necessary conveyance in favour of Mr. A. V. ('.eorge or his nominees."}}, {"text": "15th August. 1955", "label": "DATE", "start_char": 5342, "end_char": 5359, "source": "ner", "metadata": {"in_sentence": "On 15th August."}}, {"text": "25th September; 1955", "label": "DATE", "start_char": 5648, "end_char": 5668, "source": "ner", "metadata": {"in_sentence": "5,89,000 was to be paid bv the assessee on or before 25th September; 1955."}}, {"text": "A. V. Geore", "label": "OTHER_PERSON", "start_char": 5696, "end_char": 5707, "source": "ner", "metadata": {"in_sentence": "-It was al!l'eed that Mr. A. V. Geore hould execute a sale-deed himself or cause it to be executed by Kallas Rubber Co. Ltd. on\n\nMEERAKHAN v. C.I.T. (Ramaswa,, ii, J.) 661\n\nwhose behalf he was acting in favour of the assessee or his nominees.", "canonical_name": "A. V. George"}}, {"text": "Kallas Rubber Co. Ltd.", "label": "ORG", "start_char": 5772, "end_char": 5794, "source": "ner", "metadata": {"in_sentence": "-It was al!l'eed that Mr. A. V. Geore hould execute a sale-deed himself or cause it to be executed by Kallas Rubber Co. Ltd. on\n\nMEERAKHAN v. C.I.T. (Ramaswa,, ii, J.) 661\n\nwhose behalf he was acting in favour of the assessee or his nominees."}}, {"text": "31st March, 1956", "label": "DATE", "start_char": 6242, "end_char": 6258, "source": "ner", "metadata": {"in_sentence": "A sale deed was executed by the Mundakayam Valley Rubber Co. Ltd. on 31st March, 1956."}}, {"text": "section 34", "label": "PROVISION", "start_char": 7157, "end_char": 7167, "source": "regex", "metadata": {"statute": null}}, {"text": "Hih Court of Kerala", "label": "COURT", "start_char": 7833, "end_char": 7852, "source": "ner", "metadata": {"in_sentence": "By its judgment dated I 0th Oct'.lber, 1966, the Hih Court of Kerala answered the question in the affirmative and against the assessee."}}, {"text": "10th October, 1966", "label": "DATE", "start_char": 8014, "end_char": 8032, "source": "ner", "metadata": {"in_sentence": "Thi• ao:oeal is broueht bv special leave from the iudgment of the High Court of Kerala, dated 10th October, 1966 in Income Tax Reference No."}}, {"text": "Normand", "label": "OTHER_PERSON", "start_char": 11643, "end_char": 11650, "source": "ner", "metadata": {"in_sentence": "Lord President Normand observed in the course of the judgment:\n\n\"It is in general more easy to hold that a single transaction entered into by an individual in the line of his own trade (although not part and parcel of his ordinary business) is an adventure in the nature of trade than to hold that a transaction entered into by an individual outside the line of his own trade or occupation is an adventure in the nature of trade."}}, {"text": "S1", "label": "PROVISION", "start_char": 15287, "end_char": 15289, "source": "regex", "metadata": {"statute": null}}, {"text": "Agam m Raia", "label": "JUDGE", "start_char": 16788, "end_char": 16799, "source": "ner", "metadata": {"in_sentence": "Agam m Raia J.\n\nRameshwar Rao v. Commissioner of income-tax Hyderabad, (1) the assessee purchased 217 acres of land from the pattadars and on a portion ol the land the assessee constructed a Ganj and shops."}}, {"text": "15th October, 1955", "label": "DATE", "start_char": 18613, "end_char": 18631, "source": "ner", "metadata": {"in_sentence": "It is clear from the recital of the agreement dated 15th October, 1955 that the intention of the assessee in purchasing the est.ate was to resell it at a profit."}}, {"text": "25th September, 1955", "label": "DATE", "start_char": 18843, "end_char": 18863, "source": "ner", "metadata": {"in_sentence": "5,89,000 was to be paid on or before 25th September, 1955."}}, {"text": "15th August, 1955", "label": "DATE", "start_char": 19274, "end_char": 19291, "source": "ner", "metadata": {"in_sentence": "In the intervening period between 15th August, 1955 and 31st March, 1956 the assessee divided the estate into 23 plots and arranged for the sale of 22 plots to different purchasers."}}, {"text": "Shah", "label": "JUDGE", "start_char": 24832, "end_char": 24836, "source": "ner", "metadata": {"in_sentence": "At page 132 of the report Shah, J. speaking for the Court stated the principle as follows :-\n\n\"These observations do not affect the true character of the profit of a business."}}]}
{"document_id": "1969_3_669_673_EN", "year": 1969, "text": "A M. R. GOYEL, PROP. MIS MILKllIRAM BROS. BOMBAY\n\nTHE COMMISSIONER OF INCOME TAX, BOMBAY\n\nCITY 1, BOMBAY\n\nFebruary 12, 1969\n\n[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.)\n\nJncometax-Person entering into contract for purchase of goods- Thereafter transferring benefit of contract for consideration-Whether con• sideration received wa.r capital receipt or revenue.\n\nUie appellant entered into a contract for the purchase of a large quantity of parachutes from the T. Company. The agreed purchase price was over Rs. 93 lacs and the assessee was required to deposit a sum of Rs. JO lacs by way of earnest money. As he did not have enough funds, he entered into an arrangement with certain other persons whereby the amount of Rs. 10 lacs was to be deposited by them and they were to receive a \"net profit share of 9 annas in a rupee\". The financiers later withdrew from the arrangement and the benefit of the contract for the purchase of parachutes was transferred to a firm for a sum of Rs. 3 lacs on November 30,\n\n1946. A few days later another partnership took over the contract of purchase. The Income-tax Officer reopened the appellant's assessment for the assessment year 1947-48 on the ground that the income of Rs. 3 lacs had escaped assessment. After the appellant had failea in an appeal to the Appellate Assistant Commissioner, the Tribunal found that the appellant had in fact only received a sum of Rs. 1,87,000/- and rejected-his contention that this amount was in the nature of a premium for giving up his right to do business in parachutes and was, therefore, in the nature of a capital receipt and not revenue. It held that the assessee had received profit in respect of a venture in the nature of trade. The High Court, upon a reference, upheld the view taken by the Tribunal.\n\nIn appeal to this Court it was contended on behalf of the appellant that the agreement which he bad entered into with the T. Company was a capital asset or a source of possible income and the transfer which was made, was not of the good! which were to be acquired under the contract but the source itself, namely the appellant's share, right, title and interest was transferred and furthermdre the amount in question was received by the appellant for relinquishing his right to participate in the partnership which had been formed and from which he withdrew. It could not, therefore, partake of the character of a revenue receipt.\n\nHELD : Dismissing the appe, al,\n\nThe Tribunal had rightly held that the appellant inded \"to do and did a venture in the nature of trade\". When the appellant agreed to accept a sum of Rs. 1,87,000/- in consideration for transferring the benefits of the contract, be could well be said to have concluded a deal which represented the profit which he anticipated by acquiring the parachutes.\n\nThe High Court had rightly found that the arranement made by the appellant with certain parties to finance tho transaction in return for a share of 9 annas in a rupee, was one which had been made between a person in need of money and certain financiers and that no partnership bad come into force.\n\nAccordingly there could be no question of the appellant having relinquished a share in the partnership. (673 CJ . LlOSup./69-8\n\nSUPREME COURT REPORTS.\n\n[1969] 3 S.C.R.\n\nCIVIL APPELLATE JuRISDICTlON: Civil Appeal No. 681 of A 1968.\n\nAppeal by special leave from the judgment and order dated September 29, 1961 of the Bombay High Court in Income-tax Reference No. 46 of 1969.\n\nI. N. Shroff, for the appellant.\n\nS. K. Mitra, S. A. L. Narayan Rao and B. D. Sharma, for the respondent.\n\nThe Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment of the Bombay High Comt answering the following question referred to it by the Income Tax Appellate Tribunal in the affirmative and against the assessee ;\n\n'\"Whether on the facts and circumstances of the case the receipt of Rs. 1,87,000 in the hands of the assessee is a revenue receipt and liable to income-tax ?\"\n\nThe assessee used to carry on his business under the name and style of Milkhiram Bros.\n\nHe was being assessed from the year 1945-46 onwards.\n\nOn October 31, 1946 he secured a contract for the purchase of approximately 1,28,499 parachutes from Tata Aircraft Ltd.\n\nThe parachutes belonged to the Government of India and the Tata Aircrafts Ltd. was acting as the agent of the Government. The agreed purchase price of the parachutes was approximately Rs. 93t lakhs.\n\nThe cootract was entered into by means of letters.\n\nThe assessee addressed a letter, dated October 29, 1946 to Tata Aircraft Ltd. containing an offer. Tata Aircraft Ltd. sent a reply, dated November 1, 1946, confirming the sale on the te_m1s and conditions given in that letter. The assessee had to make a deposit by way of earnest money of a sum of Rs. 10 !akhs.\n\nThe assessee did not have enough funds with him. He entered into an arrangement with M/s. Nathmal Nihalchand, Pokhraj Hirachand and Harilal Hargovandas for financing the business. The details of this arrangement were contained in a letter, dated October 31, 1946. The amount of Rs. 10 lakhs was to be depo sited by the latter who were to receive a \"net profit share of 9 As. in a rupee\". The assessee later on arranged on November 30, 1946 with the financiers to withdraw from the old arrangement recorded in the letter, dated October 31, 1946.\n\nThe benefits .)f the contract of purchase of parachute were transferred to the firm styled as Pokhraj Hirachand for a sum of Rs. 3,00,000 on November 13, 1946.\n\nOn November 14, 1946 the parties ap proached Tata Aircraft Ltd. who agreed to accept M/s. Pokhraj Hirachand as purchasers of parachutes on the terms and conditions originally agreed to between the assessee-and that comP, any.\n\nM!LKHIRAM BROS. v. C.l.T. (Grover, J.) 671\n\nOn November 22, 1946 an agreement of partnership was entered into between six persons, namely, Nathmal, Pokhraj, Chan<lumal, Prithviraj, Shapoorji & Co. Ltd. and Jamalbhai.\n\nThis partnership took over the contract of purchase entered into hy Pokhruj Hirachand. It was registered by the Income tax authorities for the assessment year 1948-49.\n\nMl s. Pokhraj Hirachand in their assessment claimed a deduction of Rs. 3,00,000 being the payment made to the assessee under the arrangement menlioned above. The Income tax authorities disallowed the claim on the ground that it was a capital payment.\n\nThe aforesaid firm appealed to the Tribunal which _held that only a payment of Rs. 1,87 ,000 _had been proved to have been made to the assessee. For the assessment year 194 7-48 the Income Tax Oilicer reopened the assessment of the assessee under s. 34 of the Income Tax Act, hereinafter called the \"Act\" on the ground that the income of Rs. 3,00,000 had escaped assessment.\n\nThe assessee contended that only a sum of Rs. 1,87,000 had been received by him and not Rs. 3,00,000.\n\nThe Tribunal decided that point in his favour in appeal after he had failed before the Appellate Assistant Commissioner.\n\nThe assessee's contention before the Tribunal was that the nature of the receipt of Rs. 1,87 ,000 was capital and not revenue. According to him the amount received was in the nature of a premium for giving up his right to do business in parachutes. The Tribunal did not accede to his contention and held that the assessee had received profit in respect of a venture in the nature of trade.\n\nThereupon the assessee moved the Tribunal and the question of law was referred.\n\nThe High Court entertained no doubt on the facts which had bei:n found that the receipt of Rs. 1,87,000 was a trading receipt.\n\nThis was so because the assessee was a businessman dealincr itl articles including parachute silk.\n\nIn the opinion of the lligh Court the contract which he entered into with Tata Aircraft Ltd. was a contract for the purchase of stock-in-trade for the business which he was carrying on. It was argued before the High Court that the amount .in questin had been received for relinquishing his. nght to parlicipation m the profi.ts of the partnership from which the assessee withdrew. Accordmg to the High Court such an argument had not been presented before the Appellate Tribunal.\n\nThe letters which were exchanged between the concerned parties wee also considered and the conclusion at which the High Court arnved was that the benefit of the contract which the assessee had entered into with M/ s. Tata Aircraft Ltd. had been\n\ntransfrred ?Y him in favour of Messrs.\n\nPokhraj Hirachand for a consideralion of Rs. 3,00,000 out of which a sum of Rs. 1,87,000 only had been found to have been actually received by the assessee.\n\nThat sum, therefore represented a receipt for transferring the\n\nSUPREME COURT REPORTS [1969] 3 s.c.Jt\n\nbenefits of the contract entered into by the assessee in the ordinary course of the business.\n\nOn behalf of the assessee who is the appellant before us it is submitted that the sum of Rs. l,87,000 received by him could v.ot be regarded as income.\n\nThe agreement which had been entered into by the appellant with M/ s. Tata Aircraft Ltd. was a capital asset or a source of possible income and the transfer which was made was not of the goods which were to be acquired under the contract but the source of income itself, namely, the appellant's share, right, title and interest was transferred.\n\nThe second contention which was also raised before the High Court is that the amount in .question were received by the appellant for relinquishing his right to participate in the partnership which had been formed and from which he withdrew. It could not therefore partake of the character of a revenue receipt.\n\nIt appears that before the Tribunal only the first contention was raised.\n\nThe Tribunal found as a fact th.at it was the appellant who had entered into a contract with M/s. Tata Aircraft Ltd. for the purchase of parachutes for a fixed sum.\" He intended \"to do and did a venture in the nature of trade\". The Tribunal took into consideration the well-known normal method of doing supply business in our country. According to it, highly influential parties instead of doing the business themselves manage to seeure contracts and pass on the actual executioq of the business to others in return for a fixed sum of money. This is what the appellant did and the income which he received was liable to income tax.\n\nIt is difficult to see how on these findings the appellant could legitimately argue that the amount of Rs. 1,87,000 was a capital receipt.\n\nIt is true that by meaos of the letter, dated October 31, 1946 M/s.\n\nNathumal Nihalchand, Pokhraj Hirachand etc. were given 9 As. share in a rupee in the transaction and a partnership agreement was purported to have been entered into. But this letter merely embodied an arrangement for financing a busine'ss venture into which the appellant had entered. He did not have the funds and a deposit of Rs. 10 lakhs had to be made immediately. M/s.\n\nNathumal Nihalchand, Pokhraj Hirachand and others agreed to pay that amount to M/s. Tata Aircraft Ltd. It must be remembered that it was the appellant who had entered into the contract with Mis Tata Aircraft Ltd. in respect of the purchase of parachutes. When he agreed to accept a sum of Rs. 1,87 ,000 from the aforesaid persons as consideration for transferring the benefits of the contract the appellant can well be said to have concluded a deal which represented the profit which he anticipated by acquiring the parachutes.\n\nIt has been submitted on behalf of the appellant that he was not carrying on the business of transferring or selling the benefits\n\nMILIOIIRAM nos. v. c.1.T. (Grover, !.) 673\n\nA of contracts and therefore the contract entered into with M/ s. Tata Aircraft Ltd. could not be regarded as a part of his stock-in-trade It would seem that the Tribunal proceeded more on the footing that the contract relating to the parachutes was a venture in the nature of trade than on the basis that it constituted stock-in-trade of the appellant. It is, therefore, unnecessary to examine this B aspect of the matter. ·\n\nIt seems to us that the second contention of the appellant ought not to have been entertained by the High Court. It was not raised before the Tribunal.\n\nAt any rate, the High Court examined it fully and came to the conclusion that the arrangement contained in the letter, dated October 3-1, 1946 was one which C had been made between a person in need of money and certain financiers and that no partnership had come into existence. In that view of the matter there could be no question of the appellant having relinquished a share in the partnership.\n\n. We would accordingly hold that the answer returned by the High Court was correct. The appeal fails and is dismissed with costs.\n\nR.K.P.S.\n\nAppeal dismissed.", "total_entities": 39, "entities": [{"text": "R. GOYEL, PROP. MIS MILKllIRAM BROS. BOMBAY", "label": "PETITIONER", "start_char": 5, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "M. R. GOYEL, PROP. M/S MILKHIRAM BROS. BOMBAY", "offset_not_found": false}}, {"text": "THE COMMISSIONER OF INCOME TAX, BOMBAY\n\nCITY 1, BOMBAY", "label": "RESPONDENT", "start_char": 50, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "THE COMMISSIONER OF INCOME TAX, BOMBAY CITY 1, BOMBAY", "offset_not_found": false}}, {"text": "February 12, 1969", "label": "DATE", "start_char": 106, "end_char": 123, "source": "ner", "metadata": {"in_sentence": "BOMBAY\n\nTHE COMMISSIONER OF INCOME TAX, BOMBAY\n\nCITY 1, BOMBAY\n\nFebruary 12, 1969\n\n[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.)"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 129, "end_char": 136, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 138, "end_char": 150, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 155, "end_char": 172, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "November 30,\n\n1946", "label": "DATE", "start_char": 1000, "end_char": 1018, "source": "ner", "metadata": {"in_sentence": "3 lacs on November 30,\n\n1946."}}, {"text": "CIVIL APPELLATE JuRISDICTlON", "label": "RESPONDENT", "start_char": 3283, "end_char": 3311, "source": "ner", "metadata": {"in_sentence": "[1969] 3 S.C.R.\n\nCIVIL APPELLATE JuRISDICTlON: Civil Appeal No."}}, {"text": "September 29, 1961", "label": "DATE", "start_char": 3404, "end_char": 3422, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated September 29, 1961 of the Bombay High Court in Income-tax Reference No."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 3430, "end_char": 3447, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated September 29, 1961 of the Bombay High Court in Income-tax Reference No."}}, {"text": "I. N. Shroff", "label": "OTHER_PERSON", "start_char": 3489, "end_char": 3501, "source": "ner", "metadata": {"in_sentence": "I. N. Shroff, for the appellant."}}, {"text": "S. K. Mitra", "label": "LAWYER", "start_char": 3523, "end_char": 3534, "source": "ner", "metadata": {"in_sentence": "S. K. Mitra, S. A. L. Narayan Rao and B. D. Sharma, for the respondent."}}, {"text": "S. A. L. Narayan Rao", "label": "LAWYER", "start_char": 3536, "end_char": 3556, "source": "ner", "metadata": {"in_sentence": "S. K. Mitra, S. A. L. Narayan Rao and B. D. Sharma, for the respondent."}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 3561, "end_char": 3573, "source": "ner", "metadata": {"in_sentence": "S. K. Mitra, S. A. L. Narayan Rao and B. D. Sharma, for the respondent."}}, {"text": "Grover", "label": "JUDGE", "start_char": 3639, "end_char": 3645, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment of the Bombay High Comt answering the following question referred to it by the Income Tax Appellate Tribunal in the affirmative and against the assessee ;\n\n'\"Whether on the facts and circumstances of the case the receipt of Rs."}}, {"text": "Milkhiram Bros.", "label": "ORG", "start_char": 4088, "end_char": 4103, "source": "ner", "metadata": {"in_sentence": "The assessee used to carry on his business under the name and style of Milkhiram Bros.\n\nHe was being assessed from the year 1945-46 onwards."}}, {"text": "October 31, 1946", "label": "DATE", "start_char": 4162, "end_char": 4178, "source": "ner", "metadata": {"in_sentence": "On October 31, 1946 he secured a contract for the purchase of approximately 1,28,499 parachutes from Tata Aircraft Ltd.\n\nThe parachutes belonged to the Government of India and the Tata Aircrafts Ltd. was acting as the agent of the Government."}}, {"text": "Tata Aircraft Ltd.", "label": "ORG", "start_char": 4260, "end_char": 4278, "source": "ner", "metadata": {"in_sentence": "On October 31, 1946 he secured a contract for the purchase of approximately 1,28,499 parachutes from Tata Aircraft Ltd.\n\nThe parachutes belonged to the Government of India and the Tata Aircrafts Ltd. was acting as the agent of the Government."}}, {"text": "Government of India", "label": "ORG", "start_char": 4311, "end_char": 4330, "source": "ner", "metadata": {"in_sentence": "On October 31, 1946 he secured a contract for the purchase of approximately 1,28,499 parachutes from Tata Aircraft Ltd.\n\nThe parachutes belonged to the Government of India and the Tata Aircrafts Ltd. was acting as the agent of the Government."}}, {"text": "Tata Aircrafts Ltd.", "label": "ORG", "start_char": 4339, "end_char": 4358, "source": "ner", "metadata": {"in_sentence": "On October 31, 1946 he secured a contract for the purchase of approximately 1,28,499 parachutes from Tata Aircraft Ltd.\n\nThe parachutes belonged to the Government of India and the Tata Aircrafts Ltd. was acting as the agent of the Government."}}, {"text": "October 29, 1946", "label": "DATE", "start_char": 4571, "end_char": 4587, "source": "ner", "metadata": {"in_sentence": "The assessee addressed a letter, dated October 29, 1946 to Tata Aircraft Ltd. containing an offer."}}, {"text": "November 1, 1946", "label": "DATE", "start_char": 4670, "end_char": 4686, "source": "ner", "metadata": {"in_sentence": "Tata Aircraft Ltd. sent a reply, dated November 1, 1946, confirming the sale on the te_m1s and conditions given in that letter."}}, {"text": "Nathmal Nihalchand", "label": "OTHER_PERSON", "start_char": 4935, "end_char": 4953, "source": "ner", "metadata": {"in_sentence": "He entered into an arrangement with M/s. Nathmal Nihalchand, Pokhraj Hirachand and Harilal Hargovandas for financing the business.", "canonical_name": "Nathumal Nihalchand"}}, {"text": "Pokhraj Hirachand", "label": "OTHER_PERSON", "start_char": 4955, "end_char": 4972, "source": "ner", "metadata": {"in_sentence": "He entered into an arrangement with M/s. Nathmal Nihalchand, Pokhraj Hirachand and Harilal Hargovandas for financing the business."}}, {"text": "Harilal Hargovandas", "label": "OTHER_PERSON", "start_char": 4977, "end_char": 4996, "source": "ner", "metadata": {"in_sentence": "He entered into an arrangement with M/s. Nathmal Nihalchand, Pokhraj Hirachand and Harilal Hargovandas for financing the business."}}, {"text": "November 30, 1946", "label": "DATE", "start_char": 5267, "end_char": 5284, "source": "ner", "metadata": {"in_sentence": "The assessee later on arranged on November 30, 1946 with the financiers to withdraw from the old arrangement recorded in the letter, dated October 31, 1946."}}, {"text": "November 13, 1946", "label": "DATE", "start_char": 5532, "end_char": 5549, "source": "ner", "metadata": {"in_sentence": "3,00,000 on November 13, 1946."}}, {"text": "November 14, 1946", "label": "DATE", "start_char": 5555, "end_char": 5572, "source": "ner", "metadata": {"in_sentence": "On November 14, 1946 the parties ap proached Tata Aircraft Ltd. who agreed to accept M/s. Pokhraj Hirachand as purchasers of parachutes on the terms and conditions originally agreed to between the assessee-and that comP, any."}}, {"text": "November 22, 1946", "label": "DATE", "start_char": 5826, "end_char": 5843, "source": "ner", "metadata": {"in_sentence": "T. (Grover, J.) 671\n\nOn November 22, 1946 an agreement of partnership was entered into between six persons, namely, Nathmal, Pokhraj, Chan<lumal, Prithviraj, Shapoorji & Co. Ltd. and Jamalbhai."}}, {"text": "Nathmal", "label": "OTHER_PERSON", "start_char": 5918, "end_char": 5925, "source": "ner", "metadata": {"in_sentence": "T. (Grover, J.) 671\n\nOn November 22, 1946 an agreement of partnership was entered into between six persons, namely, Nathmal, Pokhraj, Chan<lumal, Prithviraj, Shapoorji & Co. Ltd. and Jamalbhai."}}, {"text": "Pokhraj", "label": "OTHER_PERSON", "start_char": 5927, "end_char": 5934, "source": "ner", "metadata": {"in_sentence": "T. (Grover, J.) 671\n\nOn November 22, 1946 an agreement of partnership was entered into between six persons, namely, Nathmal, Pokhraj, Chan<lumal, Prithviraj, Shapoorji & Co. Ltd. and Jamalbhai."}}, {"text": "Chan<lumal", "label": "ORG", "start_char": 5936, "end_char": 5946, "source": "ner", "metadata": {"in_sentence": "T. (Grover, J.) 671\n\nOn November 22, 1946 an agreement of partnership was entered into between six persons, namely, Nathmal, Pokhraj, Chan<lumal, Prithviraj, Shapoorji & Co. Ltd. and Jamalbhai."}}, {"text": "Prithviraj", "label": "OTHER_PERSON", "start_char": 5948, "end_char": 5958, "source": "ner", "metadata": {"in_sentence": "T. (Grover, J.) 671\n\nOn November 22, 1946 an agreement of partnership was entered into between six persons, namely, Nathmal, Pokhraj, Chan<lumal, Prithviraj, Shapoorji & Co. Ltd. and Jamalbhai."}}, {"text": "Shapoorji & Co. Ltd.", "label": "ORG", "start_char": 5960, "end_char": 5980, "source": "ner", "metadata": {"in_sentence": "T. (Grover, J.) 671\n\nOn November 22, 1946 an agreement of partnership was entered into between six persons, namely, Nathmal, Pokhraj, Chan<lumal, Prithviraj, Shapoorji & Co. Ltd. and Jamalbhai."}}, {"text": "Jamalbhai", "label": "OTHER_PERSON", "start_char": 5985, "end_char": 5994, "source": "ner", "metadata": {"in_sentence": "T. (Grover, J.) 671\n\nOn November 22, 1946 an agreement of partnership was entered into between six persons, namely, Nathmal, Pokhraj, Chan<lumal, Prithviraj, Shapoorji & Co. Ltd. and Jamalbhai."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 6665, "end_char": 6670, "source": "regex", "metadata": {"statute": null}}, {"text": "Nathumal Nihalchand", "label": "OTHER_PERSON", "start_char": 10569, "end_char": 10588, "source": "ner", "metadata": {"in_sentence": "It is true that by meaos of the letter, dated October 31, 1946 M/s.\n\nNathumal Nihalchand, Pokhraj Hirachand etc.", "canonical_name": "Nathumal Nihalchand"}}, {"text": "Mis Tata Aircraft Ltd.", "label": "ORG", "start_char": 11134, "end_char": 11156, "source": "ner", "metadata": {"in_sentence": "M/s.\n\nNathumal Nihalchand, Pokhraj Hirachand and others agreed to pay that amount to M/s. Tata Aircraft Ltd. It must be remembered that it was the appellant who had entered into the contract with Mis Tata Aircraft Ltd. in respect of the purchase of parachutes."}}, {"text": "October 3-1, 1946", "label": "DATE", "start_char": 12353, "end_char": 12370, "source": "ner", "metadata": {"in_sentence": "At any rate, the High Court examined it fully and came to the conclusion that the arrangement contained in the letter, dated October 3-1, 1946 was one which C had been made between a person in need of money and certain financiers and that no partnership had come into existence."}}]}
{"document_id": "1969_3_674_676_EN", "year": 1969, "text": "DY. COMMISSIONER OF AGRICULTURAL INCOME TAX, A\n\nANDSALESTAX, CENTRALZONE, ERNAKULAM v.\n\nM/S. PALAMPADAM PLANTATIONS LTD., KOTTAYAM\n\nFebruary 12, 1969\n\n[J. C. SHAH, V. RAMASWAMI AND A, N. GROVER, JJ.]\n\nKera/a General Sales Tax Act (Kera/a 15 of 1963), s. 2(viii)- Dealer-Trees of spontaneous growth in private forest-I/ 'produced' hy\n\no\"'ner of forest-'Produced', meaning of.\n\nWhere a person owns and maintains a private forest and sells trees of spontaneous growth therein but does not do anything towards the production of the trees or their uprooting, be is not a 'dealer' within the meaning of s. 2(viii) of the Kerala General Sales Tax Act. I963. In order t<> fall within the definition, a person must sell goods produced by him by manufacture, agriculture, horticulture or otherwise.\n\nThe intention of the Legislature in using the word 'produced' was to introduce an element of voli tion and effort involving the employment df some process for bringing into existence the goods.\n\nTrees which hav~ grown spontaneously without any plantation by a person cannot be said to have been produced by him hy agriculture or horticulture or •otherwise', stnce the element of 'production is not present. [675 H; 676 A-B, C-D]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1058 of 1967.\n\nAppeal by special leave from the order dated September 15, 1966 of the Kerala High Court in Tax Revisiqrl Case No. 106 of 1966.\n\nM. R. Krishna Pillai, for the appellant.\n\nThe respondent did not appear.\n\nThe Judgment of the Court was delivered by\n\nGrover, J. This is an appeal by special leave from a judgment of the Kerala High Court dismissing in limine a revision petition directed against the order of the Sales Tax Appellate Tribunal dated April 15, 1966 by which it was held that the respondent company was not a \"dealer\" within the meaning of s. 2(viii) of the Kerala General Sales Tax Act 1963 (Act 15 of 1963) hereinafter called the \"Act''.\n\nThe respondent sold trees of spontaneous growth in its estate for Rs. 50,000 during the assessment year 1963-64. The assessing authority levied sales tax by treating the aforesaid amount as taxable turnover under the Act. In appeal the Appellate Assistant Commissioner confirmed that order. Before the Appellate Tribunal it was common ground that the trees sold were of spontaneous growth.\n\nThe Tribunal did not accede to the contention\n\nDY. COMMR. s. T. v. PALAMPADAM (Grovu, J.) 675\n\nof the State representative that Under the contrac.t, by the process of uprooting the trees, the respondent produced Umber and would be covered by the definition of a \"dealer\" contained in s. 2(viii) of the Act. It was held that uprooting of the trees was not being done by the respondent and no process had been employed by which it could be said that timber had been produced by it. The appellant herein filed a petition before the High Court raising the following questions of law :\n\n\"(1) Whether on the facts and in the circumstances of this case, a person owning and maintaining privte forest and selling trees of spontaneous growth therem, is a 'dealer' within the meaning of section 2 (viii) of the Kerala General Sales Tax Act, 1963 ?\n\n(2) Whether such a person is liable to the levy of sales-tax respect of sales of his timber. under the s!tld Act?\"\n\nD As mentioned before the High Court rejected the petition for revision at the preliminary hearing.\n\nThe sole question is whether on the findings given by the Appellate Tribunal the respondent can be regarded as a \"dealer\" within the definitii:Jin given in s. 2(viii). According to that defi- E nition \"dealer\" means any person who carried on the business of buying, selling, supplying or distributing goods directly or otherwise whether for cash or for deferred payment or for commission, remuneration or other valuable cQ!lSideration and includes ..... .\n\n( e) a person who sells goods produced by him by manufacture, agriculture, horticulture or otherwise.\n\nIt has been contended before us by learned counsel for the appellant that the Aopeliate Tribunal erred in assuming that any agricultural, horticultural or other process was involved in producing the timber sold. The basic questiol!f it is said, was whether ma!ntenance of a private forest with a view to producing and sellmg valuable timber with the usual attributes of business pre- G sent in the said activity, namely, periodicitv. continuity and profit motive would amount to such process.\n\nThe other question was whether the said activity i.e .. forestry would not come within the scope of \"agriculture, horticulture or otherwise\" particularly when the respondent owns substantial area of forest land, and timber from the trees of spontaneous growth is sold year after year with H the object of earning profit.\n\nNow in order to fall within the definition of \"dealer\" a person must sell goods prod\\lced by him by manufacture, agriculture,\n\nSUPREME COURT REPORTS (1969] 3 s.c.R.\n\nhorticulture or otherwise.\n\nSuch trees which have grown spontaneously and without any plantation by that person cannot passibly\n\nbei regarded as having been produced by him by agriculture 6f horticulture.\n\nThe word \"otherwise\" also cannot cover trees of spontaneous growth since the elemqn, t of production must be present. The context in which the word \"produced\" appears in the definition can only mean \"to bring forth, bring into being or existence-to bring (a thing) into existence from its raw materials or elements : \" (See the meaning oi the word \"produce'' in the Shorter Oxford English Dictionary) .. According to Websters' International English Dictionary the verb \"produce\" means to bring forward, beget etc.\n\nThe juxtaposition of the word \"manufacture\" with \"agriculture\" \"horticulture\" is significant and cannot be lost sight of.\n\nThe intention in employing the word \"produced\" obviously was to introduce an element of volition and effort involving the employment of some process for bnnging into existence the goods.\n\nThe respondent in the present case has not been found to have done anything towards the production of the trees and even the cutting has been done .by the contractor. The respondent therefore cannot possibly be regarded as a person who sells goods produced by him by agriculture, horticulture or otherwise.\n\nOn the above view of the matter. the appeal fails and is dismissed.\n\nAs there is no appearance on behalf of the respondent there will be no order as to costs in this Court.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 17, "entities": [{"text": "DY. COMMISSIONER OF AGRICULTURAL INCOME TAX, A\n\nANDSALESTAX, CENTRALZONE, ERNAKULAM", "label": "PETITIONER", "start_char": 0, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "DY. COMMISSIONER OF AGRICULTURAL INCOME TAX, AND SALES TAX,CENTRAL ZONE, ERNAKULAM", "offset_not_found": false}}, {"text": "S. PALAMPADAM PLANTATIONS LTD., KOTTAYAM", "label": "RESPONDENT", "start_char": 90, "end_char": 130, "source": "metadata", "metadata": {"canonical_name": "M/S. PALAMPADAM PLANTATIONS LTD., KOTTAYAM", "offset_not_found": false}}, {"text": "February 12, 1969", "label": "DATE", "start_char": 132, "end_char": 149, "source": "ner", "metadata": {"in_sentence": "KOTTAYAM\n\nFebruary 12, 1969\n\n[J. C. SHAH, V. RAMASWAMI AND A, N. GROVER, JJ.]"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 155, "end_char": 162, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 164, "end_char": 176, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "N. GROVER, JJ.", "label": "JUDGE", "start_char": 184, "end_char": 198, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "General Sales Tax Act", "label": "STATUTE", "start_char": 208, "end_char": 229, "source": "regex", "metadata": {}}, {"text": "s. 2(viii)", "label": "PROVISION", "start_char": 251, "end_char": 261, "source": "regex", "metadata": {"linked_statute_text": "General Sales Tax Act", "statute": "General Sales Tax Act"}}, {"text": "s. 2(viii)", "label": "PROVISION", "start_char": 597, "end_char": 607, "source": "regex", "metadata": {"linked_statute_text": "General Sales Tax Act", "statute": "General Sales Tax Act"}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 1354, "end_char": 1371, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the order dated September 15, 1966 of the Kerala High Court in Tax Revisiqrl Case No."}}, {"text": "Grover", "label": "JUDGE", "start_char": 1530, "end_char": 1536, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGrover, J. This is an appeal by special leave from a judgment of the Kerala High Court dismissing in limine a revision petition directed against the order of the Sales Tax Appellate Tribunal dated April 15, 1966 by which it was held that the respondent company was not a \"dealer\" within the meaning of s. 2(viii) of the Kerala General Sales Tax Act 1963 (Act 15 of 1963) hereinafter called the \"Act''."}}, {"text": "s. 2(viii)", "label": "PROVISION", "start_char": 1832, "end_char": 1842, "source": "regex", "metadata": {"statute": null}}, {"text": "Kerala General Sales Tax Act 1963", "label": "STATUTE", "start_char": 1850, "end_char": 1883, "source": "regex", "metadata": {}}, {"text": "s. 2(viii)", "label": "PROVISION", "start_char": 2608, "end_char": 2618, "source": "regex", "metadata": {"linked_statute_text": "the Kerala General Sales Tax Act 1963", "statute": "the Kerala General Sales Tax Act 1963"}}, {"text": "section 2", "label": "PROVISION", "start_char": 3101, "end_char": 3110, "source": "regex", "metadata": {"statute": null}}, {"text": "Kerala General Sales Tax Act, 1963", "label": "STATUTE", "start_char": 3125, "end_char": 3159, "source": "regex", "metadata": {}}, {"text": "s. 2(viii)", "label": "PROVISION", "start_char": 3536, "end_char": 3546, "source": "regex", "metadata": {"linked_statute_text": "the Kerala General Sales Tax Act, 1963", "statute": "the Kerala General Sales Tax Act, 1963"}}]}
{"document_id": "1969_3_677_680_EN", "year": 1969, "text": "FlRM ISHARDAS DEVI CHAND .t ANR.\n\nR. B. PARKASH CHAND & ANR.\n\nFebruary 13, 1969\n\n[S. M. S!KRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.]\n\nCode of Civil Procedure, O .. XXXIX r. 2 and 0. XLIIJ r. 1--0rder of trial cour( dismissing an application for temporary injunction on the gr\"und that it did not satisfy the terms of 0. XXXIX r. 2 war an order under thar rule-It wds appealable under 0. XLIII r. 1.\n\nThe appellants who claimed to be tenants of the respondents in respect of certain premises in Amritsar brought a auit for a permanent injunction restraining the latter 1from taking possession of the said premises in execution of an eviction order obtained by the respondent against the appellant and another, as per Rent Controller's order dated February 22, 1967. They also filed a J?!!tition purporting to be under 0. 39 r. 2 and s. 151 of the Code of Civil Procedure for !lfant of a temporary injunction till the disposal of the suit. The trial court, namely the sub-Judge, found that the appellants were sub-tenants 'and not tenants and that the liability to be ejected in execution of a valid Order could not be said to be an 'injury' within 0. 39, r. 2. On this view the trial court dismissed the application 'for temporary injunction. The appellants filed an appeal befere the District Judge which was dismissed on the preliminary ground that no appeal lay.\n\nThe High Court dismissed the revision filed by the appellants in limine. With special leave the appellants came to this Court.\n\nHELD : (i) The order of the trial court was clearly appealable under\n\n0. XLIII r. I C.P.C. which provides inter alia for an appeal against an order under 0. XXX1X r. 2. [679 DJ\n\nIt was common ground that tho appellants filed an application under\n\n0. XXXIX rr. 1 and 2 and s. 151 C.P.C. .Tho learned Sub-Judge had to consider whether this application was competent or not competent under r. 2 of 0. XXXIX. In deciding that no such application 'Jay under\n\n0. XXXIX r. 2 on the ground that -what the appellants were complaining of. was not an injury within 0. XXXIX r. 2 he was passing an order under\n\n0. XXXIX r. 2 itself.\n\nIn appeal the appellants could contend that the learned_ Sub-Judge had misconstrued 0. XXX1X r. 2 including the. word 'injury'!679 Fl\n\nThel' reliminary objection of the respondent before the learned District Judge that the order of tho S'Jb-Judge was passed under s. 151 C.P.C. and not under 0. XXXIX rr. 1 and 2 C.P.C. w .. not sound because in holding that 0. XXXIX r. 2 did not apply the learned Sub-Judge was not exercising his inherent powers. [679 G-H]\n\nHemant Kumar v. Ayodhya Prasad, A.I.R. 1957 M.B. 95 and Abdul Hamid Khan v .. Tridip Kumar Chanda, A.LR. 1953 Ass. 104, referred to.\n\n(ii) On merit! however tho appeal had to be dismissed .. there was not much to be said in favour of issuing a temporary injunction because the appellants had not made out a prima facie cllllC. In the exercise of its powers under Art. 136 interference by this Court with the order of the district Judge would not be justified. [680 D]\n\nSUPRBM! COURT REPORTS\n\n[1969] 3 S.C.R.\n\nCIVIL APPELLATE JURISD!CT[ON : Civil Appeal No. 1709 of A 1968.\n\nAppeal by special leave from the judgment and order dated May 22, 1968 of the Punjab and Haryana High Court in Civil Revision No. 422 of 1968.\n\nBishan Narain, B. Datta and 0. C. Mathur, for the appellants.\n\nM. S. Gupta aind S. K. Dhingra, for respondent No. 1.\n\nThe Judgment of the Court was delivered by Sikri, J. This appeal by special leave arises out of the order dated July 20, 1967, of Sub-Judge, Amritsar, dismissing an application under 0. XXXIX rr. 1 & 2, C.P.C., and s. 151, C.P.C., filed by the appellants .for grant of a temporary injunction till the disposal of the suit brought by the appellants.\n\nThe appellants filed an appeal against that order to the District Judge, Amritsar, who upheld the preliminary objection of the respondents that no appeal lay against that order on the ground that the order was passed under s. 151, C.P.C., and not under O. XXXIX rr. 1 & 2.\n\nThe High Court dismissed the revision filed by the appellants in limine.\n\nThe appellants having obtained special leave the matter is before us.\n\nThe relevant facts may be shortly stated. Firm Ishar Das Devi Chand a:nd its two partners, Devi Chand and Manohar Lal. brought a suit for a permanent injunction restraining R. B. Parkash Chand, respClflldent before us, from taking possession of the demised premises, namely, No. 1045/II-13, Katra Ahluwalia, Amritsar, in execution of an eviction order obtained by the respondent agamt the appellants 'and one Shri Ishar Das, as per Rent\n\nControlle~'s order dated Feb. 22, 1967. It appears that Ishar Das, partner of the firm called Tara Chand Ishar Das, had executed a rent note, dated May 1, 1948, in favour of the respondent.\n\nOn February 22, 1967, the Rent Contro!ler passed an order of ejectment against the fihn Tara Chand lshar Das a)!ld\n\nShri.Ishar Das.\n\nIt ppears that in the eviction applicatio.n filed by the respondent the appellants had filed an application under s. 4 of the East\n\nPunjab Urban Rent Restriction Act, 1949,. which was dismissed.\n\nIn that application an issue was raised as to whether any relationship of landlord and tenant existed between the appellants and the respondent.\n\nIt was contended before the learned Sub Judge that the res- H pondcnt had accepted payment of three cheques, one on March 13, 1963. forRs.1,175/-, second on April 2, 1964, for Rs. 1,875/- and the third cheque on June 17, 1965, for Rs. 1,500/-.\n\nFIRM ISHARDAS V. PARKAsH CHAND (Sikri, /.) 679\n\nA According to the appellants, this acceptance of the rent made them tenants under the respondent.\n\nThe learned Sub Judge wont into these facts and came to the conclusion that the appellants had not made out a prima facie case.\n\nAccording to the learned Sub-Judge, even if the payment had been received, as alleged by the appe!Iants, then B it would not mean that the landlord accepted the occupiers of the premises as his tenants. Following Hemant Kumar v. Ayodhya Prasad(') and Abdul Hamid Khan v. TridirJ Kumar Chandra(') he held that the appe!lants were sub-tenants,' and that the liability to be ejected in execution of a valid order could not be said to be an \"injury\" within 0. XXXIX r. 2. The Trial Court thought C that the appe!lants could have other efficacious remedies to obstruct possession under the provisions of Civil Procedure Code.\n\nAccording to the Trial Court, however, unless the ejectmerrrt order was set aside its execution could not be an \"injury'' as contemplated by Jaw.\n\nIt seems to us that this order dated July 20, 1967 was clearly D appealable under 0. XLIII r. 1, C.P.C. Order XLIII inter alia provides:\n\n\"0. XLilI r. 1. An appeal shall lie from the following orders under the provisions of section 104, namely,: ..........................................\n\n(r) an order under rule I, rule 2, rule 4 or rule 10 of Order XXXIX.\" It is common ground that the appe!lants filed an application under 0. XXXIX rr. 1 & 2, and s. 151, C.P.C. The learned Sub Judge had to consider whether this application was compe- F tent or not competent under r. 2 of 0. XXXIX.\n\nIn deciding that no such application Jay under 0. XXXIX r. 2 on the ground that what the appellants were complaining of was not an injury within 0. XXXIX r. 2 he was passing an order under 0. XXXIX r. 2 itself. In appeal the appellant~ could contend that the learned Sub Judge had misconstrued 0. XXXIX r. 2, including the word \"injury\".\n\nG The preliminary objection of the respondemt before the learned District Judge that the order dated July 20, 1967, of the Sub- Judge was passed under s. 151, C.P.C., and not under 0. XXXIX rr. } &_ 2, C.P.C., is not sound because in holding that 0. XXXIX .r. 2 did not apply the .]earned Sub Judge was not exercising his inherent powers. What the learned District Judge seems to have H done is to hold that the application for temporary injunction did not fall within 0. XXXIX r. 2 and, therefore, no appeal lay. This\n\n(I) A.l.R, 1957 M.B. 9S.\n\n(2) A.l.R. 1953 Asi. 104.\n\n680 SUPllEMI! CO~T Rl!PORTS [1969) 3 sc.R.\n\nreasoning is really on the merits of the case and not relevant to the pre!imi,!lary objection raised by the respondent.\n\nWe must, therefore, hold that the District Judge and the High Court erred in holding that no appeal lay against the order of the Trial Court, dated July 20, 1967.\n\nTwo courses are now open to us; one, that we should set aside the order of t.'le District Judge and direct him to decide the appeal on the merits, and the other, that we should dispose of the matter here.\n\nWe were informed by the learned counsel for the respondent that the ejectment order dated February 22, 1967, had bee\\11 set aside and the application for temporary injunction had become inlructuous. But the !Camed counsel for the appellants says that the High Court, in appeal, might restore that order, and the matter should be remitted to the District Judge.\n\nIt seems to us that in exercise ot the powers under Art. 136 we should not interfere with the order of the District Judge. Qn the merits there is not much to be said in favour of issuing a temporary injunction because the appellants have not made out a prima facie case. The application of the appellants under s. 4 of the East Puujab Urban Rent Restriction Act stood di•missed and the order dismissing that application has not been challenged by the appellant~ up-to-date. In the proceedings the respondent had denied that there was any relationship of landlord and tenant existing between the appellants and the respondent. Further the learned Sub I udge, after holding that the appellants had been guilty of !aches and delays, came to the conclusion that the balance of con'venieni:e was more in favour of the respondent than in favour of the appellants. The learned Sub Judge does not seem to have exercised his discretion capriciously or arbitrarily and no case for interference has been made out.\n\nIn the result the appeal fails and is dismissed, but under the circumstances there will be no order as to costs.\n\nG.C.\n\nAppeal dismissed.\n\n•\\:\n\nv B .", "total_entities": 49, "entities": [{"text": "FlRM ISHARDAS DEVI CHAND ", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "FlRM ISHARDAS DEVI CHAND & ANR", "offset_not_found": false}}, {"text": "R. B. PARKASH CHAND & ANR", "label": "RESPONDENT", "start_char": 34, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "R. B. PARKASH CHAND & ANR", "offset_not_found": false}}, {"text": "February 13, 1969", "label": "DATE", "start_char": 62, "end_char": 79, "source": "ner", "metadata": {"in_sentence": "February 13, 1969\n\n[S. M. S!KRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.]"}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 95, "end_char": 109, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "K. S. HEGDE, JJ.", "label": "JUDGE", "start_char": 114, "end_char": 130, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 133, "end_char": 156, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Amritsar", "label": "GPE", "start_char": 493, "end_char": 501, "source": "ner", "metadata": {"in_sentence": "The appellants who claimed to be tenants of the respondents in respect of certain premises in Amritsar brought a auit for a permanent injunction restraining the latter 1from taking possession of the said premises in execution of an eviction order obtained by the respondent against the appellant and another, as per Rent Controller's order dated February 22, 1967."}}, {"text": "February 22, 1967", "label": "DATE", "start_char": 745, "end_char": 762, "source": "ner", "metadata": {"in_sentence": "The appellants who claimed to be tenants of the respondents in respect of certain premises in Amritsar brought a auit for a permanent injunction restraining the latter 1from taking possession of the said premises in execution of an eviction order obtained by the respondent against the appellant and another, as per Rent Controller's order dated February 22, 1967."}}, {"text": "s. 151", "label": "PROVISION", "start_char": 831, "end_char": 837, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 841, "end_char": 868, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 1577, "end_char": 1582, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 151", "label": "PROVISION", "start_char": 1765, "end_char": 1771, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 1772, "end_char": 1777, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 151", "label": "PROVISION", "start_char": 2379, "end_char": 2385, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 2386, "end_char": 2391, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 2428, "end_char": 2433, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 2938, "end_char": 2946, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "CIVIL APPELLATE JURISD!CT[ON", "label": "PETITIONER", "start_char": 3084, "end_char": 3112, "source": "ner", "metadata": {"in_sentence": "COURT REPORTS\n\n[1969] 3 S.C.R.\n\nCIVIL APPELLATE JURISD!CT[ON : Civil Appeal No."}}, {"text": "Bishan Narain", "label": "LAWYER", "start_char": 3293, "end_char": 3306, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, B. Datta and 0."}}, {"text": "B. Datta", "label": "LAWYER", "start_char": 3308, "end_char": 3316, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, B. Datta and 0."}}, {"text": "0. C. Mathur", "label": "LAWYER", "start_char": 3321, "end_char": 3333, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, B. Datta and 0."}}, {"text": "M. S. Gupta", "label": "LAWYER", "start_char": 3356, "end_char": 3367, "source": "ner", "metadata": {"in_sentence": "M. S. Gupta aind S. K. Dhingra, for respondent No."}}, {"text": "aind S. K. Dhingra", "label": "LAWYER", "start_char": 3368, "end_char": 3386, "source": "ner", "metadata": {"in_sentence": "M. S. Gupta aind S. K. Dhingra, for respondent No."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 3454, "end_char": 3459, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sikri, J. This appeal by special leave arises out of the order dated July 20, 1967, of Sub-Judge, Amritsar, dismissing an application under 0."}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 3614, "end_char": 3619, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 151", "label": "PROVISION", "start_char": 3626, "end_char": 3632, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 3634, "end_char": 3639, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "District Judge, Amritsar", "label": "COURT", "start_char": 3818, "end_char": 3842, "source": "ner", "metadata": {"in_sentence": "The appellants filed an appeal against that order to the District Judge, Amritsar, who upheld the preliminary objection of the respondents that no appeal lay against that order on the ground that the order was passed under s. 151, C.P.C., and not under O. XXXIX rr."}}, {"text": "s. 151", "label": "PROVISION", "start_char": 3984, "end_char": 3990, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 3992, "end_char": 3997, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ishar Das Devi Chand", "label": "PETITIONER", "start_char": 4227, "end_char": 4247, "source": "ner", "metadata": {"in_sentence": "Firm Ishar Das Devi Chand a:nd its two partners, Devi Chand and Manohar Lal."}}, {"text": "Devi Chand", "label": "OTHER_PERSON", "start_char": 4271, "end_char": 4281, "source": "ner", "metadata": {"in_sentence": "Firm Ishar Das Devi Chand a:nd its two partners, Devi Chand and Manohar Lal."}}, {"text": "Manohar Lal", "label": "OTHER_PERSON", "start_char": 4286, "end_char": 4297, "source": "ner", "metadata": {"in_sentence": "Firm Ishar Das Devi Chand a:nd its two partners, Devi Chand and Manohar Lal."}}, {"text": "R. B. Parkash Chand", "label": "RESPONDENT", "start_char": 4353, "end_char": 4372, "source": "ner", "metadata": {"in_sentence": "brought a suit for a permanent injunction restraining R. B. Parkash Chand, respClflldent before us, from taking possession of the demised premises, namely, No.", "canonical_name": "R. B. PARKASH CHAND & ANR"}}, {"text": "Ishar Das", "label": "OTHER_PERSON", "start_char": 4594, "end_char": 4603, "source": "ner", "metadata": {"in_sentence": "1045/II-13, Katra Ahluwalia, Amritsar, in execution of an eviction order obtained by the respondent agamt the appellants 'and one Shri Ishar Das, as per Rent\n\nControlle~'s order dated Feb. 22, 1967."}}, {"text": "Tara Chand Ishar Das", "label": "OTHER_PERSON", "start_char": 4712, "end_char": 4732, "source": "ner", "metadata": {"in_sentence": "It appears that Ishar Das, partner of the firm called Tara Chand Ishar Das, had executed a rent note, dated May 1, 1948, in favour of the respondent."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 5056, "end_char": 5060, "source": "regex", "metadata": {"statute": null}}, {"text": "Punjab Urban Rent Restriction Act, 1949", "label": "STATUTE", "start_char": 5074, "end_char": 5113, "source": "regex", "metadata": {}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 6405, "end_char": 6425, "source": "regex", "metadata": {}}, {"text": "July 20, 1967", "label": "DATE", "start_char": 6612, "end_char": 6625, "source": "ner", "metadata": {"in_sentence": "It seems to us that this order dated July 20, 1967 was clearly D appealable under 0."}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 6672, "end_char": 6677, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 104", "label": "PROVISION", "start_char": 6799, "end_char": 6810, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "s. 151", "label": "PROVISION", "start_char": 7026, "end_char": 7032, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 7034, "end_char": 7039, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 151", "label": "PROVISION", "start_char": 7654, "end_char": 7660, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 7662, "end_char": 7667, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 7705, "end_char": 7710, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 9025, "end_char": 9033, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 9284, "end_char": 9288, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_681_689_EN", "year": 1969, "text": "STATE BANK OF INDIA v.\n\nGHAMANDI RAM (DEAD) THROUGH SHRI GURBAX RAI\n\nFebruary 13, 1969\n\n[I. C. SHAH, V. RAMASWAMI AND A. N. GROVER, II.]\n\nHindu Law-Joim Hindu family firm-I/ ·rsol( or 'body of individuaJs not incorporated'.\n\nPrivate International Law-Priority between voluntary and involur.- tary assignments of debts.\n\nThe respondent was the karta of a joint Hindu family firm carrying on business, before the partition of India, in area now forming part ot Pakistan. The firm had a cash credit account with the Imperial Bank (now State Bank of India) in that area and had pledged its goods with the Bank as security for repayment of the advances. After the partition, the family and its members came away to India and became evacuees in relation to Pakistan. The Bank sold the pledged goods in 1948, and after adjusting the amounts due to it credited the surplus amount in the account of the firm. The Pakistan (Administration of Evacuee Property) Ordinan.ce,\n\n1949, was promulgated on October IS, 1949 and was amended by the Pakistan (Administration of Evacuee Property) Amendment Act, 1951.\n\nUnder s. 6( I) of the Ordinance all evacuee property shall vest and shall be deemed to have vested in the Custodian in Pakistan from March I,\n\n1947. By a notification dated February 19, 1952 the Pakistan Government exempted, 'from the operation of tho provision of the Ordinance 'cash deposits made in Banks by persons other than companies or associations or bodies of individuals whether incorporated or not'.\n\nThe respondent applied under s. 13 of the Displaced Persons (Debts Adjustments) Act, 1951 (Indian Act) before the Tribunal constituted under the Act, claiming the amount in the Bank credited in the account of the family.\n\nThe Tribunal dismissed the application.\n\nIn revision, the High Court allowed the claim on the ground that the amount was a 'cash deposit made by an individual' in terms of the Pakistan Notification dated February 19, 1952.\n\nIn appeal to this Court,\n\nHELD: (I) Having regard to the juristic nature of the Hindu Joint family under the Mitakshara Law, the family firm could not be treated as a 'person' within the meaning lit the Pakistan notification. The firm was 'a body of individuals not incorporated' and hence the amount in the Bank was evacuee property and had become vested in the Custodian of Evacuee Property, Pakistan, with effect from March I, 1947. (687 E-F]\n\nSundar•anam Maistri v. Nara.rimhulu Maistri, I.L.R. 15 Mad. 149, 154, referred to.\n\n(2) The rule of Private International Law i& that where an involuntary usignment occurs after a voluntary assignment has already been made, the question whether the righb of the voluntary assignee have been postponed or def~ WO!Jld be govern~ by tho. kx situs lit the debt. In. the piaent case, smce \\he mvoluntary us1gnment 10 favour of tho eu.todian in Pakistan occurred in 1949, when the Ordinance was promulaated after the voluntarf •ssillD'llent by the Bank in favour of the ftrm In 1948 and the lftus of\n\nthe debt was Pakistan (the Bank having gamishable assets of the respon- A dent in Pakistan which could be attached by the Custodian in Pakistan). the question of priority would be governed by the law in Palilitan, namely, the provisions of the Ordinance; and under the Ordinance, the amount vested in the Custodian in Pakistan with effect from March I, 1947. Therefore, the liability of the Bank to the firm must be deemed to have been extinguished.\n\n[687 H; 688 G; 689 F] Re: Queensland Mercantile and Agency Co. [1891] 1 Ch. 536 and B Arab Bank Ltd. v. Barclays Bank (Dominion, Colonial and Overseas) [1954] AC. 495, applied.\n\nDicey, Conflict of Laws, 8th Edn. p. 780, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 449 of 196.6.\n\nAppeal by special leave from the judgment a!Dd order dated C September 12, 1963 of the Punjab High Court Circuit Bench at Delhi in Civil Revision No. 104-D of 1958.\n\nNiren De, Attorney-General, S. V. Gupte, H. L. Anand and K. B. Mehta, for the appellant.\n\nBishambar Lal, M. R. Garg, H. K. Puri and Radha Kishan Makhija, for the respondent.\n\nThe Judgment of the Court was delivered by Ramaswami, J. Mis. Ghamandi Ram Gurbax Rai, a iomt Hindu family firm consisting of Ghamandi Ram, since deceased, Gurbax Rai, Chaman Lal and Jagan Nath, used to carry on business in Bhawalpur State now forming part of West Pakistan, be\n\nfore the partition of India. Shri Ghamandi Ram was the manager and karta of the said joint Hindu family firm during the mate\n\nrial period. Before the partition of India, the joint Hindu family firm had a cash credit account in its name in the then Imperial Bank of J, ndia, Bhawalpur State now within Pakistan territory.\n\nThe said firm had pledged goods as security for the repayment of the advances made in the said account. On the partition of India, the joint Hindu family and its members admittedly became evacuees and the then Imperial Bank of India, Blrawalpur State, sold the pledged goods in the year 1948 for the realisation of its dues 1n the said cash credit account and credited a sum of Rs. 2,541/ 11/- left as surplus balance after the adjustment of the dues of the Imperial Bank of India in the said account.\n\nOn October 15, 1949, the Pakistan Government promulgated Pakistan (Administration of Evacuee property) Ordinance, 1949 (Ordinance No. XV oi 1949) whereby all property in Pakistan in which an evacuee had any right or interest vested in lhe Custodian of Evacuee Property with retrospective effect from March 1, 194 7. The expression 'evacuee property' was defin.ed by s. 2 sub-s. ( 3) of the Ordinance to include any right or interest in joint Hindu family property. 'Ca5h deposits in Banks' were how-\n\nA ever excepted from the definition oi. the term 'property' by s. 2(5) of the Ordinance.\n\nThe Ordinance was amended in 1951 by the Pakistan (Administration of Evacuee Property) Amendment Act, 1951 (Act No. VI of 1951) whereby s. 2(5) of the Ori nance was amended so as to brimg cash deposits in Banks withm the definition of the term 'property'.\n\nBy a notification dated B February 19, 1952, the Pakistan Government exempted from the operation of the provisions of the said Ordinance 'cash deposits made at Banks by persons other than compamies or associations or bodies of individuals whether incorporated or not'.\n\nc On May 9, 1953, Shri Ghamandi Ram (now deceased) as manager and karta of the joint Hindu family firm filed an application lljllder s. 13 of the Displaced Persons (Debts Adjustments) Act, 1951 (Act No. 70 of 1951) before the Tribunal constituted under the said Act at Delhi claiming Rs. 3,165/11/- including Rs. 2,341/11/- on account of the said principal and interest at 6% per annum on , the ground that the said amount had not be- D come evacuee property and the liability of the Imperial Bank of India had not therefore ceased. During the pendency of the proceedings before the Tribunal the appellant Bank was constituted Ujll.der the provisions of the State Bank of India Act, 1955 (Act No. 23 of 1955) and succeeded to the entire rights and liabilities of the Imperial Bank of India.\n\nThe appellant was accordingly E substituted in the said proceedings for the Imperial Bank of India.\n\nBy its order dated November 1, 1956, the Tribunal dismissed the application of the respondent on the ground that m terms of the law enforced in Pakistan the deposit in the Bank in the account of the firm had become an evacuee property and would be deemed to have vested in the Custodian with effect from March I, 194 7 and by virtue of the said vesting the liability of the Bank had F ceased. The Tribunal fUrther held that the only property in the pledged goods, which belonged to the firm, was the equity of redemption and that had vested in the Custodiain being a 'property' within the meanin~ of the said Ordinance. The respondent took the matter in revis10n before the Punjab High Court being Civil Revision No. 104-D of 1958. The application was allowed by Mr. Justice D. K. Mahajan by his judgment dated 12th September, 1963 on the ground that the amount claimed by the res- G\n\npondent was cash deposit made by an individual in terms of the notification dated February 19, 1952 and was thus beyond the purview of the provisioni; of the Ordinance. The learned Judge\n\naccordigly set aside the order oi. the Tribunal and granted a decree m favour of the respondent for the amount claimed. This\n\nppeal. is brought by special leave from the judgment of the Pun- 1ab High Court dated 12th September, 1963 in Civil Revision No. 104-D of 1958.\n\nSection 2 sub-section ( 3) of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 (Ordinance No. 15 of 1949) defiines the term 'evacuee property' as meaning any property in which an evacuee has any right or interest, or which is held by or for him in trust, and includes-\n\n(a) any right or interest in joint Hindu family pr~ perty which would accrue to the evacuee up0n the partition of the ame, or\n\n(b) property obtained from an evacuee after the twentyeighth day of February, 194 7, until confirmed by the Custodian,\n\nbut does not include-\n\n(i) any movable property in the immediate physical possession of any evacuee, or\n\n(ii) any property belonging to a joint stock company the head office of \\l(hich was situated, before the fifteenth day of August, 1947, in any place in the territories now comprising Indta, and continues to be so situated after the said date\".\n\nSection 2 sub-section (5) defines the term 'property' as follows:-\n\n\" 'property' means property of any kind, and includes ainy right or interest in such property and any debt or actionable claim, but does not include a mere right to sue or a cash deposit in a bank\",\n\nSection 2(5) of the Ordinance was amended by Pakistan (Administration of Evacuee Property) Amendment Act, 1951 (Act ; No.\n\nVI of 1951) in the following mall(ller:\n\n\"2(b) in clause (5) the words 'or a cash deposit in Bank' shall be omitted\".\n\nSection 6 of the Ordinance states :\n\n\"6 ( 1) All evacuee property shall vest and shall be deemed always to have vested in the Custodian with\n\neffect from the first day of March, 1947.\n\n\" The notification of February 19, 1952 issued by the Pakistan Government in exercise of the powers conferred by section 45 of the Ordinance is in the following terms :\n\n\"In exercise of the powers conferred by section 45 of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949, the Central Government in\n\nA supersession of its Ministry's notification F. 22(1)51-P dated the 9th May, 1951 is pleased to exempt from the operation of the provisions of the said Ordinance cash deposits made at Banks by persons other than companies or associatiQnS or bodies of individuals whether incorporated or not\".\n\nB Section 7 of the Ordinance states :\n\n\"7. ( 1) Every person who is, or has at any time after the twentyeighth day of February, 1947, been in possession, supervision or management of any evacuee property, shall be deemed to hold or to have held, as the case may be, such property on behalf of the Custo- C dian,\n\n( 2) Every person who is in possession, supervision or management of any evacuee property or property which he knows or has reason to believe is evacuee property shall, as soon as may be but not later than sixty days from the commencement of this Ordinance, iintimate to the Custodian in writing his willingness to surrender such property to the Custodian or to any person authorised by the Custodian in this behalf upon receipt of a notice from the Custodian that the property is evacuee property, and shall surrender the same if called upon by the Custodian or any person authorised as aforesaid. ( 3) The provisions of sub-section ( 2) shall t apply to any person who is in possession, supervision or management of any evacuee property by virtue of an allotment made by a Rehabilitation Authority\".\n\nSection 7 of the Ordinance was amended i(Jl 19 51 in the follow- F ing terms :-\n\n\"5. In sub-section (2) of section 7 of the Ordinance, for the words 'sixty days from the commencement of this Ordinance' the words 'such date as may be notified by the Central Government i.n the Official Gaz.ette' shall be substituted, a!Jd the words 'upon receipt of a notice from the Custodian that the property is evacuee property' shall be omitted\".\n\nSection 11 of the Ordinance states :\n\n\"11. ( 1) Any amount due to any evacuee or payable in respect of any evacuee property, shall' be paid to the Custodian by the person Hable to pay the same.\n\n(2) Any person who makes a payment under subsection ( 1) shall be discharged from further !iability to pay to the extent o( the payment made.\n\nLIOSup./69-9\n\n(3) Without prejudice to any penalty to which he may be liable under section 29, any person who makes or has made any payment otherwise than in accordance with suli-section ( 1) or any law for the time bei(ng in force requiring payment of any such amount as is mentioned in sub-section ( 1) to be made to the Custodian shall not be discharged from his obligation to pay the amount due, and the right of the Custodian to enforce such obligati~ against such person shall remain unaffected\".\n\nThe first question involved in this appeal is whether upon a correct interpretation of the notification of the Pakistan Government dated February 19, 1952, the joint Hindu family firm\n\n\"Ghamandi Ram Gurbax Rai\" was 'a body of individuals' within the meani.ng of the notification and whether the amount in dispute had accordingly become vested in the Custodian of Evacuee Propeny, Pakistan with effect from March 1, 1947 by virtue of the provisions of the Ordinance thereby divesting the said joint Hindu family firm of its interest therein.\n\nAccording to the Mitakshara School of Hindu Law all the propeny of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity.\n\nThe textual authority of the Mitakshara lays . down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (See Mitakshara, Ch. 1. 1-27). The incidents of co-parcenership under the Mitakshara - law are : first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties is common; fifthly, that no aiienation of the propeny any time work out their rights by asking for partitiom; thirdly, that till partition each member has got ownership extending over the entire propeny, conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly, that no alienatiQa of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased meml\"r lapses on his . death to the survivors.\n\nA coparcenary under the M1takshara School is a creature of law and cannot arise by !let of parties except in so tar that on adoption the adopted son becomes a co-parcener with his adoptive father as regards the ancestral properties of the latter. In Sundarsanam Maistri v.\n\nNarasimhulu Maistri an/i Anr.( 1) Mr. Justice Bhashyam Ayyangar stated the legal position thus :- ·\n\n\"The Mitakshara doctrine of joint family propcny is founded upon the existence of an undivided family, all\n\n(I) I.L.R. 25 Mad, 149, 154.\n\na corporate body [Gan Savant Bal Savant v. Narayan Dhond Savant(') and Mayne's 'Hindu Law and Usage',\n\n6th edition paragraph 270] and the possession ot property by suh coipor'.lte body. The t reqite therefore is the family urut; and the possess10n by 1t of property is the second requisie. For the present putp?se, female members of the family may be left out of consideration 8jDd the conception_ of a Hindu family is a common male ancestor with his lineal descendants in the male line, and so long as that family is in its normal condition viz., the undivided state-it forms a corporate body. Such corporate body, with its heritage; is purely a creature of law and cannot be created by act of parties, save in so far that, by adoption, a stranger may be affiliated as a member of that corporate family\".\n\nAdverting to the nature of the property owned by such a family the learned Judge proceeded to state :\n\n\"As regards the property of such family, the 'un obstructed heritage' devolving on such family, with its accretions, is owned by the family as a corporate body, and one or more branches of that family, each forming a corporate body within a larger corporate body, m'1y possess separate 'unobstructed heritage' which, with its accretions, may be exclusively owned by such branch as a corporate body\".\n\nHaving regard to the juristic nature of the Hindu joint family, according to the doctrine of_ Mitakshara, we are of the opinion that the Hindu joi, nt family firm of Ghamandi Ram Gurbax Rai cannot be treated as an 'individual' within the meaning of the notification of the Pakistan Government dated 19th February, 1952, but the said firm must be treated as 'a body of i, ndividuals F whether incorporated or not' within the meaning of that notification.\n\nWe proceed to consider the next question arising in this appeal viz., whether the liability of the appellant to the respondent in India would be deemed to be extiµguished in view of the opera- G lion of the Pakistan Evacuee Property Ordinance and in view of our finding that the amount in dispute had become vested in the Custodian of Evacuee Property, Pakistan with effect from March 1, 194 7 by virtue of the provisions of the Ordinance. It is oot disputed that the appellant had got gamishabk assets in Pakistan out of which the Pakistan Government could realise the amount by attachment of the property of the appellant. The question is : H what is the rule of Pnvate International Law iln such a case of involuntary assignment of debts ?\n\nThe question has arisen in\n\n(I) l.L.R. 7 Born. 467.\n\nEnglish Courts with regard to the legislation passe4 during or after a war by which the contractual rights of the enemies vested in the public authorities such as custodians or admWiistrators of enemy property.\n\nIt was held in English Courts tl:iat in such a case the question whether a given contractual right, e.g., a W:bt, is transferred under such legislation and whether therefore payment to a custodian or administrator has the effect of discharging the debtor, depends on the situs of that right and not oo much on the proper law of the contract from which the right arises. (See Dicey Conflict of Laws, 8th Ed. p. 780). For example in Arab Bank Ltd. v.\n\nBarclays Bank (Dominion, Colonial and Overseas) (1), the appellant Bank had a credit balance on the current account with the respondent bank's branch in Jerusalem. The British Mandate over Palestine expired at midnight on May 14, 1948, and thereupon the Provisional Council of State and the Provisional Government of the State of Israel were constituted. War broke out between Israel and the Arab States, which rendered the further performance of the contract of current account impossible. From the date of the termination of the Mandate the appellant B.ank's premises were situate in Arab controlled territory and the resJ;>C!ndent Bank's premises were situate in Israel territory. By legislation the State of Israel vested in an official c'alled the 'Custodiap of the Property of Absentees', the property in the State of Israel belonging to a class of persons and corporations which included the Arab Bank.\n\nThe respondents paid the appellants' credit balances, amount'1g to some £ 5,83,000 to the custodian. In\n\n1950 the appellants sued the respondents for this sum.\n\nIt was held that the right to be paid the credit balance survived the outbreak of wm:, remaining in existence subject to the suspension of the appellant bank's right to recover it.\n\nBeing locally situate in Israel, it became subject to the legislation of that State vested in the custodian, and was not recoverable by the appellant bank from the respondent bank.\n\nThe key to the problem lies in distinguishing between ( 1) questions of assignability, which are governed by tlie proper law of the debt, aipd (2) questions of attachment or garnishment (involuntary assigmnent) governed by the lex situs of the debt. If, for example, an involuntaty assignment occurs after a voluntary assignment has already beein made, the lex situs determines whether the rights of the voluntaty assignee have been postponed or defeated.\n\nIf the voluntary assignment occurs first, the lex situs determines what rights, if any, the voluntary assignee has acquired.\n\nA question of priorities. arose in the case of Re : Queenlrland Mercantile and Agency\n\nCo.( 2), the facts of which were as follows :-\n\n\"The Union Bank of Australia held debentures issued by the Queensland Company charging the shares\n\n(I) [19541 A.C. 495.\n\n(2) [1891] 1 Ch. 536.\n\nin that compll\\ll'y that were not fully paid up. The Bank was domiciled in England and the company in Queensland. After the capital had been called up, but before it was paid by the shareholders, who thus became debtors of the company, the X Company domiciled in Scotland, began an action for rregligence in Scotland against the Queensland Company, and immediately issued the Scottish process of arrestment against numerous shareholders who were domiciled in Scotland.\n\nThe effect of this process according to Scottish law was to prevent the shareholders, pendiJng a decision in the action of negligence, from paying the cails to the company\".\n\nThe question that fell to be decided was whether the Union Bank, as debenture-holders, were entitled to be paid first out of the unpaid shares, according to the Jaw of England llllid of Queensland; or whether the X Company in accordance with the law of Scotland, had a prior right over the snares to the extent of the damages D that they might be awarded in the action of negligence.\n\nA question of priorities betweetr two assignees was thus raised.\n\nThe Union Baink contended that the. question fell to be decided by the law of Queensland, since the Queerol>tand Company was a creditor in respect of the u, npaid shares and any assignment by it must be teSted bv the law of its domicil.\n\nNorth, J., however, applied 'I Scottish Jaw. His reasoning was that since the debtors were residf\\D't in Scotland and therefore the unpaid calls which formed the subject-matter of the assignments were situated in that country, the assignment must rank in the order prescribed by Scottish law.\n\nHe assimilated choses in action to tangi'ble movables, assertini! that 'an assignment of the latter class of nroperty was .governed by the lex situs.\n\nIn our opiinion the same legal position r prevails in India and therefore the liability of the appellant in this case to the respondent in India must be deemed to have been extinguished.\n\nFor these reasons we hold that this apJieal should be allowed, the iudgment of the Punjab High Court dated 12th September. 1963 in Civil RevisiQn No. 104-D of 1958 should be set aside and the iudii; ment of the Tribunal under the Displaced Person<\n\n(Debt Adjustment) Act in case No. 74./11/13 of 1956/1952 should be restored dismissine: the claim of the respondent. There will be no order with regard to costs in the High Court. But as directed by this Court on 30th October 1964, while grantine: spechil leave, appelfant will pay the cost of respQlldents in this Court.\n\nV, P, S, Appeal al/owed,", "total_entities": 91, "entities": [{"text": "STATE BANK OF INDIA", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "STATE BANK OF INDIA", "offset_not_found": false}}, {"text": "GHAMANDI RAM (DEAD) THROUGH SHRI GURBAX RAI", "label": "RESPONDENT", "start_char": 24, "end_char": 67, "source": "metadata", "metadata": {"canonical_name": "GHAMANDI RAM (DEAD) THROUGH SHRI GURBAX RAI", "offset_not_found": false}}, {"text": "February 13, 1969", "label": "DATE", "start_char": 69, "end_char": 86, "source": "ner", "metadata": {"in_sentence": "STATE BANK OF INDIA v.\n\nGHAMANDI RAM (DEAD) THROUGH SHRI GURBAX RAI\n\nFebruary 13, 1969\n\n[I. C. SHAH, V. RAMASWAMI AND A. N. GROVER, II.]"}}, {"text": "I. C. SHAH", "label": "JUDGE", "start_char": 89, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 101, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER", "label": "JUDGE", "start_char": 118, "end_char": 130, "source": "metadata", "metadata": {"canonical_name": "A. N. GROVER", "offset_not_found": false}}, {"text": "Imperial Bank", "label": "ORG", "start_char": 513, "end_char": 526, "source": "ner", "metadata": {"in_sentence": "The firm had a cash credit account with the Imperial Bank (now State Bank of India) in that area and had pledged its goods with the Bank as security for repayment of the advances."}}, {"text": "State Bank of India", "label": "ORG", "start_char": 532, "end_char": 551, "source": "ner", "metadata": {"in_sentence": "The firm had a cash credit account with the Imperial Bank (now State Bank of India) in that area and had pledged its goods with the Bank as security for repayment of the advances."}}, {"text": "India", "label": "GPE", "start_char": 710, "end_char": 715, "source": "ner", "metadata": {"in_sentence": "After the partition, the family and its members came away to India and became evacuees in relation to Pakistan."}}, {"text": "Pakistan", "label": "GPE", "start_char": 751, "end_char": 759, "source": "ner", "metadata": {"in_sentence": "After the partition, the family and its members came away to India and became evacuees in relation to Pakistan."}}, {"text": "October IS, 1949", "label": "DATE", "start_char": 988, "end_char": 1004, "source": "ner", "metadata": {"in_sentence": "The Pakistan (Administration of Evacuee Property) Ordinan.ce,\n\n1949, was promulgated on October IS, 1949 and was amended by the Pakistan (Administration of Evacuee Property) Amendment Act, 1951."}}, {"text": "Amendment Act, 1951", "label": "STATUTE", "start_char": 1074, "end_char": 1093, "source": "regex", "metadata": {}}, {"text": "s. 6( I)", "label": "PROVISION", "start_char": 1102, "end_char": 1110, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act, 1951", "statute": "Amendment Act, 1951"}}, {"text": "February 19, 1952", "label": "DATE", "start_char": 1269, "end_char": 1286, "source": "ner", "metadata": {"in_sentence": "By a notification dated February 19, 1952 the Pakistan Government exempted, 'from the operation of tho provision of the Ordinance 'cash deposits made in Banks by persons other than companies or associations or bodies of individuals whether incorporated or not'."}}, {"text": "Pakistan Government", "label": "ORG", "start_char": 1291, "end_char": 1310, "source": "ner", "metadata": {"in_sentence": "By a notification dated February 19, 1952 the Pakistan Government exempted, 'from the operation of tho provision of the Ordinance 'cash deposits made in Banks by persons other than companies or associations or bodies of individuals whether incorporated or not'."}}, {"text": "s. 13", "label": "PROVISION", "start_char": 1537, "end_char": 1542, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act, 1951", "statute": "Amendment Act, 1951"}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 3681, "end_char": 3709, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "Punjab High Court Circuit Bench at Delhi", "label": "COURT", "start_char": 3831, "end_char": 3871, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment a!Dd order dated C September 12, 1963 of the Punjab High Court Circuit Bench at Delhi in Civil Revision No."}}, {"text": "Niren De", "label": "OTHER_PERSON", "start_char": 3910, "end_char": 3918, "source": "ner", "metadata": {"in_sentence": "Niren De, Attorney-General, S. V. Gupte, H. L. Anand and K. B. Mehta, for the appellant."}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 3938, "end_char": 3949, "source": "ner", "metadata": {"in_sentence": "Niren De, Attorney-General, S. V. Gupte, H. L. Anand and K. B. Mehta, for the appellant."}}, {"text": "H. L. Anand", "label": "LAWYER", "start_char": 3951, "end_char": 3962, "source": "ner", "metadata": {"in_sentence": "Niren De, Attorney-General, S. V. Gupte, H. L. Anand and K. B. Mehta, for the appellant."}}, {"text": "K. B. Mehta", "label": "LAWYER", "start_char": 3967, "end_char": 3978, "source": "ner", "metadata": {"in_sentence": "Niren De, Attorney-General, S. V. Gupte, H. L. Anand and K. B. Mehta, for the appellant."}}, {"text": "Bishambar Lal", "label": "LAWYER", "start_char": 4000, "end_char": 4013, "source": "ner", "metadata": {"in_sentence": "Bishambar Lal, M. R. Garg, H. K. Puri and Radha Kishan Makhija, for the respondent."}}, {"text": "M. R. Garg", "label": "LAWYER", "start_char": 4015, "end_char": 4025, "source": "ner", "metadata": {"in_sentence": "Bishambar Lal, M. R. Garg, H. K. Puri and Radha Kishan Makhija, for the respondent."}}, {"text": "H. K. Puri", "label": "LAWYER", "start_char": 4027, "end_char": 4037, "source": "ner", "metadata": {"in_sentence": "Bishambar Lal, M. R. Garg, H. K. Puri and Radha Kishan Makhija, for the respondent."}}, {"text": "Radha Kishan Makhija", "label": "LAWYER", "start_char": 4042, "end_char": 4062, "source": "ner", "metadata": {"in_sentence": "Bishambar Lal, M. R. Garg, H. K. Puri and Radha Kishan Makhija, for the respondent."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 4128, "end_char": 4137, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Ramaswami, J. Mis.", "canonical_name": "V. RAMASWAMI"}}, {"text": "Mis. Ghamandi Ram Gurbax Rai", "label": "OTHER_PERSON", "start_char": 4142, "end_char": 4170, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Ramaswami, J. Mis."}}, {"text": "Ghamandi Ram", "label": "PETITIONER", "start_char": 4211, "end_char": 4223, "source": "ner", "metadata": {"in_sentence": "Ghamandi Ram Gurbax Rai, a iomt Hindu family firm consisting of Ghamandi Ram, since deceased, Gurbax Rai, Chaman Lal and Jagan Nath, used to carry on business in Bhawalpur State now forming part of West Pakistan, be\n\nfore the partition of India.", "canonical_name": "Ghamandi Ram Gurbax Rai"}}, {"text": "Gurbax Rai", "label": "OTHER_PERSON", "start_char": 4241, "end_char": 4251, "source": "ner", "metadata": {"in_sentence": "Ghamandi Ram Gurbax Rai, a iomt Hindu family firm consisting of Ghamandi Ram, since deceased, Gurbax Rai, Chaman Lal and Jagan Nath, used to carry on business in Bhawalpur State now forming part of West Pakistan, be\n\nfore the partition of India."}}, {"text": "Chaman Lal", "label": "OTHER_PERSON", "start_char": 4253, "end_char": 4263, "source": "ner", "metadata": {"in_sentence": "Ghamandi Ram Gurbax Rai, a iomt Hindu family firm consisting of Ghamandi Ram, since deceased, Gurbax Rai, Chaman Lal and Jagan Nath, used to carry on business in Bhawalpur State now forming part of West Pakistan, be\n\nfore the partition of India."}}, {"text": "Jagan Nath", "label": "OTHER_PERSON", "start_char": 4268, "end_char": 4278, "source": "ner", "metadata": {"in_sentence": "Ghamandi Ram Gurbax Rai, a iomt Hindu family firm consisting of Ghamandi Ram, since deceased, Gurbax Rai, Chaman Lal and Jagan Nath, used to carry on business in Bhawalpur State now forming part of West Pakistan, be\n\nfore the partition of India."}}, {"text": "Bhawalpur State", "label": "GPE", "start_char": 4309, "end_char": 4324, "source": "ner", "metadata": {"in_sentence": "Ghamandi Ram Gurbax Rai, a iomt Hindu family firm consisting of Ghamandi Ram, since deceased, Gurbax Rai, Chaman Lal and Jagan Nath, used to carry on business in Bhawalpur State now forming part of West Pakistan, be\n\nfore the partition of India."}}, {"text": "West Pakistan", "label": "GPE", "start_char": 4345, "end_char": 4358, "source": "ner", "metadata": {"in_sentence": "Ghamandi Ram Gurbax Rai, a iomt Hindu family firm consisting of Ghamandi Ram, since deceased, Gurbax Rai, Chaman Lal and Jagan Nath, used to carry on business in Bhawalpur State now forming part of West Pakistan, be\n\nfore the partition of India."}}, {"text": "Imperial Bank of J, ndia, Bhawalpur State", "label": "ORG", "start_char": 4612, "end_char": 4653, "source": "ner", "metadata": {"in_sentence": "Before the partition of India, the joint Hindu family firm had a cash credit account in its name in the then Imperial Bank of J, ndia, Bhawalpur State now within Pakistan territory."}}, {"text": "Imperial Bank of India, Blrawalpur State", "label": "ORG", "start_char": 4896, "end_char": 4936, "source": "ner", "metadata": {"in_sentence": "On the partition of India, the joint Hindu family and its members admittedly became evacuees and the then Imperial Bank of India, Blrawalpur State, sold the pledged goods in the year 1948 for the realisation of its dues 1n the said cash credit account and credited a sum of Rs."}}, {"text": "Imperial Bank of India", "label": "ORG", "start_char": 5144, "end_char": 5166, "source": "ner", "metadata": {"in_sentence": "2,541/ 11/- left as surplus balance after the adjustment of the dues of the Imperial Bank of India in the said account."}}, {"text": "October 15, 1949", "label": "DATE", "start_char": 5192, "end_char": 5208, "source": "ner", "metadata": {"in_sentence": "On October 15, 1949, the Pakistan Government promulgated Pakistan (Administration of Evacuee property) Ordinance, 1949 (Ordinance No."}}, {"text": "March 1, 194", "label": "DATE", "start_char": 5489, "end_char": 5501, "source": "ner", "metadata": {"in_sentence": "XV oi 1949) whereby all property in Pakistan in which an evacuee had any right or interest vested in lhe Custodian of Evacuee Property with retrospective effect from March 1, 194 7."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 5555, "end_char": 5559, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(5)", "label": "PROVISION", "start_char": 5753, "end_char": 5760, "source": "regex", "metadata": {"statute": null}}, {"text": "Amendment Act, 1951", "label": "STATUTE", "start_char": 5867, "end_char": 5886, "source": "regex", "metadata": {}}, {"text": "s. 2(5)", "label": "PROVISION", "start_char": 5916, "end_char": 5923, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act, 1951", "statute": "Amendment Act, 1951"}}, {"text": "May 9, 1953", "label": "DATE", "start_char": 6312, "end_char": 6323, "source": "ner", "metadata": {"in_sentence": "c On May 9, 1953, Shri Ghamandi Ram (now deceased) as manager and karta of the joint Hindu family firm filed an application lljllder s. 13 of the Displaced Persons (Debts Adjustments) Act, 1951 (Act No."}}, {"text": "s. 13", "label": "PROVISION", "start_char": 6440, "end_char": 6445, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act, 1951", "statute": "Amendment Act, 1951"}}, {"text": "Delhi", "label": "GPE", "start_char": 6576, "end_char": 6581, "source": "ner", "metadata": {"in_sentence": "70 of 1951) before the Tribunal constituted under the said Act at Delhi claiming Rs."}}, {"text": "State Bank of India Act, 1955", "label": "STATUTE", "start_char": 6965, "end_char": 6994, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "November 1, 1956", "label": "DATE", "start_char": 7219, "end_char": 7235, "source": "ner", "metadata": {"in_sentence": "By its order dated November 1, 1956, the Tribunal dismissed the application of the respondent on the ground that m terms of the law enforced in Pakistan the deposit in the Bank in the account of the firm had become an evacuee property and would be deemed to have vested in the Custodian with effect from March I, 194 7 and by virtue of the said vesting the liability of the Bank had F ceased."}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 7874, "end_char": 7891, "source": "ner", "metadata": {"in_sentence": "The respondent took the matter in revis10n before the Punjab High Court being Civil Revision No."}}, {"text": "D. K. Mahajan", "label": "JUDGE", "start_char": 7975, "end_char": 7988, "source": "ner", "metadata": {"in_sentence": "The application was allowed by Mr. Justice D. K. Mahajan by his judgment dated 12th September, 1963 on the ground that the amount claimed by the res- G\n\npondent was cash deposit made by an individual in terms of the notification dated February 19, 1952 and was thus beyond the purview of the provisioni; of the Ordinance."}}, {"text": "12th September, 1963", "label": "DATE", "start_char": 8011, "end_char": 8031, "source": "ner", "metadata": {"in_sentence": "The application was allowed by Mr. Justice D. K. Mahajan by his judgment dated 12th September, 1963 on the ground that the amount claimed by the res- G\n\npondent was cash deposit made by an individual in terms of the notification dated February 19, 1952 and was thus beyond the purview of the provisioni; of the Ordinance."}}, {"text": "Section 2", "label": "PROVISION", "start_char": 8544, "end_char": 8553, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 9428, "end_char": 9437, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2(5)", "label": "PROVISION", "start_char": 9696, "end_char": 9708, "source": "regex", "metadata": {"statute": null}}, {"text": "Amendment Act, 1951", "label": "STATUTE", "start_char": 9787, "end_char": 9806, "source": "regex", "metadata": {}}, {"text": "Section 6", "label": "PROVISION", "start_char": 9938, "end_char": 9947, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act, 1951", "statute": "Amendment Act, 1951"}}, {"text": "section 45", "label": "PROVISION", "start_char": 10236, "end_char": 10246, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act, 1951", "statute": "Amendment Act, 1951"}}, {"text": "section 45", "label": "PROVISION", "start_char": 10333, "end_char": 10343, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act, 1951", "statute": "Amendment Act, 1951"}}, {"text": "Central Government", "label": "ORG", "start_char": 10423, "end_char": 10441, "source": "ner", "metadata": {"in_sentence": "\" The notification of February 19, 1952 issued by the Pakistan Government in exercise of the powers conferred by section 45 of the Ordinance is in the following terms :\n\n\"In exercise of the powers conferred by section 45 of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949, the Central Government in\n\nA supersession of its Ministry's notification F. 22(1)51-P dated the 9th May, 1951 is pleased to exempt from the operation of the provisions of the said Ordinance cash deposits made at Banks by persons other than companies or associatiQnS or bodies of individuals whether incorporated or not\"."}}, {"text": "9th May, 1951", "label": "DATE", "start_char": 10515, "end_char": 10528, "source": "ner", "metadata": {"in_sentence": "\" The notification of February 19, 1952 issued by the Pakistan Government in exercise of the powers conferred by section 45 of the Ordinance is in the following terms :\n\n\"In exercise of the powers conferred by section 45 of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949, the Central Government in\n\nA supersession of its Ministry's notification F. 22(1)51-P dated the 9th May, 1951 is pleased to exempt from the operation of the provisions of the said Ordinance cash deposits made at Banks by persons other than companies or associatiQnS or bodies of individuals whether incorporated or not\"."}}, {"text": "Section 7", "label": "PROVISION", "start_char": 10743, "end_char": 10752, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act, 1951", "statute": "Amendment Act, 1951"}}, {"text": "Section 7", "label": "PROVISION", "start_char": 11857, "end_char": 11866, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 11964, "end_char": 11973, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 11", "label": "PROVISION", "start_char": 12293, "end_char": 12303, "source": "regex", "metadata": {"statute": null}}, {"text": "section 29", "label": "PROVISION", "start_char": 12714, "end_char": 12724, "source": "regex", "metadata": {"statute": null}}, {"text": "Ghamandi Ram Gurbax Rai", "label": "PETITIONER", "start_char": 13321, "end_char": 13344, "source": "ner", "metadata": {"in_sentence": "The first question involved in this appeal is whether upon a correct interpretation of the notification of the Pakistan Government dated February 19, 1952, the joint Hindu family firm\n\n\"Ghamandi Ram Gurbax Rai\" was 'a body of individuals' within the meani.ng of the notification and whether the amount in dispute had accordingly become vested in the Custodian of Evacuee Propeny, Pakistan with effect from March 1, 1947 by virtue of the provisions of the Ordinance thereby divesting the said joint Hindu family firm of its interest therein.", "canonical_name": "Ghamandi Ram Gurbax Rai"}}, {"text": "March 1, 1947", "label": "DATE", "start_char": 13541, "end_char": 13554, "source": "ner", "metadata": {"in_sentence": "The first question involved in this appeal is whether upon a correct interpretation of the notification of the Pakistan Government dated February 19, 1952, the joint Hindu family firm\n\n\"Ghamandi Ram Gurbax Rai\" was 'a body of individuals' within the meani.ng of the notification and whether the amount in dispute had accordingly become vested in the Custodian of Evacuee Propeny, Pakistan with effect from March 1, 1947 by virtue of the provisions of the Ordinance thereby divesting the said joint Hindu family firm of its interest therein."}}, {"text": "Bhashyam Ayyangar", "label": "JUDGE", "start_char": 15140, "end_char": 15157, "source": "ner", "metadata": {"in_sentence": "1) Mr. Justice Bhashyam Ayyangar stated the legal position thus :- ·\n\n\"The Mitakshara doctrine of joint family propcny is founded upon the existence of an undivided family, all\n\n(I) I.L.R. 25 Mad, 149, 154."}}, {"text": "Mayne", "label": "RESPONDENT", "start_char": 15404, "end_char": 15409, "source": "ner", "metadata": {"in_sentence": "a corporate body [Gan Savant Bal Savant v. Narayan Dhond Savant(') and Mayne's 'Hindu Law and Usage',\n\n6th edition paragraph 270] and the possession ot property by suh coipor'.lte body."}}, {"text": "_ Mitakshara", "label": "OTHER_PERSON", "start_char": 16736, "end_char": 16748, "source": "ner", "metadata": {"in_sentence": "Having regard to the juristic nature of the Hindu joint family, according to the doctrine of_ Mitakshara, we are of the opinion that the Hindu joi, nt family firm of Ghamandi Ram Gurbax Rai cannot be treated as an 'individual' within the meaning of the notification of the Pakistan Government dated 19th February, 1952, but the said firm must be treated as 'a body of i, ndividuals F whether incorporated or not' within the meaning of that notification."}}, {"text": "Ghamandi Ram Gurbax Rai", "label": "PETITIONER", "start_char": 16810, "end_char": 16833, "source": "ner", "metadata": {"in_sentence": "Having regard to the juristic nature of the Hindu joint family, according to the doctrine of_ Mitakshara, we are of the opinion that the Hindu joi, nt family firm of Ghamandi Ram Gurbax Rai cannot be treated as an 'individual' within the meaning of the notification of the Pakistan Government dated 19th February, 1952, but the said firm must be treated as 'a body of i, ndividuals F whether incorporated or not' within the meaning of that notification.", "canonical_name": "Ghamandi Ram Gurbax Rai"}}, {"text": "19th February, 1952", "label": "DATE", "start_char": 16943, "end_char": 16962, "source": "ner", "metadata": {"in_sentence": "Having regard to the juristic nature of the Hindu joint family, according to the doctrine of_ Mitakshara, we are of the opinion that the Hindu joi, nt family firm of Ghamandi Ram Gurbax Rai cannot be treated as an 'individual' within the meaning of the notification of the Pakistan Government dated 19th February, 1952, but the said firm must be treated as 'a body of i, ndividuals F whether incorporated or not' within the meaning of that notification."}}, {"text": "March 1, 194 7", "label": "DATE", "start_char": 17478, "end_char": 17492, "source": "ner", "metadata": {"in_sentence": "whether the liability of the appellant to the respondent in India would be deemed to be extiµguished in view of the opera- G lion of the Pakistan Evacuee Property Ordinance and in view of our finding that the amount in dispute had become vested in the Custodian of Evacuee Property, Pakistan with effect from March 1, 194 7 by virtue of the provisions of the Ordinance."}}, {"text": "Jerusalem", "label": "GPE", "start_char": 18711, "end_char": 18720, "source": "ner", "metadata": {"in_sentence": "For example in Arab Bank Ltd. v.\n\nBarclays Bank (Dominion, Colonial and Overseas) (1), the appellant Bank had a credit balance on the current account with the respondent bank's branch in Jerusalem."}}, {"text": "Palestine", "label": "GPE", "start_char": 18747, "end_char": 18756, "source": "ner", "metadata": {"in_sentence": "The British Mandate over Palestine expired at midnight on May 14, 1948, and thereupon the Provisional Council of State and the Provisional Government of the State of Israel were constituted."}}, {"text": "May 14, 1948", "label": "DATE", "start_char": 18780, "end_char": 18792, "source": "ner", "metadata": {"in_sentence": "The British Mandate over Palestine expired at midnight on May 14, 1948, and thereupon the Provisional Council of State and the Provisional Government of the State of Israel were constituted."}}, {"text": "Provisional Council of State", "label": "ORG", "start_char": 18812, "end_char": 18840, "source": "ner", "metadata": {"in_sentence": "The British Mandate over Palestine expired at midnight on May 14, 1948, and thereupon the Provisional Council of State and the Provisional Government of the State of Israel were constituted."}}, {"text": "Provisional Government of the State of Israel", "label": "ORG", "start_char": 18849, "end_char": 18894, "source": "ner", "metadata": {"in_sentence": "The British Mandate over Palestine expired at midnight on May 14, 1948, and thereupon the Provisional Council of State and the Provisional Government of the State of Israel were constituted."}}, {"text": "Israel", "label": "GPE", "start_char": 18935, "end_char": 18941, "source": "ner", "metadata": {"in_sentence": "War broke out between Israel and the Arab States, which rendered the further performance of the contract of current account impossible."}}, {"text": "B.ank", "label": "PETITIONER", "start_char": 19111, "end_char": 19116, "source": "ner", "metadata": {"in_sentence": "From the date of the termination of the Mandate the appellant B.ank's premises were situate in Arab controlled territory and the resJ;>C!ndent Bank's premises were situate in Israel territory."}}, {"text": "State of Israel", "label": "ORG", "start_char": 19261, "end_char": 19276, "source": "ner", "metadata": {"in_sentence": "By legislation the State of Israel vested in an official c'alled the 'Custodiap of the Property of Absentees', the property in the State of Israel belonging to a class of persons and corporations which included the Arab Bank."}}, {"text": "Arab Bank", "label": "ORG", "start_char": 19457, "end_char": 19466, "source": "ner", "metadata": {"in_sentence": "By legislation the State of Israel vested in an official c'alled the 'Custodiap of the Property of Absentees', the property in the State of Israel belonging to a class of persons and corporations which included the Arab Bank."}}, {"text": "Queenlrland Mercantile and Agency", "label": "ORG", "start_char": 20629, "end_char": 20662, "source": "ner", "metadata": {"in_sentence": "arose in the case of Re : Queenlrland Mercantile and Agency\n\nCo.( 2), the facts of which were as follows :-\n\n\"The Union Bank of Australia held debentures issued by the Queensland Company charging the shares\n\n(I) [19541 A.C. 495."}}, {"text": "Union Bank of Australia", "label": "PETITIONER", "start_char": 20717, "end_char": 20740, "source": "ner", "metadata": {"in_sentence": "arose in the case of Re : Queenlrland Mercantile and Agency\n\nCo.( 2), the facts of which were as follows :-\n\n\"The Union Bank of Australia held debentures issued by the Queensland Company charging the shares\n\n(I) [19541 A.C. 495."}}, {"text": "England", "label": "GPE", "start_char": 20931, "end_char": 20938, "source": "ner", "metadata": {"in_sentence": "The Bank was domiciled in England and the company in Queensland."}}, {"text": "Queensland", "label": "GPE", "start_char": 20958, "end_char": 20968, "source": "ner", "metadata": {"in_sentence": "The Bank was domiciled in England and the company in Queensland."}}, {"text": "Scotland", "label": "GPE", "start_char": 21119, "end_char": 21127, "source": "ner", "metadata": {"in_sentence": "After the capital had been called up, but before it was paid by the shareholders, who thus became debtors of the company, the X Company domiciled in Scotland, began an action for rregligence in Scotland against the Queensland Company, and immediately issued the Scottish process of arrestment against numerous shareholders who were domiciled in Scotland."}}, {"text": "Union Bank", "label": "PETITIONER", "start_char": 21554, "end_char": 21564, "source": "ner", "metadata": {"in_sentence": "The question that fell to be decided was whether the Union Bank, as debenture-holders, were entitled to be paid first out of the unpaid shares, according to the Jaw of England llllid of Queensland; or whether the X Company in accordance with the law of Scotland, had a prior right over the snares to the extent of the damages D that they might be awarded in the action of negligence."}}, {"text": "North", "label": "JUDGE", "start_char": 22190, "end_char": 22195, "source": "ner", "metadata": {"in_sentence": "North, J., however, applied 'I Scottish Jaw."}}, {"text": "12th September. 1963", "label": "DATE", "start_char": 22930, "end_char": 22950, "source": "ner", "metadata": {"in_sentence": "For these reasons we hold that this apJieal should be allowed, the iudgment of the Punjab High Court dated 12th September."}}, {"text": "30th October 1964", "label": "DATE", "start_char": 23285, "end_char": 23302, "source": "ner", "metadata": {"in_sentence": "But as directed by this Court on 30th October 1964, while grantine: spechil leave, appelfant will pay the cost of respQlldents in this Court."}}]}
{"document_id": "1969_3_690_697_EN", "year": 1969, "text": "PATEL BHUDER MAVJl ETC. v.\n\nJAT MAMDAH KALAH (DECEASED) THROUGH L. Rs.\n\nJAT SAHEB KHAN MAMDAn ETC.\n\nFebruary 13, 1969\n\n[M. HIDAYATULLAH, C.J. AND G. K. MITTER, JJ.]\n\nSaurashtra Agricultural Debtors Relief Act Mortgage with possessionr- Morlgagor applying for adjustment..:_Land declared Khalsa under the Land Reforms Act-Effect of-Saurashtra Land Reforms Act, (Sau, 25 ol 1951)-Land declared Khalsa-Rights of Mortgagor whether extinguished.\n\nThe Respondent-Girasdars in the State of. Saurashtra mortgaged their lands with possession with the appellants, who paid the land revenue and other dues.\n\nBy the Saurashtra Land Reforms Act (25 of 1951), the rights of the Girasdars were extinguished, and the tenants of Girasdara became occupants di land held by them. The Land Reforms Act provided for the Mamlatdar to allot land to a Girasdar for personal cultivation .. The special Mamlatdar declared the lands in dispute to be Khalsa and full assessment had to be taken, and that there was no need to grant any occupancy rights. The Saurashtra Agricultural Debtors Relief Act, 1954 was enacted scaling down the debts and for providing for restoration of their property to the debtors. Thereupon the respondents applied for adjustment of their debt to the Court having jurisdictioo under the Debtors Relie't Act. appellants relied on the order of the Special Mamlatdar declaring the land• as Khalsa and contended that the lands having been declared as JChalro, the respondents had lost their rights therein.\n\nHELD : The rights of the respoodents-Girasdars in this case were not extinguished under the Land Reforms .Act and it was open to the court exercising jurisdiction under the Debtors Relief Act to scale down the debt and provide the restoration of the land iit possession of the mortgagees to the mortgagors on taking fresh account between the parties and directing payments by one party to the other. .\n\nThe Saurashtra Land Reforms Act aimed at regulating the relationship O'f persons in pos.itioo of Landholders and their tenants, and to enable the tenants to become the real owners of the soil under direct tenancy from the State. It wa, not meant to extinguish or affect the rights of Landholders as mortgagors unless the persons in occupation had become tenants either by contract or by operation -0f law.\n\nNo adjudication Of the rights of the debton and creditors inter se was G done.\n\nAll that the Special Mamlatdar decided and had iuriSdicti<>n to decide under the Land Reforms Act was whether the respondents could be given occupancy certificates or allotted any land Gharkhed and the Special Mamlatdar merely ordered that the lands being Khalsa full assessment had to be taken in respect of them and there was no need to grant occupancy rights. In order to get such occupancy rights the appellants bad to show that they had become tenants which they could not be under H the provisions of s. 6 of the Land Reforms Act. The fact that they had all along paid the revenue and other dues to the State, if any, would .not clothe them with tenancy rights. That apart, it has not been shown\n\nthat the respondents were awarded any compensation ill respect of the\n\nKhalsa lands given in mortgage to the appellants. The occupancy certifl.. cates if any, given by the Special Mamlatdar to the appellants could nol unde; the provisions of the Land Reforms Act extingui•h the title of tho respondents. [695 H; 696 HJ CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 123 and 124 of 1966.\n\nAppeals by special leave from the judgments and orders dated April 28, 1965 of the Gujarat High Court in Civil Revision Applications Nos. 88 and 93 of 1961.\n\nP. B. Patwari, K. L. Hathi, S. K. Bagga and Sureshta Bagga, for the appellants. c P. M. Rawal and P. C. Bhartari, for the respondents.\n\nThe Judgment of the Court was delivered by Mitter, J. These are two appeals by , special leave from judgments of the Gujarat High Court dated April 28, 1965 in Civil Revision Applications No. 88 and 93 of 1961. As the questions involved in both the applications were the same, the High Court delivered the main judgment in Civil Revision Application No. 88/1961 and referred to the same in its judgment in Civil Revision Application No. 93 of 1961. The two applications in the High Court arose out of certain proceedings under the Saurashtra Agricultural Debtors Relief Aet.\n\nThe applicants before the High Court and the appellants before this Court were E mortgagees in possession of certain lands belonging to the debtors who are now represented by the respondents. The main question before the High Court was and before us is, whether the debtors had Io.st all their interest in the lands mortgaged by reason of the operatmn of the Saurashtra Land Reforms Act, XXV of 1951 and\n\nas such were not competent to make an application under the Saurashtra Agricultural Debtors Relief Act, 1954. Hereinafter the two Acts will be referred to as the Land Reforms Act the Debtors Relief Act.\n\nIt is not necessary to deal separately with the facts in the two appeals as the course of proceedings in both cases were similar giving rise to common questions of law.\n\nWe .therefore propose to take note of the facts in Civil Revision Application No. 88 of 1961. The creditors, appellants before us, were in possesion of the properties-the subject matter of litigation, under two mortgage deeds of Samvat years 1997 and 1999. The first mortgage was for Rs. 991 and the second for Rs. 1. 011 The mortgagees were with possession and the mortgagee have been appropriating the income of the usufruct thereof for the last\n\n50. years. There is nothing to show whether they were under a liibnity under the documents of mortgage to pay the revenue and other dues to the State but there is no dispute that they havo\n\nbeen doing so for many years past.\n\nThe lands were situate in Bajana State with its own peculiar land tenure system known as the Girasdari system.\n\nThe Land Reforms Act which came into force on July 23, 1951 purported to effect important and far-reaching changes in the said system. The preamble to the Act shows that its object was \"the improvement of land revenue administration and for\n\nultimately putting an end to the Girasdari system\" and the regulation of the relationship between the Girasdars and their tenants, to enable the latter to become occupants of the !and held by them and to provide for the payment of compensation to the Girasdars for the extinguishment of their rights.\n\nIt will be noted at once that the Act aimed at regulating the relationship of persons in the position of landholders and their tenants and to enable the tenants to become the real owners of the soil under direct tenancy from the State. It was not meant to extinguish or affect the rights of the landholders as mortgagors unless the persons in occupation had become tenants either by contract or by operation of law.\n\nThe Act came into force in the whole Of Saurashtra area of the State of Gujarat. Under s. 2 ( 15) 'Girasdar' meant any\n\nta!ukdar, bhagdar, bhayat, cadet or. mu!-girasia, etc.\n\nUnder s. 2 ( 13) 'estate' meant all land of whatever description held by a Girasdar including uncultivable waste whether used for the purpose of agriculture or not and 'Gharkhed' meant any land reserved by or allotted to a Girasdar before the 20th May 1950 or for being cultivated personally and in his personal cultivation.\n\nA tenant under s. 2(30) meant an agriculturist who held land on lease from a Girasdar or a person claiming through him and included a person who was deemed to be a tenant under the provisions of the Act. Under s. 3 the provisions of the Act were\n\nto have effect notwithstanding anything inconsistent therewith contained in any, other law for the time being in forte. Section 4 provided that \"all land of whatever description held by Girasdar is and shall continue to be liable to the payment of land revenue to the State of Gujarat.\" Section .5 classified Girasdars according to the measure of their holding and under cl. ( c) thereof a Girasdar was to belong to class C if the total area of agricultural land comprised in his estate did not exceed Act. 120-00. Section 6(1) of the Act laid down that any persOl!l who was lawfuUv cultivating any , Jand belonging to a Girasdar was to be deemed for the purposes of the Act to be the t.enant if be was not a member of the Girasdar's family or a servant on wages pavable in cash or in kind etc. or a mortgagee in poS$ession.\n\nThe Explanation to the sub-section however shows that a person who was otherwise deemed to be a tenant was not to cease tp be such only on the\n\nMAVJI V. MAMOAJI (Miller, J.) 693\n\nground that he was a mortgagee in possession. Under s. 19 it was open to any Girasdar to apply to the Mamlatdar for the allotment to him of land for personal cultivation within a certain fixed time. Such application had to be made in a specified form giving the prescribed particulars.\n\nThe applicant had to sh?w inter alia, the area and location of the land in respect of which B the allotment was prayed for, the right under which he claimed\n\nthe land and full particulars of his estate as also the area of khalsa land, if any, in his possessibn. Under s. 20 of the Act it was for the Mamlatdar to issue notice to the tenant or t.enants concerned on receipt of an application under s. 19 and make an enquiry in the prescribed manner after giving the parties an opportunity of being heard. After such inquiry the Mamlatdar was required to pass an order making an allotment to the Girasc\n\ndar of such land as may be specified in the order and this was to be followed by the issue of an occupancy certificate to a Girasdar in respect of his Gharkhed and the land, if any, allotted to him under the section. Under sub-s. ( 4) no Girasdar was to obtain possession of any land held by a tenant except in accordance with the order under the section. Section 24 laid down the total area of the holding which a C class Girasdar could be allotted for personal cultivation.\n\nSub-s. (2) of the section provided that a C class Girasdar could not be allotted any khalsa land if it was held by a tenant. Chapter V containing sections 31 to 41 provided for acquisition of occupancy rights by tenants and s. 31 laid down the consequences which were to issue in the wake of grant of occupancy certificates. A tenant who was J!Ianted such a certificate was to be free of all relations and obligations as tenant to the Girasdar. The Girasdar in his tum was to be entitled to receive and be paid compensation as provided in the Act. Under s. 36 the riimt. title and interest of the Girasdar in respect of an occupancy holding were to be deemed to have been extinguished on the payment bv the Government of the last im; talment of compensation. The functions of a Mamlatdar are laid down in s. 46 of the Act. It was for him to decide inter Q/ia what land should be allotted to a Girasdar for person~ cultivation and to make such allotment, to decide whether a nerson was or was not tenant, to determine whether a tenancv shall be terminated under s. 12 and many other matters. Under s. 51 an appeal lay to the Collector against any order of the Mamlatclar.\n\nThe above analysis of the relevant provisions of the Land Reforms Act amply demonstrates the manner in which a change was to be brought about in the relationship between the Girasda1 and is tenants and the ri2hts which thev were respectively tc acomre under ihe orders of the Soecial Mamlatdar. The said Officer had no jurisdiction to terminate any rights under mort !!age.\n\n694 SUPRiMI! COURT REPORTS\n\n[1969] 3 S.C.R.\n\nThe full text of the order of the Mamlatdar on the application of the Girasdars (the respondents to the appeal) is not before us.\n\nThe copy of the order on the respondents' application marked Ex. 8/1 bearing date 16th January 1954 was handed over to us.\n\nIt appears therefrom Lhat the Girasdar was allowed to keep as Gharkhed certain lands by paying six times the assessment in the treasury but with regard to S._Nos. 684 and 685 (the lands given to the mortgagees) the same were held by the Mamlatdar to be khalsa and full assessment thereof was ordered to be taken. The Mamlatdar .further noted that there was no need to grant any occupancy rights.\n\nOn May 2, 1955 the respondents applied for adjustment of their debt to the Civil Judge exercising jurisdiction under the Debtors Relief Act.\n\nThe creditors relied on the order of the Special Mamlatdar declaring the lands as Khalia as fortified by the decision of the Bhayati court of Bajana State. It was contended that the lands having been declared khalsa the debtors had lost their righB therein. Reliance was also placed on Forms 7 and 8 by counsel for the appellants to show that his clients had acquired proprietary rights in the said khalsa lands.\n\nAccording to the Civil Judg~ the judgment of the Bhayati court had merely decided that the Bai!Ula State had no title or interest in the land in question and that the Jats Mul-Girasdars were independent proprietors thereof.\n\nThe Judge however remarked that it was not for the Special Mamlatdar to decide any question as to title and he had merely ordered recovery of full assessment from the persons in actual oossession and this in no way vested any title in the creditors. In the result the Civil Judge directed the restoration of the lands to the debtors subject to certain limitations and conditions.\n\nThe creditors went up in appeal to the Assistant Judge, Surendranagar. There it was contended on their behalf that the mortgages had been extinP, Uished by the title of the paramount power and on the date of the application under the Debtors Relief Act there was no subsisting mortgage between them . and the\n\nreoondents. Reliance was !'laced on the dedsion of the Soedal Mamlatdar declaring the land to be khalsa land as extinguishing the mortgages by forfeiture of the land to the State. The Assistant Judge dealt with the question at some length and came to the conclusion that the mortgages had not been extinl!'Uished and not being tenants within the meanin!! of s. 6 the creditors could not have got an occupancv certificat~- in resoect of the lands in their possession. He further stressed on the decision of the Special Mamlatdar to show that only the liability for the full assessment of the lands was indicated without anv disturbance to the rights inter se between the mortgagor and the mortgagee.~.\n\nDealing with the question of the advances made and the amounts\n\nstill due to the creditors, it was ordered that the debtors should pay Rs. 1,698/- in twelve yearly instalments and the award was directed to be modified accordingly.\n\nThe matter was then taken up by way of Civil Revision to the High Court of Gujarat. The High Court arrived at the following conclusions :-\n\n(a) The decision of the Bhavati court merely declared that the State was entitled to recover taxes of various kinds from the lands in possession of tenants or mortgagees.\n\nThere was no decision that the lands in possession of the mortgagees were confiscated to the State.\n\n(b) The Soecial Mamlat<lar reiected the application of the -debtors and directe<l the lands in possession of the different creditors to be treated as Government lands as according to him the decision of the Bhayati court amounted to a forfeiture of th~ lands by the Bajana State.\n\n(c) It was not necessry to test the correctness of the decision of the Sll-~~; nl Mam1atdar as in view of the provisions in the Debtors Relief Act which was an Act subsequent to the Land Reforms Act the provisions of the latter Act were to prevail.\n\nIn the result the High Court affirmed the order of the Assistant Judge in appeal directing possession to be handed over to the debtors.\n\nBefore us great stress was laid on the decision of the Special Mamlatdar and it was argi.Jed that sub_iect to anv appeal from his order his decision was binding on the parties and not havin~ v; one up in appeal from the order of the Spe6al Mamlatdar the debtors could not be allowed to agitate their rights to the land ignoring the said order. We have not before us the full text of the order of the Special Mamlatdar relied on by th\" anoellants nor are we satisfied from copies of form 7 orescribed under Rule 81 of the Rules oromul_gated under the Land Reforms Act that there was any adjudication of the rights of the dehton; and the crediton: inter se. In our view all that the Special Mamlatdar decided and had jurisdiction to decide under the Act wa~, whether the debtors could be given occupancy certificates or allotted anv land Gharkhed and the Snecial Mamlatdar merely ordered that the lands being kha/sa full assesment had to be taken in respect of them and there was no need to grant occupancv rights. In order to get such occupancy rights the creditors had to show that they had\n\nbecome tenants which obviously they could not be under the provisions of s. 6 of the land Reforms Act. The fact that they had all along paid the revenue and other dues to the State, if any, would not clothe them with the right of the tenants. Under s. 76(c) of the Transfer of Property Act a mortgagee in possession must, in the absence of a contract to the contrary out of the income of the property, pay the Government revenue, all other charges of a public nature and all rent accruing due in respect thereof durine: such possession. We do not know whether there was a contract to the contrary and whether the mortgagors had covenanted to pay the rent and the revenue.\n\nBut even if they could not meet the revenue and other State dues out of the income and paid the same out of their own pockets in order to save the security, the mortgagees were only entitled under s. 72(b) of the Transfer of Property Act to add the amount to the mortgage money. They could not by paying such rent or revenue acquire a title in derogation of the rights of the mortgagors and the payments, if any, are to be taken into account when the mortgagors seek to redeem the property.\n\nThat apart, it has not been shown to us that the debtors were awarded any compensation in respect of the khalsa lands given in' mortgage to the appellants. The occupancy certificate;, if any, given by the Special Mamlatdar to the appellants cannot under the provisions of the Land Reforms Act extinguish the title of the mortgagors. Whether the mortgagors as C class Girasdars can be allowed to retain land in excess of the limits specified in the Act and whether as a result of the restoration of the lands to them by the award such limit will be exceeded in this case, are not questions for us to consider.\n\nThe right of the mortgae:ors not bein[t extinguished under any provision of law to which our attention was drawn. no fault can be found with the award as finally modified by the judgment of the Assistant Jud!!:e and effect must be given thereto.\n\nIn our view, it is not\n\nnecesarv to consider the noint canvassed at length before the High Court and dealt with in th~ iudwnent of the said court as to whether the provi<ions of the Debtors Relief Act over-ride thn<e in th\"' Land Reforms Act.\n\nThe object of the two Acts are <liff Prnnt. The ol:>iect of the Land Reforms Act. as already noted. is the imnrovement of the land revenue administration and nuttin<\" an end to the Clirasdari svstem and irrantinJ?: of occupancy\n\nriht< to the Girasd\"rs and /or their tenants, whereas the Debtors Relief Act g-ovems the rights of the debtors and creditors inter se inter alia bv scaling down the debets and oroviding for restoration of their nronertv to debtors. In our view. the ri2hts of the debtors in th; s case wP-re not extimn1ished under the Land Reforms Act and it was oPen to the court exercising jurisdiction under the Debtors Relief Act to scale down the debt and provide for resto\n\nMAVJl v. MAMDAJI (Mitter, /,) 697\n\nA ratian Qf tho laad in p!llSOl4lon of tho mortgageos to tho mortgagor& on taking fresh acoou11ts n the parties and directing payments by one party to the other as has been done in this case.\n\nTho appoala thertforo fail and are dismisled with coets. a Y.P.\n\nApp1q/ dismissed.", "total_entities": 59, "entities": [{"text": "PATEL BHUDER MAVJl ETC", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "PATEL BHUDER MAVJI ETC", "offset_not_found": false}}, {"text": "v.\n\nJAT MAMDAH KALAH (DECEASED) THROUGH L. Rs.\n\nJAT SAHEB KHAN MAMDAn ETC.", "label": "RESPONDENT", "start_char": 24, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "JAT MAMDAJI KALAJI (DECEASED) THROUGH L. Rs. JAT SAHEB KHAN MAMDAJI ETC", "offset_not_found": false}}, {"text": "February 13, 1969", "label": "DATE", "start_char": 100, "end_char": 117, "source": "ner", "metadata": {"in_sentence": "February 13, 1969\n\n[M. HIDAYATULLAH, C.J. AND G. K. MITTER, JJ.]"}}, {"text": "M. HIDAYATULLAH, C.J.", "label": "JUDGE", "start_char": 120, "end_char": 141, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH*", "offset_not_found": false}}, {"text": "G. K. MITTER, JJ.", "label": "JUDGE", "start_char": 146, "end_char": 163, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER", "offset_not_found": false}}, {"text": "Saurashtra Agricultural Debtors Relief Act", "label": "STATUTE", "start_char": 166, "end_char": 208, "source": "regex", "metadata": {}}, {"text": "Land declared Khalsa under the Land Reforms Act-Effect of-Saurashtra Land Reforms Act", "label": "STATUTE", "start_char": 273, "end_char": 358, "source": "regex", "metadata": {}}, {"text": "Girasdara", "label": "OTHER_PERSON", "start_char": 712, "end_char": 721, "source": "ner", "metadata": {"in_sentence": "By the Saurashtra Land Reforms Act (25 of 1951), the rights of the Girasdars were extinguished, and the tenants of Girasdara became occupants di land held by them.", "canonical_name": "Girasdara"}}, {"text": "Saurashtra Agricultural Debtors Relief Act, 1954", "label": "STATUTE", "start_char": 1029, "end_char": 1077, "source": "regex", "metadata": {}}, {"text": "Act and it was open to the court exercising jurisdiction under the Debtors Relief Act", "label": "STATUTE", "start_char": 1610, "end_char": 1695, "source": "regex", "metadata": {}}, {"text": "s. 6", "label": "PROVISION", "start_char": 2901, "end_char": 2905, "source": "regex", "metadata": {"statute": null}}, {"text": "Gujarat High Court", "label": "COURT", "start_char": 3571, "end_char": 3589, "source": "ner", "metadata": {"in_sentence": "Appeals by special leave from the judgments and orders dated April 28, 1965 of the Gujarat High Court in Civil Revision Applications Nos."}}, {"text": "P. B. Patwari", "label": "OTHER_PERSON", "start_char": 3646, "end_char": 3659, "source": "ner", "metadata": {"in_sentence": "P. B. Patwari, K. L. Hathi, S. K. Bagga and Sureshta Bagga, for the appellants."}}, {"text": "K. L. Hathi", "label": "OTHER_PERSON", "start_char": 3661, "end_char": 3672, "source": "ner", "metadata": {"in_sentence": "P. B. Patwari, K. L. Hathi, S. K. Bagga and Sureshta Bagga, for the appellants."}}, {"text": "S. K. Bagga", "label": "OTHER_PERSON", "start_char": 3674, "end_char": 3685, "source": "ner", "metadata": {"in_sentence": "P. B. Patwari, K. L. Hathi, S. K. Bagga and Sureshta Bagga, for the appellants."}}, {"text": "Sureshta Bagga", "label": "OTHER_PERSON", "start_char": 3690, "end_char": 3704, "source": "ner", "metadata": {"in_sentence": "P. B. Patwari, K. L. Hathi, S. K. Bagga and Sureshta Bagga, for the appellants."}}, {"text": "P. M. Rawal", "label": "LAWYER", "start_char": 3728, "end_char": 3739, "source": "ner", "metadata": {"in_sentence": "c P. M. Rawal and P. C. Bhartari, for the respondents."}}, {"text": "P. C. Bhartari", "label": "OTHER_PERSON", "start_char": 3744, "end_char": 3758, "source": "ner", "metadata": {"in_sentence": "c P. M. Rawal and P. C. Bhartari, for the respondents."}}, {"text": "Mitter", "label": "JUDGE", "start_char": 3825, "end_char": 3831, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Mitter, J. These are two appeals by , special leave from judgments of the Gujarat High Court dated April 28, 1965 in Civil Revision Applications No."}}, {"text": "Saurashtra Agricultural Debtors Relief Act, 1954", "label": "STATUTE", "start_char": 4823, "end_char": 4871, "source": "regex", "metadata": {}}, {"text": "Hereinafter the two Acts will be referred to as the Land Reforms Act the Debtors Relief Act", "label": "STATUTE", "start_char": 4873, "end_char": 4964, "source": "regex", "metadata": {}}, {"text": "Bajana State", "label": "GPE", "start_char": 5838, "end_char": 5850, "source": "ner", "metadata": {"in_sentence": "The lands were situate in Bajana State with its own peculiar land tenure system known as the Girasdari system."}}, {"text": "July 23, 1951", "label": "DATE", "start_char": 5970, "end_char": 5983, "source": "ner", "metadata": {"in_sentence": "The Land Reforms Act which came into force on July 23, 1951 purported to effect important and far-reaching changes in the said system."}}, {"text": "Saurashtra", "label": "GPE", "start_char": 6925, "end_char": 6935, "source": "ner", "metadata": {"in_sentence": "The Act came into force in the whole Of Saurashtra area of the State of Gujarat."}}, {"text": "Gujarat", "label": "GPE", "start_char": 6957, "end_char": 6964, "source": "ner", "metadata": {"in_sentence": "The Act came into force in the whole Of Saurashtra area of the State of Gujarat."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 6972, "end_char": 6976, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 7067, "end_char": 7071, "source": "regex", "metadata": {"statute": null}}, {"text": "20th May 1950", "label": "DATE", "start_char": 7304, "end_char": 7317, "source": "ner", "metadata": {"in_sentence": "Under s. 2 ( 13) 'estate' meant all land of whatever description held by a Girasdar including uncultivable waste whether used for the purpose of agriculture or not and 'Gharkhed' meant any land reserved by or allotted to a Girasdar before the 20th May 1950 or for being cultivated personally and in his personal cultivation."}}, {"text": "s. 2(30)", "label": "PROVISION", "start_char": 7402, "end_char": 7410, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 7597, "end_char": 7601, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 7754, "end_char": 7763, "source": "regex", "metadata": {"statute": null}}, {"text": "Girasdar", "label": "OTHER_PERSON", "start_char": 7820, "end_char": 7828, "source": "ner", "metadata": {"in_sentence": "Section 4 provided that \"all land of whatever description held by Girasdar is and shall continue to be liable to the payment of land revenue to the State of Gujarat.\"", "canonical_name": "Girasdara"}}, {"text": "State of Gujarat", "label": "GPE", "start_char": 7902, "end_char": 7918, "source": "ner", "metadata": {"in_sentence": "Section 4 provided that \"all land of whatever description held by Girasdar is and shall continue to be liable to the payment of land revenue to the State of Gujarat.\""}}, {"text": "Section 6(1)", "label": "PROVISION", "start_char": 8149, "end_char": 8161, "source": "regex", "metadata": {"linked_statute_text": "Girasdar was to belong to class C if the total area of agricultural land comprised in his estate did not exceed Act", "statute": "Girasdar was to belong to class C if the total area of agricultural land comprised in his estate did not exceed Act"}}, {"text": "Jand belonging to a Girasdar was to be deemed for the purposes of the Act", "label": "STATUTE", "start_char": 8235, "end_char": 8308, "source": "regex", "metadata": {}}, {"text": "MAVJI V. MAMOAJI", "label": "JUDGE", "start_char": 8604, "end_char": 8620, "source": "ner", "metadata": {"in_sentence": "The Explanation to the sub-section however shows that a person who was otherwise deemed to be a tenant was not to cease tp be such only on the\n\nMAVJI V. MAMOAJI (Miller, J.) 693\n\nground that he was a mortgagee in possession."}}, {"text": "s. 19", "label": "PROVISION", "start_char": 8691, "end_char": 8696, "source": "regex", "metadata": {"linked_statute_text": "Jand belonging to a Girasdar was to be deemed for the purposes of the Act", "statute": "Jand belonging to a Girasdar was to be deemed for the purposes of the Act"}}, {"text": "s. 20", "label": "PROVISION", "start_char": 9194, "end_char": 9199, "source": "regex", "metadata": {"linked_statute_text": "Jand belonging to a Girasdar was to be deemed for the purposes of the Act", "statute": "Jand belonging to a Girasdar was to be deemed for the purposes of the Act"}}, {"text": "s. 19", "label": "PROVISION", "start_char": 9323, "end_char": 9328, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 24", "label": "PROVISION", "start_char": 9884, "end_char": 9894, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 31 to 41", "label": "PROVISION", "start_char": 10151, "end_char": 10168, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 31", "label": "PROVISION", "start_char": 10229, "end_char": 10234, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 10559, "end_char": 10564, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 46", "label": "PROVISION", "start_char": 10810, "end_char": 10815, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 11066, "end_char": 11071, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 51", "label": "PROVISION", "start_char": 11102, "end_char": 11107, "source": "regex", "metadata": {"statute": null}}, {"text": "May 2, 1955", "label": "DATE", "start_char": 12252, "end_char": 12263, "source": "ner", "metadata": {"in_sentence": "On May 2, 1955 the respondents applied for adjustment of their debt to the Civil Judge exercising jurisdiction under the Debtors Relief Act."}}, {"text": "Bhayati court of Bajana State", "label": "COURT", "start_char": 12516, "end_char": 12545, "source": "ner", "metadata": {"in_sentence": "The creditors relied on the order of the Special Mamlatdar declaring the lands as Khalia as fortified by the decision of the Bhayati court of Bajana State."}}, {"text": "Surendranagar", "label": "GPE", "start_char": 13467, "end_char": 13480, "source": "ner", "metadata": {"in_sentence": "The creditors went up in appeal to the Assistant Judge, Surendranagar."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 14079, "end_char": 14083, "source": "regex", "metadata": {"linked_statute_text": "Uished by the title of the paramount power and on the date of the application under the Debtors Relief Act", "statute": "Uished by the title of the paramount power and on the date of the application under the Debtors Relief Act"}}, {"text": "High Court of Gujarat", "label": "COURT", "start_char": 14716, "end_char": 14737, "source": "ner", "metadata": {"in_sentence": "The matter was then taken up by way of Civil Revision to the High Court of Gujarat."}}, {"text": "Bhavati court", "label": "COURT", "start_char": 14819, "end_char": 14832, "source": "ner", "metadata": {"in_sentence": "The High Court arrived at the following conclusions :-\n\n(a) The decision of the Bhavati court merely declared that the State was entitled to recover taxes of various kinds from the lands in possession of tenants or mortgagees."}}, {"text": "Bajana State", "label": "ORG", "start_char": 15334, "end_char": 15346, "source": "ner", "metadata": {"in_sentence": "(b) The Soecial Mamlat<lar reiected the application of the -debtors and directe<l the lands in possession of the different creditors to be treated as Government lands as according to him the decision of the Bhayati court amounted to a forfeiture of th~ lands by the Bajana State."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 16901, "end_char": 16905, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 76(c)", "label": "PROVISION", "start_char": 17077, "end_char": 17085, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 17093, "end_char": 17117, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 72(b)", "label": "PROVISION", "start_char": 17698, "end_char": 17706, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 17714, "end_char": 17738, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Land Reforms Act", "label": "STATUTE", "start_char": 19075, "end_char": 19091, "source": "regex", "metadata": {}}]}
{"document_id": "1969_3_698_707_EN", "year": 1969, "text": "MALINI AYYAPPA NAICKER (NOW DEAD) THROUGH A\n\nL.R. ETC. ETC.\n\nSETH MANGHRAJ UDHA VDAS FIRM BY MANAGING\n\nPARTNER\n\nCHATHURBHUJ\n\nCHBABILDAS\n\n(DEAD) THEREAFl'ER BY LRS. &: ORS. a February 13, 1969\n\n[S. M. SIKRI, R. S. BACHAWAT AND K. S. HBGDB, JJ.]\n\n Provincial Insolvency Act, 1920, •· 7S(l), first proviso-Power of High Couri to sr4isfy itself that an appeal wa.r decided by tht Distrkt CollTt \"'according to iaw\"-Scope of.\n\nTho petitioning creditor in an insolvency proceeding sought annullment of two mortgages, one for Rs. 15,000/. in favour of the appellant in C.A. 84S and another for Rs: 10,000/. in favour the appellant in C.A. 846.\n\nThe mortgages weno date(! November 4, 1950 and were registered on November 6, 1950. Tho InsOlvency Court held that the mortgages were not supported by consideration and were led with a view to screen ing some of the properties of the insolvents from their creditor.i. It therefore, annulled the mortgages under section S3 of tho Provincial InsOlvency Act. The District Judge, in appeal, reversed the findings of the trial court but the High Court, acting under the fir.it proviso of section 75(1) of the Act, set aside the judgment of the District Judge and restored that of the Insolvency Court.\n\nIn an appeal to this Court by special leave, it was contended on behalf of the appellants (i) that the High Court while acting under the first proviso of section 75(1) to satisfy itself \"that an order made in any appeal decided by the District Court was according to law\" had no power to disturb the findings of fact reached by the appellate court; the jurisdiction of tho High Court is a very limited one and not more than that conferred on it by su\"\"ection 100(1) C.P.C.; and (ii) that the conclusions of the High Court were unsustainable on the evidence on record.\n\nHELD: (i) The legislature did not confer on the High Court. under the first proviso to s. 75 (I) of the Act an appellate power nor did it confer on it a jurisdiction to reappreciate the evidence on record. While exercising that power the High Court is by and lar~ bound by the findings of fact reached by the District Court If the legtslature intended to confer power on it to xamine both questions of law and fact it would have conveyed its intention by appropriate words as has been done under various other statutes. A wrong decision on facts by a competent court is also a decision according to law. [701 DJ\n\nA decision being \"contrary to law\" as provided in s. 100(1) (a) of the Code of Civil Procedure is not the same thing as a decision being not \"according to law\" as prescribed in the first proviso of s. 7S(D of the Act The latter expression is wider in ambit than the former. It is neither desirable not possible to give an exhaustive definition of the expression \"according to law\". The power given to the Hi$b Court . under the first proviso to s. 75(1) of the Act is similar to that given to it under •· 2S of the Provincial Small Cau•e• Court• Act. [701 Fl\n\nBtU .l Co. Ltd. v. Waman H<mra;, (1938) 40, Bom. L.R. 125; Hari Shankar v. Rao Girdhari Lal Chowdhury, [1962] 1, supp. S.C.R. 399;\n\nMALIN! AYYAPPA v. MANGHltAJ (Hegde, J.) 699\n\nOfficial Receiver, Kanpur and Anr. v. Abdul Shakur [1965] I S.C.R. 254; referred to and explained.\n\n(ii) On the evidence, the findings of the District Court on. the payment of consideration were correct findings o'f fact and the High Court could not have interferred with the same. However, one payment in respect of the mortgage in C.A. 845 was not proved and the mortgage was therefore only valid to the extent of Rs. 10,500/-.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 845 and 846 of 1963.\n\nAppeals by special leave from the judgment and order dated January 17, 1958 of the Madras High Court in Civil Revision Petitions Nos. 981 and 982 of 1956.\n\nS. V. Gupte and R. Thiagarajan, for the appellants (in both the appeals).\n\nNaunit Lal, for the respondents Nos. 1 (c) and 17 (in C.A.\n\nNo. 845 of 1963) ajlld respondents Nos. l (c) and 16 (in C.A.\n\nNo. 846 of 1963).\n\nThe Judgment of the Court was delivered by\n\nHegde, J. These appeals arise from an insolvency proceeding wherein one Ponnayya Konar and his sons were adjudicated as insolvents. In the said proceeding the petitioning creditor sought to get annulled two mortgages one for Rs. 15,000 (Exh. A-1) executed by the insolvents in favour of Ayyappa Naicker, the appellant in Civil Appeal No. 845 of 1963 and the other for Rs. 10,000 (Exh. A-2), the subject matter of Civil Appeal No. 846 of 1963, in favour of one Srinivasa Naicker, the fatherin-law of the aforementioned Ayyappa Naicker.\n\nThe said Srinivasa Naicker is dead and the appeal is being prosecuted by his legal representatives.\n\nBoth those mortgages are dated November 4, 1950 and they were registered on November 6,\n\n1950. The Insolvency Court held that those mortgages were not supported by consideration and that they were executed with a view to screen some of the properties of the insolvents from their creditors.\n\nIt accordingly annulled those mortgages under s. 53 of the Provincial Insolvency Act (hereinafter referred to as the Act). In appeal the learned District Judge reversed the findings of the trial court. He came t? the nclusion that those '!lortgages\n\nwere fully supported by cons1derat10n and that they were genuine transactions.\n\nThe High Court acting under the I st proviso to s. 75 (I) of the Act reversed the judgment of the learned District Judge and restored that. of the Inso_lency Court. These appeals have been. brought agamst the decmon of the High Court after obtaining special leave from this Court.\n\nThe learned Counel for the appellants challenged the decision of the Hip Court primarily on two &t'OUDds.\n\nAccordinir; to him\n\n700 SUP!UlME COURT REl'OR'fS\n\n[1969] 3 S.C.R.\n\nthe High Court whi~ acting under the 1st proviso to s. 75(1) of A the Act had no power to disturb the findings of fact reached by the appellate 'court.\n\nNext he contended that the conclusions of the High Court are unsustainable on the evidence on record. The learned Counsel for the contesting respondents supported the decision of the High Court.\n\nThe two principal questions that arise for decision in these B appeals are ( 1) was the High Court within its jurisdiction in interfering with the findings of the learned District Judge that the impug11ed transactions are bona fide transactions and that they were supported by consideration and ( 2) are the conclusions reached by the High Court correct on the facts and circumstances of the case ? It would be convenient to take up first, the question c as to the scope of the powers of the High Court under the 1st proviso to s. 75(1) of the Act. That section reads :\n\n\"The debtor, any creditor, the receiver or any other person aggrieved by a decision cQllle to or an order made in the exercise of insolvency jurisdiction by a Court subordinate to a District Court may appeal to o the District Court, and the order of the District Court upon such appeal shall be final : Provided that the High Court, for the purpose of satisfying itself that an order made in any appeal decided by the District Court was according to law, may call for the case and pass such order with respect thereto as E it thinks fit : Provided further, that any such person aggrieved by a decision of the District Court on appeal from a decision of a subordinate Court under secuon 4 ma~ appeal to the High Court on any of the grounds mentioned in sub-section ( 1) of section 100 of the Code of Civil F , Procedure, 1908.\"\n\nAccording to Shri S. V. Gupte, learned Counsel for the appellants the jurisdiction of a High Court under the 1st proviso to s. 75 ( 1) is a very limited one, the same being not more than that conferred on it by sub-s. (1) of s. 100 of the Code of Civil Procedure. In support of his contention he invited our attention G to the scheme of s. 75 (1) of the Act. He urged that sub-s. ( 1) of s. 7 5 prescribes that the decision of the District Court in appeal is final and the finality conferred on the decision of the District Court is subject to a very limited scrutiny by the High Court. We were further told that. the power conferred on the High Court under the 1st proviso to s. 75 (1) is only a revisionM power, H which power in its very nature is narrower in compass than an appellate power.\n\nAccording to him the power conferred under the !st proviso to s. 75(1) of the Act is co-extensive with that\n\nMALINI AYYAPPA v. MANGHRAJ (Hegde, J.) 701\n\ngiven to the High Court under s. 100( 1) (a) of the Code of Civil Procedure.\n\nOn the other hand Mr. Naunit Lal, learned Counsel for the respondent urged that the High Court under the 1st proviso to s. 75(1) of the Act has an extensive power .and that power is very much wider than the power conferred on 1t under~· 100(1)\n\n(a) of the Code of Civil Procedure; the power of the High Coun under the 1st proviso to s. 75 (1) of the Act to call for the case to satisfy itself that the order made by the District Court was according to law and pass such other order in respect thereto as it thinks fit includes within itself the right to examine whether the District Court had taken into consideration all the material evi dence and whether it had properly assessed that evidence.\n\nWe are of the opinion that the extreme contentions advanced on either side cannot be accepted. Quite clearly the legislature did .not confer on the High Court under the 1st proviso to s. 75 ( 1 J of the Act an appellate power nor did it confer on it a jurisdictior. to reappreciate the evidence on record.\n\nWhile exercising that power the High Court is by and large bound by the findings of fact reached by the District Court. If the legislature intended to confer power on it to re-examine both questions of Jaw and fact it would have conveyed its intention by appropriate words as has been done under various other statutes. A wrong decision on facts by a competent court is also a decision according to law.\n\nFor these reasons we cannot accept the contention of Mr. Naunit Lal that the power conferred under the 1st proviso to s. 75 ( 1) of the Act enables it to de novo examine the findings of fact reached by the District Court.\n\nA decision being \"contrary to law\" as provided in s. 100 (I)\n\n(a) of the Code of Civil Procedure is not the same thing as a decision being not \"according to law\" as prescribed in the 1st proviso. of s. 75(1) of the Act. The latter expression is wider\n\n1~ ambit than e forme~._ It is neither desirable nor possible to give;_ an exhaustive efimtion of e expression \"according to law . The power given to the High Court under the 1st proviso to . s. 75(1) of the Act js similar to that given to 1t der s. 25 of the Provincial Small Causes Courts Act.\n\nExplaimng th7 scope of the latter provision Beaumont, C.1. (as he then was) m Bell & Co., Ltd. v. Waman Hemraj(') observed:\n\n\"The object of s. 25 is to enable the High Court to see tha~ !here has ?een no miscarriage of justice, that the dccISJon was given according to law. Tiie section does not enumerate the cases in which the Court may\n\n(t) [1938]40Bom.L.R. 12S.\n\nLIOSup.169-IO\n\ninterfere in revision, as does s. 115 of the Code of Civil Procedure, and 1 certainly do not propose to attempt any exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders.\n\nWherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court' would not have arrived at.\"\n\nThe said statement of the law was accepted as correct by this Court in Hari Sha11kar v. Rao Girdhari Lal Chowdhury(').\n\nWe think the sanre applies squarely to the 1st proviso to s. 75 (1) of the Act.\n\nIn support of his contention Mr. Gupte placed considerable reliance on the decision of this Court in Official Receiver, Kanpur and Anr. v. Abdul Shakur and Ors.(\") wherein this Court held that the High Court in exercise of its power under the 1st proviso to s. 75 ( 1) of the Act is incompetent to disturb the findings of fact reached by the District Court and further the question whether a statutory presumption was rebutted by the rest of the evidence on record was also a question of fact which again was not open to be reviewed by the High Court.\n\nShah, J. who spoke for the Court observed thus at p. 259.\n\n\"The District Court inferred from the facts found that the statutory presumption under s. 118 of the Negotiable Instruments Act had been weakened and the burden which lay upon the insolvent was discharged and it was. not open to the High Court exercising jurisdiction under s. 75(1} proviso 1, nor even under proviso 2 of the Provincial Insolvency Act to set aside the judgment of the District Court, for it is well settled that the question whether a statutory presumptiqn is rebutted by the rest of the evidence is a question of fact.\"\n\nIt may be remembered that Shah, J. was also a party to the decision in Hari Shankar's case('). We see no conflict between\n\n(!) [1962] I Supp. S.C.R. 933.\n\n(2) [1965] I S.C.R. 254.\n\nthe two decisions.\n\nThe former decision enumerates some of the circumstances under which the High Court can interfere while considering whether the decision under review was made accordincr to law.\n\nAll that is laid down in Abdul Shakur's case(') is that me High Court is not competent to disturb a finding of fact reached by the District Court even if in reaching that find\n\ning it was required to take into consideration a statutory presumption.\n\nWe shall now proceed to examine the facts of this case bearing in mind the principles set out above.\n\nWe shall first set out the undisputed facts.\n\nThe respondent Ponnayya Konar was a well to do person.\n\nHe had one rice mill at Kivalur and another at Sirkali. He also had landed pro perties in 'Sirkali and Tuticorin. He was having money dealings with the family of Sreenivasa Naicker from about the year 1925 Under the original of Exh. B-1, a registered deed of Othi dated 28th September, 1925, he had borrowed a sum of Rs. 30,000 from Rangappa Naicker, the father of Srinivasa Naicker. On\n\nOctober 5, 1930 the said deed was renewed by the execution of a simple mortgage deed by Ponnayya Konar and his sons in favour of Rangappa Naicker.\n\nUnder the registered mortgage deed dated 13th January, 1942 (Exh. B-4 is its copy), the insolvents had borrowed from Ayyappa Naicker Rs. 20,000\n\nout of which he discharged some of the debts due to Rangappa Naicker.\n\nAyyappa Naicker was himself a rich man.\n\nUnder the partition deed entered into in his family on October 30, 1936 (Exh. B-3) he got a cash of Rs. 52,000 and lands measuring\n\n250 acres.\n\nThe debt due to Ayyappa Naicker under the deed dated 13th January 1942 was discharged by payment of Rs. 5,000 and interest on 3rd April, 1948 and Rs. 15 000 and interest on the 28th March, 1949, as can be seen frm Exhs.\n\nB-5 and B-6.\n\nThe case of the mortgagees is that when Exh. A-1 and A-2 were executed they were unaware of the fact that the insolvents had got into financial difficulties by then. The learned District Judge has accepted this plea and the learned Judge of the High Court has not come to a contrary conclusion.\n\nThere was no relationship between the insolvents and the !llortgagees.\n\nIn .fact they belong to different communities. The\n\nmsolvnts are. Hindus and the mortagees are Christians. They\n\na!so lve at different places. The msolvents were residing at\n\nSrrk~1 and th<: mortgagees at Tuticorin, a place which is at a considerable distance from Sirkali.\n\nAccording to the mortgagees the circumstances under which Exh. A-1 and A-2 came to be executed are as follows :-\n\nIn about the beginning of 1950 Ponnayya Konar approached Srinivasa Naicker for a loan of Rs. 30,000. Srinivasa Naicker told him that he and his son-in-law Ayyappa Naicker together would lend him a sum of Rs. 25,000 on the mortgage of his properties at Tuticorin.\n\nBut as they did not have the entire sum of Rs. 25,000 in their hands at that time, a sum of Rs. 10,000 was paid to Ponnayya Konar on April 28, 1950 and a promissory note was taken for that amount. (Exh. A-11). In the beginning of September, 1950 Ponnayya Konar sent his son Arulappan with the letter (Exh. B-7) to get some more money.\n\nAccordingly another sum of Rs. 5,000 was paid on September 8, 1950 and the pronote (Exh. A-12) was taken from Arulappan.\n\nThey agreed to pay the balance amount promised to be advanced at the time of the execution of the mortgage deeds. The mortgage deeds were got written up and executed on 4th November\n\n1950. Therein it was recited that they were executed for cash consideration. It was thought that the mortgagees would be able to pay the balance amount before the registtation of the documents on November 6, 1950. But by that time they were not able to get together the entire amount that remained to be paid.\n\nOn the date of the registration Ayyappa Naicker paid to the mortgagors only a sum of Rs. 4,500 another sum of Rs.\n\nSOO was adjusted towards the interest due on the sum of Rs. 15,000 previously advanced in. April and September.\n\nThe remaining sum of Rs. 5,000 was paid in two instalments, a sum of Rs. 1700 through Amirthan, the 3rd son of Ponnayya Konar on January 7, 1951 and the remaining sum of Rs. 33,00 again through Amirthan on February 10, 1951.\n\nIn the insolvency proceedings on the application of the petitioning creditor, a commissioner to search the house of the insolvents and seize their books of account and other relevant records was appointed.\n\nAfter search the Commissioner seized from the house of the insolvents several account books (ledgers as well as day books) as well as A-11 and A-12 whiFh were found punched and defaced.\n\nExhs. A-11, A-12 as well as several of the entries in the ledger and day books were marked by consent in the proceedings from which these appeals have arisen.\n\nHence their genuineness is not open to question.\n\nIt is most unlikely that those documents were got up by the insolvents and kept in their house, depending on the off chance of a court commission, er searching their house and seizing them, so that they may serve as corroborating evidence in support of the impugned mortgages. If Exh. A-11 and A-12 as well as the entries in the account hooks were intended to support the clnim under Exhs. A-I und A-2, the most natural course would have been to draw up the mortgage deeds in such a way as to\n\ntake assistance from them.\n\nJn that case the mortgage deeds would not have recited that they were executed for cash consideration. Further Exhs. A-11 and A-12 would have been left in the possession of the mortgagees. We are convinced that. the version put forward by the mortgagees is substantially true. The original agreement between the parties was to take mortgagees of the Tuticorin properties for cash consideration.\n\nThe intermediate steps taken were necessitated by the fact that mortgagees were not able to Ret together in one lump the required am'ount.\n\nThe promissory notes Exhs. Al I and A-12 were taken as stop gap arrangements.\n\nThe recitals in the mortgage deeds accord with the original agreement between the parties.\n\nThat was likely to be the reason why the promissory notes Exh. A-11 and A-12 were returned to the parties. The entries in the account books of the insolvents reflect the transactions as they took place.\n\nIf they were bogus entries made to support Exhs. A-1 and A-2,\n\na receipt of Rs. 25,000 in cash on 4th November 1950 would have been shown therein. The learned District Judge correctly thought that the account entries in question had a great deal of intrinsic value. On the other hand the insolvency court and the High Court unnecessarily allowed themselves to be influenced by the apparent contradiction appearing between the recitals in Exhs.\n\nAl and A-2 and those in Exhs. A-11, A-12 and the account\n\nentri, s.\n\nOne other circumstance which had weighed with the High Court in holding that Exhs. A-1 and A-2 do not represent genuine transactions is that in their pleadings the mortgagees have struck to their case that cash consideration passed under Exh. A-1 and A-2 and this the Court thought was a deliberately false plea. The learned District Judge had carefully considered this circumstance\n\nbt was of opin.ion that the same was of no consequence. We tmk that the High Court had attached undue importance to that\n\nc1rcustance. The issue before the parties at the time of the\n\npleadms wa~ whether the mortgages in question were supported by cons1derahon or not and not the manner in which that considerati?n was paid.\n\nIn their plea the mortgagees were merely adhenng !O te. t.nor of the mortgage deeds.\n\nFrom the facts stated earh.er, 1t 1s clear that the mortgagees at all stages proceeded on th.e basis that Exhs. A-1 and A:.2 were executed for cash consideration, the other steps taken by them being merely incidental.\n\nThe last and y far the most important circumstances that appears to have mftuenced the High Court was the failure of the mortgagees to pr<>?uce their account books.\n\nThis circumstance was careully considered by the District Judge. He held that the adverse mference that could be drawn from that circumstance was rcbuht!ed by the other evidence available in the case It was Ppen to 1111 to do so. His finding on this point is also a finding\n\nof fact and by no means a wholly unreasonable finding. The High Court could not have interfered with the same.\n\nFrom the above discussion it follows that generally speaking -we shall come to the details of consideration presently-the findings of the District Court as regards the payment of consideration under Exh. A-1 and A-2 are findings of facts and they were not open to review by the High Court.\n\nThis takes us to the various items of consideration said to have passed under Exhs. A-1 and A-2 and the proof thereof. The District Court has held that the entire consideration mentioned in those documents has passed.\n\nWe havs now to see whether its finding in respect of the various items of consideration is . su11- C ported by legal evidence. The challenge to the payment of cons1- '• deration under Exhs. A-1 and A-2 made by the pet.itioning creditor includes a challenge to the passing of the various items of consideration said to have passed. Ordinarily the burden of proving that a document impe'ached under s. 53 of the Act is not supported by consideration is on the party who challenges its validity. That is so because the party who stands by the document can take D advantage of the admission made by the insolvent in the document in question.\n\nBut in this case the mortgagees themselves do not st\\tnd by the recitals in the documents as regards the manner in which consideration was paid. Therefore it is for them to prove the passing of consideration.\n\nHence we have to see how far they have succeeded in proving the same.\n\nWe shall first take up Exh. A-2, the mortgage deed executed in favour of Srinivasa Naicker. It is said that the consideration payable under that mortgage was paid in the following-manner :\n\nRs. 5,000 under promissory note Exh. A-11;\n\nRs. 1,700 paid in cash on 7-1-1951 and\n\nRs. 3,300 also paid in cash on 10-2-1951; The receipt of the aforementioned sums is entered in the day book and ledger of the insolvents.\n\nThe relevant entries amount to an admission on the part of the insolvents of having received the amounts mentioned therein.\n\nWe have earlier considered the authenticity of those accouQt books.\n\nThe evidence of the mortgagees as regards the payment of consideration is strongly corroborated by the entries in the insolvents' account books. It was open to the learned District Judge to rely on them. Hence his finding as regards the validity of the mortgage under Exh. A-2 must be held fo be final.\n\nSo far as the consideration for Exh. A-1 is concerned it is said to have been made up of-\n\n(i) a sum of Rs. 10,000 advanced under Exh. A-11;\n\n(ii) Rs. 500 the inteest due under. Exh. A-11 and A-12; and\n\n(iii) Rs. 4,500 paid on 6-11-1950.\n\nThe receipts of the various sums mentioned above excepting the sum of Rs. 4,500 said to have been paid on 6th November\n\n1950, are entered in the day book and the ledger of the insolvents.\n\nHence to that extent the finding of the learned District Judge is unassailable.\n\nSo far as the payment of Rs. 4,500 said to have been made on November 6, 1950 is concerned no corresponding entry in the day book or the ledger had been proved.\n\nThis important circumstance was not noticed by the learned District Judge.\n\nHe proceeded on the basis that the account entries support the payment of that item as well. The evidence of Ayyappa Naicker as regards that payment is necessarily interested. The only other evidence on that point is that of P.W. 2, the Registrar who registered Exhs. A-1 and A-2. He is a relation of the insolvents. He did not endorse that payment in Exh. A-1, though he knew that he was required to do so under the rules.\n\nWe are also surprised how he could have rememliered that fact after several years.\n\nHad the learned District Judge's attention been drawn to the fact that there is no documentary evidence. in proof of the payment ofthat item it is highly doubtful whether he would have hold in favour of the mortgagee as regards the payment of that item. After going through the evidence bearing on the point we are not satisfied that the payment of that amount is satisfactorily proved.\n\nIn the result Civil Appeal No. 846 of 1963 is allowed and the judgment and decree of the High Court is set aside and that of the District Court restored. Civil Appeal No. 845 is allowed i, n part i.e. the mortgage Exh. A-1 is neld to be valid to the extent of Rs. 10,500 and interest thereon. In the circumstances of the case we direct the parties. to bear their own costs in all the courts.\n\nR.K.P.S.\n\nC.A. 845/63 al/owed in part.\n\nC.A. 845/63 allowed in part:", "total_entities": 86, "entities": [{"text": "MALINI AYYAPPA NAICKER (NOW DEAD) THROUGH A\n\nL.R. ETC", "label": "PETITIONER", "start_char": 0, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "MALINI AYYAPA NAICKER (NOW DEAD) THROUGH L.R. ETC. ETC", "offset_not_found": false}}, {"text": "SETH MANGHRAJ UDHA VDAS FIRM BY MANAGING\n\nPARTNER\n\nCHATHURBHUJ\n\nCHBABILDAS\n\n(DEAD) THEREAFl'ER BY LRS. &: ORS", "label": "RESPONDENT", "start_char": 61, "end_char": 170, "source": "metadata", "metadata": {"canonical_name": "SETH MANGHRAJ UDHAVDAS FIRM BY MANAGING PARTNER CHATHURBHUJ CHHABILDAS (DEAD) THEREAFTER BY L.RS. & ORS", "offset_not_found": false}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 194, "end_char": 205, "source": "metadata", "metadata": {"canonical_name": "S.M. 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V. Gupte", "label": "LAWYER", "start_char": 3814, "end_char": 3825, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte and R. Thiagarajan, for the appellants (in both the appeals).", "canonical_name": "S. V. Gupte"}}, {"text": "R. Thiagarajan", "label": "LAWYER", "start_char": 3830, "end_char": 3844, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte and R. Thiagarajan, for the appellants (in both the appeals)."}}, {"text": "Naunit Lal", "label": "LAWYER", "start_char": 3889, "end_char": 3899, "source": "ner", "metadata": {"in_sentence": "Naunit Lal, for the respondents Nos.", "canonical_name": "Naunit Lal"}}, {"text": "Hegde", "label": "JUDGE", "start_char": 4075, "end_char": 4080, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHegde, J. These appeals arise from an insolvency proceeding wherein one Ponnayya Konar and his sons were adjudicated as insolvents."}}, {"text": "Ponnayya Konar", "label": "RESPONDENT", "start_char": 4147, "end_char": 4161, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHegde, J. These appeals arise from an insolvency proceeding wherein one Ponnayya Konar and his sons were adjudicated as insolvents.", "canonical_name": "Ponnayya Konar"}}, {"text": "Ayyappa Naicker", "label": "OTHER_PERSON", "start_char": 4362, "end_char": 4377, "source": "ner", "metadata": {"in_sentence": "A-1) executed by the insolvents in favour of Ayyappa Naicker, the appellant in Civil Appeal No."}}, {"text": "Srinivasa Naicker", "label": "OTHER_PERSON", "start_char": 4535, "end_char": 4552, "source": "ner", "metadata": {"in_sentence": "846 of 1963, in favour of one Srinivasa Naicker, the fatherin-law of the aforementioned Ayyappa Naicker.", "canonical_name": "Sreenivasa Naicker"}}, {"text": "November 4, 1950", "label": "DATE", "start_char": 4743, "end_char": 4759, "source": "ner", "metadata": {"in_sentence": "Both those mortgages are dated November 4, 1950 and they were registered on November 6,\n\n1950."}}, {"text": "November 6,\n\n1950", "label": "DATE", "start_char": 4788, "end_char": 4805, "source": "ner", "metadata": {"in_sentence": "Both those mortgages are dated November 4, 1950 and they were registered on November 6,\n\n1950."}}, {"text": "s. 53", "label": "PROVISION", "start_char": 5050, "end_char": 5055, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 75", "label": "PROVISION", "start_char": 5382, "end_char": 5387, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 75(1)", "label": "PROVISION", "start_char": 5842, "end_char": 5850, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 75(1)", "label": "PROVISION", "start_char": 6667, "end_char": 6675, "source": "regex", "metadata": {"statute": null}}, {"text": "section 100", "label": "PROVISION", "start_char": 7482, "end_char": 7493, "source": "regex", "metadata": {"statute": null}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 7556, "end_char": 7567, "source": "ner", "metadata": {"in_sentence": "According to Shri S. V. Gupte, learned Counsel for the appellants the jurisdiction of a High Court under the 1st proviso to s. 75 ( 1) is a very limited one, the same being not more than that conferred on it by sub-s. (1) of s. 100 of the Code of Civil Procedure.", "canonical_name": "S. V. Gupte"}}, {"text": "s. 75", "label": "PROVISION", "start_char": 7662, "end_char": 7667, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 100", "label": "PROVISION", "start_char": 7763, "end_char": 7769, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 7773, "end_char": 7800, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 75", "label": "PROVISION", "start_char": 7875, "end_char": 7880, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 7926, "end_char": 7930, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 75", "label": "PROVISION", "start_char": 8215, "end_char": 8220, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 75(1)", "label": "PROVISION", "start_char": 8396, "end_char": 8404, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 100( 1)", "label": "PROVISION", "start_char": 8517, "end_char": 8527, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 8535, "end_char": 8562, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Naunit Lal", "label": "LAWYER", "start_char": 8587, "end_char": 8597, "source": "ner", "metadata": {"in_sentence": "On the other hand Mr. Naunit Lal, learned Counsel for the respondent urged that the High Court under the 1st proviso to s. 75(1) of the Act has an extensive power .and that power is very much wider than the power conferred on 1t under~· 100(1)\n\n(a) of the Code of Civil Procedure; the power of the High Coun under the 1st proviso to s. 75 (1) of the Act to call for the case to satisfy itself that the order made by the District Court was according to law and pass such other order in respect thereto as it thinks fit includes within itself the right to examine whether the District Court had taken into consideration all the material evi dence and whether it had properly assessed that evidence.", "canonical_name": "Naunit Lal"}}, {"text": "s. 75(1)", "label": "PROVISION", "start_char": 8685, "end_char": 8693, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 8817, "end_char": 8844, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 75", "label": "PROVISION", "start_char": 8898, "end_char": 8903, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 75", "label": "PROVISION", "start_char": 9447, "end_char": 9452, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 75", "label": "PROVISION", "start_char": 10093, "end_char": 10098, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 100", "label": "PROVISION", "start_char": 10248, "end_char": 10254, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 10267, "end_char": 10294, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 75(1)", "label": "PROVISION", "start_char": 10397, "end_char": 10405, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 75(1)", "label": "PROVISION", "start_char": 10642, "end_char": 10650, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 10697, "end_char": 10702, "source": "regex", "metadata": {"statute": null}}, {"text": "Beaumont", "label": "JUDGE", "start_char": 10791, "end_char": 10799, "source": "ner", "metadata": {"in_sentence": "Explaimng th7 scope of the latter provision Beaumont, C.1. ("}}, {"text": "s. 25", "label": "PROVISION", "start_char": 10887, "end_char": 10892, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 115", "label": "PROVISION", "start_char": 11160, "end_char": 11166, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 11170, "end_char": 11197, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 75", "label": "PROVISION", "start_char": 12222, "end_char": 12227, "source": "regex", "metadata": {"statute": null}}, {"text": "Gupte", "label": "OTHER_PERSON", "start_char": 12278, "end_char": 12283, "source": "ner", "metadata": {"in_sentence": "In support of his contention Mr. Gupte placed considerable reliance on the decision of this Court in Official Receiver, Kanpur and Anr."}}, {"text": "s. 75", "label": "PROVISION", "start_char": 12503, "end_char": 12508, "source": "regex", "metadata": {"statute": null}}, {"text": "Shah", "label": "JUDGE", "start_char": 12798, "end_char": 12802, "source": "ner", "metadata": {"in_sentence": "Shah, J. who spoke for the Court observed thus at p. 259."}}, {"text": "s. 118", "label": "PROVISION", "start_char": 12944, "end_char": 12950, "source": "regex", "metadata": {"statute": null}}, {"text": "Negotiable Instruments Act", "label": "STATUTE", "start_char": 12958, "end_char": 12984, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Hari Shankar", "label": "OTHER_PERSON", "start_char": 13467, "end_char": 13479, "source": "ner", "metadata": {"in_sentence": "It may be remembered that Shah, J. was also a party to the decision in Hari Shankar's case(')."}}, {"text": "Abdul Shakur", "label": "OTHER_PERSON", "start_char": 13801, "end_char": 13813, "source": "ner", "metadata": {"in_sentence": "All that is laid down in Abdul Shakur's case(') is that me High Court is not competent to disturb a finding of fact reached by the District Court even if in reaching that find\n\ning it was required to take into consideration a statutory presumption."}}, {"text": "Ponnayya Konar", "label": "RESPONDENT", "start_char": 14189, "end_char": 14203, "source": "ner", "metadata": {"in_sentence": "The respondent Ponnayya Konar was a well to do person.", "canonical_name": "Ponnayya Konar"}}, {"text": "Kivalur", "label": "GPE", "start_char": 14254, "end_char": 14261, "source": "ner", "metadata": {"in_sentence": "He had one rice mill at Kivalur and another at Sirkali."}}, {"text": "Sirkali", "label": "GPE", "start_char": 14277, "end_char": 14284, "source": "ner", "metadata": {"in_sentence": "He had one rice mill at Kivalur and another at Sirkali."}}, {"text": "Tuticorin", "label": "GPE", "start_char": 14333, "end_char": 14342, "source": "ner", "metadata": {"in_sentence": "He also had landed pro perties in 'Sirkali and Tuticorin."}}, {"text": "Sreenivasa Naicker", "label": "OTHER_PERSON", "start_char": 14392, "end_char": 14410, "source": "ner", "metadata": {"in_sentence": "He was having money dealings with the family of Sreenivasa Naicker from about the year 1925 Under the original of Exh.", "canonical_name": "Sreenivasa Naicker"}}, {"text": "Rangappa Naicker", "label": "OTHER_PERSON", "start_char": 14563, "end_char": 14579, "source": "ner", "metadata": {"in_sentence": "30,000 from Rangappa Naicker, the father of Srinivasa Naicker."}}, {"text": "October 5, 1930", "label": "DATE", "start_char": 14618, "end_char": 14633, "source": "ner", "metadata": {"in_sentence": "On\n\nOctober 5, 1930 the said deed was renewed by the execution of a simple mortgage deed by Ponnayya Konar and his sons in favour of Rangappa Naicker."}}, {"text": "October 30, 1936", "label": "DATE", "start_char": 15078, "end_char": 15094, "source": "ner", "metadata": {"in_sentence": "Under the partition deed entered into in his family on October 30, 1936 (Exh."}}, {"text": "3rd April, 1948", "label": "DATE", "start_char": 15293, "end_char": 15308, "source": "ner", "metadata": {"in_sentence": "5,000 and interest on 3rd April, 1948 and Rs."}}, {"text": "28th March, 1949", "label": "DATE", "start_char": 15344, "end_char": 15360, "source": "ner", "metadata": {"in_sentence": "15 000 and interest on the 28th March, 1949, as can be seen frm Exhs."}}, {"text": "April 28, 1950", "label": "DATE", "start_char": 16556, "end_char": 16570, "source": "ner", "metadata": {"in_sentence": "10,000 was paid to Ponnayya Konar on April 28, 1950 and a promissory note was taken for that amount. ("}}, {"text": "Arulappan", "label": "OTHER_PERSON", "start_char": 16697, "end_char": 16706, "source": "ner", "metadata": {"in_sentence": "In the beginning of September, 1950 Ponnayya Konar sent his son Arulappan with the letter (Exh."}}, {"text": "September 8, 1950", "label": "DATE", "start_char": 16808, "end_char": 16825, "source": "ner", "metadata": {"in_sentence": "5,000 was paid on September 8, 1950 and the pronote (Exh."}}, {"text": "4th November\n\n1950", "label": "DATE", "start_char": 17050, "end_char": 17068, "source": "ner", "metadata": {"in_sentence": "The mortgage deeds were got written up and executed on 4th November\n\n1950."}}, {"text": "November 6, 1950", "label": "DATE", "start_char": 17260, "end_char": 17276, "source": "ner", "metadata": {"in_sentence": "It was thought that the mortgagees would be able to pay the balance amount before the registtation of the documents on November 6, 1950."}}, {"text": "Amirthan", "label": "OTHER_PERSON", "start_char": 17689, "end_char": 17697, "source": "ner", "metadata": {"in_sentence": "1700 through Amirthan, the 3rd son of Ponnayya Konar on January 7, 1951 and the remaining sum of Rs."}}, {"text": "January 7, 1951", "label": "DATE", "start_char": 17732, "end_char": 17747, "source": "ner", "metadata": {"in_sentence": "1700 through Amirthan, the 3rd son of Ponnayya Konar on January 7, 1951 and the remaining sum of Rs."}}, {"text": "February 10, 1951", "label": "DATE", "start_char": 17809, "end_char": 17826, "source": "ner", "metadata": {"in_sentence": "33,00 again through Amirthan on February 10, 1951."}}, {"text": "4th November 1950", "label": "DATE", "start_char": 19964, "end_char": 19981, "source": "ner", "metadata": {"in_sentence": "25,000 in cash on 4th November 1950 would have been shown therein."}}, {"text": "s. 53", "label": "PROVISION", "start_char": 22855, "end_char": 22860, "source": "regex", "metadata": {"statute": null}}, {"text": "7-1-1951", "label": "DATE", "start_char": 23638, "end_char": 23646, "source": "ner", "metadata": {"in_sentence": "1,700 paid in cash on 7-1-1951 and\n\nRs."}}, {"text": "10-2-1951", "label": "DATE", "start_char": 23683, "end_char": 23692, "source": "ner", "metadata": {"in_sentence": "3,300 also paid in cash on 10-2-1951; The receipt of the aforementioned sums is entered in the day book and ledger of the insolvents."}}, {"text": "6-11-1950", "label": "DATE", "start_char": 24516, "end_char": 24525, "source": "ner", "metadata": {"in_sentence": "4,500 paid on 6-11-1950."}}, {"text": "6th November\n\n1950", "label": "DATE", "start_char": 24634, "end_char": 24652, "source": "ner", "metadata": {"in_sentence": "4,500 said to have been paid on 6th November\n\n1950, are entered in the day book and the ledger of the insolvents."}}, {"text": "Ayyappa Naicker", "label": "WITNESS", "start_char": 25145, "end_char": 25160, "source": "ner", "metadata": {"in_sentence": "The evidence of Ayyappa Naicker as regards that payment is necessarily interested."}}]}
{"document_id": "1969_3_708_714_EN", "year": 1969, "text": "70Q\n\nCOMMISSIONER OF INCOMETAX, KERALA v.\n\nMIS. MANICK SONS\n\nFebruary 14, 1969 ). C. SH, l\\H, V. RAMASWAMI AND A. N. GROVER, JJ.j\n\nIncome-tax Act, 1922, s. 33-Tribunal's Jowers-Tribunal cannot amalgamate income of two assessment years an divide It equally betwe•n them-Cannot take undertaking from a:rsessee fo file fresh return for earlier year and direct Jncotneuu Officer to make assessment accordingly-Cannot make <rllowance for 'Intangible additions' without giving reasons.\n\nFor the asse.sment year 1952-53 the Income-tax Officer added a certain ntnount to the assessec's returned incotnc. as income from undis closed sources.\n\nFor the 05'C>.sment year 1953-54 a still larger amount was added on account of unexplained cash credits. The Income-tax Appellate Tribunal when considering the appeal for 1953-54 took the view that since the income assessed in 1952-53 was much less than in earlier years some of the undisclosed income of that year must have gone into the cash credits disclosed in 1953-54, It therefore calculated the income for both the assessment years 1952-53 and 1953-54 together and after making some allowance for 'intangible additions' in each year, determined the amalgamated income for the two years at Rs. 1,00,000 as a round figure.\n\nOn this basis the assessment for 1953-54 was reduced to Rs, 50,000 from the higher figure determined by the Appellate Assistant Commissioner. In respect of the year 1952-53 an undertaking was taken from the assessee to file a fresh voluntary return for Rs. 50,000 in place of the much lower inoome originally assessed.\n\nAt the instance of the department a reference was made to the High Court, and 'failing there, the department appealed to this Court.\n\nHELD : The appeal must be allowed.\n\nUnder s. 33(4) of the Income.tax Act, 1922, the Income-tax Appellate Tribunal may after giving both parties to the appeal an opportunity of being heard, pa\" such orders thereon as it thinks fit.\n\nThe power confer' red by that sub-section is wide, but it is still a judicial power which must be exercised in respect of matters that arise in the appeal and according to law.\n\nThe Tribunal in deciding an appeal before it must deal with questions of law and fact which arise out of the order <if assessment made by the Income-tax Officer and the order of the Appellate Assistant Commissioner.\n\nIt cannot assume powers which are inconsistent with the c:xprc'>r;; pro\\i1; ion'i of the Act 0r its schen1e. r1 I:'.!. RFl\n\nIn the present case the Tribunal was entitled to enquire whether the source of cash credits was explained : if it held that they represented capital or income of earlier years it could exclude them from inc()me liable to be taxed in the year to which the appeal related.\n\nBut the Tribunal had no .power to find on amalgamation o'f income an average of more years than one, and to divide it for the purpose of asse:1sment between the two years 1952-53 and 1953-54-equally, [712 G: 714 DJ\n\nIn \\vorking out the amalgamated income for the two assessment years in question the Tribunal could not without giving any reasons, and without supporting evidence, make allowanc~ as it did (or \"intangible. add!.. lions\", [714 GJ ·\n\nC.l.T. V. MANIC!':: SONS (Shah, J.) 709\n\nThe Tribunal hearing an appeal may give directions •for reopening assessment of the year to which the appeal relates : it cannot give any directions to reassess in case of a period not covered by that year. There was no sanction in law to enforce the undertaking given by the respondent when urging his appeal in respect of the year 1953-54, to make a voluntary return for the year 1952-53; and even if the respondent carried out that undertaking the assessment of 1952-53 could not be reopened otherwise than in the manner prescribed by the Act. The undertaking must therefore be ignored.\n\nThe implied direction given by the Tribunal to the Income-tax Officer to re-assess the income for year 1952·53 was without jurisdiction. [712 D-E; 714 A]\n\nThe questions raised on behalf of the revenue clearly flowed from the contentions raised before the Tribunal and enquiry into those questions was not barred. [712 J)..E; 714 A]\n\nCommissioner of Income-tax, Madras v. S. Ne/liappan, 66 I.T.R. 722, distinguished.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 2459 of 1966.\n\nAppeal by special Jeave from the judgment and order dated August 2, 1965 of the Kerala High Court in Income-tax Referred Case No. 20 of 1964.\n\nSukumar Mitra and B. D. Sharma, for the appellant.\n\nS. Swaminathan and R. Gopalakrishnan, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nShah, J. For the assessment year 1952-53 respondents M/s.\n\nManick & Sons were assessed to tax in the status of a registered firm and their income was computed at Rs. 15,33.1 inclusive of Rs. 15,000 being undisclosed income. For the assessment year 1953-54 the respondents returned Rs. 40,887 as their income from business. The Income-tax Officer discovered an aggregate amount of Rs. 74,692 as \"cash credits\" which, in his view, were not satisfactorily explained by the respondents. The Income-tax Officer accordingly brought to tax a total inc.ome of Rs. 1,31,179 being Rs. 56,487 as income from business and Rs. 74,692 as income from \"other sources\" and assessed the respondents as an unregistered firm.\n\nThe Appellate Assistant Commissioner in appeal reduced the income of the respon3ents from business to Rs. 38,420 and income from \"other sources\" to Rs. 46,620. In second appeal the Tribunal reduced the income from business to Rs. 28,820 and confirmed the finding that the source of the cash credits aggregating to Rs. 46,620 had remained unexplained. But the Tribunal observed that \"there were certain special features in the case which needed proper consideration in determining the final assessment.\" The Tribunal then aggregated the income for\n\nthe assessment years 1952-53 and 1953-54 fur the two years, which he rounded off at Rs. 1,00,000 and apportioned in equal shares in the two years. For the assessment year 1952-53, the Tribunal recorded that the respondents had given an undertaking to file a voluntary return for assessment on the basis of total income of Rs. 50,000.\n\nAt the instance of the Commissioner of Income-tax, four questions were referred to the High Court of Kerala :\n\n\"( 1) Whether it was not beyond the jurisdiction of the Appellate Tribunal to reopen the concluded assessment for assessment year 1952-53 and to direct that the income should be revised in that year at Rs. 50,000 as against Rs. 15,331 already fixed?\n\n(2) Whether on the facts and circumstances of the case and the evidence on record, the Tribunal was justified in directing that any portion of the cash credits be assessed to income-tax in any year other. than the assessment year 1953-54? ( 3) Whether on the facts -and circumstances of the case and evidence on record, the Tribunal was. justified in finding that a portion of the cash credits were covered by the intangible additions made in 1952-53 and 1953- 54 assessment ? ( 4) Whether on the facts and circumstances of the case and the evidence on record, the Tribunal was justified in directing that the income under the head 'business' for the assessment year 1953-54 be reduced to Rs. 50,000 ?\"\n\nThe High Court declined to answer questions (I) & (2) and answered questions (3) & (4) in the affirmative.\n\nThe Commissioner appeals with special leave.\n\nTile judgment of the Tribunal is not a reasoned decision on the questions arising before it : it is cryptic and in parts obscure, and gives no grounds for its conclusion.\n\nThe judgment again !ends contenance to a method of assessment which the Indian Income-tax Officer aggregated to Rs. 74692 which amount was the Tribunal observed that the cash credits discovered by the Income-tax Officer aggregated to. Rs. 7 4692 which amount was reduced by the Appellate Assistant Commissioner to Rs. 50,620.\n\n(It is common ground that the correct figure should be Rs. 46,620.) The Tribunal then observed that on the evidence on record \"these residuary items must remain unexplained.\" But the Tribunal thought that because in the assessment year 1952-53 the total income of Rs. 15,331 was compartively small compared to the\n\nC.I.T. v. MANICK SONS (Shah, J.) 711\n\nincome of the earlier years \"some of that year's profits must have come into the profits of the next year\". The Tribunal then set out a consolidated statement of account for two years :\n\n\"!. Trade profits assessed for assessment Rs. year 1952-53 15,331\n\n2. Trade profits on the basis of books and without the estimates and additions impugned in this appeal (Rs. 56,487 less Rs. 45,600) . . 40,887\n\n3. Trading deficiency :\n\n(a) Palluruthy branch 1,000\n\n(b) Pavaratty branch 5,000\n\n4. Unexplained cash Credits 50,620 Less set off- Intangible addition for 1952-53 Rs. 15,000\n\nIntangible addition for 1953-54 as above.\n\n6,000\n\nD Rs. 6,000 21,000 29,620\n\nAssessable for both the year 91,838\"\n\nand observed : ''The assessee has undertaken to file a voluntary return for assessment year 1952-53 on the basis of a total income of Rs. 50,000.\n\nIn these circumstances, the total business income of the assessee for the year under appeal is reduced to Rs. 50,000 only.\"\n\nThe unexplained cash credits found by the Appellate Assistant Commissioner an<l accepted by the Tribunal were Rs. 46,620.\n\nThe total income of the two years on the basis adopted by the Tribunal was therefore Rs. 87,838. But the income of the two years was rounded off at Rs. 1,00,000 and divided equally between the two years. For making up a consolidated statement of account the Tribunal gave no reasons nor did it give any reasons \"for debiting the intangible additions\" of Rs. 15,000 and Rs. 6,000 against the cash credits. Counsel for. t)le respondents suggested that the Tribunal was presumably of the view that Rs. 15,000 brought to tax as business income in the assessment in 1952-53 must have been entered in the books of account of the next year and that Rs. 6,000 called \"trading deficiency\" in the two branches was entered as cash credit.\n\nThe appeal before the. Tribunal raised a simple question-· whether the cash credits aggregating to Rs. 46,620 or any part thereof were liable to be taxed as income of the respondents in\n\nthe year 1953-54. For that purpose the Tribuna! had to .consider whether the respondents furnished any explanation leadm~ to a justifiable inference that the amount or a part thereof hd not represent income of the respondents. In the view of. the !ribunal the cash credits had remained unexplained. But the 'Tnbunal still reduced the cash credits by Rs. 21,000, and then proceeded to amalgamate the income for the two years and to divide it equally. For reducing the cash credits by Rs. 21,000 no reasons have been given, and amalgamati~ of the income for the two years and apportionment is without authority of law.\n\nAn assessment which has become final may be reopened in appeal by the Appellate Assistant Commissioner or the Tribunal or in revision by the Commissioner, or under an order of rectification of mistake, or pursuant to a notice of reassessment. The Tribunal hearing an appeal may give directions for reopening assessment of the year to which the appeal relates : it cannot give any directions to reassess in case of a period not covered by that year. There is no sanction in law to enforce the undertaking given by the respondent when urging his appeal in respect of the year 1953-54, to make a voluntary return for the year 1952-53; and even if the respondents carried out that undertaking the assessment of 1952-53 could not be reopened otherwise than in the manner prescribed by law.\n\nThe undertaking must therefore be ignored. Under s. 33(4) of the Income-tax Act, 1922, the Income-tax Appellate• Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders there on as it thinks fit.\n\nThe power conrerred by that sub-section is wide, but it is still a judicial power which must. be exercised in respect of matters that arise in the appeal and according to law The Tribunal in deciding an appeal before it must deal with questions of law and fact which arise out of the order of assessment made by the Income-tax Officer and-tlfe order of the Appellate Assistant Commissioner. It cannot assume powers which are inconsistent with' the express provisions of the Act or its scheme.\n\nThe Tribunal was entitled to enquire whether the source of the cash credits was explained: if it held that they represented capital or income of earlier years, it could exclude them from income\n\nliale to be taxed in the year to which the appeal related. But the Tnbunal had no power to find on amalgamation of income an average of more years than one, or to give credit for wjrnt is called intangible additions. without explaining why credit w~ given.\n\nThere is no warrant for the claim made by. counsel for. the respondents that the order passed by the Tribunal was by consent. The Tribunal has not stated so, and if the order was made\n\nl>y consent of the departmental authorities and the respondents,\n\nH '\n\nc.1.T. v. MAN!CK SONS (Shah, J.) 713\n\nthe objection should have been prominently raised when the Commissioner asked for. a reference to the High Court.\n\nCounsel urged that the final order passed by the Tribunal operates to the prejudice of the respondents, and the Commissioner is not aggrieved by that order. Counsel said that even though the Tribunal has found that the total income for the two years in question was approximately Rs. 91,838 (wlllch if a correctioo account had been made would have been Rs. 87,838), the Triblljlllll has directed assessment of Rs. 50,000 in the year 1952-53 and another Rs. 50,000 in the year 1953-54. But this is only a superficial way of looking at the. matter. In the assessment year 1952- 5 3 the respondents were assessed ill the status of a registered firm and the income of the firm had to be distributed amqngst the partners, and the shares of the partners could be assessed to tax in their hands. The rate of tax on this income unless the partners have large individual income, would be comparatively low. In the year 1953-54 the respondents were an unregistered firm and the total income of the unregistered firm was liable to be taxed._\n\nIt was also cointended that the arguments raised before this Court were never set up either before the TnbunaJ or before the High Court and should not be permitted to be raised. The question raised clearly flow from the contentions raised before the Tribunal and contemplate an enquiry into matters urged by counsel by the Commissioper.\n\nThe decision of this Court Commissioner of Income-tax, Madras v. S. Nelliappan(') on which reliance was placed by counsel for the respondents has little bearing in this case.\n\nIn S. Neiliappan's case(') it was held that the conclusion whether a cash credit in the books of account of an assessee is properly explained is one on a question of fact on which no reference can be made to the High Court under s. 66 of the Indian Incometax Act. The Court in that case did not lay down that it is open to .the Tribunal to make a consolidated assessment of tax in respect of the assessment of income for the two years and then divide the income in equal shares.\n\nTurning then to the questions : counsel for the respondents conceded _that the Tribunal had no jurisdiction to direct the Income-tax Ofi!.cer to re-open the assessment tor the year 19.52- 53.\n\nHe submitted however that the Tribunal did not give any such directiCl!DS : it merely recorded an undertaking given by the respondents that they_ will voluntarily submit a return for Rs. 50,000 for the year 1952-53. But the context in which the statement recording the undertaking occurs !a p'•.r>:; raph 7 of the\n\n(1) 66 I.T.R. 722.\n\njudgment of the Tribuna.l and the direction given in paragraph 8 A leave no room for doubt that the Tribunal did give -a direction to the Income-tax Officer to re-assess the' income for the year 1952-53.\n\nOn the answer to the first question no further enquiry need be made on the second question.\n\nThe Tribunal has given no reasons in support of the view that the \"intangibfe additions\" of Rs. 21,000 covered a part of the B cash credits. Our attention has also not been invited to any evidence which establishes a connection between the. cash credits for Rs. 21,000 -and the additions of Rs. 15,000 made in tbe assessment for 1952-53 aaid Rs. 6,000 added in 1953-54.\n\nThe fourth question contemplates an inquiry whether tlie Tribunal was justified in directing that tbe income under the head C \"business\" for the assessment year 1953-54 be reduced to Rs. 50,000. The question is somewhat misleading. The direction o.f the Tribunal was that the total income of the respondents be reduced to Rs. 50,000 for the year 1953-54, the business income being Rs. 28,820 and the balance being income from other sources. For reasons already set out the Tribunal had no juris- D diction to proceed to combine the income for the two years 1952- 53 and 1953-54 and to divide it for the purpose of assessmt between the two years equally.\n\nThe Tribuna! had to assess the income for the year in question.\n\nThe appeal is allowed, and the answers to the questions re- E corded by the High Court are discharged.\n\nThe answers to the questions will be as follows : Q. ( 1 )-Tribunal had no jurisdiction.\n\nQ. (2 )-Tribunal had no jurisdiction.\n\nQ. ( 3 )-in the negative.\n\nQ. ( 4 )-in the negative.\n\nF There will be no order as to costs in this appeal.\n\nG.C.\n\nAppeal allowed.", "total_entities": 22, "entities": [{"text": "70Q\n\nCOMMISSIONER OF INCOMETAX, KERALA", "label": "PETITIONER", "start_char": 0, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, KERALA", "offset_not_found": false}}, {"text": "MIS. MANICK SONS\n", "label": "RESPONDENT", "start_char": 43, "end_char": 60, "source": "metadata", "metadata": {"canonical_name": "M/S. MANICK SONS", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 94, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ", "label": "JUDGE", "start_char": 111, "end_char": 127, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 131, "end_char": 151, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 33", "label": "PROVISION", "start_char": 153, "end_char": 158, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1922", "statute": "Income-tax Act, 1922"}}, {"text": "s. 33(4)", "label": "PROVISION", "start_char": 1759, "end_char": 1767, "source": "regex", "metadata": {"statute": null}}, {"text": "Shah", "label": "JUDGE", "start_char": 3214, "end_char": 3218, "source": "ner", "metadata": {"in_sentence": "SONS (Shah, J.) 709\n\nThe Tribunal hearing an appeal may give directions •for reopening assessment of the year to which the appeal relates : it cannot give any directions to reassess in case of a period not covered by that year."}}, {"text": "Sukumar Mitra", "label": "LAWYER", "start_char": 4443, "end_char": 4456, "source": "ner", "metadata": {"in_sentence": "Sukumar Mitra and B. D. Sharma, for the appellant."}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 4461, "end_char": 4473, "source": "ner", "metadata": {"in_sentence": "Sukumar Mitra and B. D. Sharma, for the appellant."}}, {"text": "S. Swaminathan", "label": "LAWYER", "start_char": 4495, "end_char": 4509, "source": "ner", "metadata": {"in_sentence": "S. Swaminathan and R. Gopalakrishnan, for the respondent."}}, {"text": "R. Gopalakrishnan", "label": "LAWYER", "start_char": 4514, "end_char": 4531, "source": "ner", "metadata": {"in_sentence": "S. Swaminathan and R. Gopalakrishnan, for the respondent."}}, {"text": "Manick", "label": "PETITIONER", "start_char": 4657, "end_char": 4663, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J. For the assessment year 1952-53 respondents M/s.\n\nManick & Sons were assessed to tax in the status of a registered firm and their income was computed at Rs."}}, {"text": "High Court of Kerala", "label": "COURT", "start_char": 6275, "end_char": 6295, "source": "ner", "metadata": {"in_sentence": "At the instance of the Commissioner of Income-tax, four questions were referred to the High Court of Kerala :\n\n\"( 1) Whether it was not beyond the jurisdiction of the Appellate Tribunal to reopen the concluded assessment for assessment year 1952-53 and to direct that the income should be revised in that year at Rs."}}, {"text": "Palluruthy", "label": "GPE", "start_char": 8687, "end_char": 8697, "source": "ner", "metadata": {"in_sentence": "Trading deficiency :\n\n(a) Palluruthy branch 1,000\n\n(b) Pavaratty branch 5,000\n\n4."}}, {"text": "Pavaratty", "label": "GPE", "start_char": 8716, "end_char": 8725, "source": "ner", "metadata": {"in_sentence": "Trading deficiency :\n\n(a) Palluruthy branch 1,000\n\n(b) Pavaratty branch 5,000\n\n4."}}, {"text": "s. 33(4)", "label": "PROVISION", "start_char": 11712, "end_char": 11720, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 11728, "end_char": 11748, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Income-tax Appellate• Tribunal", "label": "COURT", "start_char": 11754, "end_char": 11784, "source": "ner", "metadata": {"in_sentence": "Under s. 33(4) of the Income-tax Act, 1922, the Income-tax Appellate• Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders there on as it thinks fit."}}, {"text": "TnbunaJ", "label": "COURT", "start_char": 14397, "end_char": 14404, "source": "ner", "metadata": {"in_sentence": "It was also cointended that the arguments raised before this Court were never set up either before the TnbunaJ or before the High Court and should not be permitted to be raised."}}, {"text": "S. Neiliappan", "label": "OTHER_PERSON", "start_char": 14811, "end_char": 14824, "source": "ner", "metadata": {"in_sentence": "In S. Neiliappan's case(') it was held that the conclusion whether a cash credit in the books of account of an assessee is properly explained is one on a question of fact on which no reference can be made to the High Court under s. 66 of the Indian Incometax Act."}}, {"text": "s. 66", "label": "PROVISION", "start_char": 15037, "end_char": 15042, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_715_721_EN", "year": 1969, "text": "V. D. M, R. M. M. R. M. MUTHIAH CHETIIAR\n\nCOMMISSIONER OF INCOME-TAX, MADRAS February 14, 1969\n\n(J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]\n\nIndian Income-tax Act (11 of 1922), ss. 34 and 16(3)-Assessee's return of income as individual not showing that other members of his' firm were his minor sons-Income of minors separately assessed-S. 34(1) and s. 34(l)(b), applicability of income of a minor son whether can be added under s. 16(3 )-Income of assessee after having been separately assessed.\n\nThe assessee and his minor sons separately held shares in a resident firm. For assessment years 1952-53 to 1954-55, the assessee filed returns as an individual and therein stated under the head business income that the profit should be ascertained from the Income-tax Officer assessing the firm.\n\nThe names of the partners were stated, but it was not stated in the return that some of the parties were his minor sons.\n\nThe minors, through their mother as guardian, also filed returns for these assessment years, and they were atisessed to tax. The assessee was also assessed as an individual, in respect of his share in the income of the firm and other sources, but the assessment order did not include the share of the minors from the firm.\n\nThe Income-tax Officer issued notices Of reassessment to the assessee under s. 34(1)(a) of the Indian Income-tax Act, 1922 for the years 1952-53 and 1953-54 and under s. 34(1)(b) for the year 1954-55.\n\nThe Income-tax Officer took the view that the .assessee had not disclosed the fact that his sons were minors and the income of the sons which mould have been included under s. 16(3)(a)(ii) had escaped assessment n the assessee's hands and accordingly he brought that income to tax. The Appellate Assistant Commissioner confirmed this order. The Appellate Tribunal, in appeal held that for the first two years s. 34(l)(a) applied, that in respect of the third year there was no change of opinion but the assessment was made on information received within the meaning Of s. 34(1 )(b) and that the income of the minors could be assessed in the hands of the assessee notwithstanding the separate assessments already made on the minors. On reference, the High Court answered the ques tions against the assessee.\n\nIn appeal, this Court,\n\nHELD: Section 16(3) of the Act imposed an obligation upon the Income-tax Offit, er to compute the total income of any individual for the purpose of assessment by including the items of income set out in els. (a)(i) to (iv) and (b), but thereby no obligation was imposed upon the tax-payer to disclose the income liable to be included in his assessment under s: 16( 3). For failing or omitting to disclose that income proceedings for reassessment could not be commenced under \" 34(1)(a).\n\nSection 22( 5) required the assessee to furnish particulars of the names of the shares of the partners but imposed no obligation to mention or set out the income of the nature mentioned in s. 16( 3). In . the relevant years there was no head in the form of return prescribed under the rules under which income liable to be assessed to tax under s. 16(3)(a) & (b) could be disclosed. These assessments under s. 34(1)(a) for the years 1952-53 .and 1953-54 could not, therefore be upheld. [721 A]\n\n(ii) 'The income of a minor can be included in the hands of an assessee under s. 16(3) of the Act, notwithstanding that an assessment has been made on the minor represented by his guardian. [718 G-H]\n\n?16 SUP.LUlME COURT REPORTS\n\n[1969] 3 S.C.R.\n\n\n(iii) In respect of the assessment years 1954-55, there was n~ bas!s .for the argument that the Income-tax Officer had only changed his oplD!on.\n\nThe order of re-assessment was made well within four years 'from the date of the last day of that assessment year. The notice wasJ therefore, com petently issued by the Income-tax Officer. [721 F] CIVIL APPELLATE JURISDICTION :Civil Appeals Nos. 1457 to 1459 of 1958.\n\nAppeals from the judgment and order dated August 21, 1964 of. the Madras High Court in T.C. No. 75 of 1962 (Reference No. 50 of 1962).\n\nM. C. Chagla and T. A. Ramachandran, for the appellant (in all the appeals).\n\nS. K. Aiyar aail B. D. Sharma, for the respondent (in all the appeals).\n\nThe Judgment of the Court was delivered by Shah, J.\n\nRamanathan Chettiar his son Muthiah Chettiar\n\nailed hereinafter for the sake of brevity, Muthiah-and Ramanathan, Annamalai and Alagappan, sons of Muthiah, constituted a Hindu undivided family. The family owned a 3 /5th share ijll M.R.M.S. Firm, Seramban in Malaya.\n\nThe firm was assessed under the Indian Income-tax Act, 1922, in the status of a firm resident within the taxable territories. On September 16, 1950, Muthiah separated from the family taking his I/5th share in the M.R.M.S. Firm.\n\nOn April 13, 195_1 the status of the family became completely disrupted and the three sons of Muthiah took in equal shares the remaining 2/5th share--the grandfather Rarnanathan taking no share in the M.RM.S: Firm.\n\nFor the assessment year 1952-53 Muthiah submitted a return of his income as an individual and stated under the head business income \"Kidly ascertain his ( assessee's) share of profit and remittances from the Income-tax officer, Second Additional Circle -I, Karaikudi, in F. 6098-m/1952-53\". In Part III of the return\n\nM uthiah supplied the following informatio~ about his partners :\n\nName and address of the firm Name of each partner including\n\nassessee Messrs. R.RM.S. Firm . .\n\n1. Assessee (Muthiah Chettiar) Seramban, F.M.S.\n\n2. VD. M.RM. M.RM. M.\n\nRamanathan Chettiar (minor).\n\n3. VD.M. RM. M. RM. M.\n\nAlagappan Chettiar (minor).\n\n4. VD.M.RM.M.RM.M.\n\nAnnamalai Chettiar (minor)\n\n5. C.P.R.\n\n6. M.S.S,\n\n7. Charity\n\nShjlre\n\n60/303\n\n40/303\n\n40/303\n\n40/303 60/303 60/303\n\n3/303\n\nFor the assessment year 1953-54 in column 3 in section B of the retunn Muthiah stated: \"Kindly ascertain the remittances from the Income-tax Officer, Fifth Additional, Karaikudi in F. 6098-m\", and at p. 3 of the retum in column 3 ol. Section F it was stated :\n\n\"Assessee has 60/303 share in Messrs. :MRMS Joint Se ram ban, (Malaya). Kindly ascertain share of profit or loss from the Income-tax Officer, Fifth Additional.\n\nKaraikudi in F. 6098.\" In Part ill of the retum he set out the names of the partners as\n\nwere mentioned in the return for 1952-53. Against the names of Ramanathan Chettiar, A!agappan Chettiar and Annamalai Chettiar it was not disclOsed that they were minors.\n\nFor the assessment year 1954-55 at the foot of page 1 of the return Muthiah stated :\n\n''The assessee has a remittance of Rs. 6,188-12-0 from R.R.M.S. Firm,· Seramban.\n\nHis share of income may be taken from the firm's file.\",\n\nand in Part IIl the names of seven partners as mentioned in 1952 53 return were set-out-Ramanathan, A!agapp'an, Annamalai wer not shewn as minors.\n\nRamanathan, A!agappan and Aannamalai-the three minor sons of Muthiah represented by their mother allid guardian alw filed returns of their respective income for the years 1952-53, 1953-54 and 1954-55 and disclosed therein their shares in the profit from the 2/5th share in the M.RM.S. Firm.\n\nFor the assessment years 1952-53, 1953-54 and 1954-55 the Income-tax officer completed the assessments separately on the firm.\n\nF on Muthiah as an individual on the three minors represented by their mother and guardian. Muthiah was assessed in respect of his share in the income of the firm and from other sources.\n\nIn his returns Muthiah had not disclosed the share received by his minor sons and the Income-tax Officer did not making the assessments include shares of the minors from the firm under G s. 16(3)(a)(ii) of the Indian Income-tax Act, 1922.\n\nThe Income-tax Officer issued notices of reassessment to Muthiah under s. 34(1) (a) of the Income-tax Act, 1922 for the years 1952-53 and 1953-54 and under s. 34(1) (b) for the year 1954-55. Muthiah filed returns under protest declaring the same income as originally assessed. In the view of the Income-tax Officer Muthiah had not furnished in Part IIl clause ( c) ol. the return full facts regarding B the other narties and in column 2 he had merely disclosed that Ramanathan, Alagappain and Annamalai were minors : that \"information was not full in the sense that he had not stated that LIOSup./69-11\n\nSUPREME COURT REPORTS\n\n[!969] 3 S.C.R,\n\nthey were minors sons\" of Muthiah. Accordingly the Income-tax A Officer held that the income of the sons of Muth1ah which should have been included .under s. 16(3)(a)(ii) of the linlcome-tax Act had escaped assessment in Muthiah's hands and he brought that income to tax.\n\nThe Appellate Assistant Commissioner confirmed the order made by the Income-tax Officer. In appeal to the TribunaJ it was contended by Muthiah that he had fully and truly disclosed all the particulars he was required to disclose in the returns of his income for the three years in question, and \"s. 34(a)(a) had no application to the assessment years 1952-53 and 1953-54 and for 1954-55 the re-opening was based o.nly on a change of opinion\".\n\nMuthiah also conteiOOed that s. 40 of the Income-tax Act was mandatory and since the Income-tax Officer had made separate assessments on the minors represented by their mother, no further assessment under s. 16 ( 3) could be made, the twr sections being mutually exclusive.\n\nThe Tribunal obsc; rved that for the first two years s. 34 ( l) (a) applied, that in respect of the year 1954-55 there was no cha.ngc of opinion but the assessment was made on information received within the meaning of s. 34(1)(b) of the Income-tax Act and that sc; parate assessment of the minors did :not stop the Incometax Officer from assessing the income received by the minor sons in the hands of Muthiah.\n\nThe Appellate Tribunal accordingly confirmed the order of the Appellate Assistant Commissioner.\n\nAt the instance of Muthiah the following questions were referred to the High Court of Madras :\n\n'(i) Whether on the facts and in the circumstances of the case, the re-assessment made on the assessee under s. 34 of the Act is valid in Jaw for 1952-53 to 1954-55?\n\n(ii) Whether on the facts and in the circumstances of the case, the inclusion of the share income of the minor in the hands of the assessee by invoking the provisions of s. 16 ( 3) of the Act is valid in law notwithstanding that an assessment is made on the minor represented by his guardian ?\"\n\nThe answer to the second question must, in view of the recent judgment of this Court in C. R. Nagappa v. The Commissioner of Income-tax, Mysore('), be in the affirmative.\n\nIn considering the first question it is necessarv to refer. to H certain provisions of the Income-fax Act, 1922.' By section 3\n\n(t) [1969] I S.C.R. 979.\n\nthe total income of the previous yea( of every individual, Hindu undivided family, company and l<>cal authority, and of every firm and other association of rsons or the partners of the firm or the members of the associat10n individually was charged to tax for that year i.n accordance with, and subject to the provisions of the act at any rate or rates prescribed by the Finance Act. \"Total income\" was defined ins. 2(15) as meaning \"total amount of income, profits and gains referred to in sub-s. ( 1 ) f section 4 computed in the manner laid down in this Act.\" Secuon 4 ( I ) set out the method of computation of total income : it enacted :\n\n• ( I ) Subject to the provisions of this Act, the total income of any previous year of any person includes all income, profits and gains from whatever source derived which- ( a) are received or are deemed to be received in the taxable territories in such year by or on behalf of such persoin, or\n\n(b) if such person is resident in the taxable\n\nterritories during such year,-\n\n( j) accrue or arise or are deemed to\n\naccrue or arise to him in the taxable territories durinl! such year, or\n\nSection 22 by sub-s. ( 1) required the Income-tax. Officer to give notice by publication in the press in the prescribed niiµiner, requiring every person whose total income during the previ<>us year exceeds the maximum exempt from tax, to fumish a retbrn in the prescribed form setting forth his total income. Sub-section\n\n( 2) authorised the Income-tax Officer to serve a notice upon a person whose income in the opinion of the Income-tax Officer exceeded the minimum free from tax. SectiQ!l 23 dealt with the assessment. It conferred power upon the Income-tax Officer. to assess the total income of the assessee and to deternrine the sum payable by him on the basis of 11uch return, submitted by him.\n\nRule 19 .framed under s. 59 of the Income-ta.Ji; Act, 1922, required the assessee to make a return in the form prescribed thereunder, and io Form A applicable to an individual or a Hindu undivided family or an llSSOCiation of persons there was no clause which requited disclosure of income o, f a, ny person other than the income of the assessee, which was liable to be included in his total income. The Act and the Rules accordingly imoosed no obligation upon the assessee to disclose to the Income-tax Officer in his return information relating to income of any other person by law taxable in his hands.\n\n720 SUPltliME COUllT ltEPOltTS [1969] 3 S.C.lt.\n\nBut s. 16 sub-s. ( 3) provided that in computing the total income of any indiVidual for the purpose of assessment there shall be included the classes of income mentioned in els. (a) and (b).\n\nSub-section ( 3 )(a)( ii) in-so-tar as it is material, provided :\n\n\"In computing the total income of any individual fOr the purpose of assessment, there shall be ipicluded--\n\n(a) so much of the income of a wife or minor child of such individual as arises directly or indirectly- ( i)\n\n(ii) from the admission of the minor to the benefits of partnership in a firm of which such individual 'is a partner;\" The assessee was bound to disclose under s. 22(5) the names and addresses of his par1; ners, i.f any, engaged in business, profession or vocation together with the location and style of the principal place and branches thereof and the extent of the shares of all such partners. in the profits of the business, profession or vocatioo and any branches thereof, but the assessee was not required in m~ a return to disclose that any income was received by his wife or minor child admitted to the benefits of partnership of a firm of which he was a partner.\n\nCounsel for the Commissioner contended that in the forms of returns prescribed in the \"Notes of Guidance\" for drawing up the return were printed, and thereby the assessee was informed that he had to disclose the income received b3 his wife and minor children from a firm of which the assessee was a partner. Counsel has however not placed before the Court the forms of return ill vogue in the relevant year of assessment.\n\nIn the Income Tax Manual published under the authority of the Central Government in 1945 under cl. ( 3) printed at p. 185 the assessee is advised to include the returtll under the appropriate head certain classes of income which are liable to be included in the assessment of an individual under s. 16, and income liable to be taxed under ss. 41 D, 44E and 44F. This instruction was repeated in the Manual Parts II aiOO III at pp. 344 and 345 in the 10th Edition published in 1950.\n\nBut in the 11th Edition of the Manual published i, n 1954 no such instructions were printed.\n\nAbout the date on which the instructions were deleted Counsel for the Commissioner was unable to give any information.\n\nAssuming that there were instructions printed in the Forms of return in the relevant years, in the absence of any head under which the income of the wife or minor child of a partner whose wife or a minor child was a partner in the same firm, could be shown, by not showing that income the tax-payer cannot be deem ed to have failed or omitted to disclose fully and truly all material\n\nfact& necessary for his assessment Section 16 ( 3) imposes an obligation upon the Income-tax Officer to compute the total income of any individual for the purpose of assessment by including the items of income set out in els. (a) (i) to (iv) and (b), but thereby no obligation is imposed upon the tax-payer to . disclose the income liable to be included in his assessment under s. 16 ( 3).\n\nFor faili.ng or omitting to disclose that income pr~ for reassessment cannot therefore be commenced under s. 34(1)(a).\n\nSection 22 ( 5 ) required the assessee to furnish particulars of the names and shares of his partners, but imposes no obligation to mention or set out the income of the nature mentioned in s. 16 ( 3) , In the relevant years there was no head in the form under which income liable to be assessed to tax under s. 16(3)(a) and (b) could be disclosed.\n\nWe are in the circumstances unable to agree with the High Court that s. 34 imposed an obligatic, n upon the assessee to disclose all income includible in his assessment by reason of s. 16 ( 3 )(a)( ii) . Section 34 (1 )(a) sets out the conditions in which the power may be exercised : it did not give rue to an obligation to disclose information which enabled the ncome-tax Oflicer to exercise the power under s. 16(3)(a)(ii), nor had the use of the expression \"necessary for his assessment\" in s. 34(l)(a) that effect.\n\nThe High Court. did not consider the question whether in the year 1954-55 the notice under s. 34(l)(b) was properly issued against Muthiah. The Trib11naI in their judgment observed :\n\n\"There is no basis for the argument that the Incometax Oflicer had only changed his opinion and re-opened the assessment.\"\n\nF We agree with that view.\n\nThe order of re-assessment was made well within four years from the date of the last day of the year of assessment 1954-55.\n\nThe notice was therefore competeintly issued by the Income-tax Oflicer.\n\nThe order passed by the High Court, in so far as it relates to the years 1952-53 and 1953-54 is set aside and the answer in the G negative is recorded. For the year 1954-55 the answer recorded b} the High Court is confirmed. There will be no order as to costs throughout.\n\nY.P.\n\nAppeal partly allowed.", "total_entities": 97, "entities": [{"text": "V. D. M, R. M. M. R. M. MUTHIAH CHETIIAR", "label": "PETITIONER", "start_char": 0, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "V. D. M. R. M. M. R. M. MUTHIAH CHETTIAR", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX, MADRAS", "label": "RESPONDENT", "start_char": 42, "end_char": 76, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, MADRAS", "offset_not_found": false}}, {"text": "February 14, 1969", "label": "DATE", "start_char": 77, "end_char": 94, "source": "ner", "metadata": {"in_sentence": "V. D. M, R. M. M. R. M. MUTHIAH CHETIIAR\n\nCOMMISSIONER OF INCOME-TAX, MADRAS February 14, 1969\n\n(J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 100, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 109, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 126, "end_char": 143, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Indian Income-tax Act", "label": "STATUTE", "start_char": 146, "end_char": 167, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 34 and 16(3)", "label": "PROVISION", "start_char": 182, "end_char": 198, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-tax Act", "statute": "Indian Income-tax Act"}}, {"text": "S. 34(1)", "label": "PROVISION", "start_char": 342, "end_char": 350, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-tax Act", "statute": "Indian Income-tax Act"}}, {"text": "s. 34(l)(b)", "label": "PROVISION", "start_char": 355, "end_char": 366, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-tax Act", "statute": "Indian Income-tax Act"}}, {"text": "s. 16(3 )", "label": "PROVISION", "start_char": 434, "end_char": 443, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-tax Act", "statute": "Indian Income-tax Act"}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 1322, "end_char": 1333, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 1341, "end_char": 1368, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 34(1)(b)", "label": "PROVISION", "start_char": 1413, "end_char": 1424, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "s. 16(3)(a)(ii)", "label": "PROVISION", "start_char": 1621, "end_char": 1636, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "s. 34(l)(a)", "label": "PROVISION", "start_char": 1857, "end_char": 1868, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "s. 34(1 )(b)", "label": "PROVISION", "start_char": 2017, "end_char": 2029, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Section 16(3)", "label": "PROVISION", "start_char": 2286, "end_char": 2299, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Section 22( 5)", "label": "PROVISION", "start_char": 2768, "end_char": 2782, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16( 3)", "label": "PROVISION", "start_char": 2957, "end_char": 2966, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(3)(a)", "label": "PROVISION", "start_char": 3113, "end_char": 3124, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 3175, "end_char": 3186, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(3)", "label": "PROVISION", "start_char": 3341, "end_char": 3349, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras High Court", "label": "COURT", "start_char": 3992, "end_char": 4009, "source": "ner", "metadata": {"in_sentence": "the Madras High Court in T.C. No."}}, {"text": "M. C. Chagla", "label": "OTHER_PERSON", "start_char": 4062, "end_char": 4074, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla and T. A. Ramachandran, for the appellant (in all the appeals)."}}, {"text": "T. A. Ramachandran", "label": "OTHER_PERSON", "start_char": 4079, "end_char": 4097, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla and T. A. Ramachandran, for the appellant (in all the appeals)."}}, {"text": "S. K. Aiyar aail B. D. Sharma", "label": "OTHER_PERSON", "start_char": 4140, "end_char": 4169, "source": "ner", "metadata": {"in_sentence": "S. K. Aiyar aail B. D. Sharma, for the respondent (in all the appeals)."}}, {"text": "Shah", "label": "JUDGE", "start_char": 4256, "end_char": 4260, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J.\n\nRamanathan Chettiar his son Muthiah Chettiar\n\nailed hereinafter for the sake of brevity, Muthiah-and Ramanathan, Annamalai and Alagappan, sons of Muthiah, constituted a Hindu undivided family."}}, {"text": "Ramanathan Chettiar", "label": "JUDGE", "start_char": 4266, "end_char": 4285, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J.\n\nRamanathan Chettiar his son Muthiah Chettiar\n\nailed hereinafter for the sake of brevity, Muthiah-and Ramanathan, Annamalai and Alagappan, sons of Muthiah, constituted a Hindu undivided family.", "canonical_name": "Ramanathan Chettiar"}}, {"text": "Annamalai", "label": "PETITIONER", "start_char": 4379, "end_char": 4388, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J.\n\nRamanathan Chettiar his son Muthiah Chettiar\n\nailed hereinafter for the sake of brevity, Muthiah-and Ramanathan, Annamalai and Alagappan, sons of Muthiah, constituted a Hindu undivided family.", "canonical_name": "Annamalai Chettiar"}}, {"text": "Alagappan", "label": "PETITIONER", "start_char": 4393, "end_char": 4402, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J.\n\nRamanathan Chettiar his son Muthiah Chettiar\n\nailed hereinafter for the sake of brevity, Muthiah-and Ramanathan, Annamalai and Alagappan, sons of Muthiah, constituted a Hindu undivided family.", "canonical_name": "A!agappan Chettiar"}}, {"text": "Malaya", "label": "GPE", "start_char": 4523, "end_char": 4529, "source": "ner", "metadata": {"in_sentence": "The family owned a 3 /5th share ijll M.R.M.S. Firm, Seramban in Malaya."}}, {"text": "firm was assessed under the Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 4536, "end_char": 4591, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "September 16, 1950", "label": "DATE", "start_char": 4661, "end_char": 4679, "source": "ner", "metadata": {"in_sentence": "On September 16, 1950, Muthiah separated from the family taking his I/5th share in the M.R.M.S. Firm."}}, {"text": "Muthiah", "label": "PETITIONER", "start_char": 4681, "end_char": 4688, "source": "ner", "metadata": {"in_sentence": "On September 16, 1950, Muthiah separated from the family taking his I/5th share in the M.R.M.S. Firm.", "canonical_name": "Muthiah"}}, {"text": "April 13, 195_1", "label": "DATE", "start_char": 4764, "end_char": 4779, "source": "ner", "metadata": {"in_sentence": "On April 13, 195_1 the status of the family became completely disrupted and the three sons of Muthiah took in equal shares the remaining 2/5th share--the grandfather Rarnanathan taking no share in the M.RM.S: Firm."}}, {"text": "Rarnanathan", "label": "OTHER_PERSON", "start_char": 4927, "end_char": 4938, "source": "ner", "metadata": {"in_sentence": "On April 13, 195_1 the status of the family became completely disrupted and the three sons of Muthiah took in equal shares the remaining 2/5th share--the grandfather Rarnanathan taking no share in the M.RM.S: Firm."}}, {"text": "Muthiah", "label": "PETITIONER", "start_char": 5009, "end_char": 5016, "source": "ner", "metadata": {"in_sentence": "For the assessment year 1952-53 Muthiah submitted a return of his income as an individual and stated under the head business income \"Kidly ascertain his ( assessee's) share of profit and remittances from the Income-tax officer, Second Additional Circle -I, Karaikudi, in F. 6098-m/1952-53\".", "canonical_name": "Muthiah"}}, {"text": "uthiah", "label": "PETITIONER", "start_char": 5297, "end_char": 5303, "source": "ner", "metadata": {"in_sentence": "In Part III of the return\n\nM uthiah supplied the following informatio~ about his partners :\n\nName and address of the firm Name of each partner including\n\nassessee Messrs. R.RM.S. Firm . .", "canonical_name": "Muthiah"}}, {"text": "Assessee (Muthiah Chettiar) Seramban", "label": "RESPONDENT", "start_char": 5460, "end_char": 5496, "source": "ner", "metadata": {"in_sentence": "Assessee (Muthiah Chettiar) Seramban, F.M.S.\n\n2."}}, {"text": "S.\n\n2", "label": "PROVISION", "start_char": 5502, "end_char": 5507, "source": "regex", "metadata": {"linked_statute_text": "The firm was assessed under the Indian Income-tax Act, 1922", "statute": "The firm was assessed under the Indian Income-tax Act, 1922"}}, {"text": "VD. M.RM. M.RM. M.\n\nRamanathan Chettiar", "label": "RESPONDENT", "start_char": 5509, "end_char": 5548, "source": "ner", "metadata": {"in_sentence": "VD."}}, {"text": "VD.M. RM. M. RM. M.\n\nAlagappan Chettiar", "label": "RESPONDENT", "start_char": 5562, "end_char": 5601, "source": "ner", "metadata": {"in_sentence": "VD.M. RM."}}, {"text": "Annamalai Chettiar", "label": "RESPONDENT", "start_char": 5632, "end_char": 5650, "source": "ner", "metadata": {"in_sentence": "VD.M.RM.M.RM.M.\n\nAnnamalai Chettiar (minor)\n\n5.", "canonical_name": "Annamalai Chettiar"}}, {"text": "C.P.R.", "label": "RESPONDENT", "start_char": 5663, "end_char": 5669, "source": "ner", "metadata": {"in_sentence": "C.P.R.\n\n6."}}, {"text": "M.S.S", "label": "RESPONDENT", "start_char": 5674, "end_char": 5679, "source": "ner", "metadata": {"in_sentence": "M.S.S,\n\n7."}}, {"text": "Charity\n\nShjlre", "label": "RESPONDENT", "start_char": 5685, "end_char": 5700, "source": "ner", "metadata": {"in_sentence": "Charity\n\nShjlre\n\n60/303\n\n40/303\n\n40/303\n\n40/303 60/303 60/303\n\n3/303\n\nFor the assessment year 1953-54 in column 3 in section B of the retunn Muthiah stated: \"Kindly ascertain the remittances from the Income-tax Officer, Fifth Additional, Karaikudi in F. 6098-m\", and at p. 3 of the retum in column 3 ol."}}, {"text": "Ramanathan Chettiar", "label": "JUDGE", "start_char": 6329, "end_char": 6348, "source": "ner", "metadata": {"in_sentence": "Against the names of Ramanathan Chettiar, A!agappan Chettiar and Annamalai Chettiar it was not disclOsed that they were minors.", "canonical_name": "Ramanathan Chettiar"}}, {"text": "A!agappan Chettiar", "label": "PETITIONER", "start_char": 6350, "end_char": 6368, "source": "ner", "metadata": {"in_sentence": "Against the names of Ramanathan Chettiar, A!agappan Chettiar and Annamalai Chettiar it was not disclOsed that they were minors.", "canonical_name": "A!agappan Chettiar"}}, {"text": "Annamalai Chettiar", "label": "PETITIONER", "start_char": 6373, "end_char": 6391, "source": "ner", "metadata": {"in_sentence": "Against the names of Ramanathan Chettiar, A!agappan Chettiar and Annamalai Chettiar it was not disclOsed that they were minors.", "canonical_name": "Annamalai Chettiar"}}, {"text": "Ramanathan", "label": "PETITIONER", "start_char": 6751, "end_char": 6761, "source": "ner", "metadata": {"in_sentence": "and in Part IIl the names of seven partners as mentioned in 1952 53 return were set-out-Ramanathan, A!agapp'an, Annamalai wer not shewn as minors.", "canonical_name": "Ramanathan Chettiar"}}, {"text": "A!agapp'an", "label": "PETITIONER", "start_char": 6763, "end_char": 6773, "source": "ner", "metadata": {"in_sentence": "and in Part IIl the names of seven partners as mentioned in 1952 53 return were set-out-Ramanathan, A!agapp'an, Annamalai wer not shewn as minors.", "canonical_name": "A!agappan Chettiar"}}, {"text": "Annamalai", "label": "PETITIONER", "start_char": 6775, "end_char": 6784, "source": "ner", "metadata": {"in_sentence": "and in Part IIl the names of seven partners as mentioned in 1952 53 return were set-out-Ramanathan, A!agapp'an, Annamalai wer not shewn as minors.", "canonical_name": "Annamalai Chettiar"}}, {"text": "A!agappan", "label": "PETITIONER", "start_char": 6823, "end_char": 6832, "source": "ner", "metadata": {"in_sentence": "Ramanathan, A!agappan and Aannamalai-the three minor sons of Muthiah represented by their mother allid guardian alw filed returns of their respective income for the years 1952-53, 1953-54 and 1954-55 and disclosed therein their shares in the profit from the 2/5th share in the M.RM.S. Firm.", "canonical_name": "A!agappan Chettiar"}}, {"text": "Aannamalai", "label": "PETITIONER", "start_char": 6837, "end_char": 6847, "source": "ner", "metadata": {"in_sentence": "Ramanathan, A!agappan and Aannamalai-the three minor sons of Muthiah represented by their mother allid guardian alw filed returns of their respective income for the years 1952-53, 1953-54 and 1954-55 and disclosed therein their shares in the profit from the 2/5th share in the M.RM.S. Firm."}}, {"text": "s. 16(3)(a)(ii)", "label": "PROVISION", "start_char": 7606, "end_char": 7621, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 7629, "end_char": 7656, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 34(1)", "label": "PROVISION", "start_char": 7730, "end_char": 7738, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 7750, "end_char": 7770, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 34(1)", "label": "PROVISION", "start_char": 7815, "end_char": 7823, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Ramanathan", "label": "JUDGE", "start_char": 8125, "end_char": 8135, "source": "ner", "metadata": {"in_sentence": "the return full facts regarding B the other narties and in column 2 he had merely disclosed that Ramanathan, Alagappain and Annamalai were minors : that \"information was not full in the sense that he had not stated that LIOSup./69-11\n\nSUPREME COURT REPORTS\n\n[!", "canonical_name": "Ramanathan Chettiar"}}, {"text": "Alagappain", "label": "PETITIONER", "start_char": 8137, "end_char": 8147, "source": "ner", "metadata": {"in_sentence": "the return full facts regarding B the other narties and in column 2 he had merely disclosed that Ramanathan, Alagappain and Annamalai were minors : that \"information was not full in the sense that he had not stated that LIOSup./69-11\n\nSUPREME COURT REPORTS\n\n[!", "canonical_name": "A!agappan Chettiar"}}, {"text": "Muth1ah", "label": "PETITIONER", "start_char": 8411, "end_char": 8418, "source": "ner", "metadata": {"in_sentence": "Accordingly the Income-tax A Officer held that the income of the sons of Muth1ah which should have been included .under s. 16(3)(a)(ii) of the linlcome-tax Act had escaped assessment in Muthiah's hands and he brought that income to tax.", "canonical_name": "Muthiah"}}, {"text": "s. 16(3)(a)(ii)", "label": "PROVISION", "start_char": 8458, "end_char": 8473, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "TribunaJ", "label": "OTHER_PERSON", "start_char": 8682, "end_char": 8690, "source": "ner", "metadata": {"in_sentence": "In appeal to the TribunaJ it was contended by Muthiah that he had fully and truly disclosed all the particulars he was required to disclose in the returns of his income for the three years in question, and \"s. 34(a)(a) had no application to the assessment years 1952-53 and 1953-54 and for 1954-55 the re-opening was based o.nly on a change of opinion\"."}}, {"text": "s. 34(a)(a)", "label": "PROVISION", "start_char": 8872, "end_char": 8883, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 9049, "end_char": 9054, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 9062, "end_char": 9076, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 16", "label": "PROVISION", "start_char": 9225, "end_char": 9230, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 9348, "end_char": 9353, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1)(b)", "label": "PROVISION", "start_char": 9514, "end_char": 9525, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 9533, "end_char": 9547, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 9877, "end_char": 9897, "source": "ner", "metadata": {"in_sentence": "At the instance of Muthiah the following questions were referred to the High Court of Madras :\n\n'(i) Whether on the facts and in the circumstances of the case, the re-assessment made on the assessee under s. 34 of the Act is valid in Jaw for 1952-53 to 1954-55?"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 10010, "end_char": 10015, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 10238, "end_char": 10243, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-fax Act, 1922", "label": "STATUTE", "start_char": 10627, "end_char": 10647, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 10653, "end_char": 10662, "source": "regex", "metadata": {"linked_statute_text": "the Income-fax Act, 1922", "statute": "the Income-fax Act, 1922"}}, {"text": "section 4", "label": "PROVISION", "start_char": 11196, "end_char": 11205, "source": "regex", "metadata": {"linked_statute_text": "the Income-fax Act, 1922", "statute": "the Income-fax Act, 1922"}}, {"text": "Section 22", "label": "PROVISION", "start_char": 11823, "end_char": 11833, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 59", "label": "PROVISION", "start_char": 12548, "end_char": 12553, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 13186, "end_char": 13191, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22(5)", "label": "PROVISION", "start_char": 13819, "end_char": 13827, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 14817, "end_char": 14835, "source": "ner", "metadata": {"in_sentence": "In the Income Tax Manual published under the authority of the Central Government in 1945 under cl. 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{"document_id": "1969_3_722_729_EN", "year": 1969, "text": "COMMISSIONER OF INCOME-TAX, WEST BENGAL\n\nALLAHABAD BANK LIMITED\n\nFebruary 14, 1969\n\n[J.C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.] B\n\nFinance Acts, 1956 ant( 1951-Explanation to Paragraph D of Part JI-Definition 'of 'share prtmium account'; whether such account liable to be included in the paid-up-capital for computing rebate of super taxi! to qualify for inclusion it is sufficient if ii is an identifiable separate account within the reserves--Companies Act, 1956, •· 78 (3) r.w.s. 78(1) -Effect of.\n\nIn proceedings for assessment to tax for each of the assessment years 1956-57 and 1957-58, the Income Tax Officer reduced the rebate in supertax admissible to the respondent under the Finance Acts of 1956 and 1957 on the view that the respondent bank, which was a public limited company, had distributed dividends exceeding 6% of its paid-up-capital.\n\nIn reducing the rebate the Income Tax Officer excluded an amount representing share premium received by the company.\n\nThe Appellate Assistant Commissioner held that the company's share premium was liable to be added to its capital in computing the reduction in the rebate in super-tax and directed modification of the order of assessment The Appellate Tribunal in appeal, as well as the High Court, on a reference, agreed with this view.\n\nIn the appeal to this Court, it was contended on behalf of the appellant that the amount representing share premium was not to be added to the share caJ)ital because ( 1) the expression \"share premium account\" in the definition of ''paid-up capital\" in the Explanation to Paragraph D of Part II of the Finance Acts of 1956 and 1957 means an account apart from the rP.Sel'ves maintained by the company; and ( 2) in view of the proVisions of s. 78 (3) read withs. 78(1) of the Companies Act, 1956, the respondent company was bound to maintain a separate share premium account outside the reserves and to transfer the share premium into that accow1t which the -respondent company had failed to do.\n\nHEW : A share premium account is liable to bti included in the pai<1-u1> capital for the purpose of computing rebate if it is maintained as a separate account.\n\nBut the Explanation to paragraph D of Part II of the Finance Acts of 1956 and 1957 does not contemplate that the account must be kept apart from the reserves. If within the reserves it is an identifiable separate account, the share premium will qualify for inclusion in the paid-up capital. [~28 HJ\n\nAlthough Uhder the Companies Act 1 of 1956 there was an express provision that the share p'remium a¢ount shall be maintained in a separate account and by virtue of Sch. VI of the Act the share premium has to be shown in the balance sheet under the head \"Liabilities\" as part of the share capital and not of reserves, on that account it cannot be assum ed t.hat if the share premium is maint.ained as a separate account within .the reserves, reduction in the rebate in super-tax is liable to be computed after excluding share premium. [728 CJ\n\nIn any event with respect to tbe assessment year 1956-57 the .<:ompany was being assessed to tax for the previous year of the company ending on\n\nc I\n\nDecember, 1955, when the Companies Act of 1956 was not in for~.\n\nDuring that period the eompany was governed by Act 7 of 1913 which contained no provision analogous to s. 78. of the 1956 Act. (727 C-DJ\n\nC1v1L APPELLATE JURISDICTION: Civil Appeals Nos. 701 and 702 of 1968.\n\nAppeals from the judgments and orders dated December I 7, 1963 and April 6, 1965 of the Calcutta High Court in. Incometax References Nos. 87 of 1960 and 30 of 1962 respecuvely.\n\nS. T. Desai, S. C. Manchanda and B. D. Sharma, for the appellants (in both the appeals).\n\nSachin Chaudhuri, Sukumar Mitra and D. N, Mukherjee, for the respondent (in both the appeals) .\n\nThe Judgment of the Court was delivered by Shah, J. The Allahabad Bank Ltd. is a public limited company. The paid-up share capital of the Company other than capital entitled to a dividend at .t fixed rate was at the relevant time Rs. 30,50,00U The Company had issued before January l, 1954, shares at premium and the premium received in cash aggregated to Rs. 45,5(\\000. In each of the account years 1955 and 1956 the Company distributed Rs. 5,49,000 as dividend.\n\nIn proceedings for assessment for each of the assessment years 1956-57 and 1957-:i8 the Incom~-tax Officer reduced by Rs. 61,000 the rebate in super-tax admissible under the Finance Acts 1956 on the view that the Company had distributed dividend exceeding 6% of its paid-up capital. In reducing the rebate the Income-tax Officer did not take into consideration share premium amounting to Rs. 45,50,000 received by the Company.\n\nThe Appellate Assistant Commiss10ner held that the Company's share premium was liable to be added to the capital of Rs. 30,50,000 in computin~ the reduction in the rebate in supertax, and directed modification of the order of assessment. The Appellate Tribunal agreed with the Appellate Assistant Commissioner.\n\nThe Tribunal then submitted a statement of the case and submitted the following question in respect of the year 1956-57 to the High Court of Calcutta :\n\n\"Whether on the facts and in the circumstances of the case, the ainount of Rs. 4S,50,000 should be added to the paid-up capital of the assessee as on 1st January, 1955, for the purpose of allowing rebate to the assessee under Paragraph D of Part II of the First Schedule to the Indian Finance Act, 1956.\"\n\nA similar question relating to the assessment year 1957-58 was also referred by the Tribunal. The High Court of Ca1•1tta agreed\n\n724 [1969] 3 S.C.\\l.\n\nwith the. Tribunal and held that in determining the reduction in rebate in super-tax admissible to the Company the share premium maintained by the Company within the reserves was liable to be included in the paid-up capital.\n\nThe Finance Act, 1956 prescribed the rate of super-tax in Part II. Paragraph D (in so far as it is relevant) enacted :\n\n\"In the case of every company-\n\nOn the whole of total income\n\nProvided that-\n\nRate Six annas and nine pies in the rupee.\n\n( i) a rebate at the rate of five annas per rupee of the total income shall be allowed in the case of any company which- ( a) in respect of its profits liable to tax under the Income-tax Act for the year ending on the 31st day of March,, 1957, has made the prescribed arrangements for the declaration and payment within the territory of India of the dividends payable out of such profits and for the deduction of supertax from dividends in accordance with the provisions of sub-section ( 3D) of section 18 of that Act, and\n\n(b}\n\n(ii) a rebate at the rate of four annas per rupee of the total income shall be allowed in the case of any Company which satisfied condition (a)\n\nbut not condition (b) of the preceding clause; F\n\nProvided further that- ( i) the amount of the rebate under clause ( i) or\n\n~ . . . . . . . of the preceding proviso shall be reduced by the sum, if any, equal_ to the amount or the aggregate of the G amounts as the case may be, computed as hereunder:-\n\n(a) .\n\n(b) in addition, in the case of a company referred to in clause (ii) of the preceding proviso which has distributed to its shareholders during the previous year \"dividends in excess of six per cent of its paid-up\n\ncapital, not being dividends payable at a fixed rateon that part of the said dividends which exceeds 6 per cent but does not exceed 10 per cent of the paid-up capital;\n\non that part of the said dividends which exceeds 10 per cent of the paid-up capital;\n\n(ii) .\n\nProvided further that\n\nat the rate of two annas per rupee\n\nat the rate of three annas per rupee;\n\nExplanation :-For the Purposes of Paragraph D Partof this\n\n( i) the expression \"paid-up capital\" means the paidup capital (other than capital entitled to a dividend at a fixed rate) of the Company as on the first day of the previous year relevant to the assessment for the year ending on 31st day of March, 1957, increased by any premiums received in cash by the company on the issue of its shares, standing to the credit of the share premium account as on the first day of the prevmus year \"\n\nIn the Finance Act of 1957 also a similar scheme of granting rebate of super-tax and reduction therein in the conditions set out in the Act, was adopted.\n\nThe reduction in rebate in super-tax depended upon the proportion which the dividend distributed bore to the paid-up capital.\n\nIf the Company distributed dividends exceeding 6% of its paid-up capital as defined in the explanation, the rebate was liable to be reduced to the extcmt provided in the second proviso. In the relevant years of account, the share premium formed an identifiable part of the reserves of the Company but was not shown in a separate share premium account apart from the reserves.\n\nThe Commissioner contends : ( 1 ) that the expression \"share premium account\" in the definition of \"paid-up capital\" in the Explanation to Paragraph D of Part II of the Finance Acts 1956 and 1957 means an account apart from the reserves maintained by the Company; and\n\n(2) that in any event since the enactment of the Companies Act, 1956 \"share premium\" not maintainable as a separate account cannot be taken into consideration\n\nSUPREMIE COURT. REPORTS\n\n(1969) 3 S.C.R.\n\nin dealing with the claim for rebate in the payment of super-tax and reduction in the rate thereof.\n\nCounsel for the Commissioner relied upon s. 7 8 ( 3) read with s. 78(1) of the Companies Act l of 1956, and submitted that the Company was bound to maintain a separate share premium account outside the reserves and transfer into that account the share premium and since the Company failed to do so, in determining the paid-up capital within the meaning of the Expianation to Paragraph D of the Finance Acts 1956 and 1957 the share premium within the reserve could not be taken into account. The relevant clauses of s. 78 of the Companies Act I of 1956 provide:-\n\n\"(1)\n\n(2)\n\n(3)\n\nWhere a company issues shares at a premium, whether for cash or otherwise, a sum equal to the aggregate amount or value of the premiums on those shares shall be transferred to an account, to be called \"the share premium account\"; and the provisions of this Act relating to the reduction of the share capital of a company shall, except as provided in this section, apply as if the share premium account were paid-up share capital of the Company.\n\nWhere a company has passed a resolution authorising the issue of any shares at a premium, this section shall apply as if the shares had been issued after the commencement of this Act :\n\nProvided that any pari of the premiums which has been so aoolied that it does not at the commencement of this Act form an identifiable part of the company's reserves within the meaning of Schedule VI, shall be disregarded in determining the sum to be included in the share premium account.\"\n\nClause (1 ) is in terms prospective : it requires a Company to transfer premiums received in cash or otherwise on shares to the share premium account.\n\nBy clause (3) any premium received prLor to the coming into force of the Companies Act, 1956 less that part of the premium which had been so applied so that it did not, at the commencement of the Act, form an identifiable part of the Company's reserves, had also to be transferred to the share jlremium account as if the shares had been issued after the commencement of the Act. Section 78 was apparently borrowed from s. 56 of the English Companies 1948 (11 & 12 Geo. 6 ch. 38.) Before the Companies Act of 1956 there was provision in the Indian Companies Act 1913 which required a Company to maintain a separate share premium account. After the coming into force of the Companies Act 1 of 1956 a share premium account had to be maintained and the share premium could not be used otherwise than for the specific purposes mentioned in s. 7 8 ( 2) .\n\nThe plea raised by the Commissioner that the Company failed to comply with the statutory injunction contained in Cl. ( 1) of s. 78 and on that account the premium received were not \"standing to the credit of the share premium accounts within the meaning of the Explanation to Paragraph D in the Finance Act 1956 may be rejected on a simple ground.\n\nIn the assessment year 1956-57 the Company was being assessed to tax in respect of the previous year of the Company ending on December 31, 1955. In the calendar year 1955, the company was governed by the Indian Companies Act 7 of 1913 which contained no provision analogous to s. 78 of the Companies Act I of\n\n1956. The Companies Act was before the Parliament during the year 1955, but the Company was on that account not obliged to transfer to a separate share premium account independent of the reserve the premiums received prior to January I,\n\n1955. The Companies Act came into force on April 1, 1956 : it had no retrospective operation. Since there was no obligation upon the Company to maintain a separate share premium account in the previous year corresponding to the assessment year 1956-57, the share premium account maintained as an identifiable account within the reserves qualified for being included in the paid up capital within the meaning of this expression in the Explanation to Paragraph D Part II of the Finance Act. 1956.\n\nFor the assessment year 1956-57, therefore rebate in , uper-tax was liable to be reduced, if the Company had distributed dividend exceeding six per cent of the paid-up capital inclusive of share premiums maintained as an identifiable account.\n\nThe contention raised by the Commissioner must therefore fail in respect of theassessment year 1956-57.\n\nCounsel for the Commissioner contends that in any event in the Finance Act 2 of 1957 the expression \"share premium account\" has only the meaning ascribed thereto in the Companies Act, !956,\n\nand in respect of the assessment year 1957-58, reduction in the rebate must be computed without talcing into account the share premium which was maintained by the Company in the year of 1ccount 1956 within the reserve.\n\nUnder the Finance Act 2 of 1957 rebate in super-tax is liable to be reduced in the case of Companies which have, inter a/ia, distributed to the shareholders in the previous year dividends in excess of 6 per ceint of the paid-up capital not being dividend payable at\n\nSUPRBM~ COURT REPORTS\n\n(1969] 3 S.C.R.\n\n. a fixed rate.\n\nThe expression \"paid-up capital\" is also defined in substantially the same terms as under the Finance Act, 1956.\n\nFor the assessment year 1957-58 the Tribunal tound that the share premium was liable to be included in the paid-up capital, because it was an identifiable part of the reserves. In our judgment the Tribunal was right in so holding. The Explanation to Paragraph D Part II of the Finance Act, 1957, does not require that the share premium account must be maintained as an account outside the reserves.\n\nUnder the Companies Act 1 of 1956 there was an express provision that the share premium account shall be maintained in a separate account. It is true that in the balance-sheet in Sch. VI of the Act the share premium has to be shown under the head \"Liabilities\" as part of the share capital and not of reserves.\n\nBut it cannot be assumed on that account that if the share premium is maintained as a separate account within the reserves, reduction in the rebate in super-tax is liable to be computed after excluding share premium. The Explanation requires that in determining the paid-up capital for the purpose of rebate in super-tax, share premium sta.nding to the credit of a share premium account shall be excluded : it does not make maintenance of an account outside the reserve a condition of its inclusion in the paid-up capital.\n\nAgain if under the Finance Act, 1956, the expression \"standing to the credit of the share premium account\" did not mean that the share premiums shall be maintained in a separate account apart from the reserve, is there any reason why, under an identical scheme of reducing rebate in super-tax in the year 1957-58, it s)lould have a different meaning ? In the absence of any compelling grounds, we would not be justified in holding that the Parliament attributed to the expression \"standing to the credit of the share premium account\" as used in the Explanation to Paragraph D Part II of the Finance Act 2 of 1957, a meaning different from the one which it had under the Finance Act, 1956. The object of the Parliament in enacting Paragraph D of the Finance Act was that profits earned by a Company should be available for being ploughed back into the business and should not be distributed to the shareholders by way of dividend in excess of the rate prescribed. To secure that object the Parliament gave an incentive to the Company of substantial rebate in payment of super-tax which would be liable to be forfeited, if part of dividend exceeding 6 per cent was distri- .buted to the share-holders.\n\nShare premium account is accordingly liable to be included in the paid-up capital for the purpose of computing rebate if it is maintained as a separate account. The Explanation does not contemplate that the account must be kept apart from the reserves.\n\nIf within the reserves it is an identifiable separate account, the\n\nA share premium will qualify for inclusion in the paid-up capital in computing the reduction in rebate of super-tax.\n\nThe appeals fail and are dismissed with costs, One hearing fee..\n\nB R.K.P.S.\n\nAppeals dismissed ..", "total_entities": 64, "entities": [{"text": "COMMISSIONER OF INCOME-TAX, WEST BENGAL", "label": "PETITIONER", "start_char": 0, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, WEST BENGAL", "offset_not_found": false}}, {"text": "ALLAHABAD BANK LIMITED", "label": "RESPONDENT", "start_char": 41, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "ALLAHABAD BANK LIMITED", "offset_not_found": false}}, {"text": "February 14, 1969", "label": "DATE", "start_char": 65, "end_char": 82, "source": "ner", "metadata": {"in_sentence": "COMMISSIONER OF INCOME-TAX, WEST BENGAL\n\nALLAHABAD BANK LIMITED\n\nFebruary 14, 1969\n\n[J.C. 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T. Desai", "label": "LAWYER", "start_char": 3599, "end_char": 3610, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, S. C. Manchanda and B. D. Sharma, for the appellants (in both the appeals)."}}, {"text": "S. C. Manchanda", "label": "LAWYER", "start_char": 3612, "end_char": 3627, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, S. C. Manchanda and B. D. Sharma, for the appellants (in both the appeals)."}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 3632, "end_char": 3644, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, S. C. Manchanda and B. D. Sharma, for the appellants (in both the appeals)."}}, {"text": "Sachin Chaudhuri", "label": "LAWYER", "start_char": 3689, "end_char": 3705, "source": "ner", "metadata": {"in_sentence": "Sachin Chaudhuri, Sukumar Mitra and D. N, Mukherjee, for the respondent (in both the appeals) ."}}, {"text": "Sukumar Mitra", "label": "LAWYER", "start_char": 3707, "end_char": 3720, "source": "ner", "metadata": {"in_sentence": "Sachin Chaudhuri, Sukumar Mitra and D. N, Mukherjee, for the respondent (in both the appeals) ."}}, {"text": "D. N", "label": "LAWYER", "start_char": 3725, "end_char": 3729, "source": "ner", "metadata": {"in_sentence": "Sachin Chaudhuri, Sukumar Mitra and D. N, Mukherjee, for the respondent (in both the appeals) ."}}, {"text": "Shah", "label": "JUDGE", "start_char": 3829, "end_char": 3833, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J. The Allahabad Bank Ltd. is a public limited company."}}, {"text": "Allahabad Bank Ltd.", "label": "ORG", "start_char": 3842, "end_char": 3861, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J. The Allahabad Bank Ltd. is a public limited company."}}, {"text": "January l, 1954", "label": "DATE", "start_char": 4060, "end_char": 4075, "source": "ner", "metadata": {"in_sentence": "30,50,00U The Company had issued before January l, 1954, shares at premium and the premium received in cash aggregated to Rs."}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 5118, "end_char": 5140, "source": "ner", "metadata": {"in_sentence": "The Tribunal then submitted a statement of the case and submitted the following question in respect of the year 1956-57 to the High Court of Calcutta :\n\n\"Whether on the facts and in the circumstances of the case, the ainount of Rs."}}, {"text": "1st January, 1955", "label": "DATE", "start_char": 5294, "end_char": 5311, "source": "ner", "metadata": {"in_sentence": "4S,50,000 should be added to the paid-up capital of the assessee as on 1st January, 1955, for the purpose of allowing rebate to the assessee under Paragraph D of Part II of the First Schedule to the Indian Finance Act, 1956.\""}}, {"text": "Paragraph D of Part II of the First Schedule to the Indian Finance Act, 1956", "label": "STATUTE", "start_char": 5370, "end_char": 5446, "source": "regex", "metadata": {}}, {"text": "High Court of Ca1•1tta agreed\n\n724 [1969] 3 S.C.\\l", "label": "COURT", "start_char": 5548, "end_char": 5598, "source": "ner", "metadata": {"in_sentence": "The High Court of Ca1•1tta agreed\n\n724 [1969] 3 S.C.\\l."}}, {"text": "Finance Act, 1956", "label": "STATUTE", "start_char": 5831, "end_char": 5848, "source": "regex", "metadata": {}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 6245, "end_char": 6259, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "31st day of March,, 1957", "label": "DATE", "start_char": 6287, "end_char": 6311, "source": "ner", "metadata": {"in_sentence": "( i) a rebate at the rate of five annas per rupee of the total income shall be allowed in the case of any company which- ( a) in respect of its profits liable to tax under the Income-tax Act for the year ending on the 31st day of March,, 1957, has made the prescribed arrangements for the declaration and payment within the territory of India of the dividends payable out of such profits and for the deduction of supertax from dividends in accordance with the provisions of sub-section ( 3D) of section 18 of that Act, and\n\n(b}\n\n(ii) a rebate at the rate of four annas per rupee of the total income shall be allowed in the case of any Company which satisfied condition (a)\n\nbut not condition (b) of the preceding clause; F\n\nProvided further that- ( i) the amount of the rebate under clause ( i) or\n\n~ . . . . . . ."}}, {"text": "India", "label": "GPE", "start_char": 6406, "end_char": 6411, "source": "ner", "metadata": {"in_sentence": "( i) a rebate at the rate of five annas per rupee of the total income shall be allowed in the case of any company which- ( a) in respect of its profits liable to tax under the Income-tax Act for the year ending on the 31st day of March,, 1957, has made the prescribed arrangements for the declaration and payment within the territory of India of the dividends payable out of such profits and for the deduction of supertax from dividends in accordance with the provisions of sub-section ( 3D) of section 18 of that Act, and\n\n(b}\n\n(ii) a rebate at the rate of four annas per rupee of the total income shall be allowed in the case of any Company which satisfied condition (a)\n\nbut not condition (b) of the preceding clause; F\n\nProvided further that- ( i) the amount of the rebate under clause ( i) or\n\n~ . . . . . . ."}}, {"text": "section 18", "label": "PROVISION", "start_char": 6564, "end_char": 6574, "source": "regex", "metadata": {"linked_statute_text": "The Finance Act, 1956", "statute": "The Finance Act, 1956"}}, {"text": "31st day of March, 1957", "label": "DATE", "start_char": 7916, "end_char": 7939, "source": "ner", "metadata": {"in_sentence": "Provided further that\n\nat the rate of two annas per rupee\n\nat the rate of three annas per rupee;\n\nExplanation :-For the Purposes of Paragraph D Partof this\n\n( i) the expression \"paid-up capital\" means the paidup capital (other than capital entitled to a dividend at a fixed rate) of the Company as on the first day of the previous year relevant to the assessment for the year ending on 31st day of March, 1957, increased by any premiums received in cash by the company on the issue of its shares, standing to the credit of the share premium account as on the first day of the prevmus year \"\n\nIn the Finance Act of 1957 also a similar scheme of granting rebate of super-tax and reduction therein in the conditions set out in the Act, was adopted."}}, {"text": "Companies Act, 1956", "label": "STATUTE", "start_char": 9099, "end_char": 9118, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "SUPREMIE COURT. REPORTS\n\n(1969) 3 S.C.R.", "label": "COURT", "start_char": 9210, "end_char": 9250, "source": "ner", "metadata": {"in_sentence": "The Commissioner contends : ( 1 ) that the expression \"share premium account\" in the definition of \"paid-up capital\" in the Explanation to Paragraph D of Part II of the Finance Acts 1956 and 1957 means an account apart from the reserves maintained by the Company; and\n\n(2) that in any event since the enactment of the Companies Act, 1956 \"share premium\" not maintainable as a separate account cannot be taken into consideration\n\nSUPREMIE COURT."}}, {"text": "s. 7", "label": "PROVISION", "start_char": 9394, "end_char": 9398, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1956", "statute": "the Companies Act, 1956"}}, {"text": "s. 78(1)", "label": "PROVISION", "start_char": 9416, "end_char": 9424, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1956", "statute": "the Companies Act, 1956"}}, {"text": 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{"document_id": "1969_3_730_735_EN", "year": 1969, "text": "R. OBLISWAMI NAIDU\n\nADDL. STATE TRANSPORT\n\nAPPELLATE TRIBUNAL,\n\nMADRAS & ORS.\n\nFebruary 17, 1969\n\n[S. M. SJKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.)\n\nMotor Vehicles Act (4 of 1939), ss. 41 and 57-App/ication for staRe carriage pern1it an new route-Procedure to be followed.\n\nThe appellant applied to the R.T.A. for a permit to ply a stage carriage on a new route on which no stage carriage was plying before. The R.T.A. published the application under s. 57(3) of the Motor Vehicles Act, 1939.\n\nSome representations against the grant of the permit on the ground that there was no need we're received.\n\nThe R. T.A., after over~ ruling the objections granted the permit to the appellant. The appeal by. some of the objectors was allowed by the State Transport Appellate Tribunal on the ground that the procedure adopted by the R.T.A. was not in accordance with law inasmuch as it failed to determine the question of the need for a service in that 'route before entertaining the application.\n\nThe appellate order was confirmed by the High Court.\n\nIn appeal to this Court,\n\nHELD : (Dismissing the appeal) Having regard to the purpose behind ss. 47 and 57, that only public interest should be considered and any manipulation in favoUr of a particular applicant shou1d be eliminated. there should be two independent steps before granting a stage carriage permit : (a) there should be a determination by the R.T.A., under s. 4 7 (3), of the number of stage carriages for which permits may be granted -00 that r<>ute, and (b) applications for permits for such number of stage carriages should be entertained thereafter.\n\nOtherwise, theo R.T.A. will have no oppcrtunity to choose between competing operators.\n\nThe 're~ presentations' made under s. 57(3) cannot be considered as competing applications. Further, if 'representations' should be interpreted to include 'applications', then •· 57(3) becomes unworkable as there will be unending applications and publications. [733 B-C, F. H]\n\nlcrya Ram Motor Service v. S. Rajarathinam, C.A. No. 95165 datcJ 27-10-1967, fOll\\)Wed.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1426 of 1968.\n\nAppeal from the .iudgment and order dated April 16, 1968 of the Madras High Court in Writ Petition No. 908 of 1968.\n\nD. Narsaraju Subramaniam, Vineet Kumar, J. Ramamurthy, P. S. Khera and Shyamala Pappu, for the appellant.\n\nS. T. Desai, A. R. Ramanathan and R. Gopalakris/man, for respondent No. 2.\n\nThe Judgment of the Court was delivered by Hegde, J. 1:he scope of s. 47(3) of the Motor Vehicles Act, 1939 (to be hereinafter referred to as the Act) comes up for consideration in this appeal by certificate. ·\n\nThe facts of the case necessary for the purpose of deciding the point in issue are few, and they are.as follows:-\n\nOn August 8, 1966, theappellant applied to the R:T.A. Coimbatore for a permit to ply a stage carriage on the route Bhavani to Vellithiruppur. That was Mtirely a new route. No stage carriage was plying on that route at that time. The R. T.A. published that application under s. 57 (3) of the Act. Respondents Nos. 2-3 and others made representations against that application contending that there was no need to grant a stage carriage permit for that route. The R. T .A. overruled their objection and granted the permit asked for on October 9, 1967.\n\nAs against the order of the R. T.A. some of the objectors went up in appeal to the State Transport Appellate Tribunal, Madras. The Additional State Transport Appellate Tribunal allowed the appeal by its order of February 22, 1968 holding that the procedure adopted by the R. T.A. was not in accordance with law inasmuch as it had failed to determine the question of the need for a service in that !}JUie before entertaining\n\nthe application for a stage carriage permit. The Tribunal held that the procedure adopted by the RT.A. contravened s. 47(3) of the Act. The appellant challenged that order before the High Court of Madras in Writ Petition No. 908 of 1968. The High Court dismissed that application. Hence this appeal.\n\nSection 47 of the Act prescribes the procedure to be adopted by the R.T.A. in considering applications for stage carriage permit.\n\nThat section reads :\n\n\"A Regional Transport Authority shall, in considering an application for a stage carriage pennit, have regard to the following matters namely :\n\n(a) the interests of the public generally;\n\n(b) the ad\"antages to the public of the service to be provided, including the saving olf time likely to be effected thereby and any convenience arising from journeys not being broken; ( c) the adequacy of other passenger transport services\n\nG operating or likely to operate in the near future, whether by road or other means, between the places to be served;\n\n( d) the benefk to any particular locality or localities likely to be afforded by the service; ( e) the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending;\n\n(f) the condition of the roads included in the proposed route or area;\n\nSUPREME COURT REPORTS\n\n(1969) 3 S.C.R.\n\nand shall also take into consideration any representations made by persons already providing passenger transport facilities by any means along or near the proposed route or area, or by any association representing persons interested in the provision of road transport facilities recognised in this behalf the State Government, or by any local authority or pohce authority within whose jurisdiction any part of the proposed route or area lies :\n\nProvided that other conditions being equal, an application for a stage carriage permit from a co-operative society registered or deemed to have been registered under any enactment in force for the time being shall, as far as may be, be given preference over applications from individual owners.\n\n(2) A Regional Transport Authority shall refuse to grant a stage carriage permit if it appears from any time-table furnished that the provisions of this Act relating to the speed at which vehicles may be driven are likely to be contravened :\n\nProvided that before such refusal an opportunity shall be given to the applicant to amend the time-table so as to conforn1 to the said provisions.\n\n(3) A Regional Transport Authority may, having regard to the matters mentioned in sub-s. (I), limit the number of stage carriages generally or of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region.\" Suo-section (3) of s. 47 ol the Act required the Regional Transport Authority to limit the number of stage carriage permits that may be granted in a route having regard to the matters mentioned in sub-s. ( 1) of that section.\n\nThe question for determination is whether the detennination as to the number of stage carriages required on a route should be done at a stage anterior !o that of entertaining applicatioris for stage carriage permits or that it could be done at the time it considers applications made by operators for stage carriage permits in that route. The RT.A. has proceeded on the basis that that question can be decided while considering the applications made to it for permits by operators whereas the Appellate Tribunal and the High Court have taken a contrary view.\n\nSub-s. (3) of s. 47 of the Act if read by itself dues not throw any light on the controversy before us but if ss. 4 7 and 57 of the Act are read together it appears to us to be clear that the view\n\ntaken by the Appellate Tribunal and the High Court is the correct view. 1f contrary view i; taken it will throw open the door for manipulations and nepotism. There may be possibility of the personality of the applicant influencing the decision of the R.T.A. on the question of need for a stage carriage permit in the route and thereby public interest whih should be the main consideration while taking a decision under s. 47(3) may suffer. If we accept the view taken by the R.T.A. as correct, an operator who happens to apply for the route first will be in a commanding position. J'he R.T .A. will have no opportunity to choose between competing operators and hence public interest might suffer.\n\nMr. Narsaraju, learned Counsel for the appellant tried to 1.ueet the difficulty by suggesting that sub-s. ( 3) of s. 57 of the Act is wide enough to allow the competing operators to apply for the route in question when the first applicant's application is published and representations called for.\n\nSection 57(3) reads:\n\n\"On receipt of an application for a stage carriage permit or a public carrier's permit, the Regional Transport Authority shall make the application available for inspection at the office of the Authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date, not being less than 30 days from such publication, on which, and the time al!d place at which, the application and any repentation received will be considered.\"\n\n(Proviso is not relevant for our present purpose).\n\nWe are unable to accept this contention.\n\nThat sub-section F merely permits representations to be made in respect of the application published.\n\nSuch representations cannot take the form of competing applications. It is difficult to accept the contention that the word \"representations\" in s. 57 (3) includes applications for the route. That apart if we accept Mr. Narsaraju's contention then the whole thing will become unworkable. If at the time of makin~ his representation an operator can also make an application for a G stage carriage permit for that route, that application again will have to be published under s. 57 (3) and objections called for. Extending the logic of Mr. Narsaraju's argument as we ourrht to, at the time of making representations to those applications, further applications can be made. This may turn out to be an unending chain.\n\nH On an examination of the relevant provisions of the Act and the purpose behind ss. 47 and 57, we are convinced that before granting a stage carriage permit two independent steps have to be taken. Firstly there should a determination by the R.T.A. under LIOSap.169-12\n\n734 SUPREMl.ii COURT REPORTS.\n\n[1969] 3 S:C.R\n\ns. 47(3)of the number of stage carriages for which stage carriage permits may be granted in that route. Thereafter applications for stage carriage permits in that route should. be entertained. The R.T.A. is not competent to grant stage carriage permits for more carnages than fixed under s. 4 7 ( 3). Our above conclusion accords with the view expressed by this Court in Civil Appeal No. 95 of 1965. (M/s. Jaya Ram Motqr Service v. S. Rajarathinam and orJ. )( 1). Therein the Court observed :\n\n\"The scheme of sec. 4 7 is that when a person makes an application under sections 45 and 46 the Authority first considers it under.sec: 47 ( 1) in the light of the matters set out therein and also the representations, if any, made by the persons mentioned therein. The Authority then fixed under sec. 4 7 ( 2), ha_ving regard to the matters mentioned in s. 47 ( 1), the nrimber of stage carriages for which permits may be granted in the region or on any specified route within such region. Having fixed the limit the Authority publishes under s. 57(3), tlie application with a notice of the .date before which representations in connection therewith may be submitted and the date on which such application and representations would be considered. The proviso to s. 57 ( 3) lays down that if the grant of a permit has the effect of increasing the number of vehicles operating in that region or in any specified area thereof or on the route .ithin such region beyond the limit fixed under s. 4 7 ( 3), the Authority may dismiss the application summarily. lfit does n'ot exceed such limit and the Authority decides to grant a permit it has to consider the application and the representations submitted to it in conformity with the procedure laid down in sec. 57. Therefore sec. 47 envisages two stages of the inquiry; ( i) the fixing of the number of permit under s. 47(3) and (ii) the consideration thereafter of the application for grant of a permit and the representations if any by the persons mentioned in s. 4 7 ( 1 ) . It would therefore seem that once the Authority has fixed the number of vehicles to be operated in the region or the area or the particulauoute and the number of permits to be granted therefor, the stage of inquiry under s. 4 7 ( 3) is over. The next thing that the Authority has to consider is whether grant of a permit would be within such limit or not. If it does not exceed the limit the Authority has to consider the application and the representation if\n\nany, in connection therewith and to grant or refuse to\n\ngrt the permit under sec;. 48 ( 1 ) . Therefore, once the\n\n(1) C.A. No. 95/65 decided en 27-10-1967 ..\n\nR. o. NAIDU v. s.T.A.T. (Hegde, I.)\n\nlimit is fixed, if the grant of an application does not have\n\nthe effect of exceeding that limit, the only question before the Authority would be whether the applicant is a person fit to be granted the permit or not in the light of the matters set out in sub-sec. ( 1) of sec. 4 7. The question of the number of permits to be granted, having been already canvassed and decided, cannot become the subject at that stage of any further controversy. This is clear from the fact that sec. 48 ( 1) which empowers the Authority to grant or refuse to grant the permit starts with the words 'subiect to the provisions of s. 4 7'. It is therefore clear that the Authority has first to fix the limit and after having done so, consider the application or representations in connection therei:v.ith in accordance with the procedure laid down in sec. 57. As held in Abdul Mateen v. Ram Kai/ash Pandey(') the Authority may modify the limit fixed by it under sec. 4 7 ( 3) but once such a limit is fixed, it cannot ignore it while considering the applications before it under sec. 48. Sec. 47 (3), as observed there, 'is co.ncerned with a general order limiting stage carriages generally etc., on a consideration of matters specified in s. 4 7 ( 1). That general order can be modified by the Regional Transport Authority, if it so decides, one way or the other. But the modification of that order is not a matter for considera\\ion when the Regional Transport Authority is dealing with the actual grant of permits under s. 48 read with s. 57 for at that stage what the Regional Transport Authority has to do is to choose between various applicants .... That, in our opinion, is not the stage when the general order passed under section 4 7 ( 3) can be reconsidered for the order under s. 48 is\n\nsubject to the provisions of s. 4 7, which includes s. 4 7 ( 3) tinder which a general order limiting the number of stage carriages etc. may have been passed.' That being so, if an application is refused such refusal is under sec. 48 (1) and the appellant who is denied the permit has a right of appeal under sec. 64(l)(a).\"\n\nIn the result this appeal fails and the same is dismissed with costs.\n\nV.P.S.\n\nAppeal dismissed.\n\n(I) [196'] J S.C.R. 523, 529.", "total_entities": 76, "entities": [{"text": "R. OBLISWAMI NAIDU", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "R. OBLISWAMI NAIDU", "offset_not_found": false}}, {"text": "ADDL. STATE TRANSPORT\n\nAPPELLATE TRIBUNAL,\n\nMADRAS & ORS", "label": "RESPONDENT", "start_char": 20, "end_char": 76, "source": "metadata", "metadata": {"canonical_name": "ADDL. STATE TRANSPORT APPELLATE TRIBUNAL, MADRAS & ORS", "offset_not_found": false}}, {"text": "February 17, 1969", "label": "DATE", "start_char": 79, "end_char": 96, "source": "ner", "metadata": {"in_sentence": "February 17, 1969\n\n[S. M. SJKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.)"}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 112, "end_char": 126, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "K. S. HEGDE, JJ.", "label": "JUDGE", "start_char": 131, "end_char": 147, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 150, "end_char": 168, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 41 and 57", "label": "PROVISION", "start_char": 182, "end_char": 195, "source": "regex", "metadata": {"linked_statute_text": "Motor Vehicles Act", "statute": "Motor Vehicles Act"}}, {"text": "s. 57(3)", "label": "PROVISION", "start_char": 452, "end_char": 460, "source": "regex", "metadata": {"linked_statute_text": "Motor Vehicles Act", "statute": "Motor Vehicles Act"}}, {"text": "Motor Vehicles Act, 1939", "label": "STATUTE", "start_char": 468, "end_char": 492, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 47 and 57", "label": "PROVISION", "start_char": 1137, "end_char": 1150, "source": "regex", "metadata": {"linked_statute_text": "the Motor Vehicles Act, 1939", "statute": "the Motor Vehicles Act, 1939"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 1415, "end_char": 1419, "source": "regex", "metadata": {"linked_statute_text": "the Motor Vehicles Act, 1939", "statute": "the Motor Vehicles Act, 1939"}}, {"text": "s. 57(3)", "label": "PROVISION", "start_char": 1736, "end_char": 1744, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras High Court", "label": "COURT", "start_char": 2195, "end_char": 2212, "source": "ner", "metadata": {"in_sentence": "Appeal from the .iudgment and order dated April 16, 1968 of the Madras High Court in Writ Petition No."}}, {"text": "D. Narsaraju Subramaniam", "label": "LAWYER", "start_char": 2248, "end_char": 2272, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju Subramaniam, Vineet Kumar, J. Ramamurthy, P. S. Khera and Shyamala Pappu, for the appellant."}}, {"text": "Vineet Kumar", "label": "LAWYER", "start_char": 2274, "end_char": 2286, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju Subramaniam, Vineet Kumar, J. Ramamurthy, P. S. Khera and Shyamala Pappu, for the appellant."}}, {"text": "J. Ramamurthy", "label": "LAWYER", "start_char": 2288, "end_char": 2301, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju Subramaniam, Vineet Kumar, J. Ramamurthy, P. S. Khera and Shyamala Pappu, for the appellant."}}, {"text": "P. S. Khera", "label": "LAWYER", "start_char": 2303, "end_char": 2314, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju Subramaniam, Vineet Kumar, J. Ramamurthy, P. S. Khera and Shyamala Pappu, for the appellant."}}, {"text": "Shyamala Pappu", "label": "LAWYER", "start_char": 2319, "end_char": 2333, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju Subramaniam, Vineet Kumar, J. Ramamurthy, P. S. Khera and Shyamala Pappu, for the appellant."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 2355, "end_char": 2366, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, A. R. Ramanathan and R. Gopalakris/man, for respondent No."}}, {"text": "A. R. Ramanathan", "label": "LAWYER", "start_char": 2368, "end_char": 2384, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, A. R. Ramanathan and R. Gopalakris/man, for respondent No."}}, {"text": "R. Gopalakris", "label": "LAWYER", "start_char": 2389, "end_char": 2402, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, A. R. Ramanathan and R. Gopalakris/man, for respondent No."}}, {"text": "Hegde", "label": "JUDGE", "start_char": 2474, "end_char": 2479, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Hegde, J. 1:he scope of s. 47(3) of the Motor Vehicles Act, 1939 (to be hereinafter referred to as the Act) comes up for consideration in this appeal by certificate. ·"}}, {"text": "s. 47(3)", "label": "PROVISION", "start_char": 2498, "end_char": 2506, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act, 1939", "label": "STATUTE", "start_char": 2514, "end_char": 2538, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "August 8, 1966", "label": "DATE", "start_char": 2761, "end_char": 2775, "source": "ner", "metadata": {"in_sentence": "The facts of the case necessary for the purpose of deciding the point in issue are few, and they are.as follows:-\n\nOn August 8, 1966, theappellant applied to the R:T.A. Coimbatore for a permit to ply a stage carriage on the route Bhavani to Vellithiruppur."}}, {"text": "R:T.A. Coimbatore", "label": "RESPONDENT", "start_char": 2805, "end_char": 2822, "source": "ner", "metadata": {"in_sentence": "The facts of the case necessary for the purpose of deciding the point in issue are few, and they are.as follows:-\n\nOn August 8, 1966, theappellant applied to the R:T.A. Coimbatore for a permit to ply a stage carriage on the route Bhavani to Vellithiruppur."}}, {"text": "Bhavani", "label": "GPE", "start_char": 2873, "end_char": 2880, "source": "ner", "metadata": {"in_sentence": "The facts of the case necessary for the purpose of deciding the point in issue are few, and they are.as follows:-\n\nOn August 8, 1966, theappellant applied to the R:T.A. Coimbatore for a permit to ply a stage carriage on the route Bhavani to Vellithiruppur."}}, {"text": "Vellithiruppur", "label": "GPE", "start_char": 2884, "end_char": 2898, "source": "ner", "metadata": {"in_sentence": "The facts of the case necessary for the purpose of deciding the point in issue are few, and they are.as follows:-\n\nOn August 8, 1966, theappellant applied to the R:T.A. Coimbatore for a permit to ply a stage carriage on the route Bhavani to Vellithiruppur."}}, {"text": "s. 57", "label": "PROVISION", "start_char": 3032, "end_char": 3037, "source": "regex", "metadata": {"linked_statute_text": "the Motor Vehicles Act, 1939", "statute": "the Motor Vehicles Act, 1939"}}, {"text": "October 9, 1967", "label": "DATE", "start_char": 3290, "end_char": 3305, "source": "ner", "metadata": {"in_sentence": "The R. T .A. overruled their objection and granted the permit asked for on October 9, 1967."}}, {"text": "State Transport Appellate Tribunal, Madras", "label": "COURT", "start_char": 3391, "end_char": 3433, "source": "ner", "metadata": {"in_sentence": "As against the order of the R. T.A. some of the objectors went up in appeal to the State Transport Appellate Tribunal, Madras."}}, {"text": "February 22, 1968", "label": "DATE", "start_char": 3520, "end_char": 3537, "source": "ner", "metadata": {"in_sentence": "The Additional State Transport Appellate Tribunal allowed the appeal by its order of February 22, 1968 holding that the procedure adopted by the R. T.A. was not in accordance with law inasmuch as it had failed to determine the question of the need for a service in that !}"}}, {"text": "s. 47(3)", "label": "PROVISION", "start_char": 3848, "end_char": 3856, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 3916, "end_char": 3936, "source": "ner", "metadata": {"in_sentence": "The appellant challenged that order before the High Court of Madras in Writ Petition No."}}, {"text": "Section 47", "label": "PROVISION", "start_char": 4034, "end_char": 4044, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 47", "label": "PROVISION", "start_char": 6541, "end_char": 6546, "source": "regex", "metadata": {"linked_statute_text": "Regional Transport Authority shall refuse to grant a stage carriage permit if it appears from any time-table furnished that the provisions of this Act", "statute": "Regional Transport Authority shall refuse to grant a stage carriage permit if it appears from any time-table furnished that the provisions of this Act"}}, {"text": "s. 47", "label": "PROVISION", "start_char": 7323, "end_char": 7328, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 4", "label": "PROVISION", "start_char": 7419, "end_char": 7424, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 47(3)", "label": "PROVISION", "start_char": 7926, "end_char": 7934, "source": "regex", "metadata": {"statute": null}}, {"text": "Narsaraju", "label": "OTHER_PERSON", "start_char": 8209, "end_char": 8218, "source": "ner", "metadata": {"in_sentence": "Mr. Narsaraju, learned Counsel for the appellant tried to 1.ueet the difficulty by suggesting that sub-s. ( 3) of s. 57 of the Act is wide enough to allow the competing operators to apply for the route in question when the first applicant's application is published and representations called for."}}, {"text": "s. 57", "label": "PROVISION", "start_char": 8319, "end_char": 8324, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 57(3)", "label": "PROVISION", "start_char": 8504, "end_char": 8517, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57", "label": "PROVISION", "start_char": 9437, "end_char": 9442, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57", "label": "PROVISION", "start_char": 9766, "end_char": 9771, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 47 and 57", "label": "PROVISION", "start_char": 10088, "end_char": 10101, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 47(3)", "label": "PROVISION", "start_char": 10324, "end_char": 10332, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 10612, "end_char": 10616, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 4", "label": "PROVISION", "start_char": 10833, "end_char": 10839, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 45 and 46", "label": "PROVISION", "start_char": 10891, "end_char": 10909, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 4", "label": "PROVISION", "start_char": 11114, "end_char": 11120, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 47", "label": "PROVISION", "start_char": 11172, "end_char": 11177, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57(3)", "label": "PROVISION", "start_char": 11361, "end_char": 11369, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57", "label": "PROVISION", "start_char": 11580, "end_char": 11585, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 11805, "end_char": 11809, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 57", "label": "PROVISION", "start_char": 12069, "end_char": 12076, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 47", "label": "PROVISION", "start_char": 12088, "end_char": 12095, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 47(3)", "label": "PROVISION", "start_char": 12179, "end_char": 12187, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 12326, "end_char": 12330, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 12562, "end_char": 12566, "source": "regex", "metadata": {"statute": null}}, {"text": "27-10-1967", "label": "DATE", "start_char": 12947, "end_char": 12957, "source": "ner", "metadata": {"in_sentence": "95/65 decided en 27-10-1967 ..\n\nR. o. NAIDU v. s.T.A.T. (Hegde, I.)\n\nlimit is fixed, if the grant of an application does not have\n\nthe effect of exceeding that limit, the only question before the Authority would be whether the applicant is a person fit to be granted the permit or not in the light of the matters set out in sub-sec. ("}}, {"text": "sec. 4", "label": "PROVISION", "start_char": 13271, "end_char": 13277, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 48", "label": "PROVISION", "start_char": 13478, "end_char": 13485, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 13611, "end_char": 13615, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 57", "label": "PROVISION", "start_char": 13831, "end_char": 13838, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 4", "label": "PROVISION", "start_char": 13942, "end_char": 13948, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 48", "label": "PROVISION", "start_char": 14059, "end_char": 14066, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 47", "label": "PROVISION", "start_char": 14068, "end_char": 14075, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 14220, "end_char": 14224, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 48", "label": "PROVISION", "start_char": 14502, "end_char": 14507, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57", "label": "PROVISION", "start_char": 14518, "end_char": 14523, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 14710, "end_char": 14719, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 48", "label": "PROVISION", "start_char": 14767, "end_char": 14772, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 14806, "end_char": 14810, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 14829, "end_char": 14833, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 48", "label": "PROVISION", "start_char": 15003, "end_char": 15010, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 64(l)(a)", "label": "PROVISION", "start_char": 15086, "end_char": 15099, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_736_741_EN", "year": 1969, "text": "7 36\n\nHINDUSTAN STEEL LTD.\n\nM/S. DALIP CONSTRUCTION COMPANY\n\nFebruary 18, 1969\n\n[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.] B\n\nbufion Stamp Act, ss. 35, 36 42r-Unstamped document filed in .::oUTt-lmpounded-Whether can be acted upon after payment of duty and. penalty.\n\nThe dispute between the appellant and the respondents in relation to a c:Pntract were referred in accordance with their contract to arbitration.\n\nThe award was filed in the District Court and notice of filing was given\n\nto the parties. The appellant applied to the Court under ss. 30 and 33 of the Indian Arbitration Act, 1940 to have the award set aside on the around inter alia that it was unstamped. The District Judge ordered the doannent to be impounded and directed that an authenticated copy of the instrument be sent to the Collector together with a certificate in writing •tatin.g the receipt of the amount of duty and penalty. Against tha\\,\n\norder the appellant moved the High Court of Madhya Pradesh in exercise of ita revision3.i jurisdiction. The High Court rejected the petition. By special leave appeal was filed in thill Court. Relying on the difference ia tho phraseology between ss. 35 and 36 it was urged that an instrument which is not duly stamped may be admitted in evidence on payment of duty and penalty, but it cannot be acted upon because s. 35 operates as a bar to the admission in evidence of an instrument not duly stamped as well u to its being acted upon, and the Legislature has by s. 36 in the conditiona set out tbeuin removed the bar only aaainst admission in evidttlce of the instrument.\n\nHELD: The appellant's argument ignored the true import of s. 36.\n\nBy that section an instrument once admitted in evidence shall not be oalled in question at any stage of the same suit or proceedings on the ground that it bas not been duly stamped. S:ction 36 does not, prohibit a challenge against an instrument that it shall not be acted upon becau.e it is not duly stamped, but on that account thc*'e is no bar against an instrwnent not duly stamped being acted upon after payment of the stamp dnty and penalty according to the procedure presc!pbed by the Act. The doubt if any is resolved by the terms of s. 42(2) which enact in terms unmistakable, that every instrument endorsed by the Collector under s. <42(1) shall be admissible in evidence and may be acted upon as if it l>ae been duly stamped. [740 C-EJ\n\nThe Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments : it is not enacted to arm a litigant\n\nwith a weapon of technicality to meet the case of his opponent.\n\nThe stringent provisions of the Act are conceived in the interest of the revenue.\n\nOnce that object is secured according to law, the party staking his claim on the instrument will not be defeated on the ground of the initial defect in the instrument. Viewed in that light the scheme is clear. Section 35 of the Stamp Act operates as a bar to an unstamped instrument being admitted in evidence or being acted upon, s. 40 provides the procedure for the instrument being impounded, sub... (I) of s. 42 provides for certifying that an instrument is duly stamped, and sub-6. (2) of s. 42 enacts the consequences resulting from such certification. [740 F-G]\n\nOb.ervations of Desai, J. in Mst. Bittan Bibi and Anr. v. Kantu Lill •n\" Anr., l.L.R. [1952) 2 All, 984, disapproved.\n\nCivn, APPELLATE JURISDICTION : Civil Appeal• 'No, 2425 ot 1968.\n\nAppeal by special leave from the judgment and order daled August 30, 1968 of the Madhya Pradesh High Court in Civil Revision No. 764 of 1967.\n\nC. K. Daphtary, and /. N. Shroff, for the appellant.\n\nRameshwar Nath and Mahinder Narain for the respondent.\n\nThe Judgment of the Court .. was delivered by Shah, J. The respondents entered into a contract witJa Hindust!lj]l Steel Ltd. for 'raising, stacking, carting natl loadi-.g into wagons limestone at Nandini Mines\".\n\nDispute whicJa arose between the parties was referred to arbitration, pursaant to cl. 61 of the agreemQ!J!.\n\nThe arbitrators differed, and the dispute was referred to an umpire who made and published his award on April 19, 1967. The umpire filed the award in the Caurt of the District Judge, Rajnandgaon in the State of Madhya Pradesh and gave notice of the filing of the award to tbe parties to the dispute. On July 14, 1967 the appellant filed aD.\n\napplication for setting aside the ward under ss. 30 and 33 of the Indian Arbitration Act, 1940. One of the contentions railed by the appellants was that the award was unstamped and on that account \"invalid and illegal 3llld Hable to be set aside\".\n\nThe respondents then applied to the District Court that the award be impounded and validated by levy of stamp duty and penalty.\n\nBy order dated September 29, 1967, the District Judge directed that the award be impounded.\n\nHe then called upon the respondents to pay the appropriate stamp duty on the award aind penalty and directed that an authenticated copy of tac instrument be sent to the Collector, Durg, together with a certificate in writing stating the receipt of the amount of duty and penalty.\n\nAgainst that order the apoe!Jant moved the High Court of Madhya Pradesh in exercise of its revisional jurisdiction.\n\nThe High Court rejected the petition and the appellant. appeals to this Court with special leave.\n\nIt is urged by Co~! for the appellant that an instrument wllich is not stamped as required by the Indian Stamp Act, may, Oil payment of stamp duty and penalty, be admitted in evidence, but cannot be acttd upon, for, \"the instrument has no existence\n\n• the eye of law\".\n\nTherefore, counsel urged, in proceeding to entertain the application for filing the award, the District JudiC, Rajnandgaon, acted without jurisdiction.\n\nThe relevant provisions of the Stamp Act may be summarised.\n\nSection 3 of the Act provides :\n\n738 SUPREMI! COURT Rl!PORTS\n\n[1969] 3 S.C.R.\n\n\"Subject to the provisions of this Act . . . . . the A following instruments shall be chargeable with duty of the amount icated in that Schedule as the proper duty therefor, respectively, that is to say- ( a) every instrument mentioned in that Schedule which, not having been previously executed by any person, is executed in India on or ll after the first day of July, 1899; \"Inatrument\" is defined m s. 2(14) as including \"every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded\".\n\nAn instrument is said. to be \"duly stamped\" within the meaning of the Stamp Act when the instrument bears an adhesive or im- C prOiSOCI stamp of. not less than the proper a.tnount and that such stamp has been affixed or used in accordance with the law for the time being in force in India : s. 2 ( 11).\n\nItem 12 of Sch. I . prribes the stamp duty payable in respect of an award.\n\nSection 33 ( l) provides, insofar as it is relevant :\n\n\" ( l) Every person having by law or consent of D parties authority to receive evidence. . . . . before 'lfhom any instrument, chargeable. . . . . with duty, ill produced or comes in the perfom1ance of his functions, shall, if it appears to him that such instrument\n\nill not duly stamped, impound the same.\" Sectioo 35 of the Stamp Act provides, insofar as it is relevant : E \"No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such imistrument is duly stamped: F\n\nProvided that .................... \"\n\nSection 36 provides :\n\n\"Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the G aame suit or proceeding qn the ground that the instrument has not been duly stamped.\"\n\nSection 38 deals with the impounding of the instruments : it prcmdes:\n\n\" ( l ) When the person inlpounclif1g an instrumet H 11Dder sectiQD 3 3 has . . . . . . authonty to receive evidence and admits such instrument in evidence upon payment of a penialty as provided by section 3 5 or\n\n........ , he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writiJig, stating the amount of duty and penalty levied in respect thereof, ........ \"\n\nBy s. 39 the Collector is authorised to adjudge proper penalty\n\nand to refund any portion of the penalty which has been paid in respect o.f the instrument, sent to him.\n\nSection 40 prescribes the procedure to be followed by the Collector in respect of an i; nstrument impounded by h!m or sent to him under s. 38. If the Collector is of the opinion that the instrument is chargeable with duty and is not duly stamped, he shall require the payment or proper duty or the amount required to make up the same together with a penalty of five rupees; or, if he thinks fit, an\n\namount not exceeding ten times the amount of the proper dut) or of the deficient portion thereof.\n\nSection 42 provides :\n\n\" ( 1) When the duty and penalty (if any), Jeviable in respect of a, ny instrument have been paid under section 3 5, section 40 or ...... , the person admitting such instrument in evide; nce or the Collector, as the case may be, sha]J certify by endorsement thereon that the proper duty or, as the case may be, the proper duty and penalty (stating the amount of each) have been levied in respect thereof, ..... .\n\n(2) Every instrument so endorsed shall thereupon be admissible in evidence. and may be registered and acted upon and authenticated as if it had been duly stamped, and shall be delivered on his application in this behalf to the person from whose possession it came into the hands of the officer impoundin~ it, or as such person may direct :\n\nProvided !; hat- ........... ; ; . ; ; . ; ........... . \" The award, whidh is an \"instrument\" within the meaning\\ oe the Stamp Act was required to be stamped.\n\nBeing unstamped, the aw.ard could not be received in evidence by the Cami, nor could 1~ be acted upon.\n\nBut the Court was competent to impound 11 and to send it to the Collector with a certificate in writing sating the amount of duty and penalty levied thereon.\n\nOn the instrument so received the Collector may adjudge whether it. is duly stamped and he may require penalty to be paid thereon, j, f in his view it has not been duly stamped. If th( duty and penalty are paid, the Collector will certify by endorse ment on the instrument that the proper duty and penalty hav• been paid.\n\n740 SUPREME COURT ll.EPORTS\n\n\nAn instrument which is not duly stamped cannot be received in evidence by any person who has authority to receive evidence, and it cannot be acted upon by that person or by any public officer.\n\nSection 35 provides that the admissibility of a• instrument qnce admitted in evidence shall not, except as provided in s. 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. Relying upon the difference in the phraseology betweein ss. 35 and 36 it was urged that an instrument whiclt is not duly stamped may be admitted in evidence. on pa)ment of duty and penalty, but it cannot be acted upon because s. 35 operates as a bar to the admission in evidence of the instrument not duly stamped as well as to its being actcti upon, and the Legislature has by s. 36 in the conditions set out therein removed the bar only against admission in evidence of the instrument.\n\nThe argument ignores the true import of s. 36.\n\nBy that section an instrument once admitted in evidence shall not be called in question at any stage of the same suit or prt:>· ceeding on the ground that it has not been duly stamped. Sectio•\n\n36 does not prohibit a challenge against an instrument that it shall not be acted upon because it is not duly stamped, but on. that account there is no bar against an instrument not duly\n\nstamped being acted uporr after payment of the stamp duty and penalty according to the procedure prescribed by the Act. The doubt, if any, is removed by the terms of s. 42(2) which enact, in terms unmistakable, that every instrument endorsed by the Collector under s. 42 ( 1) shall be admissible in evidence and may be acted upon as if it had been duly stampoo.\n\nThe Stamp Act is a fiscal measure enacted to secure revenue for the State Ol!l certain classes of instruments : it is not enacted to a'1ll a litigant with a weapon of technicality to meet the case of his opponent.\n\nThe stringent provisions of the Act are conceived in the interest of the revenue.\n\nOnce that object is secured according to law, the party staking his claim on the instrument will not be defeated on the ground of the initial de.feet in the instrument.\n\nViewed in that light the Scheme is clear : s. 35 of the Stamp Act operates as a bar to an unstamped instrument being admitted in evidence or being acted upon; section 40 provides the pocedure for instruments being im pounded, sub-s. ( 1) of s. 42 provides for certifying that an instrument is duly stamped, and sub-s. (2) of s. 42 enacts tho cQ\\llsequences resulting from such certmcation.\n\nOur attention was invited to the statement of law by M.C.\n\nDesai, J., in Mst. Bittan Bibi and Another v. Kuntu La~ ami 14.nother(') that : ----\n\n(1) I.LR . .' 195:1 2 All. 9€4.\n\n\"A court is prohibited from admitting an instrument in evidence ainkl a Coun and a public officer both are prohibited from acting upon it.\n\nThus a Court is prohibited from both admitting it in evidence and acting upon it.\n\nIt foilows that the acting upon is not included in the admission aUld that a document can be admitted in evidence but not be acted upon.\n\nOf course it cannot be acted upon without its being admitted, but it can be admitted and yet be not acted upon. 1f every document, upon admission, became automatically liable to be acted upon, the provision in s. 35 that an instrument chargeable with duty but not duly stamped, shall not be acted upon by the Court, would be rendered redundant by the provisio11. that it shall not be admitted in evidence for adv purpose.\n\nTo act upon an instrument is to give effect to it or to enforce it\"\n\nIn 011r judgment, the learned Judge attributed to s. 36 a meanin~ wlLich the Legislature did not intend.\n\nAttentiqn of the learnca Judge was apprently not invited to s. 42(2) of the Act which expte!sly renders an instrument, when certified by endorsement that proper duty and penalty have been levied i.'l respect thereof. capable of being acted upon as if it had been duly stamped.\n\nThe appeal fails and i~ dismissed with costs.\n\no.c.\n\nAppeal dismissad.", "total_entities": 64, "entities": [{"text": "36\n\nHINDUSTAN STEEL LTD", "label": "PETITIONER", "start_char": 2, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "HINDUSTAN STEEL LTD", "offset_not_found": false}}, {"text": "S. DALIP CONSTRUCTION COMPANY\n", "label": "RESPONDENT", "start_char": 30, "end_char": 60, "source": "metadata", "metadata": {"canonical_name": "M/S. DALIP CONSTRUCTION COMPANY", "offset_not_found": false}}, {"text": "February 18, 1969", "label": "DATE", "start_char": 61, "end_char": 78, "source": "ner", "metadata": {"in_sentence": "M/S. DALIP CONSTRUCTION COMPANY\n\nFebruary 18, 1969\n\n[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 84, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 93, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 110, "end_char": 127, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "ss. 35, 36", "label": "PROVISION", "start_char": 150, "end_char": 160, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 30 and 33", "label": "PROVISION", "start_char": 551, "end_char": 564, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Arbitration Act, 1940", "label": "STATUTE", "start_char": 572, "end_char": 600, "source": "regex", "metadata": {}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 956, "end_char": 984, "source": "ner", "metadata": {"in_sentence": "Against tha\\,\n\norder the appellant moved the High Court of Madhya Pradesh in exercise of ita revision3.i jurisdiction."}}, {"text": "ss. 35 and 36", "label": "PROVISION", "start_char": 1171, "end_char": 1184, "source": "regex", "metadata": {"linked_statute_text": "the Indian Arbitration Act, 1940", "statute": "the Indian Arbitration Act, 1940"}}, {"text": "s. 35", "label": "PROVISION", "start_char": 1339, "end_char": 1344, "source": "regex", "metadata": {"linked_statute_text": "the Indian Arbitration Act, 1940", "statute": "the Indian Arbitration Act, 1940"}}, {"text": "s. 36", "label": "PROVISION", "start_char": 1488, "end_char": 1493, "source": "regex", "metadata": {"linked_statute_text": "the Indian Arbitration Act, 1940", "statute": "the Indian Arbitration Act, 1940"}}, {"text": "s. 36", "label": "PROVISION", "start_char": 1657, "end_char": 1662, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42(2)", "label": "PROVISION", "start_char": 2207, "end_char": 2215, "source": "regex", "metadata": {"statute": null}}, {"text": "Stamp Act", "label": "STATUTE", "start_char": 2417, "end_char": 2426, "source": "regex", "metadata": {}}, {"text": "Section 35", "label": "PROVISION", "start_char": 2918, "end_char": 2928, "source": "regex", "metadata": {"linked_statute_text": "EJ\n\nThe Stamp Act", "statute": "EJ\n\nThe Stamp Act"}}, {"text": "s. 40", "label": "PROVISION", "start_char": 3039, "end_char": 3044, "source": "regex", "metadata": {"linked_statute_text": "EJ\n\nThe Stamp Act", "statute": "EJ\n\nThe Stamp Act"}}, {"text": "s. 42", "label": "PROVISION", "start_char": 3118, "end_char": 3123, "source": "regex", "metadata": {"linked_statute_text": "EJ\n\nThe Stamp Act", "statute": "EJ\n\nThe Stamp Act"}}, {"text": "s. 42", "label": "PROVISION", "start_char": 3202, "end_char": 3207, "source": "regex", "metadata": {"linked_statute_text": "EJ\n\nThe Stamp Act", "statute": "EJ\n\nThe Stamp Act"}}, {"text": "Desai", "label": "JUDGE", "start_char": 3294, "end_char": 3299, "source": "ner", "metadata": {"in_sentence": "740 F-G]\n\nOb.ervations of Desai, J. in Mst."}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 3605, "end_char": 3619, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, and /. N. Shroff, for the appellant."}}, {"text": "N. Shroff", "label": "LAWYER", "start_char": 3628, "end_char": 3637, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, and /. N. Shroff, for the appellant."}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 3659, "end_char": 3673, "source": "ner", "metadata": {"in_sentence": "Rameshwar Nath and Mahinder Narain for the respondent."}}, {"text": "Mahinder Narain", "label": "LAWYER", "start_char": 3678, "end_char": 3693, "source": "ner", "metadata": {"in_sentence": "Rameshwar Nath and Mahinder Narain for the respondent."}}, {"text": "Shah", "label": "JUDGE", "start_char": 3761, "end_char": 3765, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court .. was delivered by Shah, J. The respondents entered into a contract witJa Hindust!lj]l Steel Ltd. for 'raising, stacking, carting natl loadi-.g into wagons limestone at Nandini Mines\"."}}, {"text": "cl. 61", "label": "PROVISION", "start_char": 4010, "end_char": 4016, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 30 and 33", "label": "PROVISION", "start_char": 4424, "end_char": 4437, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Arbitration Act, 1940", "label": "STATUTE", "start_char": 4445, "end_char": 4473, "source": "regex", "metadata": {}}, {"text": "September 29, 1967", "label": "DATE", "start_char": 4772, "end_char": 4790, "source": "ner", "metadata": {"in_sentence": "By order dated September 29, 1967, the District Judge directed that the award be impounded."}}, {"text": "Durg", "label": "GPE", "start_char": 5030, "end_char": 5034, "source": "ner", "metadata": {"in_sentence": "He then called upon the respondents to pay the appropriate stamp duty on the award aind penalty and directed that an authenticated copy of tac instrument be sent to the Collector, Durg, together with a certificate in writing stating the receipt of the amount of duty and penalty."}}, {"text": "Indian Stamp Act", "label": "STATUTE", "start_char": 5445, "end_char": 5461, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 3", "label": "PROVISION", "start_char": 5831, "end_char": 5840, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 6236, "end_char": 6241, "source": "ner", "metadata": {"in_sentence": "the A following instruments shall be chargeable with duty of the amount icated in that Schedule as the proper duty therefor, respectively, that is to say- ( a) every instrument mentioned in that Schedule which, not having been previously executed by any person, is executed in India on or ll after the first day of July, 1899; \"Inatrument\" is defined m s. 2(14) as including \"every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded\"."}}, {"text": "first day of July, 1899", "label": "DATE", "start_char": 6261, "end_char": 6284, "source": "ner", "metadata": {"in_sentence": "the A following instruments shall be chargeable with duty of the amount icated in that Schedule as the proper duty therefor, respectively, that is to say- ( a) every instrument mentioned in that Schedule which, not having been previously executed by any person, is executed in India on or ll after the first day of July, 1899; \"Inatrument\" is defined m s. 2(14) as including \"every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded\"."}}, {"text": "s. 2(14)", "label": "PROVISION", "start_char": 6312, "end_char": 6320, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 6765, "end_char": 6769, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 33", "label": "PROVISION", "start_char": 6854, "end_char": 6864, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 36", "label": "PROVISION", "start_char": 7627, "end_char": 7637, "source": "regex", "metadata": {"statute": null}}, {"text": "section 61", "label": "PROVISION", "start_char": 7750, "end_char": 7760, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 38", "label": "PROVISION", "start_char": 7893, "end_char": 7903, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 8162, "end_char": 8171, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 8384, "end_char": 8389, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 40", "label": "PROVISION", "start_char": 8551, "end_char": 8561, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 38", "label": "PROVISION", "start_char": 8687, "end_char": 8692, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 42", "label": "PROVISION", "start_char": 9050, "end_char": 9060, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 9177, "end_char": 9186, "source": "regex", "metadata": {"statute": null}}, {"text": "section 40", "label": "PROVISION", "start_char": 9190, "end_char": 9200, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 35", "label": "PROVISION", "start_char": 10799, "end_char": 10809, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 61", "label": "PROVISION", "start_char": 10918, "end_char": 10923, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 35 and 36", "label": "PROVISION", "start_char": 11108, "end_char": 11121, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 35", "label": "PROVISION", "start_char": 11278, "end_char": 11283, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 11430, "end_char": 11435, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 11581, "end_char": 11586, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42(2)", "label": "PROVISION", "start_char": 12137, "end_char": 12145, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42", "label": "PROVISION", "start_char": 12236, "end_char": 12241, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 35", "label": "PROVISION", "start_char": 12845, "end_char": 12850, "source": "regex", "metadata": {"statute": null}}, {"text": "section 40", "label": "PROVISION", "start_char": 12961, "end_char": 12971, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42", "label": "PROVISION", "start_char": 13043, "end_char": 13048, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42", "label": "PROVISION", "start_char": 13127, "end_char": 13132, "source": "regex", "metadata": {"statute": null}}, {"text": "M.C.\n\nDesai", "label": "JUDGE", "start_char": 13246, "end_char": 13257, "source": "ner", "metadata": {"in_sentence": "Our attention was invited to the statement of law by M.C.\n\nDesai, J., in Mst."}}, {"text": "s. 35", "label": "PROVISION", "start_char": 13942, "end_char": 13947, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 14274, "end_char": 14279, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42(2)", "label": "PROVISION", "start_char": 14390, "end_char": 14398, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_742_751_EN", "year": 1969, "text": "YOGENDRA NATH NASKAR v.\n\nCOMMISSIONER OF INCOME-TAX, CALCUTTA\n\nFebruary 18, 1969\n\n{I. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.) 8\n\nIncome-tax A.ct (11 of 1922)-Hindu Deity-If can be tax.<d througlt shebtlits.\n\nFinding that the assessments of the income from the properties of two Hindu. deities in the hands of its shebaits as trustees were set aside on th~ footing that the status of the assessees had not been correctly determined, the Income-tax Officer initiated proceedings for the assessments again!ft th~ shebaita of the deities and c:Ompleted the assessments on the deities in th!! statuo of an individual and through the shebaits. On the question wh<ther tlae auessments on the deities through the i; hebaits were in accordance with law,\n\nHELD : The Hindu idol is a juristic entity capable of holding property and of being taxed through its shebaits who are entrusteJ with the possession and management of its proper.ty.\n\nA Hindu deity fell within the meaning of the word 'individual' under s. 3 of the Act ;,.ind couid be treated as a unit of assessment undl!r the section and was capable of being taxed through its shebaits.\n\nTne word 'individual' in s. 3 of the 1922 Act included within its connotation al! artificial juridical persons and this legal position was n1ade explicit and beyond challenge in the 1961 Act. (750 C; 751 DJ\n\nNeither God nor any supernatural being could be a person in law.\n\nBut liO far as the deity stands as the representative and symbol of rh.:- particular purpose whic.in is indicated by the donor; it can figure as a legat persoo and in that capacity alone the dedicated property vests in it. Th,:-r~\n\nis no principle why a deity as such a legal person should not bt! taxed if such a legal person is allowed in law to own property even though in the ideal sense and to sue, for the prvperty, to realise rer..t and to dcfen\\.~ such property in a court of law again in the ideal sense. [749 F]\n\nManohar Ganesh v. Lakshmira1n, I.L.R. 12 Born. 247; Vidyap1!l'J11!\n\nTirtha Swami v. Vi<l, vonldhi Tirtha Swami & Ors., !.L.R. 27 fad. 435;\n\n.Maharant Shibessouree Dehia v. Mothocrariath Acharjo, 13 1\\1.L:A. 270; ./'rosanna Kw:ir.ri Dcbya v. Golab Chand Baboo,\n\nL.R. 2\n\nI.A. 145; l'ramotha Nath Mullick v. Pradyumna Kumar Mullick & Ors., 52 I.A.\n\n245; Bhupati v. Ram/al, 10 C.L.J. 355; Hindu Law of Religious & Clra1i1- G\n\nahl~ Trust by Mr. B. K. 1\\lukherjea; The Commissioner of lncome•tax, Madhya Pradesh & JJhopal v. Sodra Devi, (1958] S.C.R. I; Cape Br\"ndy\n\nSyndical~ v. l.R.C., (1921] 2 K.B. 403 and Attorney General v. Clarkson, .(1900] 1 Q.B. 156. referred to. ·\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 690 • 694 of 1968.\n\nAppeals from the i.udgment and order dated April 3 4, 5. 1965 of the Calcutta High Court in Income-tax Reference 1'1o. 50 of 1961.\n\nA M. c. Chagla and B. P. Maheshwari, for the appellant (i; n all\n\nthe appeals).\n\nS. T. Desai, G. C. Sharma and B. D. Sharma, for the reopondent (in all the appeals).\n\nThe Judgment of the Court was delivered by Ramaswami, J.\n\nThese appeals are brought from the judg- :11.cnt of the Calcutta High CoUrt dated 3rd, 4th and 5th April, 1965 in Income Tax Reference No. 50 ot 1961 on a certificate granted under section 66A of the Iµdian Income Tax, Act, 1922 (hereinafter called the Act).\n\nOne Ram Kristo Naskar left a will dated 17th May, 1899 by which he left certain properties as debuttar to two deities Sri Sri Iswar Kubereswar Mahadeb Thakur and Sri Sri Anandamoyee Kalimata in the land adjoining hi.s residential house at 7 4 /7 5 Beliaghata Main Road.\n\nHe appointed his two adopted sons Hem Chandra Naskar (since deceased) and Yogendra Nath N askar as the shebaits. Elaborate provision was made as to the liWmer in which the income from the property was to be spent.\n\nFor a long time the income from the property was assessed in the hands of the shebaits as trustees. In respect of the assessment years 1950-51 and 1951-52, the two shebaits contended that there was no trust executed n the case and as such the income from the property did not attract liability to tax and particularly the assessments made in the name of Hem Chandra ]'(askar and his brother Yogendra Nath Naskar as trustees of the debuttar estate could not be sustained.\n\nThe Appellate Assistant Commissioner accepted this contention oo appeal and set aside the assessments. finding that the assessments have been set aside on the footing that the status of the assessee.; had aot been correctly determined the Income Tax Officer initiated proceecliiugs for the assessment years 1952-53 and 1953-54 a!Jlinst Hem Chandra Naskar and Yogendra Nath Naskar, the shebaits of the two deities and completed the assessments on the deities in the status of an individual and through the shebaits.\n\nThe claim for exemption under the proviso to section 4(3)(i) of the Income Tax Act was rejected. On appeal the Appell.ate Assistant Commissiqner upheld the assessment orders of the Income Tax Officer.\n\nThe assessee appealed to the Appellate Tribunal and coatended that the deities were not chargeable\n\nto tax under s. 3 of the Act; that section 41 of the Act did not apply to the facts of the case.\n\nThough the shebaits were the managers who could come under the ambit of section 41, they had not been appointed by or under lli!l!y order of the court and dlercfore the assessments were invalid and should be set aside.\n\nIt was also contended that the case of the trustee having been 1pccifically giwn . up it would not be open to the Income Tax\n\nDepartment to bring the shebaits upder any of the categori~ mentioned in section 4 L The departmental representative contended that the assessments bad been made on the shebaits not under section 41 as trustees or managers but that the deities had beem assessed as individuals and that section 41 was a surplusage in. making the assessments. The Tribunal held that though the shebaits were the managers for the purpose of section 41, they were not so appointed by or under any order of the court, and, .therefore, the second condition required by section 41 was not fulfilled, and the shebaits could pPt be proceeded against.\n\nThe' Appellate Tribunal added that the specific provision which the Tribunal first relied. was that of trustees under section 41, but that case having been given up the further attempt to a5sess the shebaits as managers .under section 41 could not be upheld .. At the insta, nce of the Commissioner of Income Tax, the Appellate Tribunal referred the _ followin~ ·\n\nquestion of law for the opinion of the High Court 'Q, rider section 66(1) of the Act:\n\n\"Whether on the facts and in the circumstances of the case, the assessment on the deities through the shebaits under the provisions of section 41 of the Indian Income Tax Act were in accordance ·with law?\" After having heard learned cOunSel for both the parties we\n\nare satisfied that in the question referred by . the Appellate E Tribunal the words 'under the provisions of section 41 of the , Indian Income Tax Act' should be deleted as superfluous and the question' should be modified in the follo, wing manner to bring out the question in real controversy between the parties :\n\n\"Whether ari the facts and in the circumstances of the case, the assessments on the deities through the\n\nF . shebaits were in accordance with law.\" The main question hence presented for determination in these appe'als is whether a Hindu deity can be treated aS a unit . of assessment under section 3 mid 4 of the Income Tax Act, 1922.\n\nG It is well. established by high authorities that a Hindu idol is. a juristic person in whom the dedicated property vests. In \\ Manohar Ganesh v. Lakshmiram(') called the Dakor temple case, \\ West and Birdwood, JJ. state: . . . · ·\n\n' \"The Hindu Law, like the Roman Law and those derived from it, recognises not only incorporate bodies H with rights of property vested m the corporation apart\n\n(1) I.L.R. 12 Born. 247.\n\nY. N. NASKAR v. C, I.T. (Rnmaswami, J.) 745\n\nfrom its individual members but also juridical persons called foundations.\n\nA Hindu who wishes to establish a religious or charitable institution may according to his law express his purpose and endow it and the ruler will give effect to the bounty or at least, protect it so far at any rate as is consistent with his own Dharma or conceptiQll or morality. A trust is not required for the purpose; the necessity of a trust in such a case is indeed a peculiarity and a modern peculiarity of the English Law. In early law a gift placed as it was expressed on the altar of God, sufficed it to convey to the Church the lands thus dedicated. It is consistent with the grants having been made to the juridical person symbolised or pernonified in the iclol\".\n\nThe same view has been expressed by the Madras High Court in Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami & Ors. ( 1) ill which Mr. Justice Subrahmania Ayyar stated :\n\n\"It is to give due effect to such a sentiment, widespread and deep-rooteq as it has always been, with reference to something not capable of holding property as a natural per.; on, that the laws of most countries have sanctioned the creation ol a fictitious person in the matter as is implied in the felicitous observation made in the work already cited \"Perhaps the oldest of all juristic pernons is the God, hero or the saint\"\n\n(Pollock and Maitla.nd's History of English Law, Volume I, 481).\n\nThat the consecrated idol in a Hindu temple is a juridical pernon has been expl'a%1y laid down in Manohar Ganesh's case('), which Mr.\n\nPrannath Saraswati, the author of the 'Tagore Lectures on Endowments' rightly enough speaks ol as one ranking as the leading case on the subject, and in which West J., discusses the whole matter with much erudition.\n\nAnd in more than one case, the decision of the Judicial Committee proceeds on precisely the same footing (Maharanee Shibessouree Dehia v.\n\nMothocrapath Acharjo(1 ) and Pr0sanna Kumari Debya v. Golab Chand Baboo(•). Such ascription of legal personality to a, n idol must however be incomplete unless it be Jinked of human guardians for them variously designated in Debya v. Golab Chand Baboo(•) the Judicial Committee observed thus : 'It is only in an ideal sense that\n\n(t) I.LR. 27 Mad. 435.\n\n(2) 1.l.R. 12 Born. 247.\n\n(3) 13 M.l.A. 270.\n\n(4) L.R. 2 I.A. 145.\n\nproperty can be said to belong to an idol and the possession and managemi; nt must in the nature of things be entrusted with some person as shebait or manager.\n\nIt would seem to follow that the person so entrusted must be necessity be empowered to do whatever may be required for the service of the idol and for the benefit and preservation of its property at least to as great a degree as the manager of an infant heir'-words which seem to be almost on echo of what was said in relation to a church in a judgment of the days of Edward I : 'A church is always under age and is to be treated as an infant and it is not according to law that infants should be disinherited by the negligence of their guar- . / dians or be barred of an action in case th_ey would ./ complain of things wrongfully done by their guardians while they are under age' (Pollock and Maitland's 'History of English Law', Volume I, 483\".\n\nIn Pramatha Nath Mullick v. Pradyumna Kumar Mullick &:\n\nOrs.( 1) Lord Shaw observed:\n\n.\"A Hindu idol is, according to long . established authority, founded upon the religious customs of the Hindus, and the recog1tiition thereof by Courts of law, a 'juristic entity'. It has a juridical status with the power of suing and being sued.\n\nIts interests are attended to by the person who has the deity in his charge and who -is in law its manager with all the powers which would, in such circumstances, on analogy, be given to the manager of the estate of an infant heir. It is unnecessary to quote the authorities; .\n\n- for this doctrine thus simply stated, is firmly estal>- lished\".\n\nIt should however be remembered that the juristic person in the idol is not the material image, and it is an exploded theory that the image itself develops. into a legal person as soon as it is consecrated and vivified by the Pran Pratishta ceremony. It is _111ot also correct that the supreme being of which the idol is a symbol or image is the recipient and owner of the dedicated property.\n\nThis is clearly laid down in authoritative Sanskrit Texts. Thus,\n\nin his Bhashya on the Purva Mimamsa, Adhyaya 9, Pada I, Sabara Swami states : ~T ~'l:r'1';'1fa, '3\"'!'11('11\\'lli._ I\n\n'IT 'Rf>ra'\n\nf<tfifl[frr, 'i'!'). I 'f 'I\" m1f mf\n\n\"IT\n\n(1) 52 I.A. 245.\n\n'f'nfmn<f fef; p:r'f'T~ ~T I ffi'l1A <f5flf\"<!i'l'olcf 11 ..:> ..:>· •\n\n~'l'IJ<.\" I\"· I ujj a <HT 'ITf<Nefa, ~<rarrf'tll'f 'fa <'f'R!lf I \"Words such as 'village of the Gods', 'land d the.Gods; are used. in a figurative sense. That is property which c;¢ be said to belong to a person, which he can make use of as he desires. God. however does not make use of the village or lands, according to its desires\". Likewise, Medhathithi in commenting on the expression 'Devaswam' in Manu, Chapter XI, Verse 26 writes : .... ~'fl'ffB<>:r, .. llT'!TlG' f'l\"IT<l <!'if ~·. \"' \"' \"'\"' d~'lf'l'l ,' lf\"'1<'! f'lffif!f<f'Flm', ~00 om'1'11?: I ... \"' ... ' \"Property of the Gods, Devaswam, means whatever is abaindoned .. for Gods, for. purposes of sacrifice and the like, because ownership in the primary sense, as showing the relationship between the owner and the property owned, is 'impossible of application._ to Gods\". Thus, according to the texts, the Gods have no beneficial enjoyment of the properties, 'aJ!ld they can be described as their owners only in a figurative sense ( Gaunartha).\n\nThe correct legal position is that the idol as representing and embodying the spiritual purpose of the donor is the juristic person._ recognised by law and in this juristic persOJil the dedicated pro- - perty vests. As observed by Mr. Justice B. K. Mukherjea :\n\n\"With regard to Debutter, the position seems to be somewhat different. What is personified here is not the entire property which is dedicated to the deity but the deity itself which is the central part of the foundation and stands as the material symbol and embodiment of the pious purpose which the dedicator has in view. \"The dedicatioin to deity\", said Sir Lawrence Jenkins in Bhupati v. Ram/a/(1 ) \"is nothing but a compendious expression of the pious purpose for which the dedication is designed\". It is not only a compendious expression but a material embodiment: of thepious purpose and though there is difficulty in holding that property can reside in the aim or purpose itself, it would be quite cQ'1Sistent with sound principles of Jurisprudence to say that a material object which represents or symbolises a particular purpose can be given the status of a legal person, and regarded as owner of the property which is dedicated to it.\"(2) The legal position is comparable in many respects to the development in Roman Law. So far as charitable endowment is concerned Romalll. Law. as later developed recognised two kinds of juristic persons.\n\nOne was a corporation or aggregate of\n\n(I) JO C.L.J. 355 at 369.\n\n(2) Hindu Law of Religious & Charitable Trust by Mr. B.K. lvfukherjee.\n\npersons which owed its juristic personality to State sanctin. A private person might make over property by way . of gift or legacy to a corporation already in existence and might at the sa.me time prescribe the particular purpose for which the property wu to be employed e.g. feeding the poor, or giving relief to the poor or distressed. The recipient corporatiqib wpuld be in a position of a trustee and would be legally bound to spend the funds for the particular purpose. The other alternative was for the donor to create an institution or foundation himself. This would be a j!lew juristic person which depended for its origin upon nothing else but the will of the founder provided it was directed to a charitable purpose. The foundation would be the owner of the dedicated property in the eye of law and the administrators would be in the position of trustees bound to carry out the object of the foundation.\n\nAs observed by Sohm :\n\n\"During the later Empire-from the fifth century onward&--foundations created by private individuals came to be recognised as foundations in the true legal iense, but only Ji they took the form of a ipia causli\n\n('pium corpus') i.e. were devoted to 'pious uses', only in short, if they were charitable institutions.\n\nWherever a person dedicated property-whether by gift inter vivos or by will-ijll favour of th!l poor, or the sick, or prisoners, orphans, or aged people, be thereby created ipso facto a new subject of legal rights -the poor-house, the hospital, and so forth-and the dedicated property became the sole property of this new subject; it became the sole property of the new juristic person whom the founder had called into being.\n\nRoman Jaw, however, took the view that the endowments , of charitable fobndations were a species of Church property. Pioe causae were subjected to the control of the Church, that is, of the bishop or the ecclisiastical administrator, as the case might be. A pitz causa was regarded as an ecclisiastical, and consequently, as a public institution, and as such it shared that corporate capacity which belonged to all ecclisiastical institutions by virtue of a general rule of law.\n\nA pia causa did not require to have a juristic personality expressly confered upon it.\n\nAccording to Roman law the act-whether a gift inter vivos or a testamentary disposition-whereby the founder dedicated property to charitable uses was sufficient, without more, to constitute the pia causa a foundatioo in the legal sense, to make it, in other words, a new subject o.f legal rights\"(').\n\n(1) 111''.:iute of Roman Lw. 3rd Edition pp. 197-198.\n\nA We should, in this context, make a distinction between the spiritual and the legal aspect of the llindu idol which is installed and worshipped.\n\nFrom the spiritual standpoint the idol may be to the worshipper a symbol (pratika) of the Supreme Godhead intended to invoke a sense of the .vast and intimate reality, and suggesting the essential truth of the R~ that is beyond B all name or fonn.\n\nIt is basic postulate of Hindu religion that different images do 'not represent different divinities, they are really symbols of One Supreme Spirit and in whichever name or fonn the deity is invoked, the Hindu worshipper purports to worship the Supreme Spirit and nothing else.\n\n~>it fir.I 3ff\"111; 3\\1§1 \" ......\n\nq;'!i f'fl!T qg~T <Rfli'I' I (Rig Veda I. 164)\n\n(They have spoken of Him as Agni, Mitra, Varuna, Indra; the one Existence the sages speak of in many) .\n\nThe Bhagavad Gita echoes this verse when it says :\n\n'\"'!' <r•ftsfr.i<: ~: mrr~=\n\nllorN~ <ii llf<r~ I (Chap. xi-3 9) (Thou art Vayu and Yama, Agni, Varuna and Moon: Lord of creation art Thou, and Grandsire).\n\nSamkara, the great philosopher, refers to the one Reality, who, E owing to the diversity or intellects ( matibheda) is conventionally spoken of (parikalpya) in various ways as Brahma, Visnu and Mahesvara.\n\nIt is however possible that the founder of the endowment of the_ worshipper may not conceive on this highest spiritual plane but hold that the idol is the very embodiment of a' personal God, but that is not a matter with which the law is concerned.\n\nNeither God nor any supernatural being could be F a person in Jaw. But so far as the deity stands as the representative and symbol of the particular purpose which is indicated by the donor, it can figure as a legal person. The true legal view is that in that capacity alone the dedicated property vests in it.\n\nThere is no principle why a deity as such a legal person should not be taxed if such a legal person is allowed in law to G own property even though in the ideal sense and to sue for the property, to realise rent and ti> defend such property in a court of law again in the ideal sense. -Our conclusion is that the Hindu idol is a juristic entity capable of holding property and of being taxed through its shebaits who are entrusted with the possession and management of its property. It was argued on behalf of the appellant that the word 'individual' in s. 3 of the H Act should not be construed as including a Hindu deity because it was not a real but a juristic person. We are unable to accept this argument as correct. We see no reason why the meaning LIOSup./69-13\n\nof the word 'individual' in section 3 of the Act should be restricted to human being and not to juristic entities. In The Com- .mlsioner of Income Tax, Madhya Pradesh & Bhopal v. Sodra Devi(') Mr. Justice Bhagwati pointed out as follows :\n\n\"the word 'individual' has not been defined in the Act and there is authority, for the proposition that the word 'individual' does not mean only a human being but is wide enough to include a group of persons forming a unit. It has b~ held that the word 'individual' includes a Corporation created by a statute, e.g., a University or a Bar Council, or the trustees of a baronetcy trust incorporated by a Baronetcy A.ct\".\n\nWe are accordingly of opinion that a Hindu deity falls within the meaning of the word fadividual\" under section 3 of the Act and can be treated as a unit of assessment under that section.\n\nOn behalf of the appellant Mr. Chagla referred to section 2 .sub-section (31) of the Income Tax Ad, 1961 (Act No. 49 of\n\n1961 ) which states : D\n\n''2. In this Act, unless the context otherwise requires-\n\n( 31) 'person' includes-\n\n(i) an individual,\n\n(ii) a Hindu undivided family,\n\n(iii) a company,\n\n(iv) a firm,\n\n(v) an association of persons or a body of individuals, whether incorporated or not,\n\n(vi) a local authority, and\n\n(vii) every artificial juridical person, not falling within any of the preceding sub-clauses\".\n\nCounsel, so referred to s. 2 ( 9) and s. 3 of the Income Tax Act, G 1922 which state : . \"2. In .this Act, unless thre is anything repugnant m the subject or context-\n\n( 9) 'person' includes Hindu undivided family and H local authority\".\n\n(I) (1958] s.c.R. 1a1p,6.\n\nA \"3. Where any Central Act enacts that income-tax shall be charged for any year at , any rate or rates, tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of, this Act in respect of the total income of the previous year of every individual, Hindu undivided family, B 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\nOn a comparison of the provisions of the two Acts counsel on behalf of the appellant contended that a restricted meaning C should be given to the word 'individual' in section 3 of the earlier Act. We see no justification for this argument. On the other hand, we are of the opinion that the language employed in 1961 Act may be relied upon as a Parliamentary exposition of the earlier Act even on the assumption that the language employed in section 3 of the earlier Act is ambiguous.\n\nIt is clear that the word 'individual' in section 3 of the 1922 Act D includes within its connotation all artificial juridical persons and this legal position is made explicit and beyond challenge in the 1961 Act. ln Cape Brandy Synilicate v. I.R.C.(1), Lord Sterndale M.R. sfild: '\n\n\"I think it is clearly established in A. ttorney Gen era! v. Clarkson(') that subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous.\n\nI quite agree that subsequent legislation if it proceeded on an erroneous construction of previous legislation cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation, then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier Act\".\n\nFor the reasons expressed we hold that the question of law relerred by the Income-tax Appellate Tribunal and as modified by us should be answered in the affirmative and in favour of the Commissioner of Income-tax.\n\nWe accordingly dismiss these G appeals. with costs.\n\nOne hearing fee.\n\nY.P.\n\nAppeals dismissed.\n\n(1) (1921) 2 K.B. 403.\n\n(2) (1900) I Q.B. 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{"text": "Hem Chandra ]'(askar", "label": "OTHER_PERSON", "start_char": 4134, "end_char": 4154, "source": "ner", "metadata": {"in_sentence": "In respect of the assessment years 1950-51 and 1951-52, the two shebaits contended that there was no trust executed n the case and as such the income from the property did not attract liability to tax and particularly the assessments made in the name of Hem Chandra ]'(askar and his brother Yogendra Nath Naskar as trustees of the debuttar estate could not be sustained.", "canonical_name": "Hem Chandra ]'(askar"}}, {"text": "Yogendra Nath Naskar", "label": "PETITIONER", "start_char": 4171, "end_char": 4191, "source": "ner", "metadata": {"in_sentence": "In respect of the assessment years 1950-51 and 1951-52, the two shebaits contended that there was no trust executed n the case and as such the income from the property did not attract liability to tax and particularly the assessments made in the name of Hem Chandra ]'(askar and his brother Yogendra Nath Naskar as trustees of the debuttar estate could not be sustained.", "canonical_name": "Yogendra Nath N askar"}}, {"text": "a!Jlinst Hem Chandra Naskar", "label": "OTHER_PERSON", "start_char": 4579, "end_char": 4606, "source": "ner", "metadata": {"in_sentence": "had aot been correctly determined the Income Tax Officer initiated proceecliiugs for the assessment years 1952-53 and 1953-54 a!Jlinst Hem Chandra Naskar and Yogendra Nath Naskar, the shebaits of the two deities and completed the assessments on the deities in the status of an individual and through the shebaits."}}, {"text": "section 4(3)(i)", "label": "PROVISION", "start_char": 4813, "end_char": 4828, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 5083, "end_char": 5087, "source": "regex", "metadata": {"statute": null}}, {"text": "section 41", "label": "PROVISION", "start_char": 5105, "end_char": 5115, "source": "regex", "metadata": {"statute": null}}, {"text": 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"end_char": 6378, "source": "regex", "metadata": {"statute": null}}, {"text": "section 66(1)", "label": "PROVISION", "start_char": 6566, "end_char": 6579, "source": "regex", "metadata": {"statute": null}}, {"text": "section 41", "label": "PROVISION", "start_char": 6728, "end_char": 6738, "source": "regex", "metadata": {"statute": null}}, {"text": "section 41", "label": "PROVISION", "start_char": 6968, "end_char": 6978, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income Tax Act", "label": "STATUTE", "start_char": 6988, "end_char": 7009, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 7466, "end_char": 7475, "source": "regex", "metadata": {"linked_statute_text": "Indian Income Tax Act", "statute": "Indian Income Tax Act"}}, {"text": "Income Tax Act, 1922", "label": "STATUTE", "start_char": 7489, "end_char": 7509, "source": "regex", "metadata": {}}, {"text": "Birdwood", "label": "JUDGE", "start_char": 7714, "end_char": 7722, "source": "ner", "metadata": {"in_sentence": "In \\ Manohar Ganesh v. Lakshmiram(') called the Dakor temple case, \\ West and Birdwood, JJ."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 8771, "end_char": 8788, "source": "ner", "metadata": {"in_sentence": "The same view has been expressed by the Madras High Court in Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami & Ors. ("}}, {"text": "Subrahmania Ayyar", "label": "JUDGE", "start_char": 8877, "end_char": 8894, "source": "ner", "metadata": {"in_sentence": "1) ill which Mr. Justice Subrahmania Ayyar stated :\n\n\"It is to give due effect to such a sentiment, widespread and deep-rooteq as it has always been, with reference to something not capable of holding property as a natural per.;"}}, {"text": "Pollock", "label": "JUDGE", "start_char": 9335, "end_char": 9342, "source": "ner", "metadata": {"in_sentence": "on, that the laws of most countries have sanctioned the creation ol a fictitious person in the matter as is implied in the felicitous observation made in the work already cited \"Perhaps the oldest of all juristic pernons is the God, hero or the saint\"\n\n(Pollock and Maitla.nd's History of English Law, Volume I, 481).", "canonical_name": "Pollock"}}, {"text": "Maitla.nd's", "label": "OTHER_PERSON", "start_char": 9347, "end_char": 9358, "source": "ner", "metadata": {"in_sentence": "on, that the laws of most countries have sanctioned the creation ol a fictitious person in the matter as is implied in the felicitous observation made in the work already cited \"Perhaps the oldest of all juristic pernons is the God, hero or the saint\"\n\n(Pollock and Maitla.nd's History of English Law, Volume I, 481).", "canonical_name": "Maitla.nd's"}}, {"text": "Manohar Ganesh", "label": "OTHER_PERSON", "start_char": 9498, "end_char": 9512, "source": "ner", "metadata": {"in_sentence": "That the consecrated idol in a Hindu temple is a juridical pernon has been expl'a%1y laid down in Manohar Ganesh's case('), which Mr.\n\nPrannath Saraswati, the author of the 'Tagore Lectures on Endowments' rightly enough speaks ol as one ranking as the leading case on the subject, and in which West J., discusses the whole matter with much erudition."}}, {"text": "Prannath Saraswati", "label": "OTHER_PERSON", "start_char": 9535, "end_char": 9553, "source": "ner", "metadata": {"in_sentence": "That the consecrated idol in a Hindu temple is a juridical pernon has been expl'a%1y laid down in Manohar Ganesh's case('), which Mr.\n\nPrannath Saraswati, the author of the 'Tagore Lectures on Endowments' rightly enough speaks ol as one ranking as the leading case on the subject, and in which West J., discusses the whole matter with much erudition."}}, {"text": "West", "label": "JUDGE", "start_char": 9694, "end_char": 9698, "source": "ner", "metadata": {"in_sentence": "That the consecrated idol in a Hindu temple is a juridical pernon has been expl'a%1y laid down in Manohar Ganesh's case('), which Mr.\n\nPrannath Saraswati, the author of the 'Tagore Lectures on Endowments' rightly enough speaks ol as one ranking as the leading case on the subject, and in which West J., discusses the whole matter with much erudition."}}, {"text": "L.R. 2 I.A. 145", "label": "CASE_CITATION", "start_char": 10295, "end_char": 10310, "source": "regex", "metadata": {}}, {"text": "Pollock", "label": "JUDGE", "start_char": 11157, "end_char": 11164, "source": "ner", "metadata": {"in_sentence": "dians or be barred of an action in case th_ey would ./ complain of things wrongfully done by their guardians while they are under age' (Pollock and Maitland's 'History of English Law', Volume I, 483\".", "canonical_name": "Pollock"}}, {"text": "Maitland", "label": "OTHER_PERSON", "start_char": 11169, "end_char": 11177, "source": "ner", "metadata": {"in_sentence": "dians or be barred of an action in case th_ey would ./ complain of things wrongfully done by their guardians while they are under age' (Pollock and Maitland's 'History of English Law', Volume I, 483\".", "canonical_name": "Maitla.nd's"}}, {"text": "Shaw", "label": "OTHER_PERSON", "start_char": 11293, "end_char": 11297, "source": "ner", "metadata": {"in_sentence": "1) Lord Shaw observed:\n\n.\"A Hindu idol is, according to long ."}}, {"text": "Sabara Swami", "label": "OTHER_PERSON", "start_char": 12420, "end_char": 12432, "source": "ner", "metadata": {"in_sentence": "Thus,\n\nin his Bhashya on the Purva Mimamsa, Adhyaya 9, Pada I, Sabara Swami states : ~T ~'l:r'1';'1fa, '3\"'!'11('11\\'lli._"}}, {"text": "Medhathithi", "label": "OTHER_PERSON", "start_char": 12975, "end_char": 12986, "source": "ner", "metadata": {"in_sentence": "Likewise, Medhathithi in commenting on the expression 'Devaswam' in Manu, Chapter XI, Verse 26 writes : .... ~'fl'ffB<>:r, .. llT'!TlG' f'l\"IT<l <!'"}}, {"text": "Manu", "label": "OTHER_PERSON", "start_char": 13033, "end_char": 13037, "source": "ner", "metadata": {"in_sentence": "Likewise, Medhathithi in commenting on the expression 'Devaswam' in Manu, Chapter XI, Verse 26 writes : .... ~'fl'ffB<>:r, .. llT'!TlG' f'l\"IT<l <!'"}}, {"text": "B. K. Mukherjea", "label": "JUDGE", "start_char": 13885, "end_char": 13900, "source": "ner", "metadata": {"in_sentence": "As observed by Mr. Justice B. K. Mukherjea :\n\n\"With regard to Debutter, the position seems to be somewhat different.", "canonical_name": "B. K. 1\\lukherjea"}}, {"text": "Lawrence Jenkins", "label": "OTHER_PERSON", "start_char": 14264, "end_char": 14280, "source": "ner", "metadata": {"in_sentence": "The dedicatioin to deity\", said Sir Lawrence Jenkins in Bhupati v. Ram/a/(1 ) \"is nothing but a compendious expression of the pious purpose for which the dedication is designed\"."}}, {"text": "Hindu Law of Religious & Charitable Trust", "label": "RESPONDENT", "start_char": 15126, "end_char": 15167, "source": "ner", "metadata": {"in_sentence": "(2) Hindu Law of Religious & Charitable Trust by Mr. B.K. lvfukherjee."}}, {"text": "B.K. lvfukherjee", "label": "OTHER_PERSON", "start_char": 15175, "end_char": 15191, "source": "ner", "metadata": {"in_sentence": "(2) Hindu Law of Religious & Charitable Trust by Mr. B.K. lvfukherjee."}}, {"text": "Sohm", "label": "OTHER_PERSON", "start_char": 16124, "end_char": 16128, "source": "ner", "metadata": {"in_sentence": "As observed by Sohm :\n\n\"During the later Empire-from the fifth century onward&--foundations created by private individuals came to be recognised as foundations in the true legal iense, but only Ji they took the form of a ipia causli\n\n('pium corpus') i.e. were devoted to 'pious uses', only in short, if they were charitable institutions."}}, {"text": "Bhagavad Gita", "label": "RESPONDENT", "start_char": 18668, "end_char": 18681, "source": "ner", "metadata": {"in_sentence": "The Bhagavad Gita echoes this verse when it says :\n\n'\"'!'"}}, {"text": "Samkara", "label": "OTHER_PERSON", "start_char": 18872, "end_char": 18879, "source": "ner", "metadata": {"in_sentence": "Samkara, the great philosopher, refers to the one Reality, who, E owing to the diversity or intellects ( matibheda) is conventionally spoken of (parikalpya) in various ways as Brahma, Visnu and Mahesvara."}}, {"text": "Brahma", "label": "OTHER_PERSON", "start_char": 19048, "end_char": 19054, "source": "ner", "metadata": {"in_sentence": "Samkara, the great philosopher, refers to the one Reality, who, E owing to the diversity or intellects ( matibheda) is conventionally spoken of (parikalpya) in various ways as Brahma, Visnu and Mahesvara."}}, {"text": "Visnu", "label": "OTHER_PERSON", "start_char": 19056, "end_char": 19061, "source": "ner", "metadata": {"in_sentence": "Samkara, the great philosopher, refers to the one Reality, who, E owing to the diversity or intellects ( matibheda) is conventionally spoken of (parikalpya) in various ways as Brahma, Visnu and Mahesvara."}}, {"text": "Mahesvara", "label": "OTHER_PERSON", "start_char": 19066, "end_char": 19075, "source": "ner", "metadata": {"in_sentence": "Samkara, the great philosopher, refers to the one Reality, who, E owing to the diversity or intellects ( matibheda) is conventionally spoken of (parikalpya) in various ways as Brahma, Visnu and Mahesvara."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 20193, "end_char": 20197, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 20437, "end_char": 20446, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 20614, "end_char": 20622, "source": "ner", "metadata": {"in_sentence": "In The Com- .mlsioner of Income Tax, Madhya Pradesh & Bhopal v. Sodra Devi(') Mr. Justice Bhagwati pointed out as follows :\n\n\"the word 'individual' has not been defined in the Act and there is authority, for the proposition that the word 'individual' does not mean only a human being but is wide enough to include a group of persons forming a unit."}}, {"text": "section 3", "label": "PROVISION", "start_char": 21174, "end_char": 21183, "source": "regex", "metadata": {"statute": null}}, {"text": "Chagla", "label": "OTHER_PERSON", "start_char": 21290, "end_char": 21296, "source": "ner", "metadata": {"in_sentence": "On behalf of the appellant Mr. Chagla referred to section 2 .sub-section (31) of the Income Tax Ad, 1961 (Act No."}}, {"text": "section 2", "label": "PROVISION", "start_char": 21309, "end_char": 21318, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 21808, "end_char": 21812, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 21822, "end_char": 21826, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 22705, "end_char": 22714, "source": "regex", "metadata": {"statute": null}}, {"text": "Act may be relied upon as a Parliamentary exposition of the earlier Act", "label": "STATUTE", "start_char": 22854, "end_char": 22925, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 22979, "end_char": 22988, "source": "regex", "metadata": {"linked_statute_text": "Act may be relied upon as a Parliamentary exposition of the earlier Act", "statute": "Act may be relied upon as a Parliamentary exposition of the earlier Act"}}, {"text": "section 3", "label": "PROVISION", "start_char": 23065, "end_char": 23074, "source": "regex", "metadata": {"linked_statute_text": "Act may be relied upon as a Parliamentary exposition of the earlier Act", "statute": "Act may be relied upon as a Parliamentary exposition of the earlier Act"}}, {"text": "Sterndale M.R.", "label": "OTHER_PERSON", "start_char": 23282, "end_char": 23296, "source": "ner", "metadata": {"in_sentence": "ln Cape Brandy Synilicate v. I.R.C.(1), Lord Sterndale M.R. sfild: '\n\n\"I think it is clearly established in A. ttorney Gen era!"}}]}
{"document_id": "1969_3_752_760_EN", "year": 1969, "text": "SUKHRAM SINGH AND ANOTHER\n\nSMT. HARBllEJI\n\nFebruary 19, 1969\n\n[M. HIDAYATULLAH, C.J. AND G. K. MITTER, J.]\n\nU.P. Zamindari Abolition end Land Reforms Act 1951-Sections 21 and i51-Amertdment by Act 20 of 1954-Express provision for retrospective application of atnended s. 21-No provision for retrospective effect of s. 157-lf s. 157 also deemed to have been emended retrospectively-Stc.ten1ent b, v Con1pensation Officer under section 240(F)-When final.\n\nThe respondent as Blmmidhar filed an objection under section 240( G) of the U.P. Zamindari and Land Abolition Act, 1961. in respect of a preliminary statement compiled by the Compensation Officer under section 240(F) showing the appellants as Adhivasis of certain land. The objection was dismissed by the Compensation Officer on October 25, 1956. who held that the appellants had Adhivasi rights and the objector had no interest in the land. The Compensation Offider decided the matter without framing an issue and referring it for decision to a competent court. In the meantime, in consolidation proceedings the respondent applied for correction of the records under section 10(1) of Consolidation of Holdings Act, but her objection was dismissed by the Consolidation Officer. However, on appeal. the Settlement Officer, (Consolidation), reversed this de cision holding that the appellants were Asainis. The Director of ConsOlidation, U .P. dismissed a revision application.\n\nIn these consolidation proceedings, the respondent claimed the advantage of the amendment of secltion 21(h) and section 157 introduced by the U.P. Land Reforms Act, XX of 1954, on the ground that her husband was suffering from physical infirmity and was incapable of cultivating land.\n\nThe appellants' conten tion was that while section 21 had been expressly amended to have retrospective effect, the amendment of section 157 was not effective retros' pectively; the respondent was therefore not entitled to claim the advantage from the amendment of section 157. It was further contended by the appellants that the order of the Compensation Officer made on October 25, 1956, had finally decided the status of the appellants as Adhivasis and not having been appealed against, the question could not now be reopened.\n\nHELD: Section 157(1)(a) must be read to apply retrospectively.\n\nIf the new s. 21 (h) is to be read retrospec/tively from the commence ment of Land Reforms Act. the amendment of section 1Sl(l) which was made simultaneously must also be clearly intended to operate with re..\n\nG trospection.\n\nThere would be no point in making the amendment of s. 21 (h) retrOiSpective if the other clauses were to apply prospectively for then the force of the retrospectivitv of clause (h) of s. 21 would be made neutral. [759 E-F]\n\nA law is undoubtedly retrospective if the law says so expressly but it is not always necessary to say so expressly to malle it retrospective. ll There are occasions when a law may be held to be retrospective in opera lion.\n\nRetrospection is not to be presumed for the presumption is the - other way but many statutes have been regarded as retrospective without , a decllaration.\n\nThus it is that remedial staes are always regarded as\n\nprospective but declaratory statutes are considered retrospective. Similarly sometimes statutes have a retrospective effect \\.vhen the declared intention is cleatly and unequivocally manifest from the language employed in the particular 1aw or in the context of connected provisions.\n\nIt is always a question whether the legislature has sufficiently expressed itself. To find this one must look at the general scope and purview of the Act and the remedy the legislature intends to apply in the fOrmer state of the law and then determine what the legislature intended to do. This line of investigation is, df course, only open if it is necessary. [758 HJ\n\nMain v. Stark [1890] 15- A.C. 384 at 388; referred to.\n\nThe Order of the Compensation Officer under s. 240-F did not have that finality which was claimed for it. That finality attaches only to the order of the Assistant Collector under s. 229-B on a reference of an issue from the Compensation Officer.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 666 of 1966.\n\nAppeal by special leave from the judgment and order dated September 20, 1963 of the Deputy Di.rector of Consolidation,\n\nU.P. Lucknow in Revision No. 91 of _1963.\n\n)) J. P. Goyal and R. S. Gupta, for the appellants.\n\nS. P. Sinha and M. I. Khowaja, for the respondents.\n\nThe Judgment of the Court was delivered by Hidayatullah, C.J. The parties in this appeal are the same as in Civil Appeal No. 286 of 1966 which we declared to have become infructuous because of the operation of s. 5 of the Uttar Pradesh Consolidation Act. The judgment in that appeal was delivered by us on February 7, 1969. For the narration of facts in this appeal we have, however, referred to certain orders which were passed by the High Court from the sister appeal. The parties to this appeal as in the other appeal are Sukhram Singh and Laiq Singh of the one part and Smt. Harbheji of the second part. These two parties have been fighting a long drawn litigation over khata No. 271 of village Shahgarh. Two separate proceedings took place before the Revenue Courts and reached this Court by way of special leave, one of which has been disposed of and the other is now before us.\n\nThe points involved in this appeal are short but in view of the length of litigation a Jong narration is necessary.\n\nOn March 10, 1954 Smt. Harbheji as bhumidar filed a suit (No. 38 of 1954) under s. 202 of the U.P. Zamindari Abolition and Land Reforms Act, 1955 agaitist the other party in the court of the Assistant Collector, !st Class, Aligarh. The allegation in the suit was that Sukhram Singh and Laiq Singh were Asamis who were leased the khata in 1947 from year to year. Smt.\n\nHarbheji asked for their ejectme; nt from the khata.\n\nThe defence of the other side was that the occupants were Adhivasis. The\n\nLand Reforms Act was passed in 1951. Under the Act the intermediaries were abolished and their rights and title vested in the State from July 1, 1952. The Act was later amended from time to time and we are concerned with one such amendment made by the U.P. Land Reforms Act XX of 1954 which came into force on October 10, 1954.\n\nReverting to the facts, the suit No. 38 of 1954 was dismissed by the Assistajnt Collector, 1st Class, Aligarh on April 20, 1956 and it was held that Sukhram Singh and Laiq Singh were not\n\nAsamis and therefore not liable to ejectment.\n\nOn appeal the Civil Judge of Aligarh allowed it on February 1, 1957 and declared Sukhram and Laiq Singh to be Asamis. A second appeal in the High Court before a Single Judge succeeded on February 19, 1958. Sukhram Singh and Laiq Singh were again declared to be Adhivasis.\n\nA Letters Patent Appeal was filed in the High Court. Meanwhile the Consolidation of Holdings Act was brought into force in this area and a notification under s. 4 of the Consolidation of Holdings Act declaring village Shahgarh area to be under consolidation was published on November 11,\n\n1961. The appeal in the High Court was decided on February 8, 1962. It appears that the arguments were already heard and the case was reserved for judgment when the notification came into force.\n\nThe learned Judges did not apply s. 5 of the Consolidation of Holdings Act which provides that on notification issuing any suit, proceeding or appeal must be taken to have abated.\n\nThe Division Bench gave its decision reversing the judgment of the Single Judge.\n\nAs a result Sukhram Singh and Laiq Singh were again declared to be Asamis. An appeal was then brought to this Court by special leave and it is that appeal which we declared had become infructuous by reason of the abatement of the suit. This was the end of the proceedings under s. 202 of the Land Reforms Act.\n\nMeanwhile Smt. Harbheji as bhumidar was entitled to compensation for the extinguishment ()f her rights.\n\nThe Compensation Officer prepared a preliminary statement under s. 240F and showed Sukhram Singh and Laiq Singh as Adhivasis.\n\nSmt .. ar bheji filed an objection under s. 240G but on the date of heanng (October 25, 1956) she did not appear before the Compensation Officer who dismissed her objection holding that Laiq Singh and Sukhram Singh had Adhivasi rights aind the objector had no interest in the land.\n\nThe statement of compensation was also confirmed on the <; ame date.\n\nIn the consolidation proceedings Smt. Harbheji applied for correction of the records under s. 10(1) of the Consolidation of Holdings Act. This niatter was decided by the Consolidation Officer ill Khera Narainsingh on March 7,\n\n1963. The objection filed by Smt. Harbheji was dismissed. On the Settlement Officer (Consolidation) reversed the above\n\nSUKHRAM v. HARBHEJI (Hidayatul/ah, C.J.) 755\n\ndecision on June 14, 1963 holding that Sukhram Singh and Laiq Singh were Asamis.\n\nThe Deputy Director of Consolidation, exercising the powers of the Director of Consolidation Uttar Pradesh dismissed the revision petition on September 20, 1963 filed by Sukhram Singh and Laiq Singh. The present appeal is from the last decision by special leave.\n\nTwo points were argued before us, namely, that Smt. Harbheji was not entitled to the benefit of s. 21 as amended by Act XX of 1954 and secondly that the order of the Compensation Officer made on October 25, 1956 had finally decided the status of Sukhram Singh and Laiq Singh as Adhimsis and not having C been appealed against, the question cannot now be reopened. We shall take these points one by one.\n\nThe U.P. Zamindari Abolition and Land Reforms Act was amended in 1954 by the above amending Act in several respects.\n\nWe are only concerned with the amendment of ss. 21 and 157 and the addition of Chapter IX-A. Stll; tion 21 leaving out portions not necessary for our purposes provides after the amendment as follows :\n\n\"Sec. 21. Non-occupancy tenants, sub-tenants of grove-lands and tenant's mortgagees to be assamis.\n\n( 1) Notwithstanding anything contained in this Act, every person who, on the date immediately preceding the date of vesting, occupied or held as--\n\n(h) A tenant of sir land referred to in sub-clause\n\n(a) of clause (i) of the Explanation under section 16, a sub-tenant referred to in sub-clause (iI) of clause (a) of Section 20 or an occupant referred to in sub-clause (i) of clause (b) of the said section where the landholders or if there are more than one landholders, all of them were person or persons belonging-\n\n(b) if the land was let out or occupied on \"' after the ninth day of April, 1946, on.the date of letting or occupation, to any one or more of the clauses mentioned in\n\nsub-section (1) of Section 157\n\nshall be deemed to be 8'1) asami thereof.\"\n\nBefore the amendment the corresponding part of the section read A ls follows:\n\n\"Section 21 ( 1). Notwithstanding anything contained in this Act, every person who, on the date immediately preceding the date of vesting, occupied or held land as-\n\n(h} a tenant of sir or land referred to in sub-clause\n\n(a) of clause ( i) ol' the explanation under section J 6, a sub-tenant or an occupant referred to in section 20, where the landholder or if there are more than one landholder all of them were person or persons belonging, both on the date of letting and on the date immediately preceding the date of vesting, to any one or more of the classes mentioned in sub-section ( 2) of section 1 O or clause (e) of sub section (1) of section 157. shall be deemed to be an asami thereof.\"\n\nThe difference between the two sections material for our purposes lies in the mention of all clauses of s. 157 sub-section 1 after the amendment whereas before the amendment only clause\n\n(e) of sub-section 1 of s. 157 was mentioned. Section 157 also was amended. Again for the purposes of this case it is not necessary to reproduce the whole of the section. It read before the amendment as follows :\n\n\"Section 157(1). A bhumidhar or a sirdar or an asami holding the land in lieu of maintenance allowance under section 11, who is--\n\n(a) an unmarried woman, or if married, divorcea or separated from her husband, or a widow;\n\n(b) a minor whose father has died; ( c) a lunatic or an idiot; ( d) a person incapable of cultivating by reason of blindness or other physical infirmity; ( e) prosecuting studies in a recog)nised institution and does not exceed 25 years in age;\n\n(f) in the Military, Naval or Air service of the Indian Dominion; or\n\n(g) under detention or imprisonment. may let the whole or any part of i)is holding.\" After the amendment it reads as follows :\n\n\"Section 157-Lease by a disabled person.-(1) A bhumidhar or a sirdar or an asami holding the land in\n\nlieu of maintenance allowance under Section 11 who is-\n\n(a) an unmarried woman, or if married divorced or separated from her husband or whose husband suffers, from any of the disqualifications mentioned in clause (e) or (d) or a widow;\n\n(b) a minor whose father suffers from any of the disqualifications mentioned in clause (cl or (d) or has died; and\n\n(c) a lunatic' or an idiot;\n\n(d) a person incapable of cultivating by reason of blindness, or other physical infirmity; ( e) prosecuting studies in a recognised institution and does not exceed 25 years in age and whose father suffers from any of the disqualifications mentioned in clause ( e) or ( d) or has died : \"\n\n\"(f) in the Military, Naval, or Air service of the Indian Dominion; or\n\n(g) under detention or imprisonment;\n\nmay let the whole or any part of his holding.\" The difference here is that a lease by a woman although married was possible if her husband was suffering from insanity or idiocy or was a person incapable of cultivating by reason of\n\nblindne$s or other physical infirmity. Smt. Harbheji in her applications wished to take advantage of the amendments of ss. 21 and 157 on the ground that her husband was suffering from sinus and hence from physical infirmity and was incapable of cultivating the land. The difficulty arises because the Legislature while making the amendment made the amendment in clause (h) of s. 21 retrospective from the date of the passing of the Abolition Act but in s. 157 it did not expressly state that the amendments were retrospective. The short guestion that arises is whether s. 157 when read with s. 27 also becomes recrospective notwithstanding that there are no express words of retrospectivity.\n\nThe second point is concerned with the addition of Chapter IX-A which is headed Conferment of Sirdari Rights on Adhivasis.\n\nThe grounds on which the ejectmf\\ltt of an A dhivasi could be made were contained in s. 234 of the Land Reforms Act but none the grounds applies here. Thus if Sukhram Singh and Laiq Singh were adhivasis they could not be ejected by Smt. Harbheji .but if they were only asamis then the ejectment could take place because they were only tenants from year to year. Chapter IX-A added sections 240A to 240N. Jt provides that the Government\n\nmay by a notification declare that the rights, title and interest of the landholders in the land held by Adhivasis shall cease and vest in the State and also provides for payment of compensati<Jill to the landlord whose rights, title or interest iu the land are acquired.\n\nThe compensation statement is required to be published under s. 240F and s. 2400 gives a right to any person interested to file objections.\n\nSection 240H deals with the procedure for disposal of the objections under s. 240G. It provides that the Compensation Officer shall frame an issue regarding it and refer it for disposal to the Court which has jurisdiction to decide a suit under s. 229B read with s. 234A and that thereupon all the provisions relating to the hearing and disposal of such suit shall apply to his reference as if it were a suit. Section 229B provides that any person claiming to be an Asami of the whole or a part of it may sue the landlord for a declaration of his rights as Asami. Subsection 3 of the same section provided that the provisions are to apply mutatis mutandis to a suit by a person claiming to be sirdar (Adhivasi).\n\nSection 234A then provides that the provisions of s. 229B mentioned above shall apply to lil1l Adhivasi as if he were an Asami. Schedule II to the Land Reforms Act in Item 34 appoints the Assistant Collector, 1st Class, as competent court for the trial of suits for declaration of rights under s. 229B. The Schedule also provides for an appeal to the Commissioner from the order and to the Board of Revenue by a second appeal.\n\nIn the present case the Compensation Officer who passed the order on October 25, 1956 was also Assistant Collector, 1st Class but he did not refer the case to himself after framing an issue and hence his order has been treated to have been passed by him in his capacity as a Compensation Officer.\n\nWe will now come to the question whether s. 157 also operates retrospectively with s. 21.\n\nThe latter was made retrospective expressly.\n\nThe High Court in the Division Bench decision held that s. 157 was also retrospective by implication. The contention of the. appellant~ is that Smt. Harbheji was not entitled to take the benefit of the amendment and to plead that she could let out her sir Ia; nd because her husband was suffering form an infirmity and was not able to look after the cultivation. If Smt. Harbheji is entitled to plead the amended section then under s. 21 Sukhram Singh arui Laiq Singh must be treated as Asamis because that is what s. 21 enacts. If the unamended section is to be read with s. 21 the, n the contrary result is reached.\n\nNow a law is undoubtedly retrospective if the Jaw says so ex• pressly but it is not always necessary to say so expressly to make the law retrospective.\n\nThere are occasions when a law may be held to be retrospective in operation. Retrospection is not to be presumed for the presumption is the other way b1Jt many statutes\n\n\nSUKHRAM v. HARBHEJI (Hida.vatu/lah, C.J.) 759'\n\nhave been. regarded as retrospective without a declaration. Thus it is that remedial statutes are always regarded as prospective but declaratory statutes are considered retrospective. Similarly sometimes statutes have a retrospective effect when the declared intention is clearly and unequivocally manifest from the language employed in the piirticular law or in the context of connected provisions.\n\nIt is always a question whether the legislature has sufficiently expressed itself. To find this one must look at the general scOpe and purview of the' Act and the remedy the legislature intends to apply in the formet state of the law and then determiqle what the legislature intended to do. ThiS line of investigation is, of course, only open if it is necessary.\n\nIn the words of Lord Selbome in Main v. Stark(') there might be something in the context of an Act or collected from its language, which might giveto words prima facie prospective a large operation. More retrospectivity. is not to be given than what can be 'gathered from expressed or clearly implied intention of the legislature.\n\nApplying these tests to the statute we have in hand, we are clear that section 157(1 )(a) must.be read to apply retroSpectTvely.\n\nIt is clear that s. 21 (h) mentioned only one of the clauses viz. clause (e) as furnishing a ground for declaration. After the amendment of clause (h) one or more of the clauses of s. 157(1) are to be taken into account. Now there would be no point i,11 making the amendment of s. 2l(h) retrospective if the other clauses E were to apply prospectively for then the force of the retrospectivity of clause (h) of s. 21 is made neutral. Therefore if the new s. 21\n\n(h) is to be read retrospectively from the commencement of Land Reforms Act, the amC\\nldment of section 157 ( 1) which was made simultaneously must also be clearly intended to operate with retrospection. The legislature intended that at any givein moment of time from the commencement of the Lands Refonns Act all the clauses or one or more them and not clause (e) alone were to be taken note of. The amendment of clauses (h) speaks of one or F\n\nmore clauses and when we read the clauses of s.' 157(1) we find them altered also. Therefore the new clauses must be read and not the old clauses.\n\nThe High Court was thus right in its conclusion that the clauses of s. 157 (1) as amended also operate retrospectively.\n\nThis disposes of the first point.\n\nThe next point is about the finality of the order of October 25, 1956 passed by the Compensation Officer. We cannot refer that order to his capacity as the Assistant Collector. An act would, no doubt be refemble to a capacity which would give it validity.\n\nBut the law required the compensation officer to frame an issue and refer it to the competent court.\n\nHe could not decide the matter without dog so. One of the parties was before it and he\n\n(I) [1890) 15 A.C. 384 at 388.\n\nought to have asked that party to prove its case. He did nothing.\n\nA It is, therefore, not wrong for the Settlement officer and the Deputy Director to treat the order as proceeding from the Compensation Officer. Further since proceedings under s. 202 of the I.:and Reforms Act were already pending for the decision of the identical question the Compensation Officer ought to have stayed his hands.\n\nIn our opinion, the order of the Compensation Officer did not haye B that finality which is claimed for it.\n\nThat finality attaches only to the order of the Assistant Collector on a reference of an issue from the Compensation .Officer.\n\nThere was thus no finality.\n\nThe order of the Deputy Director ot, therefore, be assailed. The appeal must fail and is dismissed but in view of the fact that an amendment of the law deprives the present appellants of C a valid plea we make no order about costs.\n\nR.K.P.S.\n\nAppeal dismissed.", "total_entities": 122, "entities": [{"text": "SUKHRAM SINGH AND ANOTHER", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "SUKHRAM SINGH AND ANOTHER", "offset_not_found": false}}, {"text": "February 19, 1969", "label": "DATE", "start_char": 43, "end_char": 60, "source": "ner", "metadata": {"in_sentence": "HARBllEJI\n\nFebruary 19, 1969\n\n[M. HIDAYATULLAH, C.J. AND G. K. MITTER, J.]\n\nU.P. Zamindari Abolition end Land Reforms Act 1951-Sections 21 and i51-Amertdment by Act 20 of 1954-Express provision for retrospective application of atnended s. 21-No provision for retrospective effect of s. 157-lf s. 157 also deemed to have been emended retrospectively-Stc.ten1ent b, v Con1pensation Officer under section 240(F)-When final."}}, {"text": "M. HIDAYATULLAH, C.J.", "label": "JUDGE", "start_char": 63, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH*", "offset_not_found": false}}, {"text": "G. K. MITTER, J.", "label": "JUDGE", "start_char": 89, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER", "offset_not_found": false}}, {"text": "Zamindari Abolition end Land Reforms Act 1951", "label": "STATUTE", "start_char": 113, "end_char": 158, "source": "regex", "metadata": {}}, {"text": "Sections 21", "label": "PROVISION", "start_char": 159, "end_char": 170, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition end Land Reforms Act 1951", "statute": "Zamindari Abolition end Land Reforms Act 1951"}}, {"text": "s. 21", "label": "PROVISION", "start_char": 268, "end_char": 273, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition end Land Reforms Act 1951", "statute": "Zamindari Abolition end Land Reforms Act 1951"}}, {"text": "s. 157", "label": "PROVISION", "start_char": 315, "end_char": 321, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition end Land Reforms Act 1951", "statute": "Zamindari Abolition end Land Reforms Act 1951"}}, {"text": "s. 157", "label": "PROVISION", "start_char": 325, "end_char": 331, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition end Land Reforms Act 1951", "statute": "Zamindari Abolition end Land Reforms Act 1951"}}, {"text": "section 240(F)", "label": "PROVISION", "start_char": 426, "end_char": 440, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition end Land Reforms Act 1951", "statute": "Zamindari Abolition end Land Reforms Act 1951"}}, {"text": "section 240( G)", "label": "PROVISION", "start_char": 507, "end_char": 522, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition end Land Reforms Act 1951", "statute": "Zamindari Abolition end Land Reforms Act 1951"}}, {"text": "Zamindari and Land Abolition Act, 1961", "label": "STATUTE", "start_char": 535, "end_char": 573, "source": "regex", "metadata": {}}, {"text": "section 240(F)", "label": "PROVISION", "start_char": 656, "end_char": 670, "source": "regex", "metadata": {"linked_statute_text": "Zamindari and Land Abolition Act, 1961", "statute": "Zamindari and Land Abolition Act, 1961"}}, {"text": "October 25, 1956", "label": "DATE", "start_char": 783, "end_char": 799, "source": "ner", "metadata": {"in_sentence": "The objection was dismissed by the Compensation Officer on October 25, 1956."}}, {"text": "section 10(1)", "label": "PROVISION", "start_char": 1122, "end_char": 1135, "source": "regex", "metadata": {"linked_statute_text": "Zamindari and Land Abolition Act, 1961", "statute": "Zamindari and Land Abolition Act, 1961"}}, {"text": "Consolidation of Holdings Act", "label": "STATUTE", "start_char": 1139, "end_char": 1168, "source": "regex", "metadata": {}}, {"text": ".P.", "label": "GPE", "start_char": 1392, "end_char": 1395, "source": "ner", "metadata": {"in_sentence": "The Director of ConsOlidation, U .P. dismissed a revision application."}}, {"text": "section 157", "label": "PROVISION", "start_char": 1543, "end_char": 1554, "source": "regex", "metadata": {"linked_statute_text": "Consolidation of Holdings Act", "statute": "Consolidation of Holdings Act"}}, {"text": "Land Reforms Act", "label": "STATUTE", "start_char": 1578, "end_char": 1594, "source": "regex", "metadata": {}}, {"text": "section 21", "label": "PROVISION", "start_char": 1760, "end_char": 1770, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Act", "statute": "Land Reforms Act"}}, {"text": "section 157", "label": "PROVISION", "start_char": 1845, "end_char": 1856, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Act", "statute": "Land Reforms Act"}}, {"text": "section 157", "label": "PROVISION", "start_char": 1981, "end_char": 1992, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Act", "statute": "Land Reforms Act"}}, {"text": "Section 157(1)(a)", "label": "PROVISION", "start_char": 2253, "end_char": 2270, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Act", "statute": "Land Reforms Act"}}, {"text": "s. 21", "label": "PROVISION", "start_char": 2322, "end_char": 2327, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Act", "statute": "Land Reforms Act"}}, {"text": "Land Reforms Act", "label": "STATUTE", "start_char": 2389, "end_char": 2405, "source": "regex", "metadata": {}}, {"text": "section 1S", "label": "PROVISION", "start_char": 2424, "end_char": 2434, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Act", "statute": "Land Reforms Act"}}, {"text": "s. 21", "label": "PROVISION", "start_char": 2588, "end_char": 2593, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Act", "statute": "Land Reforms Act"}}, {"text": "s. 21", "label": "PROVISION", "start_char": 2721, "end_char": 2726, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Act", "statute": "Land Reforms Act"}}, {"text": "s. 240", "label": "PROVISION", "start_char": 3951, "end_char": 3957, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 229", "label": "PROVISION", "start_char": 4087, "end_char": 4093, "source": "regex", "metadata": {"statute": null}}, {"text": "J. P. Goyal", "label": "OTHER_PERSON", "start_char": 4383, "end_char": 4394, "source": "ner", "metadata": {"in_sentence": ")) J. P. Goyal and R. S. Gupta, for the appellants."}}, {"text": "R. S. Gupta", "label": "LAWYER", "start_char": 4399, "end_char": 4410, "source": "ner", "metadata": {"in_sentence": ")) J. P. Goyal and R. S. Gupta, for the appellants."}}, {"text": "S. P. Sinha", "label": "LAWYER", "start_char": 4433, "end_char": 4444, "source": "ner", "metadata": {"in_sentence": "S. P. Sinha and M. I. Khowaja, for the respondents."}}, {"text": "M. I. Khowaja", "label": "LAWYER", "start_char": 4449, "end_char": 4462, "source": "ner", "metadata": {"in_sentence": "S. P. Sinha and M. I. Khowaja, for the respondents."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 4529, "end_char": 4541, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Hidayatullah, C.J. The parties in this appeal are the same as in Civil Appeal No."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 4696, "end_char": 4700, "source": "regex", "metadata": {"statute": null}}, {"text": "February 7, 1969", "label": "DATE", "start_char": 4792, "end_char": 4808, "source": "ner", "metadata": {"in_sentence": "The judgment in that appeal was delivered by us on February 7, 1969."}}, {"text": "Sukhram Singh", "label": "PETITIONER", "start_char": 5011, "end_char": 5024, "source": "ner", "metadata": {"in_sentence": "The parties to this appeal as in the other appeal are Sukhram Singh and Laiq Singh of the one part and Smt.", "canonical_name": "SUKHRAM SINGH AND ANOTHER"}}, {"text": "Laiq Singh", "label": "OTHER_PERSON", "start_char": 5029, "end_char": 5039, "source": "ner", "metadata": {"in_sentence": "The parties to this appeal as in the other appeal are Sukhram Singh and Laiq Singh of the one part and Smt."}}, {"text": "Harbheji", "label": "RESPONDENT", "start_char": 5065, "end_char": 5073, "source": "metadata", "metadata": {"canonical_name": "Harbheji", "offset_not_found": true}}, {"text": "Shahgarh", "label": "GPE", "start_char": 5185, "end_char": 5193, "source": "ner", "metadata": {"in_sentence": "271 of village Shahgarh."}}, {"text": "March 10, 1954", "label": "DATE", "start_char": 5492, "end_char": 5506, "source": "ner", "metadata": {"in_sentence": "On March 10, 1954 Smt."}}, {"text": "Harbheji", "label": "PETITIONER", "start_char": 5512, "end_char": 5520, "source": "ner", "metadata": {"in_sentence": "Harbheji as bhumidar filed a suit (No.", "canonical_name": "Harbheji"}}, {"text": "s. 202", "label": "PROVISION", "start_char": 5569, "end_char": 5575, "source": "regex", "metadata": {"statute": null}}, {"text": "Zamindari Abolition and Land Reforms Act, 1955", "label": "STATUTE", "start_char": 5588, "end_char": 5634, "source": "regex", "metadata": {}}, {"text": "July 1, 1952", "label": "DATE", "start_char": 6122, "end_char": 6134, "source": "ner", "metadata": {"in_sentence": "Under the Act the intermediaries were abolished and their rights and title vested in the State from July 1, 1952."}}, {"text": "Land Reforms Act", "label": "STATUTE", "start_char": 6242, "end_char": 6258, "source": "regex", "metadata": {}}, {"text": "October 10, 1954", "label": "DATE", "start_char": 6295, "end_char": 6311, "source": "ner", "metadata": {"in_sentence": "The Act was later amended from time to time and we are concerned with one such amendment made by the U.P. Land Reforms Act XX of 1954 which came into force on October 10, 1954."}}, {"text": "Aligarh", "label": "GPE", "start_char": 6416, "end_char": 6423, "source": "ner", "metadata": {"in_sentence": "38 of 1954 was dismissed by the Assistajnt Collector, 1st Class, Aligarh on April 20, 1956 and it was held that Sukhram Singh and Laiq Singh were not\n\nAsamis and therefore not liable to ejectment."}}, {"text": "April 20, 1956", "label": "DATE", "start_char": 6427, "end_char": 6441, "source": "ner", "metadata": {"in_sentence": "38 of 1954 was dismissed by the Assistajnt Collector, 1st Class, Aligarh on April 20, 1956 and it was held that Sukhram Singh and Laiq Singh were not\n\nAsamis and therefore not liable to ejectment."}}, {"text": "Civil Judge of Aligarh", "label": "COURT", "start_char": 6563, "end_char": 6585, "source": "ner", "metadata": {"in_sentence": "On appeal the Civil Judge of Aligarh allowed it on February 1, 1957 and declared Sukhram and Laiq Singh to be Asamis."}}, {"text": "February 1, 1957", "label": "DATE", "start_char": 6600, "end_char": 6616, "source": "ner", "metadata": {"in_sentence": "On appeal the Civil Judge of Aligarh allowed it on February 1, 1957 and declared Sukhram and Laiq Singh to be Asamis."}}, {"text": "Sukhram", "label": "PETITIONER", "start_char": 6630, "end_char": 6637, "source": "ner", "metadata": {"in_sentence": "On appeal the Civil Judge of Aligarh allowed it on February 1, 1957 and declared Sukhram and Laiq Singh to be Asamis.", "canonical_name": "SUKHRAM SINGH AND ANOTHER"}}, {"text": "February 19, 1958", "label": "DATE", "start_char": 6736, "end_char": 6753, "source": "ner", "metadata": {"in_sentence": "A second appeal in the High Court before a Single Judge succeeded on February 19, 1958."}}, {"text": "Meanwhile the Consolidation of Holdings Act", "label": "STATUTE", "start_char": 6875, "end_char": 6918, "source": "regex", "metadata": {}}, {"text": "s. 4", "label": "PROVISION", "start_char": 6980, "end_char": 6984, "source": "regex", "metadata": {"linked_statute_text": "Meanwhile the Consolidation of Holdings Act", "statute": "Meanwhile the Consolidation of Holdings Act"}}, {"text": "November 11,\n\n1961", "label": "DATE", "start_char": 7097, "end_char": 7115, "source": "ner", "metadata": {"in_sentence": "Meanwhile the Consolidation of Holdings Act was brought into force in this area and a notification under s. 4 of the Consolidation of Holdings Act declaring village Shahgarh area to be under consolidation was published on November 11,\n\n1961."}}, {"text": "February 8, 1962", "label": "DATE", "start_char": 7161, "end_char": 7177, "source": "ner", "metadata": {"in_sentence": "The appeal in the High Court was decided on February 8, 1962."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 7340, "end_char": 7344, "source": "regex", "metadata": {"linked_statute_text": "Meanwhile the Consolidation of Holdings Act", "statute": "Meanwhile the Consolidation of Holdings Act"}}, {"text": "s. 202", "label": "PROVISION", "start_char": 7848, "end_char": 7854, "source": "regex", "metadata": {"linked_statute_text": "Meanwhile the Consolidation of Holdings Act", "statute": "Meanwhile the Consolidation of Holdings Act"}}, {"text": "s. 240F", "label": "PROVISION", "start_char": 8050, "end_char": 8057, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 240G", "label": "PROVISION", "start_char": 8154, "end_char": 8161, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 8557, "end_char": 8565, "source": "regex", "metadata": {"statute": null}}, {"text": "Khera Narainsingh", "label": "OTHER_PERSON", "start_char": 8662, "end_char": 8679, "source": "ner", "metadata": {"in_sentence": "This niatter was decided by the Consolidation Officer ill Khera Narainsingh on March 7,\n\n1963."}}, {"text": "September 20, 1963", "label": "DATE", "start_char": 9083, "end_char": 9101, "source": "ner", "metadata": {"in_sentence": "The Deputy Director of Consolidation, exercising the powers of the Director of Consolidation Uttar Pradesh dismissed the revision petition on September 20, 1963 filed by Sukhram Singh and Laiq Singh."}}, {"text": "s. 21", "label": "PROVISION", "start_char": 9301, "end_char": 9306, "source": "regex", "metadata": {"statute": null}}, {"text": "Zamindari Abolition and Land Reforms Act", "label": "STATUTE", "start_char": 9618, "end_char": 9658, "source": "regex", "metadata": {}}, {"text": "ss. 21 and 157", "label": "PROVISION", "start_char": 9771, "end_char": 9785, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act", "statute": "Zamindari Abolition and Land Reforms Act"}}, {"text": "Sec. 21", "label": "PROVISION", "start_char": 9930, "end_char": 9937, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act", "statute": "Zamindari Abolition and Land Reforms Act"}}, {"text": "section 16", "label": "PROVISION", "start_char": 10273, "end_char": 10283, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act", "statute": "Zamindari Abolition and Land Reforms Act"}}, {"text": "Section 20", "label": "PROVISION", "start_char": 10346, "end_char": 10356, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act", "statute": "Zamindari Abolition and Land Reforms Act"}}, {"text": "Section 157", "label": "PROVISION", "start_char": 10735, "end_char": 10746, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 21", "label": "PROVISION", "start_char": 10872, "end_char": 10882, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20", "label": "PROVISION", "start_char": 11193, "end_char": 11203, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 11467, "end_char": 11476, "source": "regex", "metadata": {"statute": null}}, {"text": "section 157", "label": 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{"text": "s. 157", "label": "PROVISION", "start_char": 16901, "end_char": 16907, "source": "regex", "metadata": {"linked_statute_text": "Schedule II to the Land Reforms Act", "statute": "Schedule II to the Land Reforms Act"}}, {"text": "s. 21", "label": "PROVISION", "start_char": 16943, "end_char": 16948, "source": "regex", "metadata": {"linked_statute_text": "Schedule II to the Land Reforms Act", "statute": "Schedule II to the Land Reforms Act"}}, {"text": "s. 157", "label": "PROVISION", "start_char": 17053, "end_char": 17059, "source": "regex", "metadata": {"linked_statute_text": "Schedule II to the Land Reforms Act", "statute": "Schedule II to the Land Reforms Act"}}, {"text": "s. 21", "label": "PROVISION", "start_char": 17429, "end_char": 17434, "source": "regex", "metadata": {"statute": null}}, {"text": "Sukhram Singh arui Laiq Singh", "label": "OTHER_PERSON", "start_char": 17435, "end_char": 17464, "source": "ner", "metadata": {"in_sentence": "Harbheji is entitled to plead the amended section then under s. 21 Sukhram Singh arui Laiq Singh must be treated as Asamis because that is what s. 21 enacts."}}, {"text": "s. 21", "label": "PROVISION", "start_char": 17512, "end_char": 17517, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 17570, "end_char": 17575, "source": "regex", "metadata": {"statute": null}}, {"text": "Selbome", "label": "OTHER_PERSON", "start_char": 18774, "end_char": 18781, "source": "ner", "metadata": {"in_sentence": "In the words of Lord Selbome in Main v. Stark(') there might be something in the context of an Act or collected from its language, which might giveto words prima facie prospective a large operation."}}, {"text": "section 157(1 )(a)", "label": "PROVISION", "start_char": 19156, "end_char": 19174, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 19232, "end_char": 19237, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 157(1)", "label": "PROVISION", "start_char": 19396, "end_char": 19405, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 19493, "end_char": 19497, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 19626, "end_char": 19631, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 19670, "end_char": 19675, "source": "regex", "metadata": {"statute": null}}, {"text": "Land Reforms Act", "label": "STATUTE", "start_char": 19736, "end_char": 19752, "source": "regex", "metadata": {}}, {"text": "section 157", "label": "PROVISION", "start_char": 19773, "end_char": 19784, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Act", "statute": "Land Reforms Act"}}, {"text": "s. 157", "label": "PROVISION", "start_char": 20339, "end_char": 20345, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Act", "statute": "Land Reforms Act"}}, {"text": "s. 202", "label": "PROVISION", "start_char": 21150, "end_char": 21156, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_761_772_EN", "year": 1969, "text": "NEW SA VAN SUGAR & GUR REFINING CO. LTD.\n\nCOMMISSIONER OF INCOME-TAX, CALCUTTA\n\nFebruary 19, 1969\n\n(J.C. SHAH, V, RAMASWAMI AND A. N. GROVER, JJ.]\n\nIncome-tax Act (11 of 1922), ss. 10(2)(vi-a) and (vi-b) Qnd 12(3) and (4)--Scope of s. 10-lf els, (vi-a) and (vi-b) of s. 10(2) could be read bv implication into s. 12.\n\nThe assessee-company, carrying on the business of crushing sugar cane and gur refining, apprehending loss, entered into a lease with another company.\n\nUnder cl. (7) of the indenture, the consideration of the lease was royalty payable on the manufacture of sugar and molasses and was subject to a minimum payment of Rs. 65,000 per annum. The lease was for a term of 5 years commencttng from !st June 1945 with an option to continue for a further term of 5 years and thereafter with two further options of 5 years on the same terms and conditions subject to payme:.it\n\nof higher rates of royalty.\n\nClauses 2 to 5 provided that the existing machinery which was owned by the lessor could not be removed and that the lessee would be entitled to set up additional machinery without interference from the lessor and that on the termination of the lease the lessee would be entitled to remove the same without causing any damage to the property demised.\n\nThe effect of els. 11 to 14 was that the lessor would have no concernt with the production of the factory which was the principal part of the business pre:viously carried on by the lessor. In assessment\n\nproceedings for the assessment year 1955-56, the assessee contended that the lease was a lease of a commercial asset and therefore the income arising from it should be assessed under s. 10 of the Income-tax Act, 1922, and hence, the assessee should be allowed depreciation and deve1opment rebate in accordance with els. (vi-a) and (vi-b) of s. 10(2). The department and the High Court rejected the assessee's contention and held that the income was liable to be assessed under s. 12 as 'income from other sources' and that no additional depreciation and development rebate could be allowed.\n\nJn appeal to this Court it was contended that : . (I) the income of the assessee was liable to be assessed under s. 10 of the Income-tax Act and not under. s. 12; and (2) Since the benefit under cl. (vi) of s. 10(2) is allowed to the assessee under s. 12 ( 3), the assessee should be held to be entitled to additional depredation and development rebate under els (vi-a) and (vi-b) even if the assessment was under s. 12, on the groW, d that• those two clauses are ancillary to cl. (vi) and should be taken to have been included ins, 12(3) along with cl. (vi) .\n\n. HELD : ( 1 ) The income of the assessee could not be characterised as income from the activity of the assessee carrying on any business and was therefore, liable to be assessed under s. 12 and not under s. l O of the Income-tax Act. [769 F-G]\n\nThe primary condition for the application of s. JO is that the tax is payabl_e by an assessee under the head 'profits and gains of business' in respect. of business carried on by him. When an assessee does not carry on. business at all, s. 10 cannot be applicable and the income that he receives cannot beair the character of profits of business. [769 D-E]\n\nIn the present case, a scrutiny of all the clauses of the indenture of lease, shows that the intention of the assessee was to go out of the busi~ ness altogether, so far as the factory and machinery were concerned with effect from !st June 1945, to part with the entire machinery of the factory and the premlses with the purpose of earning rental income, and to use the income arising from tl)e royalty in its capacity as owner of the factory.\n\nIt was not the intention of the a:ssessee '\"lo treat the factory and machinery as a commercial concern or asset during the subsistence of the lease. The provision fdr payment of minimum royalty indicates that the assessee had no direct interest in the production of the factory. The royalty was not paid for the production in the factory. There was no direct nexus between the inqome of the assessee and the production of the factory. The production was only a measnre of the royalty to be paid and had nothing to do with the character of the payment as a receipt from business or from other sources. [769 C-D, E-F]\n\nCommissioner of Excess Profit Tax, Bomba, v City v. Shri Lakshmi Silk Mills Ltd. 20 I.T.R. 451 (S.C.) and Narain Swadeshi Weaving Mills v.\n\nCommissioner of Excess Profits Tax, 26 I.T.R. 765 (S.C.), distinguished.\n\n(2) Clause (vi-a), which was inserted in the Act in 1949, gives additional depreciation allowance over and above the initial allowance which was previously available under cl. (vi) in respect of buildings newly erected and new machinery and plant but not furnitnre installed after 31st March 1948. The additional allowance is <lonfined to not more than 5 suceessive assessments falling within the period from !st April 1949 and 31st March 1959. It is deductible in determining the written down value,\n\nunlike .the initial allowance granted under cl. (vi).\n\nClause (vi-b) was inserted by the Finance Act, 1955. It grants developmnt rebate in respect of machinery and plant provided that the machinery or plant is new and has been installed after 31st March 1954, and provided further that it is used wholly for the pnrpose of the assessee's business and the parti- Culars prescribed for the purpose of cl. (vi) have been furnished. Clauses (vi-a) and (vi-b) thus int'roduce a new scheme and ciannot be treated as an integ'ral part. of cl. (vi) by implication. Further, it is not permissible for the Court to read the clauses by implication into s. 12(3) and (4), because, the clauses were not specifically engrafted by Parliament into s. 12 while amending s. 10(2). [771 E-H; 772 A-BJ\n\nKumar Kamalaranjan Rey v. Secretary of.State, L.R. 66 I.A 1, 10, referred to. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1593 of 1968. ..,,\n\nAppeal from the judgment and order dated, September 20, 1963 of the Calcutta High Court in Income-tax Reference No. 23 Of 1960.\n\nSachin Chaudhari, T. A. Ramachandran and D. N. Gupta, for the appellant D. Narsara; u, R. N. Sachthey and B. D. Sharma, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J. This appeal is brought by certificate from the judgment of the Calcutta High Court dated 20th September, 196\"1 in Income Tax Reference No. 23 of 1960.\n\nThe appellant (hereinafter referred to as the assessee) was carrying on the business oif. crushing sugarcane and gur refining.\n\nM/s. Andrew Yule & Co. were acting as the managing agents of the assessee. In a letter dated 5th February, 1946 addressed to the share-holders of the assessee the managing agents referred to the alarming increase of Government interference in the affairs B of the 1>ugar industry in Bihar and the increase of wages of the workers, as well as the levy of a cess of Government and deterioration in the cane crops. In view of this state of affairs, the managing agents apprehended a loss and suggested that the company's affairs should be put on a \"less discouraging basis\" by accepting the offer of a lease of the company as a running concern from the Standard Refiinery & Distillery Ltd. At an extra-ordinary general meeting of the share-holders of the assessee company held on 5th March, 1946 it was decided to authorise the directors to enter\n\ninto a lease with the said Standard Refinery & Distillery Ltd. By an indenture of 15th March, 1948 the lease was executed to come into effect retrospectively from !st June, 1945. The term of the lease was originally for 5 years commencing from !st June 1945 D with an option to the lessee to continue for further five years and thereafter two further options to the lessee, each for five years, on the same terms and conditions, but subject to the payment of higher rates of royalties and also , subject to the option on the part of the assessee company to terminate the lease by a resolution of the shareholders of the company to be held before 30th November in any year after the first two years. This option of termination of the lease was not exercised by themsessce company. The consideration of the lease as described in clause 7 of the indenture was royalty payable on the manufacture of sugar and molasses. The royalty on sugar was to be, at the rate of Rs. 75 per hundred maunds of sugar manufactured for the first and second term of five years, at the rate of Rs. 82.50 pet hundred maunds of sugar manufactured for .the third five year period and at Rs. 90 for the fourth five year penod. The royalty on molasses was to be calculated at 3 pies per. maund on all molass~ sold during each year of the original penod or the renewed penod of the lease. The computation of the royalty was subject to a minimum payment of Rs. 65,000 per annum.\n\nFor the assessment year 1955-56 the relevant accounting year of the essee ended on 31st May, 1954. In the assessment proceedmgs for 1955-56 the assessee's main contention was that the lease granted .under the indenture of 15th March, 1948 was a lease of a commercial asset and therefore the income arising from the lease should be assessed under s 1 O o! t!te Income Tax Act and the see should be allowed dre ciation and development rebate m accordance with clause (vi-a) and clause (vi-b) of sub-section (2) of section 10 of the Income\n\nTax Act. The Income Tax Officer assessed the income under s. 12 of the Act as being income under the head \"other sources\" and held that no additional depreciation or development rebate could be allowed as claimed by the assessee. According to the assessee, the income derived from the lease of the sugar factory was income from business because the factory was leased as a going concern and the rent of the building, machinery, plant and spare parts was fixed at a certain rate per maund of sugar produced, and at a certain rate per maund of molasses sold. On appeal, the Appellate Assistant Commissioner found that it was a simple !ease of the building and machinery in a sugar factory, and as such the method of payment based on production .could not affect the character and nature of the income derived under the said lease. In further appeal the Appellate Tribunal came to the conclusion that on the facts stated the case fell under section 12 and not under section 10 and that since sub-section (3) of section 12 did not include clauses (vi-a) and (vi-b) of section 10(2) the claim of additional depreciation and development rebate could not,. be allowed. At the instance of the assessee the Appellate Tribunal stated a case to the High Court on the following questions of law under section 66(1) of the Income Tax Act, 1922 (hereinafter referred to as the Act; :\n\n\" ( 1) Whether on the facts and in the circumstances of the case, the income of the assessee company was liable to be assessed under section 12 of the Indian Income Tax Act and not under section 10 of the said Act ?\n\n(2) Whether on the facts and in the circumstances of the case, additional depreciation and development rebate can be allowed as a deduction ?\"\n\nThe High Court answered both the questions against the assessee holding that the income was liable to be assessed under section 12 and that no additional depreciation and development rebate could be allowed.\n\nSection 10 of the Act stood as follows at the material time :\n\n\"10. (1) The tax shall be payable by an assessee under the head 'profits and gains of business, profession or vocation' in respect of the profit or gai.n of any business, profession or vocation carried on by him.\n\n(2) Such profits or gains shall be computed after mal;.ing the following allowances, namely :-\n\n(vi) in respect of depreciation of such buildings, machinery, plant or furniture being the property of the assessee, a sum equivalent, where the assets are ships\n\nother than ships ordinarily plying on inland waters, to such percentage on the original cost thereof to the assessee as may in any case or class of cases be prescribed. and in any other case, to such percentage on the wntten down value thereof as may in any case or class of cases be prescribed : B and where the buildings have been newly erected, of the machinery or plant being new, IDOi being machinery or plant entitled to the development rebate under clause\n\n(vi-b), has been installed, after the 31st day of March, 1945, a further sum (which shall however not be deductible in detennining the written down value for the pure poses of this clause) in respect of the year of erection or installation equivalent-\n\n(a) in the case of buildings the erection of which is begun and completed between the 1st day of April 1946 and the 31st day of March 1956 (both days inclusive), to fifteen per cent of the cost thereof to the assessee;\n\n(b) in the case of other buildings, to ten per cent of the cost thereof to the assessee;\n\n( c) in the case of machinery or plant, to twenty per cent of the cost thereof to the assessee; Provided that-\n\n( c) the aggregate of all allowances in respect of depreciation made under this clause and clause (vi-a) or under any Act repealed hereby, or under the Indian Income Tax Act, 1886 (II of 1886), shall, in no case, exceed the original cost to the assessee of the buildings, machinery, plant or furniture, as the case may be;\n\n(vi-a) in respect of -Oepreciation of buildings newly erected, or of machinery or plant being new which has been installed, after the 31st day of March, 1948, a further. sum (which shall be deductible in determining the wntten down value) eaual to the amount admissible under clause (vi) (exclusive of the extra allowance for double or multiple shift working of the machinery or plant and the initial depreciation allowance admissible under that clause for the first year of erection of the building or the installation of the machinery or plant) in not more than five successive assessments .for the financial years next following the previous year LIOSup./69-14\n\nin which such buildings are erected and such machinery and plant installed and falling within the period commencing on the 1st day of April 1949 and ending on the 31st day of March, 1959;\n\n( vi-b) in respect of machinery or plant being new, which has been installed after the 31st day of March, 1954, and which is wholly used for the purposes of the business carried on by the assessee, a sum by way of development rebate in respect of the year of installation equivalent to twenty-five per cent of the actual cost of such machinery or plant to the assessee;\n\nProvided that no allowance under this clause shall be made w:iless the particulani prescribed for the purpose\n\nof clause (vi) have been furnished by the assessee in respect of such machinery or plant;\n\nSection 12 was to the following effect :\n\n\"12. (1) The tax shall be payable by an assessee under the head '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) .\n\n( 2) Such income, profits and gains shall be computed after making allowance for any expenditure (not being in the nature of capital expenditure) incurred solely for the purpose of making or earning such income, profits or gains.\n\n( 3) Where an assessee lets on hire machinery, plant or furniture belonging to him, he shall be entitled to allowances in accordance with the provisions of clauses (iv), (v), (vi) and (vii) of sub-section (2) of section 10.\n\n( 4) Where an assessee lets on hire machinery, plant or furniture belonging to him and also buildings, and the letting of the buildings is inseparable from the letting of the said machinery, plant or furniture, he shall be entitled to allowances in accordance with the\n\nprovisions of clauses (iv) ' ( v) , (vi) and (vii). o~ suJ; section ( 2) of sectJ.on 10 m respect of such buildings .\n\nThe main contention of the assessee was that the lease as contemplated in the indenture dated 15th March, 1948 waa a lease of a commercial asset, and, therefore, the income arising from the lease should be assessed under section 10 ( 1 ) of the Act and not under section 12 (1 ) . In order to examine the validity of this argument it is necessary to set out the relevant . clauses of the indenture of lease. Clause ( 1) of the lease proi vided that the lease was for a term of five years commencing from 1st June 1945 with an option to continue for a further term of five years and thereafter two further options of five years in each case on the same terms and conditions subject to higher payment of rates of royalties.\n\nClause 2: The lessee shall be entitled to run the said sugar factory and all other machinery annexed to the same and 111e all the tools and implements, buildings and premises, offices, and erections and utensils and all other things which are now in or upon the said premises and which may be added irorn time to time thereto provided always that the lessees shall not at any time remove the plant and/or machinery etc. hereby demised or any part thereof from the said premises elsewhere for the purpose of or in connection with the lessees' other interests.\n\nClause 3: The lessees shall at the time ot taking over possession of the factory from the lessors be entitled free of payment to the goods already manufactured during the current crushing season, i.e. 1945-46 or in the process of manufacture and/ or to be hereafter manufactured by the lessees and the lessees shall have absolute discretion to sell and deal with the same in such manner as they think fit and proper.\n\nClause 5:\n\nThe lessees shall also be entitled to erect construct maintain any other machinery as the l~ may think fit and proper.\n\nAll machinery brought in and erected by the lessees would remain the lessees' property and ter the termination of the lease the lessees shall be entitled to remove the same provided always that the lessees shall forthwith repair and make good all damage caused to the demised premises by such removal of the lessees' machinery.\n\nClause 7:\n\nClause 7 provides for the payment of royalty.\n\nThe royalty on sugar was to be computed at the rate of Rupees Seventy-five per I 00 maunds of sugar manufactured for the first five yeats as well as next five years then at the rate of Rupees eighty two and annas eight per I 00 maunds of sugar manufactured for the third five years and Rs. 90/- for the fourth five years. The royalty on molasses was computed at three pies per maund on all molasses sold during .each year of the original lease period and any renewals thereof subject to the payment of a mi.nimum royalty oi Rs. 6,500/- per annum.\n\nClause 8: This clause provides that the lessee shall in addition to the royalty reserved be responsible for all the running expenses of the factory including salaries and wages and all factory staff and labour and shall pay all sugar excise duty etc. excepting the ground rents payable to the landlords and taxes on income chargeable to. the lessors and shall fully reimburse the lessors in respect of such exp.nses which have already been incurred by the lessors since the first day of One thousand nine hundred and forty five and property tax.\n\nClause 17:\n\n(a) The lessors will keep the demised , premises insured to the full value thereof and shall pay all expenses which will be incurred for insuring the demised premises.\n\n(b) The lessors shall PW all expenses of running the lessors' company e.g. Directors fees, Audit fees, Ground rents etc. but not the running expenses of the factory and premises hereby demied and shall also pay for all the expenditure for additions, alte•ations breakdown and/or renewals and replacement of capital nature (i.e. debitable to block account) to buildings and machineries etc. and other similar expenses of a capital nature on the demised premises.\n\nIt appears from clauses 2 and 5 that the existing machinery which was owned by the lessor could not be removed and that the le-see would he entitled to et un additional machinery without interference from the lessor •nd that on the termination of the lease the lessee would be entitled to remove the same without .causing any damage to the property demised.\n\nClause 3 contemplates that if during the period, 1945-46 the lessors sell the commodity manufactured the price thereof should go back , to the Jessee.\n\nMr. Choudhury referred to clause 6 which entitled the Jessee to use the railway siding during the period of the lease.\n\nBut the light of use of railway siding by the le:see under this clause cannot in any way be construed as the exercise of control over the business of the assessee.\n\nThe provision for minimum royalty of Rs. 65,000/- per annum indicates that the assessee had\n\n110 direct interest in the production oi the factory.\n\nThe cumulative effect of clauses 11, 12, 13 and 14 is that the lessor wiII have no concern with the production of the factory which is ihe principal part of the business, p1eviously carried on by the lessor.\n\nThe provisions in clause 17 are that the lessors shall keep the demised premises insured to the full value and to repair and replace the machines which are of capital nature. On a scrutiny of all the clauses of the indenture of lease, our conclusion is that the intention of the assessee was to part with the entire machinery of the facto1y and the premises with the obvious purpose of earning rental income. It was not the intention of the a'sessee to treat th.~ factory and machinery etc. as a commercial cor.cern during the subsistence of the lease.\n\nThe primary condition for the application of s. 10 of the Act is that the tax is payable by an\n\nassessee under the head \"profits and gains of business\" in respect of business carried on by him. When an assessee docs not carry on business at all, section 10 cannot be applicable and the income that he receives cannot bear the character of profits of business.\n\nAs we have already shown there is no direct nexus between the income of the assessce and the production of the factory.\n\nThe royalty payable to the assessee was not paid under clause 7 of the indenture of lease for the production in the factory. The production was only a measure of the royalty to be paid and, in any event, the measure of payment had nothing to do with the character of the payment as a receipt from business or from other sources.\n\nIt follows that in the circumstances of this case the income of the asscssee cannot be characterised as income from the activity of the assessee carrying on any business.\n\nThe High Court was therefore right in holding that the income of\n\nlhe assessee was liable to be ass, essed under section 12 and not wnder section 10 of the Act.\n\nOn behalf of the assessee ref.erence was made to the decision of this Court in Commirsioner of Excess Profit Tax, Bnmbay City v. Shri Lakshmi Silk Millr Ltd.(') in which the respondent \">mpany which was formed for the purpose of manufacturing inlk. cloth intalled a plant for dying silk yarn as a part of its busmess . dunng he , rele_vnt carging accounting period. Owing\n\nIO the ddliculty m obtammg silk yam on account of the war it\n\n(1) 20 l.T.R. 45'\n\n770 SUPRB:Ml! COURT REPORTS\n\n[1969] 3 S.C.R.\n\ncould not make use of this plant which had remained idle for somo time. In August, 1943, the plant was let out to another company on a monthly rent.\n\nThe question arose whether the income received by the respondent company in the chargeable accounting period by way of rent was income from business and aasessable to excess profit tax. It was held by this Court that a part of the assets did not cease to be commercial assets of that business merely because it was temporarily put to a different use or let out to another and accordingly the income from the assets would be profits of the business irrespective of the manner in which the assets were exploited by the company.\n\nBut this Court clearly indicated that no general principle could be laid down which would be applicable to all cases and that each case must be decided on its own circumstances according to ordinary commomense principles.\n\nThe material facts of l.Akshmi Silk Mills Ltd. ( 1) are that only a part of the machinery was k:t out on lease and the rest of the machinery was worked by the asse8see.\n\nThe letting out of the machinery was for a short period of fin months.\n\nThere was also no letting out of the premises of the factory by the assessee.\n\nThe ratio of the decision in Labhmi Silk Mills Ltd.(') is therefore not applicable to the present case.\n\nRef.erence was made on behalf of the assessee to the decision in Narain Swadeshi Weaving Mills v.\n\nCommissione~ of Excm Profits Tax(') in which the assessee firm carrying on a manu\n\nfacturing business consisted of three partners, N and his two sons R & G.\n\nIn April, 1940, a public limited company was incorporated with the object of taking over the business of the assessee firm. This company was director-controlled and the directors were N, his three sons R, G & S and a brother-in-law of G.\n\nThe company purchased only the building and leasehold rights fiom the assessee firm but took over from it on lease at an annual rent th.~ plant and. machinery. The assessee firm did not thereafter manufacture anythin~ and it had accordingly no further trading or commercial acttvity.\n\nIn the circumstances, it was held that leiting out of the plant and the machinery by the assessee to the company could not fall within the definitioo of \"business\" under section 2 ( 5) and as the assessee firm had, no business during the relevant period to which the Act applied, section 1 OA could not be invoked by the Excess Profit Tax Authorities.\n\nIt was however pointed out that whether a particular activity amounts to any trade, commerce or manufacture or any adventure in the nature of trade, commerce or manufacture is always a difficult quetion to answer and no general principle\n\ncan be laid down which would be applicable to all cases, and each case must be decided in the setting and background of its own facts.\n\nIt is evident that the material facts in the present case are somewhat different from those of Narain Swadeslii\n\n(I) 10 l.T.R. 451.\n\n(2) 26 I.T.R. 76S.\n\nWeaving Mills' case(') for there is no out-right sale of the building of the factory but only a lease of the factory premises together with the machinery for a long period of years.\n\nFor the reasons already expressed our conclusion is that the intention of the assessee was not to treat the factory etc. as a commercial asset during the subsistence ol the lease. In other words, the intention of the assessee was to go out of the business altogether so far as the factory and the machinery was concerned with effect from 1st June, 1945 and the intention was to use the iincome arising from the royalty in its capacity as the owner of the factory. 1t follows therefore that the first question was rightly answered by the High Court in favour of the Commissioner of Income Tax.\n\nAs regards the second question the argument was stressea by Mr. Choudhury that clauses (vi-a) and (vi-b) ol section 10(2)\n\nare ancillary to clause (vi) and should be taken to be included within clause (vi) as mentioned in sub-section ( 3) of section 12.\n\nIt appears that clause (vi-a) was inserted by section 11 of the Taxation Laws (Extension to Merged States and Amendment Act, 1949). Clause ( vi-b) was inserted by s. 8 of the Finance Act, 1955 with effect from 1st April, 1955.\n\nAt the time of making the amendment under the said Acts, no amendment was made to section 12(3) of the Act. It was argued by Mr. Choudhury that although this was not done specifically it followed by implication that additional depreciation allowance in respect of new assets and development rebate would come within the ambit of section 12(3). It appears to us that clauses (vi-a) and (vi-b) are not ancillary to clause (vi) because the scheme of clauses (vi-a) and (vi-b) is somewhat different.\n\nClause (vi-a) which was inserted in 1949 gives additional depreciation allowance over and above the initial allowance which was formerly available under the second paragraph of clause (vi) in respect of buildings newly erected and new machinery and plant but not furniture installed after the 31st March, 1948. The additional allowance under this clause is confined to not more than five successive assessments fallin~ within the period from 1st April 1949 and 31st March 1959. Further it is deductible in determining the written down value, unlike the initial allowance\n\ngrted un?er the second paragraph of clause (vi). aause (v1-b) was inserted by the Finance Act, 1955. It grants development ebate in respec.t of machinery and plant provided that the machmery or plant 1s new and has been installed after the 31st March, 1954; and provided further that it is used wholly\n\nfo~ the purpose of the assessee's business and the particulars prescnd for the purpose of clause (vi) have been furnished. It is rnamfest that clauses (vi-a) and ( vi-b) introduce a new scheme\n\n(I) 2HT.R. 765.\n\nand cannot be treated as an integral part of clause (vi) by implication. Apart from this consideration it appears to us that these clauses were not specifically engrafted by Parliament in section 12 ( 3) and section 12 ( 4) while amendi11g section 10 ( 2) of the Act. It is therefore not permissible for the Court to read these same clauses by implication in section 12 ( 3) and section 12 ( 4) of the Act. The duty of the Court is to interpret the words\n\nthat Parliament has used,· it cannot supply the gap disclosed in an Act or to make up the deficiencies. \"Ir', said Lord Brougham, in Gwynne v. Burnell,(') \"we depart from the plain and obvious meaning on account of such views (as those pressed in argument on 43. Geo. 3, c. 99) we do not in truth construe the Act, but alter it.. We add words to it or vary the words in which its provisions are couched.\n\nWe supply a defect which the legislature could easily have supplied, and are making the law, not interpreting it\" (Cf. Kumar Kama/aranian Roy v. Secretary of State(').\n\nAccordingly, we are of opinion that the assessee is not entitled to additional depreciation and development rebate and the second question was rightly answered by the High Court in the negative.\n\nFor these reasons we hold that the judgment of the High Court dated 20th September, 1963 is correct and this appeal must be dismissed with costs.\n\nV.P.S.\n\nAppeal dismissed.\n\n(1) (1840) 7 Cle, & F. 572, 696.\n\n(2) 661.A. 1. JO.", "total_entities": 120, "entities": [{"text": "NEW SA VAN SUGAR & GUR REFINING CO. LTD", "label": "PETITIONER", "start_char": 0, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "NEW SAVAN SUGAR & GUR REFINING CO. LTD", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX, CALCUTTA", "label": "RESPONDENT", "start_char": 42, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, CALCUTTA", "offset_not_found": false}}, {"text": "February 19, 1969", "label": "DATE", "start_char": 80, "end_char": 97, "source": "ner", "metadata": {"in_sentence": "COMMISSIONER OF INCOME-TAX, CALCUTTA\n\nFebruary 19, 1969\n\n(J.C. SHAH, V, RAMASWAMI AND A. N. GROVER, JJ.]"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 102, "end_char": 109, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "RAMASWAMI", "label": "JUDGE", "start_char": 114, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 128, "end_char": 145, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 148, "end_char": 162, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 10(2)(vi-a)", "label": "PROVISION", "start_char": 177, "end_char": 192, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 232, "end_char": 237, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 267, "end_char": 275, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 310, "end_char": 315, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 1652, "end_char": 1657, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 1665, "end_char": 1685, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 1810, "end_char": 1818, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "s. 12", "label": "PROVISION", "start_char": 1946, "end_char": 1951, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "s. 10", "label": "PROVISION", "start_char": 2174, "end_char": 2179, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 2187, "end_char": 2201, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 12", "label": "PROVISION", "start_char": 2217, "end_char": 2222, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 2268, "end_char": 2276, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "s. 12", "label": "PROVISION", "start_char": 2310, "end_char": 2315, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "s. 12", "label": "PROVISION", "start_char": 2475, "end_char": 2480, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "s. 12", "label": "PROVISION", "start_char": 2808, "end_char": 2813, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 2842, "end_char": 2856, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10", "label": "PROVISION", "start_char": 3106, "end_char": 3111, "source": "regex", "metadata": {"statute": null}}, {"text": "st June 1945", "label": "DATE", "start_char": 3459, "end_char": 3471, "source": "ner", "metadata": {"in_sentence": "st June 1945, to part with the entire machinery of the factory and the premlses with the purpose of earning rental income, and to use the income arising from tl)e royalty in its capacity as owner of the factory."}}, {"text": "st April 1949", "label": "DATE", "start_char": 4913, "end_char": 4926, "source": "ner", "metadata": {"in_sentence": "st April 1949 and 31st March 1959."}}, {"text": "Finance Act, 1955", "label": "STATUTE", "start_char": 5094, "end_char": 5111, "source": "regex", "metadata": {}}, {"text": "31st March 1954", "label": "DATE", "start_char": 5248, "end_char": 5263, "source": "ner", "metadata": {"in_sentence": "It grants developmnt rebate in respect of machinery and plant provided that the machinery or plant is new and has been installed after 31st March 1954, and provided further that it is used wholly for the pnrpose of the assessee's business and the parti- Culars prescribed for the purpose of cl. ("}}, {"text": "s. 12(3)", "label": "PROVISION", "start_char": 5647, "end_char": 5655, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1955", "statute": "the Finance Act, 1955"}}, {"text": "Parliament", "label": "ORG", "start_char": 5721, "end_char": 5731, "source": "ner", "metadata": {"in_sentence": "Further, it is not permissible for the Court to read the clauses by implication into s. 12(3) and (4), because, the clauses were not specifically engrafted by Parliament into s. 12 while amending s. 10(2). ["}}, {"text": "s. 12", "label": "PROVISION", "start_char": 5737, "end_char": 5742, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1955", "statute": "the Finance Act, 1955"}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 5758, "end_char": 5766, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1955", "statute": "the Finance Act, 1955"}}, {"text": "L.R. 66 I.A 1", "label": "CASE_CITATION", "start_char": 5834, "end_char": 5847, "source": "regex", "metadata": {}}, {"text": "Sachin Chaudhari", "label": "LAWYER", "start_char": 6062, "end_char": 6078, "source": "ner", "metadata": {"in_sentence": "Sachin Chaudhari, T. A. Ramachandran and D. N. Gupta, for the appellant D. Narsara; u, R. N. Sachthey and B. D. Sharma, for the respondent."}}, {"text": "T. A. Ramachandran", "label": "LAWYER", "start_char": 6080, "end_char": 6098, "source": "ner", "metadata": {"in_sentence": "Sachin Chaudhari, T. A. Ramachandran and D. N. Gupta, for the appellant D. Narsara; u, R. N. Sachthey and B. D. Sharma, for the respondent."}}, {"text": "D. N. Gupta", "label": "LAWYER", "start_char": 6103, "end_char": 6114, "source": "ner", "metadata": {"in_sentence": "Sachin Chaudhari, T. A. Ramachandran and D. N. Gupta, for the appellant D. Narsara; u, R. N. Sachthey and B. D. Sharma, for the respondent."}}, {"text": "D. Narsara", "label": "LAWYER", "start_char": 6134, "end_char": 6144, "source": "ner", "metadata": {"in_sentence": "Sachin Chaudhari, T. A. Ramachandran and D. N. Gupta, for the appellant D. Narsara; u, R. N. Sachthey and B. D. Sharma, for the respondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 6149, "end_char": 6163, "source": "ner", "metadata": {"in_sentence": "Sachin Chaudhari, T. A. Ramachandran and D. N. Gupta, for the appellant D. Narsara; u, R. N. Sachthey and B. D. Sharma, for the respondent."}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 6168, "end_char": 6180, "source": "ner", "metadata": {"in_sentence": "Sachin Chaudhari, T. A. Ramachandran and D. N. Gupta, for the appellant D. Narsara; u, R. N. Sachthey and B. D. Sharma, for the respondent."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 6247, "end_char": 6256, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. This appeal is brought by certificate from the judgment of the Calcutta High Court dated 20th September, 196\"1 in Income Tax Reference No.", "canonical_name": "RAMASWAMI"}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 6324, "end_char": 6343, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. This appeal is brought by certificate from the judgment of the Calcutta High Court dated 20th September, 196\"1 in Income Tax Reference No."}}, {"text": "Andrew Yule & Co.", "label": "ORG", "start_char": 6546, "end_char": 6563, "source": "ner", "metadata": {"in_sentence": "M/s. Andrew Yule & Co. were acting as the managing agents of the assessee."}}, {"text": "Bihar", "label": "GPE", "start_char": 6824, "end_char": 6829, "source": "ner", "metadata": {"in_sentence": "In a letter dated 5th February, 1946 addressed to the share-holders of the assessee the managing agents referred to the alarming increase of Government interference in the affairs B of the 1>ugar industry in Bihar and the increase of wages of the workers, as well as the levy of a cess of Government and deterioration in the cane crops."}}, {"text": "Standard Refiinery & Distillery Ltd.", "label": "ORG", "start_char": 7191, "end_char": 7227, "source": "ner", "metadata": {"in_sentence": "In view of this state of affairs, the managing agents apprehended a loss and suggested that the company's affairs should be put on a \"less discouraging basis\" by accepting the offer of a lease of the company as a running concern from the Standard Refiinery & Distillery Ltd. At an extra-ordinary general meeting of the share-holders of the assessee company held on 5th March, 1946 it was decided to authorise the directors to enter\n\ninto a lease with the said Standard Refinery & Distillery Ltd. By an indenture of 15th March, 1948 the lease was executed to come into effect retrospectively from !"}}, {"text": "5th March, 1946", "label": "DATE", "start_char": 7318, "end_char": 7333, "source": "ner", "metadata": {"in_sentence": "In view of this state of affairs, the managing agents apprehended a loss and suggested that the company's affairs should be put on a \"less discouraging basis\" by accepting the offer of a lease of the company as a running concern from the Standard Refiinery & Distillery Ltd. At an extra-ordinary general meeting of the share-holders of the assessee company held on 5th March, 1946 it was decided to authorise the directors to enter\n\ninto a lease with the said Standard Refinery & Distillery Ltd. By an indenture of 15th March, 1948 the lease was executed to come into effect retrospectively from !"}}, {"text": "Standard Refinery & Distillery Ltd.", "label": "ORG", "start_char": 7413, "end_char": 7448, "source": "ner", "metadata": {"in_sentence": "In view of this state of affairs, the managing agents apprehended a loss and suggested that the company's affairs should be put on a \"less discouraging basis\" by accepting the offer of a lease of the company as a running concern from the Standard Refiinery & Distillery Ltd. At an extra-ordinary general meeting of the share-holders of the assessee company held on 5th March, 1946 it was decided to authorise the directors to enter\n\ninto a lease with the said Standard Refinery & Distillery Ltd. By an indenture of 15th March, 1948 the lease was executed to come into effect retrospectively from !"}}, {"text": "15th March, 1948", "label": "DATE", "start_char": 7468, "end_char": 7484, "source": "ner", "metadata": {"in_sentence": "In view of this state of affairs, the managing agents apprehended a loss and suggested that the company's affairs should be put on a \"less discouraging basis\" by accepting the offer of a lease of the company as a running concern from the Standard Refiinery & Distillery Ltd. At an extra-ordinary general meeting of the share-holders of the assessee company held on 5th March, 1946 it was decided to authorise the directors to enter\n\ninto a lease with the said Standard Refinery & Distillery Ltd. By an indenture of 15th March, 1948 the lease was executed to come into effect retrospectively from !"}}, {"text": "clause 7", "label": "PROVISION", "start_char": 8213, "end_char": 8221, "source": "regex", "metadata": {"statute": null}}, {"text": "31st May, 1954", "label": "DATE", "start_char": 8918, "end_char": 8932, "source": "ner", "metadata": {"in_sentence": "For the assessment year 1955-56 the relevant accounting year of the essee ended on 31st May, 1954."}}, {"text": "s 1", "label": "PROVISION", "start_char": 9181, "end_char": 9184, "source": "regex", "metadata": {"statute": null}}, {"text": "Income Tax Act", "label": "STATUTE", "start_char": 9195, "end_char": 9209, "source": "regex", "metadata": {}}, {"text": "section 10", "label": "PROVISION", "start_char": 9347, "end_char": 9357, "source": "regex", "metadata": {"linked_statute_text": "Income Tax Act", "statute": "Income Tax Act"}}, {"text": "s. 12", "label": "PROVISION", "start_char": 9431, "end_char": 9436, "source": "regex", "metadata": {"linked_statute_text": "Income Tax Act", "statute": "Income Tax Act"}}, {"text": "section 12", "label": "PROVISION", "start_char": 10311, "end_char": 10321, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 10336, "end_char": 10346, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 10381, "end_char": 10391, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10(2)", "label": "PROVISION", "start_char": 10437, "end_char": 10450, "source": "regex", "metadata": {"statute": null}}, {"text": "section 66(1)", "label": "PROVISION", "start_char": 10662, "end_char": 10675, "source": "regex", "metadata": {"statute": null}}, {"text": "Income Tax Act, 1922", "label": "STATUTE", "start_char": 10683, "end_char": 10703, "source": "regex", "metadata": {}}, {"text": "section 12", "label": "PROVISION", "start_char": 10877, "end_char": 10887, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1922", "statute": "the Income Tax Act, 1922"}}, {"text": "section 10", "label": "PROVISION", "start_char": 10931, "end_char": 10941, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1922", "statute": "the Income Tax Act, 1922"}}, {"text": "section 12", "label": "PROVISION", "start_char": 11225, "end_char": 11235, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1922", "statute": "the Income Tax Act, 1922"}}, {"text": "Section 10", "label": "PROVISION", "start_char": 11314, "end_char": 11324, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1922", "statute": "the Income Tax Act, 1922"}}, {"text": "31st day of March, 1945", "label": "DATE", "start_char": 12352, "end_char": 12375, "source": "ner", "metadata": {"in_sentence": "and in any other case, to such percentage on the wntten down value thereof as may in any case or class of cases be prescribed : B and where the buildings have been newly erected, of the machinery or plant being new, IDOi being machinery or plant entitled to the development rebate under clause\n\n(vi-b), has been installed, after the 31st day of March, 1945, a further sum (which shall however not be deductible in detennining the written down value for the pure poses of this clause) in respect of the year of erection or installation equivalent-\n\n(a) in the case of buildings the erection of which is begun and completed between the 1st day of April 1946 and the 31st day of March 1956 (both days inclusive), to fifteen per cent of the cost thereof to the assessee;\n\n(b) in the case of other buildings, to ten per cent of the cost thereof to the assessee;\n\n( c) in the case of machinery or plant, to twenty per cent of the cost thereof to the assessee; Provided that-\n\n( c) the aggregate of all allowances in respect of depreciation made under this clause and clause (vi-a) or under any Act repealed hereby, or under the Indian Income Tax Act, 1886 (II of 1886), shall, in no case, exceed the original cost to the assessee of the buildings, machinery, plant or furniture, as the case may be;\n\n(vi-a) in respect of -Oepreciation of buildings newly erected, or of machinery or plant being new which has been installed, after the 31st day of March, 1948, a further."}}, {"text": "1st day of April 1946", "label": "DATE", "start_char": 12653, "end_char": 12674, "source": "ner", "metadata": {"in_sentence": "and in any other case, to such percentage on the wntten down value thereof as may in any case or class of cases be prescribed : B and where the buildings have been newly erected, of the machinery or plant being new, IDOi being machinery or plant entitled to the development rebate under clause\n\n(vi-b), has been installed, after the 31st day of March, 1945, a further sum (which shall however not be deductible in detennining the written down value for the pure poses of this clause) in respect of the year of erection or installation equivalent-\n\n(a) in the case of buildings the erection of which is begun and completed between the 1st day of April 1946 and the 31st day of March 1956 (both days inclusive), to fifteen per cent of the cost thereof to the assessee;\n\n(b) in the case of other buildings, to ten per cent of the cost thereof to the assessee;\n\n( c) in the case of machinery or plant, to twenty per cent of the cost thereof to the assessee; Provided that-\n\n( c) the aggregate of all allowances in respect of depreciation made under this clause and clause (vi-a) or under any Act repealed hereby, or under the Indian Income Tax Act, 1886 (II of 1886), shall, in no case, exceed the original cost to the assessee of the buildings, machinery, plant or furniture, as the case may be;\n\n(vi-a) in respect of -Oepreciation of buildings newly erected, or of machinery or plant being new which has been installed, after the 31st day of March, 1948, a further."}}, {"text": "31st day of March 1956", "label": "DATE", "start_char": 12683, "end_char": 12705, "source": "ner", "metadata": {"in_sentence": "and in any other case, to such percentage on the wntten down value thereof as may in any case or class of cases be prescribed : B and where the buildings have been newly erected, of the machinery or plant being new, IDOi being machinery or plant entitled to the development rebate under clause\n\n(vi-b), has been installed, after the 31st day of March, 1945, a further sum (which shall however not be deductible in detennining the written down value for the pure poses of this clause) in respect of the year of erection or installation equivalent-\n\n(a) in the case of buildings the erection of which is begun and completed between the 1st day of April 1946 and the 31st day of March 1956 (both days inclusive), to fifteen per cent of the cost thereof to the assessee;\n\n(b) in the case of other buildings, to ten per cent of the cost thereof to the assessee;\n\n( c) in the case of machinery or plant, to twenty per cent of the cost thereof to the assessee; Provided that-\n\n( c) the aggregate of all allowances in respect of depreciation made under this clause and clause (vi-a) or under any Act repealed hereby, or under the Indian Income Tax Act, 1886 (II of 1886), shall, in no case, exceed the original cost to the assessee of the buildings, machinery, plant or furniture, as the case may be;\n\n(vi-a) in respect of -Oepreciation of buildings newly erected, or of machinery or plant being new which has been installed, after the 31st day of March, 1948, a further."}}, {"text": "Indian Income Tax Act, 1886", "label": "STATUTE", "start_char": 13141, "end_char": 13168, "source": "regex", "metadata": {}}, {"text": "31st day of March, 1948", "label": "DATE", "start_char": 13447, "end_char": 13470, "source": "ner", "metadata": {"in_sentence": "and in any other case, to such percentage on the wntten down value thereof as may in any case or class of cases be prescribed : B and where the buildings have been newly erected, of the machinery or plant being new, IDOi being machinery or plant entitled to the development rebate under clause\n\n(vi-b), has been installed, after the 31st day of March, 1945, a further sum (which shall however not be deductible in detennining the written down value for the pure poses of this clause) in respect of the year of erection or installation equivalent-\n\n(a) in the case of buildings the erection of which is begun and completed between the 1st day of April 1946 and the 31st day of March 1956 (both days inclusive), to fifteen per cent of the cost thereof to the assessee;\n\n(b) in the case of other buildings, to ten per cent of the cost thereof to the assessee;\n\n( c) in the case of machinery or plant, to twenty per cent of the cost thereof to the assessee; Provided that-\n\n( c) the aggregate of all allowances in respect of depreciation made under this clause and clause (vi-a) or under any Act repealed hereby, or under the Indian Income Tax Act, 1886 (II of 1886), shall, in no case, exceed the original cost to the assessee of the buildings, machinery, plant or furniture, as the case may be;\n\n(vi-a) in respect of -Oepreciation of buildings newly erected, or of machinery or plant being new which has been installed, after the 31st day of March, 1948, a further."}}, {"text": "1st day of April 1949", "label": "DATE", "start_char": 14101, "end_char": 14122, "source": "ner", "metadata": {"in_sentence": "sum (which shall be deductible in determining the wntten down value) eaual to the amount admissible under clause (vi) (exclusive of the extra allowance for double or multiple shift working of the machinery or plant and the initial depreciation allowance admissible under that clause for the first year of erection of the building or the installation of the machinery or plant) in not more than five successive assessments .for the financial years next following the previous year LIOSup./69-14\n\nin which such buildings are erected and such machinery and plant installed and falling within the period commencing on the 1st day of April 1949 and ending on the 31st day of March, 1959;\n\n( vi-b) in respect of machinery or plant being new, which has been installed after the 31st day of March, 1954, and which is wholly used for the purposes of the business carried on by the assessee, a sum by way of development rebate in respect of the year of installation equivalent to twenty-five per cent of the actual cost of such machinery or plant to the assessee;\n\nProvided that no allowance under this clause shall be made w:iless the particulani prescribed for the purpose\n\nof clause (vi) have been furnished by the assessee in respect of such machinery or plant;\n\nSection 12 was to the following effect :\n\n\"12. ("}}, {"text": "31st day of March, 1959", "label": "DATE", "start_char": 14141, "end_char": 14164, "source": "ner", "metadata": {"in_sentence": "sum (which shall be deductible in determining the wntten down value) eaual to the amount admissible under clause (vi) (exclusive of the extra allowance for double or multiple shift working of the machinery or plant and the initial depreciation allowance admissible under that clause for the first year of erection of the building or the installation of the machinery or plant) in not more than five successive assessments .for the financial years next following the previous year LIOSup./69-14\n\nin which such buildings are erected and such machinery and plant installed and falling within the period commencing on the 1st day of April 1949 and ending on the 31st day of March, 1959;\n\n( vi-b) in respect of machinery or plant being new, which has been installed after the 31st day of March, 1954, and which is wholly used for the purposes of the business carried on by the assessee, a sum by way of development rebate in respect of the year of installation equivalent to twenty-five per cent of the actual cost of such machinery or plant to the assessee;\n\nProvided that no allowance under this clause shall be made w:iless the particulani prescribed for the purpose\n\nof clause (vi) have been furnished by the assessee in respect of such machinery or plant;\n\nSection 12 was to the following effect :\n\n\"12. ("}}, {"text": "31st day of March, 1954", "label": "DATE", "start_char": 14254, "end_char": 14277, "source": "ner", "metadata": {"in_sentence": "sum (which shall be deductible in determining the wntten down value) eaual to the amount admissible under clause (vi) (exclusive of the extra allowance for double or multiple shift working of the machinery or plant and the initial depreciation allowance admissible under that clause for the first year of erection of the building or the installation of the machinery or plant) in not more than five successive assessments .for the financial years next following the previous year LIOSup./69-14\n\nin which such buildings are erected and such machinery and plant installed and falling within the period commencing on the 1st day of April 1949 and ending on the 31st day of March, 1959;\n\n( vi-b) in respect of machinery or plant being new, which has been installed after the 31st day of March, 1954, and which is wholly used for the purposes of the business carried on by the assessee, a sum by way of development rebate in respect of the year of installation equivalent to twenty-five per cent of the actual cost of such machinery or plant to the assessee;\n\nProvided that no allowance under this clause shall be made w:iless the particulani prescribed for the purpose\n\nof clause (vi) have been furnished by the assessee in respect of such machinery or plant;\n\nSection 12 was to the following effect :\n\n\"12. ("}}, {"text": "Section 12", "label": "PROVISION", "start_char": 14740, "end_char": 14750, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 15467, "end_char": 15477, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 16090, "end_char": 16100, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 16132, "end_char": 16142, "source": "regex", "metadata": {"statute": null}}, {"text": "1st June 1945", "label": "DATE", "start_char": 16373, "end_char": 16386, "source": "ner", "metadata": {"in_sentence": "Clause ( 1) of the lease proi vided that the lease was for a term of five years commencing from 1st June 1945 with an option to continue for a further term of five years and thereafter two further options of five years in each case on the same terms and conditions subject to higher payment of rates of royalties."}}, {"text": "Clause 2", "label": "PROVISION", "start_char": 16592, "end_char": 16600, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 3", "label": "PROVISION", "start_char": 17152, "end_char": 17160, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 5", "label": "PROVISION", "start_char": 17570, "end_char": 17578, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 7", "label": "PROVISION", "start_char": 18030, "end_char": 18038, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 7", "label": "PROVISION", "start_char": 18041, "end_char": 18049, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 8", "label": "PROVISION", "start_char": 18636, "end_char": 18644, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 17", "label": "PROVISION", "start_char": 19183, "end_char": 19192, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 3", "label": "PROVISION", "start_char": 20186, "end_char": 20194, "source": "regex", "metadata": {"statute": null}}, {"text": "Choudhury", "label": "OTHER_PERSON", "start_char": 20342, "end_char": 20351, "source": "ner", "metadata": {"in_sentence": "Mr. Choudhury referred to clause 6 which entitled the Jessee to use the railway siding during the period of the lease."}}, {"text": "clause 6", "label": "PROVISION", "start_char": 20364, "end_char": 20372, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 17", "label": "PROVISION", "start_char": 20998, "end_char": 21007, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 21579, "end_char": 21584, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 21780, "end_char": 21790, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 7", "label": "PROVISION", "start_char": 22071, "end_char": 22079, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 22631, "end_char": 22641, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 22656, "end_char": 22666, "source": "regex", "metadata": {"statute": null}}, {"text": "l.Akshmi Silk Mills Ltd.", "label": "ORG", "start_char": 24102, "end_char": 24126, "source": "ner", "metadata": {"in_sentence": "The material facts of l.Akshmi Silk Mills Ltd. ( 1) are that only a part of the machinery was k:t out on lease and the rest of the machinery was worked by the asse8see."}}, {"text": "Labhmi Silk Mills Ltd.", "label": "ORG", "start_char": 24430, "end_char": 24452, "source": "ner", "metadata": {"in_sentence": "The ratio of the decision in Labhmi Silk Mills Ltd.(') is therefore not applicable to the present case."}}, {"text": "section 2", "label": "PROVISION", "start_char": 25457, "end_char": 25466, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 25567, "end_char": 25576, "source": "regex", "metadata": {"statute": null}}, {"text": "Narain Swadeslii", "label": "OTHER_PERSON", "start_char": 26110, "end_char": 26126, "source": "ner", "metadata": {"in_sentence": "It is evident that the material facts in the present case are somewhat different from those of Narain Swadeslii\n\n(I) 10 l.T.R. 451."}}, {"text": "Weaving Mills", "label": "ORG", "start_char": 26168, "end_char": 26181, "source": "ner", "metadata": {"in_sentence": "(2) 26 I.T.R. 76S.\n\nWeaving Mills' case(') for there is no out-right sale of the building of the factory but only a lease of the factory premises together with the machinery for a long period of years."}}, {"text": "1st June, 1945", "label": "DATE", "start_char": 26689, "end_char": 26703, "source": "ner", "metadata": {"in_sentence": "In other words, the intention of the assessee was to go out of the business altogether so far as the factory and the machinery was concerned with effect from 1st June, 1945 and the intention was to use the iincome arising from the royalty in its capacity as the owner of the factory."}}, {"text": "section 10(2)", "label": "PROVISION", "start_char": 27053, "end_char": 27066, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 27187, "end_char": 27197, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 27246, "end_char": 27256, "source": "regex", "metadata": {"statute": null}}, {"text": "Extension to Merged States and Amendment Act, 1949", "label": "STATUTE", "start_char": 27279, "end_char": 27329, "source": "regex", "metadata": {}}, {"text": "s. 8", "label": "PROVISION", "start_char": 27363, "end_char": 27367, "source": "regex", "metadata": {"linked_statute_text": "Extension to Merged States and Amendment Act, 1949", "statute": "Extension to Merged States and Amendment Act, 1949"}}, {"text": "Finance Act, 1955", "label": "STATUTE", "start_char": 27375, "end_char": 27392, "source": "regex", "metadata": {}}, {"text": "1st April, 1955", "label": "DATE", "start_char": 27410, "end_char": 27425, "source": "ner", "metadata": {"in_sentence": "Clause ( vi-b) was inserted by s. 8 of the Finance Act, 1955 with effect from 1st April, 1955."}}, {"text": "section 12(3)", "label": "PROVISION", "start_char": 27510, "end_char": 27523, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1955", "statute": "the Finance Act, 1955"}}, {"text": "section 12(3)", "label": "PROVISION", "start_char": 27757, "end_char": 27770, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1955", "statute": "the Finance Act, 1955"}}, {"text": "31st March, 1948", "label": "DATE", "start_char": 28218, "end_char": 28234, "source": "ner", "metadata": {"in_sentence": "Clause (vi-a) which was inserted in 1949 gives additional depreciation allowance over and above the initial allowance which was formerly available under the second paragraph of clause (vi) in respect of buildings newly erected and new machinery and plant but not furniture installed after the 31st March, 1948."}}, {"text": "1st April 1949", "label": "DATE", "start_char": 28367, "end_char": 28381, "source": "ner", "metadata": {"in_sentence": "The additional allowance under this clause is confined to not more than five successive assessments fallin~ within the period from 1st April 1949 and 31st March 1959."}}, {"text": "31st March 1959", "label": "DATE", "start_char": 28386, "end_char": 28401, "source": "ner", "metadata": {"in_sentence": "The additional allowance under this clause is confined to not more than five successive assessments fallin~ within the period from 1st April 1949 and 31st March 1959."}}, {"text": "Finance Act, 1955", "label": "STATUTE", "start_char": 28579, "end_char": 28596, "source": "regex", "metadata": {}}, {"text": "31st March, 1954", "label": "DATE", "start_char": 28737, "end_char": 28753, "source": "ner", "metadata": {"in_sentence": "It grants development ebate in respec.t of machinery and plant provided that the machmery or plant 1s new and has been installed after the 31st March, 1954; and provided further that it is used wholly\n\nfo~ the purpose of the assessee's business and the particulars prescnd for the purpose of clause (vi) have been furnished."}}, {"text": "section 12", "label": "PROVISION", "start_char": 29199, "end_char": 29209, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1955", "statute": "the Finance Act, 1955"}}, {"text": "section 12", "label": "PROVISION", "start_char": 29219, "end_char": 29229, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1955", "statute": "the Finance Act, 1955"}}, {"text": "section 10", "label": "PROVISION", "start_char": 29251, "end_char": 29261, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1955", "statute": "the Finance Act, 1955"}}, {"text": "section 12", "label": "PROVISION", "start_char": 29370, "end_char": 29380, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1955", "statute": "the Finance Act, 1955"}}, {"text": "section 12", "label": "PROVISION", "start_char": 29390, "end_char": 29400, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1955", "statute": "the Finance Act, 1955"}}, {"text": "Brougham", "label": "OTHER_PERSON", "start_char": 29587, "end_char": 29595, "source": "ner", "metadata": {"in_sentence": "Ir', said Lord Brougham, in Gwynne v. Burnell,(') \"we depart from the plain and obvious meaning on account of such views (as those pressed in argument on 43."}}, {"text": "20th September, 1963", "label": "DATE", "start_char": 30305, "end_char": 30325, "source": "ner", "metadata": {"in_sentence": "For these reasons we hold that the judgment of the High Court dated 20th September, 1963 is correct and this appeal must be dismissed with costs."}}]}
{"document_id": "1969_3_773_781_EN", "year": 1969, "text": "PRAGA TOOLS CORPORATION\n\nSHRI C. A. IMANUAL & ORS.\n\nFebruary 19, 1969\n\n[J. M. SliELAT AND V. BHARGAVA, JJ.]\n\nConstitution ol India, Art. 226--Wrlt of mandamus whether can be iuued against a company-High Court holding petition under Art. 226 to\n\nbe misconceived but still granting declaration to some petitioner1 that action of company agt; inst them was illegal-Competence of High Court to pass such order,\n\nThe appellant was a company registered under the Companies Act,\n\n1913. At the material time 56% ol its shares were held by the Union Government, 32% by the Andhra Pradesh Government. and 12% by private iJ:>dividuals. On July 1, 1961 a settlement was arrived at between the company and the workmen's union under which the workmen inter alia agreed to observe industrial truce for a period of three years i.e.\n\nupto July 1, 1964 and not to resort to strikes, stoppage of work or go Blow tactics.\n\nOn December 10, 1962 the company and the said union entered into a supplementary settlement under which the company agreed not to retrench or lay-off any of the workmen during the said period of truce.\n\nThe said two settlements were arrived at and recorded in the presence of the Commissioner of Labour under s. 2(p) and s. 18(1) of the Industrial Disputes Act, 1947 and were to be in force as aforesaid until July 1, 1964. On December 20, 1963, however, the company en tered into another agreement with the said union.\n\nThe effeCtt of this agreement was to enable the company notwithstanding the two earlier llC!tlements to carry out retrenchment of 92 of the workmen with effect from January 1, 1964. Some of the affected workmen filed a writ petition under -Art. 226 of the Censtitution µraying for a writ of mllndamus against the company restraining it from giving effect to the said agreement. The Single Judge dismissed the petition on merits. In appeal the Division Bench held that the company being one registered under the Companies Act and not having any statutory duty or function to perform was no~ one against which a writ µetition for mandamus or any other Writ could be .. No such petition could also lie against the conciliation officer who had signed the agreement, as on the facts of the case it was not he who sought to implement the agreement.\n\nThe Division Bench however held th~! th.ough the writ petition was not maintainable it could grant a declarallon. m favour of. three of the petitioners that the impugned agree men! was dlega) and void. The competency of the High Court to make such a dectaratton was challenged by the company . in appeal before this Court.\n\nHELD : ! i) The c<;>nition precedent to the issue of a mandamllJ' jg that there IS m one clatmmg it a legal right to the performance of a legal duty by one against. whom it is sought. An order of mandamllJ' is, in form! .a comand directed to a person, corporation or an inferior tribunal\n\nreQwrig him .or them. to do a particular thing therein specified which !'ppertams to hIS or •theil' office and is in the nature of a public duty. It IS however .no~ necessary that the person or authority on whom the statu tory duty IS nposed need be a public official or an official body.\n\nA \"'f\"'damllJ' can issue, for instance, to an official of a sbcioty to compel\n\nhim to carry out the terms ef the statute under or by which the society\n\nis constituted or governed and also to companies or corporations to carry A out duties placed on them by the statutes authorisint! their unctertakings.\n\nA mandamus would also lie against a company_ constituted bv a statute for the purposes of fulfilling public responsibilities. [778 H-779 CJ\n\nIn the present case the company being a non-statutory body and one incorporated under the Companies Act there was neither a statutory nor a pubJic duty imposed on it by a statute in respect of which enforcement could be sought bY means of a 1nanda1nus nor \\\\!JS there in its workmen B any corresponding right for enforcement of any such statutory or public duty. The High Court therefore was right in holding that no writ petition fo'r a mandarnus or an order in the nature of niandanuts could lie against the company. [779 0-El\n\nSohan Lal v. Union of India, [1957] S.C.R. 738, Regina v. Industrial Court & Ors., [ 19651 l Q.B. 377, R. v. Lewisham Union. [18971 I Q.B. 498, 501, Mc. Clelland v. Northern Irelan,/ General Health Servica C Boards, (1951) l W.L.R. 594, Ridge v. Bc/dwin. [19641 A.C. 40. Short v.\n\nPoole Corooration, [1926], Ch. 66 at pp. 90 to 91 and Attorney-General v.\n\nSt. Ives R.D.C. [1961] l Q.B. 366, referred to.\n\n(ii) The High Court was ho\\vever in error in granting the declaration in favour of the thr'e workmen. [781 A]\n\nOnce the writ petition was hetd to be misconceived on the ground that D it could not lie against a compafly which was neither a statutory company nor oae having public duties or responsibilities imposed on it by statute, no reiief by way of .a declaration as to the invalidity of an impugned agreemt\"nt Mtween it and its employees could be granted. The only course open to the High Court was to dismiss the petition and leave the workmen to tho remedies under the Industrial Disputes Act. [780 F-HJ\n\nBldi, Bidi Leaves' Gnd Tobacco Merchants Association v.\n\nState of E Bom.bzy, [19621 Suvl' l S.C.R. 381 and A. B. Abdulkadir v. State o/\n\nKuala. [1962] Supp. 2 S.C.R. 741, distinguished.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 612 of 1966.\n\nAppeal by special leave from the judgment and order dated April 16, 1965 of the Andhra Pradesh High Court in Writ Appeal F No. 37 of 1964.\n\nS. V. Gupte and R. Thiagarajan, for the appellant.\n\nJanardan Sharma, for respondents Nos. 1 and 3.\n\nThe Judgment of the Court was delivered by G Shelat, J.\n\nThe Fraga Tools Corporation (hereinafter referred to as the Company) is a company incorpotated under the Indian Companies Act, 1913.\n\nAt the material time however, the Union Government and the Government of Andhra Pradesh between them held 56% and 32% of its shares respectively and the balance of 12 % shares were hel~ by private H individuals.\n\nBeing the largest shareholder, the Umon Government had the power to nominate the company's directors. Even\n\nso, being registered under the Companies Act and governed by\n\nPRAGA TOOLS CORP. v. !MANUAL (Shelat, J.) 775 -\n\nA the provisions of that Act, the company is a separate le, gal entity and cannot be said to be either a Government corporation or an indUJtry run by or under the authority of the Union Government.\n\nAt the material time there were two rival workmen's u.mons in the company, the Praga Tools Employees Union and the Praga Tools Corporation Mazdoor Sabha (hereinafter referred to as the union and the sabha respectively).\n\nOn July 1, 1961 n settlement was arrived at between the company and the said union under which the wnrkmen inter alia agreed to observe indUJtrial truce for a period of three years and not to resort to strikes, stoppage of work or go-slow tactics. On December\n\nI 0 1962 the company and the said union entered into a supplemen- !Ary settlement under which the company agreed not to retrench or lay-off any of the workmen during the said period of truce on an assurance from the said union of coopeation and willingness of the workmen to carry out alternative tasks assigned to\n\nthem even if they were in a slightly lower cadre without loss of emoluments.\n\nThe said two settlements were arrived at and recorded in the presence of the Commissioner of Labour under\n\nss. 2(p) and 18(1) of the Industrial Disputes Act, 1947 and were to be in force as aforesaid until July 1, 1964. On December 20, 1963, however, the company entered into an agreement with the said union to which the said sabha was not a party.\n\nThe agreement recited that there were several disputes between the company and the union and that s0me of them were the subject-matter of concHiatioin proceedings and some were\n\npending arbitration or adjudication. Clause ( 1) provided that the said agreements dated July !, 1961 arid December 10, 1962 to the extent that they were inconsistent with this a 'reement would stand automatically repealed or modified by. this\n\nagreement. Clause ( 6) stated that there was an immediate, unavoidable need for reducing substantially the overhead expenditure of the company and for effecting economy and therefore notwithstanding the agreement dated December 10, 1962 \"both the parties have preriared a list of the categories and persons who would be retrenched after carful consideration''.\n\nThe said list was attached to the agreement as annexure VI. Clause (6) also provided that the agreement dated December 10, 1962 stood modified so as to allow the said retrenchment to take olacc immediately in accordance with law.\n\nThe clause further nrovided that in order to mitigate the consequences of the pronosed retrenchment the company had evolved a scheme of voluntary retirement with terminal benefits suoerior to those provided under the Industrl•.1 Disnutes Act, but the r.cheme of Voluntary retirement would be available to the workmen only for a period of 10 days from the date ot the agreement. It further provided\n\nthat the company ll\\nd the said union had agreed that an attempt A would be made to rehabilitate the retrenched persons by helping them to obtain alternative employment and the company had for that purpose contacted public sector and other industries and in particular the Heavy Engineering Corporation, Ranchi for absorption as far as possible of the retrenched personnel.\n\nThe effect of this agreement was to enable the company, notwith- B standing the two earlier settlements, to carry out retrenchment of 92 workmen mentioned in annexure VI thereto with effect from January I, 1964.\n\nRespondent I and 40 other workmen thereupon filed a writ petition under Art. 226 in the High Court of Andhra Pradesh challenging the validity of the said agreement impleading therein the company, the said union and the Regional Assistant Commissioner as respondents.\n\nThe petition claimed a writ of mandamm or an order in the nature of mandamus or any other order or direction restraining the respondents to implement or enforce the said agrcmcnt. The writ pe•ition was in the first instance heard by u learned Sin:_!ie Judge of th~ High Court before whom the workmen raised the fo!lowin~ contentions :\n\n(I) that the said agreement dated December 20. 1963 was invalid as it was entered into by the unbn in collusion with the company and was in violation of the said two earlier settlements,\n\n(2) that there could be no industrial dispute within the man ing of s. 2(k) of the Act as the said two earlier settlements, not having been terminated under s. 19(2) were in force, that therefore there could not be a valid conciliation under s. 12 and accordingly the fact of the conciliation officer having signed the impugned agreement gave no binding force to it, (3) that the retrenchment of the 92 workmen was illel!al and void as it wa~ in hreach of s. 25 <Fl inasmuch as no notice thereof was iven to the anpropriate Government. and ( 4) that the comoany bing under the manaqement of the Union Government, the annropriate Government in regard to the disnute was the Central Government and nnt the State Gove\"!lment •nd conseauent1v the imouqned ai?reemerit which was signed bv the cl)nciliation rffier appo:nted by the State Government was not vali•l anrl no ret' enchment could validly be effected under the force of such agreement.\n\nThe learned Single Judge negatived these contentions holdinii that the comnanv wa~ neither an industry run by or unrler the authority of the Union Government nor under its management but being a comoanv reistered under the Companies Act the annrooriate, Government was the State Government. He also held that there was no nroof of the said union having entered into the imoup.ned a!!reement in collusion with the companv. He further held that the union hy its letter dated April 5, 1963.\n\nH I\n\n~\"-\n\nA had raised an industrial dispute and had thereby requested that the question of retrenchment should be settled between the parties, that the said dispute with te. c?nsent of the comp~y and the union was brought for conc1hat1on before the conc1hation officer and that the impugned agreement, having been brought obout in the course of the said conciliation proceeding~, B was binding o.n all workmen including the petitioners in the writ petition despite the fact that they were members of the sabha and not of the union. In this view the learned Single Judge held that it was not necessary for him to decide the preliminary objection raised by the company that no writ petition for a mandamus could lie against it.\n\nHe dismissed the writ oetition C on merits on the basis of the aforesaid findings given by him. 28 out of the said 41 workmen who had filed the writ petition filed a letters patent apoeal aainst the said judgment.\n\nThe Division Bench of the High Court which heard the appeal held : ( l) that since the dispute relating to the company's right to retrenchment was already sett1e1 under s. 18 (I ) by the said supp!ementary settlement of December I 0, 1952. no industrial D dispute could be said to exist or arise until the said sett'ement was dulv terminated under s. 19(2), that therefore there could be no valid conciliation oroceedings in respect of the ouestioo of retrenchment and that the impuned all-cement permitting the com'>anv to retrench. though it bore the signoture of the conciliation officer, was not a valid agreement: (2) that so ]l)ng as E the earlier settlements were not terminated thv held the field, and\n\n(3) tha• the sai~ JP-tter dated Aoril 5. 1963 relied on bv the\n\nlearn~<! Sin~Je J\"dge as having rai•ed an inusHal <lisputc rezardinll retrenchment did not in fact C011tain or raise anv such question.\n\nThe D; vision Bench held that the said Jetter raised onlv the ouestion o' revision of wage-structure and other demonds F bnt nt the ouestin., of retrenchment. The le'tr of Ju•v 29,\n\n191i1 of the cdia•ion oftkefl) the com,, anv relied on bv the cl)m'>•n\" also ,.,.ferre-< to the, deman.J, containei in the sa; d Jetter of Anr; I 5, 1963. nomely, the revision. cf wage-structi1re. tle•rness allowance. nro!'l()tlon and ('lther m•tters. hut not the question of the commnv•, ri<?ht of retrenhment. The o; visicm Bencb\n\ntherefore held that there was nothing on reco-d to show •'111 G retrenchment was t'1e subject-m\"tter of anv cudliation befo1 the conciliation officer and therefore anv ~~P-ement conferrini on the comoanv the rfoht to retrench so '\"\"\" a, the said elie1 s;•.tl•!Jlent• were not terrninMe~ was invalid ;,., snite of •h• con\n\nc1lit1on nfficr havl,,.,'! iven his assent ti) •nd affie-l his •i<!M., Jre on it. '!'he Jearne<l Tu<les. hl)wever. held that the comn•nv ing ff one re11istered uncler the Comnanies Act an.J nnt !revi'1~ •nv statu!orv ~~IV or function to nerforrn wa• not one again•t. whie.h a writ pet!tton for a m.an-famur or anv other writ coul<! lie. No such petition could also lie against the conciliation officer as on . '\n\nthe facts of the case that officer did not have to implement the impugned agreement. The Division Bench, however, held that though the writ petition was not mairitainable it could grant a declaration iiIJ. favour of three workmeq, namely, appellants 6, 16 and 25 before it, that the impugned agreement was illegal and void and dismissed the writ petition subject to the said declaration. The company challenges in this appeal by special leave the va1idity of this judgment making such a declaration .\n\n. Thus the only question which arises in this appeal is whether in the view that it took that the writ petition was not maintainable against the company the High Court could still grant the said declaration.\n\nIn our view the High Court was correct in holding that the writ petition filed under Art. 226 claiming against the company mandamus or an order in the nature of mandamus was misconceived and noi maintainable. The writ obviusly was claimed against the company and not against the conciliation officer in respect of any public or statutory duty imposed on him by the Act as it was not he but the company who sought to implement the impugned agreement. No doubt, Art. 226 provides that every High Court shall have power to issue to any person or authority orders :wd writs including writs in the nature of habeas corpus. mandamus etc., or any of them for the enforcement of any of the rights conforred by Part III of the Constitution and for any other purpose.\n\nBut it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it. has a sufficient legal interest.\n\nThus, an application for mandamus will not lie for an order of restatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a compiny towards its workmen or to resolve any private dispute. (see Sohan Lal v.\n\nUnion of India)(').\n\nJin Regina v.olndustrial Court & Ors.(') mandamus was refused against the Industrial court though set up under the Industrial Courts Act, 1919 on the ground that the reference for arbitration made to it by a minister was not one under the Act but a private reference. \"This CoUrt has never exercised a general power\" said Bruce, J., in R. v. Lewisham Union(') \"to enforce th.e perfomiance of their statutory duties by public bodies on the application of anybody who chooses to apply for a mandamus. It has always required that the applicant for a mandamus should have a legal and a specific right to enforce the perforrnnce of those duties\". Therefore, e ndition re7e de11t for the issue of mandamus is that there ts m one claunmg\n\n(1) [l957J s.c.R. 738.\n\n(2) [\\965J 1Q.tl.377.\n\n(3) (\\897] \\ Q.ll. 498, 501.\n\nPRAG 'fOOLS CORP. v. !MANUAL (Shelat, /.) 779\n\nit a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribl requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the auth<;>- rity on whom the statutory duty is imposed need be a public official or an official body.\n\nA mandamus can issue, for im!ani; e, to an official of a society to compel him to carry out the terms of the statute unde~ or by which the socie•y is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings.\n\nA mandamus would also lie against a company constituted by a statute for the purposes oi fulfilling public resp<ll!ISibilities. (cf. Halsbury's Laws of England, (3rd ed.) Vol.\n\nII, p. 52 and onwards).\n\nThe company being a non-statutory body and one incorporated under the Companies Act there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcemeint could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty.\n\nThe High Court, therefore, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against the company.\n\nThe grievance o.f the company, however, is that though the High Court held rightly that .no such petition was maintainable, it nevertheless granted a declaration in favour of three of the said workmen, a declaratiqn which it could not issue once it held that the said writ petition was misconceived.\n\nThe argument was that such a declaration, if at all, could only issue against public bodies or companies or corporations set up or controlled by statutes in respect of acts done by them contrary to or in breach of the provisions of such statutes. If a public authority purports to dismiss ain employee otherwise than in accordance with mandatory procedural requirements or on grounds other\n\n~!II! those sanctiond by the statte the courts would have ill!1sd1ction to declare its act a nullity. Thus, where a Hospital Services' Board dismissed a clerk for reasons not authorised by the relevant ccmditions of service a declaration was granted to the applicant by the House of Lords. (Mc. Clelland v. Northern [re-\n\n/and General Health Services Boards)('). Even where the statutory power of dismissal is not made subject to express procedural requirements or limited to prescribed grounds courts have granted a declaration that it was invalidly exercised if the autho-\n\n0 l [1957] I W.L.R. 594.\n\n\"780\n\nSUPREME COURT :REPORTS\n\n[1969] 3 S.C.IL\n\nrity has failed to observe rules of natural justice or has acted A capriciously or in bad faith or for impliedly unauthorised purposes. (see Ridge v. Baldwin(') and Short v. Poole Corpora- 1ion)(2). Declarations of invalidity have often been founded on successful assertions that a public duty has not been complied with. (see Attorney-General v. St. Ives R.D.C.) (3). It is, therefore, fairly clear that such a declaration can be issued against a B person or an authority or a corporation where the impugned act is in violation of or contrary to a statute under which it is set up or governed or a public duty or responsibility imposed on such person, authority or body by such a statute.\n\nThe High Court, however, relied on two decisions of this Court as justifyiing it to issue the said declaration. The two decisions are Bidi, Bidi Leaves' and Tobacco Merchants Ass0ciation v. The State of Bomba, v(') and A. B. Abdulkadir v.\n\nThe State of Kera/a ( \"). But neither of these two decisions is a parallel case which could be relied on. In the first case, the declaration was granted not against a company, as i~ the present case, but against the State Govel1lUilent and the declaration was as regards the invalidity of certain clauses of a notification issued by the Government in pursuance of power under s. 5 of the Minimum Wages Act, 1948 on the ground that the said clauses were beyond the purview of that section. In the second case also, certai.n rules made under the Cochin Tobacco Act of 1081 (M.E.) and the Travancore Tobacco Regulation of 1087 (M.E.) were declared void ab initio. These cases were therefore not\n\nases where writ petitions were held to be not maintainable as having been filed against a company and despite that fac~ a declaration of invalidity of an impual!].ed agreement having been grantc\n\ned.\n\nIn our view once the writ petition was held to be misconceived on the ground that it could not lie against a company . which was neither a statutory company nor one having public F duties or responsibil, ities imposed on it by a statute, no relief by way of a declaration as to invalidity of an impugned agreement between it and its employees could be granted. The High Court in these circumstances ougl!t to have left the wo-kmen to resort to the remedy available to them under the !industrial Disputes Act by raising an industrial dispute thereunder. The ooly course left open to the High Court was therefore to dismiss it.\n\nNo such declaration against a company re!!istered under the Companies Act and not set up under any statute or having any public duities and responsibilities to perform under such a statute could be issued in writ proceedings in respect of an agreement which was il-ntially of a private character between it and its workmen. The\n\n(I) [l%4] A.C. 40.\n\n(2) [1921] Ch. 66 at PP. 90 to 91.\n\n(3) (1961] I Q.B. 366.\n\n(4) (1962] Supp. 1 S.C.R. 381. (S) [\\962] Supp. 2 S.C.R. 741.\n\nHigh Court, therefore, was in error in granting the said declaration. ·\n\nThe result is that the appeal must allowed and the said declaration set aside. the circumstances of the case we make no order as to costs.\n\nB G.C.\n\nAppeal allowed.", "total_entities": 59, "entities": [{"text": "PRAGA TOOLS CORPORATION", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "PRAGA TOOLS CORPORATION", "offset_not_found": false}}, {"text": "C. A. IMANUAL & ORS", "label": "RESPONDENT", "start_char": 30, "end_char": 49, "source": "metadata", "metadata": {"canonical_name": "C. A. IMANUAL & ORS", "offset_not_found": false}}, {"text": "February 19, 1969", "label": "DATE", "start_char": 52, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "February 19, 1969\n\n[J. M. SliELAT AND V. BHARGAVA, JJ.]"}}, {"text": "V. BHARGAVA, JJ.", "label": "JUDGE", "start_char": 90, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "VISHISHTHA BHARGAVA", "offset_not_found": false}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 132, "end_char": 140, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 232, "end_char": 240, "source": "regex", "metadata": {"statute": null}}, {"text": "appellant was a company registered under the Companies Act", "label": "STATUTE", "start_char": 412, "end_char": 470, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Andhra Pradesh Government", "label": "ORG", "start_char": 564, "end_char": 589, "source": "ner", "metadata": {"in_sentence": "At the material time 56% ol its shares were held by the Union Government, 32% by the Andhra Pradesh Government."}}, {"text": "July 1, 1961", "label": "DATE", "start_char": 628, "end_char": 640, "source": "ner", "metadata": {"in_sentence": "On July 1, 1961 a settlement was arrived at between the company and the workmen's union under which the workmen inter alia agreed to observe industrial truce for a period of three years i.e.\n\nupto July 1, 1964 and not to resort to strikes, stoppage of work or go Blow tactics."}}, {"text": "December 10, 1962", "label": "DATE", "start_char": 906, "end_char": 923, "source": "ner", "metadata": {"in_sentence": "On December 10, 1962 the company and the said union entered into a supplementary settlement under which the company agreed not to retrench or lay-off any of the workmen during the said period of truce."}}, {"text": "s. 2(p)", "label": "PROVISION", "start_char": 1212, "end_char": 1219, "source": "regex", "metadata": {"linked_statute_text": "The appellant was a company registered under the Companies Act,\n\n1913", "statute": "The appellant was a company registered under the Companies Act,\n\n1913"}}, {"text": "s. 18(1)", "label": "PROVISION", "start_char": 1224, "end_char": 1232, "source": "regex", "metadata": {"linked_statute_text": "The appellant was a company registered under the Companies Act,\n\n1913", "statute": "The appellant was a company registered under the Companies Act,\n\n1913"}}, {"text": "Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 1240, "end_char": 1269, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "July 1, 1964", "label": "DATE", "start_char": 1313, "end_char": 1325, "source": "ner", "metadata": {"in_sentence": "The said two settlements were arrived at and recorded in the presence of the Commissioner of Labour under s. 2(p) and s. 18(1) of the Industrial Disputes Act, 1947 and were to be in force as aforesaid until July 1, 1964."}}, {"text": "December 20, 1963", "label": "DATE", "start_char": 1330, "end_char": 1347, "source": "ner", "metadata": {"in_sentence": "On December 20, 1963, however, the company en tered into another agreement with the said union."}}, {"text": "January 1, 1964", "label": "DATE", "start_char": 1589, "end_char": 1604, "source": "ner", "metadata": {"in_sentence": "The effeCtt of this agreement was to enable the company notwithstanding the two earlier llC!tlements to carry out retrenchment of 92 of the workmen with effect from January 1, 1964."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 1664, "end_char": 1672, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 1935, "end_char": 1948, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "present case the company being a non-statutory body and one incorporated under the Companies Act", "label": "STATUTE", "start_char": 3624, "end_char": 3720, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 5127, "end_char": 5150, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 5350, "end_char": 5378, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION: Civil Appeal No."}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 5551, "end_char": 5562, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte and R. Thiagarajan, for the appellant."}}, {"text": "R. Thiagarajan", "label": "LAWYER", "start_char": 5567, "end_char": 5581, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte and R. Thiagarajan, for the appellant."}}, {"text": "Janardan Sharma", "label": "LAWYER", "start_char": 5603, "end_char": 5618, "source": "ner", "metadata": {"in_sentence": "Janardan Sharma, for respondents Nos."}}, {"text": "G Shelat", "label": "JUDGE", "start_char": 5694, "end_char": 5702, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by G Shelat, J.\n\nThe Fraga Tools Corporation (hereinafter referred to as the Company) is a company incorpotated under the Indian Companies Act, 1913."}}, {"text": "Fraga Tools Corporation", "label": "PETITIONER", "start_char": 5712, "end_char": 5735, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by G Shelat, J.\n\nThe Fraga Tools Corporation (hereinafter referred to as the Company) is a company incorpotated under the Indian Companies Act, 1913.", "canonical_name": "PRAGA TOOLS CORPORATION"}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 5813, "end_char": 5839, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Union Government", "label": "PETITIONER", "start_char": 5876, "end_char": 5892, "source": "ner", "metadata": {"in_sentence": "At the material time however, the Union Government and the Government of Andhra Pradesh between them held 56% and 32% of its shares respectively and the balance of 12 % shares were hel~ by private H individuals."}}, {"text": "Government of Andhra Pradesh", "label": "ORG", "start_char": 5901, "end_char": 5929, "source": "ner", "metadata": {"in_sentence": "At the material time however, the Union Government and the Government of Andhra Pradesh between them held 56% and 32% of its shares respectively and the balance of 12 % shares were hel~ by private H individuals."}}, {"text": "Umon Government", "label": "ORG", "start_char": 6090, "end_char": 6105, "source": "ner", "metadata": {"in_sentence": "Being the largest shareholder, the Umon Government had the power to nominate the company's directors."}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 6194, "end_char": 6207, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Praga Tools Employees Union", "label": "ORG", "start_char": 6552, "end_char": 6579, "source": "ner", "metadata": {"in_sentence": "At the material time there were two rival workmen's u.mons in the company, the Praga Tools Employees Union and the Praga Tools Corporation Mazdoor Sabha (hereinafter referred to as the union and the sabha respectively)."}}, {"text": "Praga Tools Corporation Mazdoor Sabha", "label": "ORG", "start_char": 6588, "end_char": 6625, "source": "ner", "metadata": {"in_sentence": "At the material time there were two rival workmen's u.mons in the company, the Praga Tools Employees Union and the Praga Tools Corporation Mazdoor Sabha (hereinafter referred to as the union and the sabha respectively)."}}, {"text": "December\n\nI 0 1962", "label": "DATE", "start_char": 6945, "end_char": 6963, "source": "ner", "metadata": {"in_sentence": "On December\n\nI 0 1962 the company and the said union entered into a supplemen- !"}}, {"text": "ss. 2(p) and 18(1)", "label": "PROVISION", "start_char": 7456, "end_char": 7474, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 7482, "end_char": 7511, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s0", "label": "PROVISION", "start_char": 7798, "end_char": 7800, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "Heavy Engineering Corporation, Ranchi", "label": "ORG", "start_char": 9388, "end_char": 9425, "source": "ner", "metadata": {"in_sentence": "It further provided\n\nthat the company ll\\nd the said union had agreed that an attempt A would be made to rehabilitate the retrenched persons by helping them to obtain alternative employment and the company had for that purpose contacted public sector and other industries and in particular the Heavy Engineering Corporation, Ranchi for absorption as far as possible of the retrenched personnel."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 9775, "end_char": 9783, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Andhra Pradesh", "label": "COURT", "start_char": 9791, "end_char": 9819, "source": "ner", "metadata": {"in_sentence": "226 in the High Court of Andhra Pradesh challenging the validity of the said agreement impleading therein the company, the said union and the Regional Assistant Commissioner as respondents."}}, {"text": "December 20. 1963", "label": "DATE", "start_char": 10341, "end_char": 10358, "source": "ner", "metadata": {"in_sentence": "The writ pe•ition was in the first instance heard by u learned Sin:_!ie Judge of th~ High Court before whom the workmen raised the fo!lowin~ contentions :\n\n(I) that the said agreement dated December 20."}}, {"text": "s. 2(k)", "label": "PROVISION", "start_char": 10563, "end_char": 10570, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19(2)", "label": "PROVISION", "start_char": 10652, "end_char": 10660, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 10737, "end_char": 10742, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 10951, "end_char": 10956, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 11660, "end_char": 11673, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "April 5, 1963", "label": "DATE", "start_char": 11910, "end_char": 11923, "source": "ner", "metadata": {"in_sentence": "He further held that the union hy its letter dated April 5, 1963."}}, {"text": "s. 18", "label": "PROVISION", "start_char": 13038, "end_char": 13043, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19(2)", "label": "PROVISION", "start_char": 13217, "end_char": 13225, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 15827, "end_char": 15835, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 16202, "end_char": 16210, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial court though set up under the Industrial Courts Act, 1919", "label": "STATUTE", "start_char": 17092, "end_char": 17160, "source": "regex", "metadata": {}}, {"text": "Bruce", "label": "JUDGE", "start_char": 17340, "end_char": 17345, "source": "ner", "metadata": {"in_sentence": "This CoUrt has never exercised a general power\" said Bruce, J., in R. v. Lewisham Union(') \"to enforce th.e perfomiance of their statutory duties by public bodies on the application of anybody who chooses to apply for a mandamus."}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 18924, "end_char": 18937, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "rity", "label": "PETITIONER", "start_char": 20696, "end_char": 20700, "source": "ner", "metadata": {"in_sentence": "\"780\n\nSUPREME COURT :REPORTS\n\n[1969] 3 S.C.IL\n\nrity has failed to observe rules of natural justice or has acted A capriciously or in bad faith or for impliedly unauthorised purposes. ("}}, {"text": "s. 5", "label": "PROVISION", "start_char": 22003, "end_char": 22007, "source": "regex", "metadata": {"statute": null}}, {"text": "Minimum Wages Act, 1948", "label": "STATUTE", "start_char": 22015, "end_char": 22038, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "industrial Disputes Act", "label": "STATUTE", "start_char": 23005, "end_char": 23028, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 23208, "end_char": 23221, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1969_3_782_788_EN", "year": 1969, "text": "COMMISSIONER OJ!' INCOME-TAX, ANDHRA PRADESH, A\n\nHYDERABAD • v.\n\nA. DHARMA REDDY, MORTHAD\n\nFebruary 19, 1969\n\n(J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]\n\nIncome-tax Act (11 of 1922). s. 24(2)(ii) as amended in 1955- Loss sustained by a partner in a dissolved firm, if can be set ofi against profit earned in anuther firm in the subsequent year.\n\nThe assessee carried on two businesses in Didi leaves as partner in\n\ntwo different firms.\n\nThe first firm consisted of two partners, and the C second of four; both these firms were assessed to income tax separately and it was admitted that the two finns had nothing to do with each other.\n\nThe first firm sustained losses and was dissolved.\n\nThe assessee claimed that the losses sustained by him in the previous year (sustained in the first firm) should be carried forward and set off against his profit in the subsequent year (earned in the second firm) under s. 24 (2) (ii) of the Income-tax Ac~ !922 as the assessee carried on the business in Bidi leaves durin11 that year.\n\nThe Income-tax Officer rejected the claim, and D his order was upheld by the Appellate Assistant Commissioner.\n\nBut the Appellate Tribunal accepted the claim and the question was answered by the High Court in the assessee'a favour.\n\nThe Revenue appealed to this Court and contended that for gettillll the benefit under s. 24(2)(ii) the same concern or partnership which carried on in the previous year would continue to function in the year of assessment.\n\nHELD : The appeal must be dismissed.\n\nIn order to &Ct the benefit of a. 24(2) (ii) of the Act especially after the amendment made by the Finance Act 1955 it was not necessary that the assessee should carry on the same business in the year of assessment.\n\nThe change in the language of the provision substituted by the Amending Act was significant and all that the assessee had to show was that the business in which Joss was originally sustained continued to be carried on by him in the assessment year.\n\nIf the first partnership wa• dissolved it did not mean that his business i• Bidi leaves came to an end so long •• he continued to dp that business either individually or in partnership with -others.\n\nDuring the assessment year in question he was carryina on that business in partnership with three others. According to the provisions of s. 24(2) as they stood before the amendment made by the Finance Act of 1955 he continued to carry on the same business but for the purpose of the present case s.\n\nG 24(2) (ii) as it stood after the amendment was relevant and on the plain language Of the aforesaid provision the _business in which the loss was originally sustained was continued during the assessment year. The word \"business\" bas been defined in s. 2( 4) of the Act as including any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture.\n\nThese words are of wide import the underlying idea being of continuous exercise of an activity.\n\nIn the present case, the business did not depend on the constitution of a partnership }l firm through which it was carried on nor could it come to an end so long\n\nas the a, sseuec carried on the aame ryatematic or or1,.'l.niled coune of activity with a set purpose. [786 G--787 CJ\n\nWhen the profits of a registered firm are ascertained, the as.., ssee for the purpose of paying tax is not the registered firm but each partner .of that firm.\n\nThe Identity of the business for the purpose of s. 24(2) (u) does not change by reason of the change in persons who carry on that business since it continues to be carried on by the same individual.\n\nA set off for loss which had been carried forward from the earlier years under the provisions of s. 24 would only be available to the individual partner who had suffered the loss and not to the other partners of the firm or the firm. (787 FJ\n\nNarain Swadeshi Weaving Mills v. Comn1issioner of Excess Profits Tax, (1954] 26 I.T.R. 765, 773, Dwarkadas Lee/adhar v.\n\nCommissioner of Jncome .. tax,' Kerala, 47 l.T.R. 619, S. Narain Singh v. Cpmmissioner of\n\nIncome-tax, Delhi, 66 I.T.R. 341 and Sitaram Motirani JGin v. Commissioner of Income-tax, 43 I.T.R. 405, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1057 of 1966.\n\nAppeal from the judgment and order dated April 17, 1964 of the Andhra Pradesh High Court in Case Referred No. 48 of 1962.\n\nS. Mitra, R. N. Sachthey and B. D. Sharma, for the appellant.\n\nS. T. Desai and K. Jayaram, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nGrover, J. This is an appeal by certificate from a judgment of the High Court of Andhra Pradesh answering the following question referred to it by the Tribunal. arising out of the assessment of the assessee for the assessment year 1956-57 in the affir\n\nmative and in his favour :\n\n\"Whether the assessee is entitled under the provisions of Section 24 ( 2) of the Act to set off his share of unabsorbed loss amounting to Rs. 24,532 from the dissolved firm to M/s. A. Dharma Reddy, Morthad brought forward from the assessment year 1955-56 against his other business income for the assessment year 1956-57.\"\n\nThe assessee is an individual whose only sources of income were his. shares !n sever~ partnership concerns.\n\nApart from the firms which earned on other businesses there were two firms which carried on the business in Bidi leaves.\n\nThe first was styled as M/s. A. Dharma Reddy, Mortbad. The secqod firm was called A: Dharma Reddy & Co., Ditchpally.\n\nThe first partnership wa> dissolved on March 31, 1955 bUt the second one continued during the assessment year 1956-57. During the assessment year 1955-56 the assessee sustained a loss of Rs. 30,255 in the first firm.\n\nAs he was carrying on .several other businesses. after the necessary set off the total loss sustained by him for that year came to Rs. 24,532.\n\nDuring the assessment year 1956-57 the\n\nassessee's profit in the second firm was estimated at. Rs. 11,853 and his total taxable income was assessed at Rs. 28,758 for that assessment year.\n\nAs the assessee carried on the business in Bidi leaves during that year he claimed that the loss sustained by him in the previous year viz;., assessment year 1955-56 should be carried forward add set off agamst his prolit in the subsequent year 1956-57 under s. 24(2) (ii) of the income tax Act 1922,, hereinafter called the \"Act\". 1'.he Income tax Officer rejected the claim.\n\nHis view was that the set off could be allowed only if the business, profession or vocation ill which loss was originally sustained continued to be carried on by the assesssee during the refovant assessment year.\n\nAccording to him the business in which the loss of Rs. 30,255 had been incurred had ceased to exi>t because of the dissolution of that firm on March 31, 1955. The Appellate Assistant Commissioner in appeal considered the constitution of the two Jirms.\n\nThe lirst consisted of two partners in which originally the loss had occurred and which had ceased to exist in the relevant assessment year. 'l'he second firm against whose income the loss was sought to be set off consisted oi four partners.\n\nBoth the firms had tiled separate retur, ns and were assessed separately for the assessment year 1955-56. The assessee had admitted in a latter dated September 16, 1960 that\n\nthe two firms had nothing to do with each other and there was no material to show that the business of the dissolved firm was taken over by the other firm.\n\nThe Appellate Assistant Commissioner, therefore, came to the conclusion that the business in which the . E loss was originally sustained could not be said to have continued during the assessment year 1956-57. The assessee took the matter to the Income tax Appellate Tribunal which upheld the contention of the asscssee that the same business of Bidi leaves continued during the assessment year.\n\nAccording to the Tribunal the assessee was carrying on two businesses in Bidi leaves as partner in two different firms.\n\nOne of these firms was dissolved but he continued to carry on the same business in conjunction with his co-partners in the year unclr appeal.\n\nThe High Court disposed of the matter in a fairly simple way.\n\nIt was observed : \"When a firm carries on business. it is a business\n\ncarried on by the partners of that firm and the indivi- <.; dual partners of that firm are assessed to tax.\n\nWhen the profits of a register¢ firm are ascertained, the\n\nasi; essee, for the purpose of paying the tax, is not the registered firm, but each partner of the registered firm.\n\nIn the present case, it was in the business in the beedi leaves that the assessee sustained a loss for the assess- H ment year 1955-56. He carried on the same business in beedi leaves during the accounting year 1955-56 i.e., the assessment year 1956-57 thou&h in partnership\n\nC.J.T. v. DHARMA RIDDY (Grovtr, l.)\n\nwith others. Entering into partnership with another in one case and three others in the other case, was only the mode of carrying business; but the business is the same business viz., trade in beedi leaves. Section 24(2) (ii) does not require that the business should be continued to be carried on for the assessment year in question by the same concern or partnership or firm as m the previous year when the loss was originally sustained by the assessee. The only condition prescribed by that clause is that the same business must be continued to be carried on by \"him\" (the assessee)\".\n\nIn order to dispose of the contentions of the learned counsel for the Income tax Commissioner who is the appellant before us it is necessary to set out the relevant statutory provisions.\n\nBefore the amendment made by the Finance Act of 1955 s. 24(2) was\n\nas follows :-\n\n\"(2) Where any assessee sustains a loss of profits or gains in any year, being a previous year not earlier than the previous year for the assessment for the year ending on 31st day of March, 1940, in any business, profession or vocation, and the loss cannot be wholly set off under sub-section (1), so much of the loss as is not so set off or the whole loss where the assessee had no other head of income shall be carried forward to the following year and set off against the profits and gains, if any, of the assessee from the same business, profession 6r vocation of that year ........ \"\n\nSub-section (2) of s. 24 was substituted by s. 16 of the aforesaid Finance Act.\n\nThe material portion was in the following terms:-\n\n\"{2) .Where any assssee sust11; ins a loss of profits or gams m any year, bemg a prevmus year not earlier\n\ntha~ the previous year for the assessment for the year ending on the 3 lst day of March 1940 in airtv business profession or vocation. and the loss cnnot be wholly set off under sub-s. (1), so much of the loss asc is not set off or the whole loss where the assessee had iOO other\n\nead of income shall be carried forward to the followmg year, and\n\n(i) .........•....................\n\nt•o••o••ttO••••••••••?·~'!'\"'~'\n\n78 6\n\n(ii)\n\nwhere the loss was sustained by him in any other business. profession or vocation. it shall be set off against the profits and gains, if any, oi any business, profession or vocation carried on by him n that year; provided that the business, profession or vocation in which the Joss was originally sustained continued to be carried on by him in that year.\"\n\nThe arguments of the learned counsel for the appellant are based mainly on the fact that the partners of the two firms were different although the assessee was a partner of both the firms.\n\nIt is contended that sjnce the first film was dissolved on March 31, 1955 it could not be said that the business in which the loss was sustained continued to be carried on by the assessee durin~ the assessment year 1956-57 within the meaning of s.24(2)(ii) of the Act.\n\nFor getting the benefit under that section it was essential that the business in which the Joss was sustained should be continued to be carried on for the assessment vear ; n question.\n\nThis means that the same concern or partrshio which carried on the business in the previous vea\" should continue to function in the year of assessment.\n\nThere is no warrant for the proposition put forward on behal.f of the appellant that in order to get the benefit of s. 24(2) (ii) of . the Act especially after the amendment made by the Finance Act 1955 the assessee should carry on the same business partnership in the year of assessment.\n\nThe change in the lanl(Uage of the provision substituted by the Amending Act is significant and all that the assessee has to show is that the business in which Joss was originally sustained continued to be carried on by him in the assessment year.\n\nNow, in the pcesent case. the assessee carried on the business in bidi leaves apart from other businesses.\n\nThis business he was doing in partnership with a, nother person.\n\nNevertheless the business was of takin~ contracts in respect of or dealing in bidi leaves.\n\nThis business he could do either individually or in partnership with some one else.\n\nIf the first partnership was dissolved it did not mean that his business in bidi leaves came to an end so knl! \"'' he continued to do that business either individually or in partnership with others.\n\nDuring the assessment year in question he was admittedly carryin!! on that business in partner5hip with th•ee others.\n\nIt could well be said that even according to the provisions of s. 24(2) as they stood before the amendment made bv the Finance Act of 1955 he continued to carrv on the same business but for the purpose of the present case it is s. 24(2)(ii) as it stood after the amendment which is releva1nt and we foil to sre on the plain language of the aforesaid provision how it could be held that the\n\n]'msine; s in which the loss was originally sustained was not con-\n\nG -\n\n·~ , B\n\nE ,,\n\n• r '\n\ntinued during the assessment year 1956-57. The word \"business\" has been defined in s. 2 ( 4) of the Act as including any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture.\n\nThese words are ot wide import the underlying idea being of continuous exercise of an activity. As pointed out by S. R. Das, J. (as he then was) in Narain Swadeshi Weaving Mills v. Commissioner of Excess Profits\n\nTax(''), the word '\".business\" connotes, some real substantial and systematic or organised course of activity or conduct with a set purpose. The systematic or organised course of activity of the assessee, in the present case, consisted of dealings or taldng of contract in bidi leaves.\n\nThat business did not depend on the constitution of a part, nership firm through which it was carried on nor could k come to an end so long as the assessee carried on the sa.'Tie systematic or organised course of activity with a set purpose.\n\nThe computation o, f a partner's share in the firm's profits js\n\ndelt with by s . .16 ( 1 )(b). The proviso thereto lays down that if his share was computed as a loss such loss may be set off or carried forward and set off in accordance with the provisi0t11 of s. 24.\n\nUnder s. 23 (5) when the assessee is a registered firm and the total income of the firm has been assessed under sub-ss. ( 1),\n\n(3) or ( 4) as the case may be, the total income of each partner of the firm including therein his share of its income, profits and gains of the previous year shal! be 'assessed and the sum payable by him on the basis of such assessment shall be determined. There is a proviso which says that if such share of any partner is a loss it shall be set off against his other income or carried forviard and set off in accordance with the. provisions of s. 24.\n\nThe High Coun was right in saying that when the profits of .a registered firm are ascertained the assessee for the purpose of paying the tax is .not the registered firm but each partner of that firm.\n\nIn a number of decided cases it has been held that the identity of the business for the purpose of s. 24(2)(ii) does not change by reason of the change in persons who carry on that ~>usiness since it continues to be carried on by the same individual. The Kerala\n\nHih Coun ii!l Dwarkadar Leeladhar v. Commissioner of Income tax. Kera/a('), held that where a registered firm which was working at a loss was dissolved and one of the partners continued the same business as a sole proprietor he was entitled to set off his share cf the loss incurred by the firm against the profits accruine;· tfJ him from the busines• as a sole proprietor. The Delhi High Court in S. Narain Sinf!h v. Commis, ioner of Income tax.\n\nDelhi(') had to deal with a case where an assessee had taken certain liquor contract• and carried on the business of sale of liquor in his' individual name and sustained losses.\n\nSubsequently\n\nIll f1954) 26 LT.R. 765 •. 773.\n\n0) 47 l.T.R. 619, ()) 66 l.T.R. 341,\n\n788 SUPRllMll COURT R.EPORTS\n\n[1969] 3 S.C.R.\n\nhe. carried on the same business with 10 other persons and sought to set off the previous losses against the profits made in the accounting year.\n\nReferring to the meaning the construction of the words \"same business\" as they stood in s. 24(2) before the amendment made by the Finance Act of 1955, it was held that the assessee was entitled to carry forward the loss~ for the previous year and have them set off against the share of his income of the registered firm during the assessment year became the business in which the loss was sustained was the same business.\n\nIn both the above cases reference was made to the decision of the Gujarat High Court in Sitaram Motiram Jain v. Commissioner of Income-tax(').\n\nIn that case an assessee had incurred losses in a business carried on, by him as the sole proprietor and a registered firm of which he was a partner took over that business as a run11-ing. concern. . The question was whether he could have the losses incurred by him in the business which he carried on as the sole proprietor carried forward and set off against his share of the profits of the registered firm.\n\nAfter referring to s. 24(2) (ii) and s. 23 ( 5) it was observed. what has to be <letermined in the case of a registered firm is the total income of each partner in tlie firm as the individual partners are assessed to tax and i!IOt the firm as such. A set off for loss which had been carried forward from the earlier years under the provisions of s. 24 would only be available to the individual partner who had suffered the loss and not to the other partners of the firm or the firm.\n\nIn our judgment there could be no manner of doubt that the business in which the Joss had been sustained by the assessee when he was a partner of $e first firm which was dissolved on March 31, 1955 continued to be carried on by him in partnership with three other persons during the assessment year 1956-57, the business, as stated before. being of dealing in or entering into contracts in respect of bidi leaves.\n\nThe mode in which he carried on the business in bidi leaves was one of taking other persons as partners.\n\nHe did not stop doig that business in the assessment year in question.\n\nThe view taken by the High Court. in the nresent case, is un exceptionable and must be upheld.\n\nThe appeal fails and it is dismissed with costs.\n\nY.P.\n\nAppeal dismissed.\n\n-m43 l, T,)l. 405,", "total_entities": 53, "entities": [{"text": "COMMISSIONER OJ!' INCOME-TAX, ANDHRA PRADESH, A\n\nHYDERABAD", "label": "PETITIONER", "start_char": 0, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OJ!' INCOME-TAX, ANDHRA PRADESH, HYDERABAD", "offset_not_found": false}}, {"text": "A. DHARMA REDDY, MORTHAD", "label": "RESPONDENT", "start_char": 65, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "A. DHARMA REDDY, MORTHAD", "offset_not_found": false}}, {"text": "February 19, 1969", "label": "DATE", "start_char": 91, "end_char": 108, "source": "ner", "metadata": {"in_sentence": "INCOME-TAX, ANDHRA PRADESH, A\n\nHYDERABAD • v.\n\nA. DHARMA REDDY, MORTHAD\n\nFebruary 19, 1969\n\n(J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 114, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 123, "end_char": 135, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 140, "end_char": 157, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 160, "end_char": 174, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 24(2)(ii)", "label": "PROVISION", "start_char": 189, "end_char": 201, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 913, "end_char": 918, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24(2)(ii)", "label": "PROVISION", "start_char": 1349, "end_char": 1361, "source": "regex", "metadata": {"statute": null}}, {"text": "Act especially after the amendment made by the Finance Act 1955", "label": "STATUTE", "start_char": 1577, "end_char": 1640, "source": "regex", "metadata": {}}, {"text": "Joss", "label": "OTHER_PERSON", "start_char": 1903, "end_char": 1907, "source": "ner", "metadata": {"in_sentence": "The change in the language of the provision substituted by the Amending Act was significant and all that the assessee had to show was that the business in which Joss was originally sustained continued to be carried on by him in the assessment year."}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 2329, "end_char": 2337, "source": "regex", "metadata": {"linked_statute_text": "the Act especially after the amendment made by the Finance Act 1955", "statute": "the Act especially after the amendment made by the Finance Act 1955"}}, {"text": "s. 2( 4)", "label": "PROVISION", "start_char": 2742, "end_char": 2750, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 3475, "end_char": 3483, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 3724, "end_char": 3729, "source": "regex", "metadata": {"statute": null}}, {"text": "S. Mitra", "label": "LAWYER", "start_char": 4387, "end_char": 4395, "source": "ner", "metadata": {"in_sentence": "S. Mitra, R. N. Sachthey and B. D. Sharma, for the appellant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4397, "end_char": 4411, "source": "ner", "metadata": {"in_sentence": "S. Mitra, R. N. Sachthey and B. D. Sharma, for the appellant."}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 4416, "end_char": 4428, "source": "ner", "metadata": {"in_sentence": "S. Mitra, R. N. Sachthey and B. D. Sharma, for the appellant."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 4450, "end_char": 4461, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and K. Jayaram, for the respondent."}}, {"text": "K. Jayaram", "label": "LAWYER", "start_char": 4466, "end_char": 4476, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and K. Jayaram, for the respondent."}}, {"text": "Grover", "label": "JUDGE", "start_char": 4543, "end_char": 4549, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGrover, J. This is an appeal by certificate from a judgment of the High Court of Andhra Pradesh answering the following question referred to it by the Tribunal."}}, {"text": "Section 24", "label": "PROVISION", "start_char": 4882, "end_char": 4892, "source": "regex", "metadata": {"statute": null}}, {"text": "A. Dharma Reddy", "label": "RESPONDENT", "start_char": 5005, "end_char": 5020, "source": "ner", "metadata": {"in_sentence": "24,532 from the dissolved firm to M/s. A. Dharma Reddy, Morthad brought forward from the assessment year 1955-56 against his other business income for the assessment year 1956-57.\"", "canonical_name": "A. DHARMA REDDY, MORTHAD"}}, {"text": "A: Dharma Reddy & Co.", "label": "ORG", "start_char": 5461, "end_char": 5482, "source": "ner", "metadata": {"in_sentence": "The secqod firm was called A: Dharma Reddy & Co., Ditchpally."}}, {"text": "Ditchpally", "label": "GPE", "start_char": 5484, "end_char": 5494, "source": "ner", "metadata": {"in_sentence": "The secqod firm was called A: Dharma Reddy & Co., Ditchpally."}}, {"text": "March 31, 1955", "label": "DATE", "start_char": 5536, "end_char": 5550, "source": "ner", "metadata": {"in_sentence": "The first partnership wa> dissolved on March 31, 1955 bUt the second one continued during the assessment year 1956-57."}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 6307, "end_char": 6315, "source": "regex", "metadata": {"statute": null}}, {"text": "September 16, 1960", "label": "DATE", "start_char": 7286, "end_char": 7304, "source": "ner", "metadata": {"in_sentence": "The assessee had admitted in a latter dated September 16, 1960 that\n\nthe two firms had nothing to do with each other and there was no material to show that the business of the dissolved firm was taken over by the other firm."}}, {"text": "Assistant Commissioner", "label": "PETITIONER", "start_char": 7482, "end_char": 7504, "source": "ner", "metadata": {"in_sentence": "The Appellate Assistant Commissioner, therefore, came to the conclusion that the business in which the ."}}, {"text": "Section 24(2)", "label": "PROVISION", "start_char": 9066, "end_char": 9079, "source": "regex", "metadata": {"statute": null}}, {"text": "Before the amendment made by the Finance Act", "label": "STATUTE", "start_char": 9636, "end_char": 9680, "source": "regex", "metadata": {}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 9689, "end_char": 9697, "source": "regex", "metadata": {"linked_statute_text": "Before the amendment made by the Finance Act", "statute": "Before the amendment made by the Finance Act"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 10328, "end_char": 10333, "source": "regex", "metadata": {"linked_statute_text": "Before the amendment made by the Finance Act", "statute": "Before the amendment made by the Finance Act"}}, {"text": "s. 16", "label": "PROVISION", "start_char": 10353, "end_char": 10358, "source": "regex", "metadata": {"linked_statute_text": "Before the amendment made by the Finance Act", "statute": "Before the amendment made by the Finance Act"}}, {"text": "s.24(2)(ii)", "label": "PROVISION", "start_char": 11768, "end_char": 11779, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 12248, "end_char": 12256, "source": "regex", "metadata": {"statute": null}}, {"text": "Act especially after the amendment made by the Finance Act 1955", "label": "STATUTE", "start_char": 12271, "end_char": 12334, "source": "regex", "metadata": {}}, {"text": "Uage of the provision substituted by the Amending Act", "label": "STATUTE", "start_char": 12445, "end_char": 12498, "source": "regex", "metadata": {}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 13404, "end_char": 13412, "source": "regex", "metadata": {"linked_statute_text": "Uage of the provision substituted by the Amending Act", "statute": "Uage of the provision substituted by the Amending Act"}}, {"text": "s. 24(2)(ii)", "label": "PROVISION", "start_char": 13569, "end_char": 13581, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 13909, "end_char": 13913, "source": "regex", "metadata": {"statute": null}}, {"text": "S. R. Das", "label": "JUDGE", "start_char": 14170, "end_char": 14179, "source": "ner", "metadata": {"in_sentence": "As pointed out by S. R. Das, J. (as he then was) in Narain Swadeshi Weaving Mills v. Commissioner of Excess Profits\n\nTax(''), the word '\".business\" connotes, some real substantial and systematic or organised course of activity or conduct with a set purpose."}}, {"text": "s. 24", "label": "PROVISION", "start_char": 15060, "end_char": 15065, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 15074, "end_char": 15079, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 15642, "end_char": 15647, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24(2)(ii)", "label": "PROVISION", "start_char": 15950, "end_char": 15962, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi High Court", "label": "COURT", "start_char": 16492, "end_char": 16508, "source": "ner", "metadata": {"in_sentence": "The Delhi High Court in S. Narain Sinf!h v. Commis, ioner of Income tax."}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 17108, "end_char": 17116, "source": "regex", "metadata": {"statute": null}}, {"text": "Gujarat High Court", "label": "COURT", "start_char": 17509, "end_char": 17527, "source": "ner", "metadata": {"in_sentence": "In both the above cases reference was made to the decision of the Gujarat High Court in Sitaram Motiram Jain v. Commissioner of Income-tax(')."}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 18017, "end_char": 18025, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 18035, "end_char": 18040, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 18344, "end_char": 18349, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_789_795_EN", "year": 1969, "text": "RANI BAI v.\n\nSURI YADUNANDAN RAM & ANR.\n\nFebruary 19, 1969\n\n[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.)\n\nHindu Women's Right to Property A.ct, 1937, s. 3(2)-Righ( of predeceastd son's widow to hold father-in-law's property for maintenanct- Scope of.\n\nJ owned certain inherited properties and his son predeoeased him leaving the appellant his widow as hi• heir and legal representative. After the son's death, J married B in 1948. J himself died in 1950 and after his death the first respondent claimed the properties by virtue of a gift deed.\n\nOn this basis he obtained posse<sion of the properties from the appellant under s. 145 Cr.P.C. in December 1962.\n\nThe appellant, together with J's widow B instituted a suit for declaration in respect of her rights and for pos•ession of the properties. Duririg the pendency of the suit B entered into a compromise with the first respondent giving up all her claims. The Trial Court found that the appellant was in possession until dispDSsessed by the first respondent un.der s. 145 Cr.P.C. and that the respondent had illegally occupied the properties. However, the Court non-suited the appellant on the Jiround that since her husband had died in the life-time of I. the latter's assets devolved on his widow B who would be his only heir. Although the District Judge allowed the first appeal and remanded the case, a further appeal by the first respondent was allowed by the High Court on the view that the appellant could have no interest in the properties left by J and she could not take advantage of the provisions of s. 3(2) of the Hindu Women's Right to Properties Act, 1937 which confe'rred certain rights on the widow of a predeceased son. It further held that the rightful claimant of the properties of J was. B alone and owing to the comproffiise entered into by her, the first respondent was\n\n\"clothed with the same rights which were possessed by her\".\n\nOn appeal to this Court,\n\nHELD : Allowin~ the appeal : The High Court's decision must be reversed and that of the District Judge restored.\n\nIt could not be disputed that the appellant who was the widow of the\n\npe-deceased son of J was entitled to receive maintenance, so long_ as she did. not re-mrry. out of the estate of her father-in-law.\n\nAlthouh her claim for maintenance was not a charge uoon the estate until it had been fixed and specifically charged thereupon. her right was not liable to be defeated except by tiansfer to a borra fide purchaser for value without notice of a claim or even with notice of the claim unless the transfer was made with the intention of defeatin~ her right. (793 BJ\n\nThe ppellant as presumably in possession of the properties in lieu of her nght of maintenance and could not be deprived of them even by B without first securin11 proper maintenance for her out of the properties.\n\nRachawa & othm v. Shlvayogappa, I.L.R. 18 Bom. 679 and Y•llawa cl Ors. v. Bhimangavda, I.L.R. 18 Born. 452; referred to.\n\nSUPREME COURT REPORTS [1969] 3 s.c.R.\n\nThe Hi2h Court was in error in holdinii that the first respondent WB$ \"clothed with the very same rights which were possessed\" by B. If the Trial Court's finding that the first respondent was a mere trespasser was right, it was not possible to see how B could effect the transfer of all her rights by merely filing a petition to the effect that she did not wish to prosecute a suit as a plaintiff. [794 E-G]\n\nIsmail Arif] v. Mohomed Ghous., 20 I.A. 99, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 532 of 1966. (In forma pauperis).\n\nAppeal by special leave from the judgment and order dated September 17, 1962 of the Madhya Pradesh High Court in Misc.\n\nAppeal No. 22 of 1962.\n\nM. V. Goswami, for the appellant.\n\nS. C. Agarwala and D. P. Singh, for respondent No. I.\n\nThe Judgment of the Court was delivered by Grover, J.\n\nTitis is an appeal in former pauperis by special leave from a judgment of the Madhya Pradesh High Court at J abalpur dismissing the suit of the appellant for a declaration that she was the owner of the suit properties and for possession thereof.\n\nJangi Jogi had inherited from his father properties consisting of some groves and a house in village MuklJ?Cfpur which was in the erstwhile State of Rewa which later became a oart of the State now called Madhya Pradesh.\n\nHe had a son Laldas who is stated to have died in 1945 leavin~ the appe!Jant, hi< widow, as his heir and legal representative.\n\nAfter the death of Laldas Jangi Jogi is alleged to have married Mst. Jugli Bai in the year 1948.\n\nJangi Jogi himself died sometime in 1950.\n\nRespondent No. 1 is state!l to have raised a claim to the properties of Jangi Jogi by virtue of a gift deed.\n\nOn the basis of that deed he moved the criminal courts under s. 145, Criminal Procedure Code and on December 29, 1962 an order was made directin, g the possession of the properties to be delivered to the said respondent.\n\nThe appellant, therefore. instituted a suit in the coun of Civil Judge at Rewa for a declaration in respect of her ri)!hts and for possession of the properties mentioned in the pfaint.\n\nThe suit was instituted by the appellant along with Jugli Bai the widow of Jangi Jogi.\n\nRespondent No. 1 who was the sole defendant in the suit put up several oleas claiming, inter alia. that he had been in continuous oossession of the suit properties for more than twelve years and had become the ow, nl:r.\n\nAlternativelv it was pleaded if any one could have any interest it would be plaintiff No. 2 Jug-Ii Bai but she had as a matter of fact not joined in the suit and her thumb impression on the plaint had been obtained by fraud. On the\n\npleadings of the parties the trial court framed as many as 12 issues.\n\nDUiing the pendency of the suit plaintiff No. 2 Jugli Bai entered into compromise with respondent No. 1 giving up al! her claims.\n\nThe trial -.:ourt found that the thumb impression of plaintiff had not been obtained by fraud but that she had changed side~ much to the disadvantage of the appellant. As regards the deed of gift set up by respondf\\!lt No. I, it was found that Jangi Jogi had never made such a gift. It was further found that the appellant was in possession until she had been dispossessed by resoOT•- dent No. I by means of the proceedings under s. 145. Cr.P.C.\n\nAccording to the trial court the said respondent had illegally occupied the lands for some time since the proceedings under s. 145. Cr.P.C., resulted in his favour he was put into possession through the process taken under those proceedings.\n\nSo far as the title of respondent No. 1 was concerned it was found that his position was that of a mere tresoasser.\n\nThe trial court, however. nonsuited the aooellant on the- rolll'ld that since her husban~ had died in the Wetime of Jangi Jogi the Jater's estate devolved on his widow Jugli Bai who would be his only heir and she had entered into a compromise with resoondent No. 1.\n\nThe appellant went up in appeal to the court of District Judge, Rewa.\n\nThe learned District Judge examined the point whether the compromise C\\lltered into bv one of the plaintiffs Jugli Bai with the defendant was valid and should have been given effect to by the trial court.\n\nAccording to him it could not be said that the ap])ellant had no right or interest in the properties left bv Jangi Jogi.\n\nHe felt that the compromise which had beC\\ll entered into by Jugli Bai and the defendant should not have been accepted as the appellant was not a party to that compromise.\n\nHe was further of the view that the trial court had not decided all the matters which arose for decision.\n\nHe, therefore, set aside the decree of the trial court and remanded the case with directions to re-admit the suit under its original number and dispose it of in accordance with law. Respondent No. I filed a seco.111:1 aooeal before the High Court. The High Court took the view that the nresent apoelhnt coul<:l h?.Ve no interest in the properties left bv Jani Jogi.\n\nSbe could D\"t t\"ke advantage of the orovision of s. 312) of the Hinnu Women's Ri!!ht to Prooertv Act 1937 which conferred certain ri<>hts on the widow of ore-deceased son. in view of the dec; sion of Federal Court i'n Umaya/ Achl v. Lt1kshmi Achi(1). The aforesaid Act had been etended to Rewa State by the Part C (State Laws) Act\n\n1950 which came into force on April 16. 1950. It was urged. inter a/ia before the High Court that the aooellant could take a boy in adootion and as soon as such an adoption was made its effect would be that the adoptee would be the son not only of the\n\n(I) {1945) F.C'.R. I,\n\nSUPREMB COURT REPORTS\n\n[1969] 3 S.C.R.\n\nwidow but of her deceased husband as well and further that she had a claim for maintenance over the suit lands.\n\nThe High Court disposed of this contention by saying\n\n\"It is not possible to prejudge the results of an adoption which may, or may not, be made by Smt.\n\nRanibai at all.\n\nSimilarly, this is not a case in which the right of maintenance was sought to be enforced against Smt. Juglibai on the property which was inherited by her from the last male holder, Jangi Jogi.\n\nIt may be possible to take u, p these questions in appropriate proceedings.\"\n\nAccording to the High Court the compromise which had been entered into between Jugli Bai and respond(lnt No. 1 did not adversely affect the right, title or interest of the appellant as she had no right, title or interest in the suit lands.\n\nIt was contended on behalf of the appellant that she was in possession of the properties at the time respoodent No. 1 dispossessed her by committinl( an act of trespass and, therefore, she was entitled to restoration <>f possession of those properties from the trespasser.\n\nThe High Court disposed this of by saying that the rightful claimant on the death of Jangi Jogi was Jugli Bai alone and owing to the compromise entered into by her respondent No. 1 was clothed with the same rights which were possessed by her.\n\nIt was further held by the High Court that the compromise had bee.n properly and lawfully recorded and given effect to by the trial court under 0. 23, r. 3 of the Civil Procedure Code.\n\nNow Jugli Bai had filed an application under 0. 23, r. 1, Civil Procedure Code, on February 19, 1959 before the trial court saying, inter alia, that her signature or thumb impression o, n the plaint had been obtained by misrepresentatiQn by the appellant.\n\nThe application stated that she was not interested in prosecuting the suit and therefore she was withdrawing the same. The following portion from that application may be reproduced :\n\n\" ........ plaintiff No. 2 withdraws her plaint aind the statement of claim made therein, and so far as she is concerned she withdraws the suit and prays that no claim be decreed in her :avour nor any relief mentioned in plaint be granted iin her favour.\n\nOn the other hand, the plaint may be dismissed to the extent of her claim.\n\nShe i~ also filing herewith a compromise to that effect arrived at with the defendant, which may be accepted ...... \"\n\nAn application was also filed under 0. 2'.I, r. 3 of CiVJ1. Procedure Code, which purported to bear the thumb unpression of Jugli Bai and was signed by respondent No. 1.\n\nAll that was\n\n(!) l.L.ll. 18 Bom. 67'.\n\n(3) 20 I.A. 99.\n\n(2) LL.It. 18 Bom. 452.\n\n794 SUP.IU!ME COUllT llPOllTS\n\n(1969] 3 S.C:R\n\nfavour of the plaintiff's possession, and that the defendant was not the mutwali nor possessed of any interest in the land, but differed as to the dedication.\n\nIt was held that the plaintiff was entitled to a declaration as against the defendant that he was lawfully entitled to possession and the relief consequent thereon.\n\nThe following observation of Sir Richard Couch may be reproduced with advantage:\n\n\"It appears to their Lordships that there is here a misapprehqmion of the nature of the plaintiff's case upon the facts stated in the judgment.\n\nThe possession of the plaintiff was sufficient evidence of title as owner against the defendant.\n\nBy s. 9 of the Specific Relief Act (Act 1 of 1877), if the plaintiff had been dispossessed otherwise than in due course of Jaw, he could, by a suit instituted within six months from the date of the dispossession, have recovered possession, notwithstanding any other title that might be set up in such suit. If he could thus recover possession from person who might be able, to prove a Utle, it is certainly right and just that he should be able, against a person who has no title and is a mere wrong-doer, to obtain a declaration of title as owner, and an injunction to restrain the wrongdoer from interfering with his possession.\"\n\nKeeping the above statement of law in view it must be held that the High Court was in error in cqooidering that since J ugli Bai had entered into some compromise with respondent No. 1 the trial court was justified in dismissing the appellant's suit.\n\nIt is somewhat difficult to understand tl1e observation ot the High Court that respondent No. 1 was \"clothed witli tlie very same rights which were possessed by Jugli Bai\". If the findmgs of the trial court was right that respopdQllt No. 1 was a mere trespasser, it is no~ possible to see ow Jugli. ai could effect a transfer of a!l her nghts by merely filing a petl!Ion to the effect tliat she clid not wish to prosecute the suit as a co-plaintiff.\n\nAs has been pointed out the appellant had a possessory title and was entitled to restoration of possession in case it was found that respondemt No. 1 had no right, title or interest whatsoever and was a mere trespasser.\n\nThe appellant was further entitled to remain in possession if she could establish that she had entered into possession by virtue of her claim or right to mainte:nklnce until the person laying a claim to the estate of Jangi Jogi made some proper arrangement for the payment of maintenance to her.\n\nThese are, however, matters on which no final opinion need be expressed as the District Judge was of the opinion that the trial court had not given a proper decision on all the issues and for that reason the suit !rad been remanded for a fresh decision on all the questions of fact\n\nand law. In the view that we have taken the decision of the High Court has to be reversed and that of the District Judge restored.\n\nThe appeal is thus allowed with costs here and in the High Court.\n\nThe amount of court fee shall be recovered by the Government from respondent No. 1 in accordance with Order 17, Rule 8 of the Supreme Court Rules. Costs of appellant's Advocate to be taxed against Respondent No. I and made recoverable from him.\n\nR.K.P.S.\n\nAppeal aNowed.", "total_entities": 49, "entities": [{"text": "RANI BAI", "label": "PETITIONER", "start_char": 0, "end_char": 8, "source": "metadata", "metadata": {"canonical_name": "RANI BAI", "offset_not_found": false}}, {"text": "YADUNANDAN RAM & ANR", "label": "RESPONDENT", "start_char": 18, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "YADUNANDAN RAM & ANR", "offset_not_found": false}}, {"text": "February 19, 1969", "label": "DATE", "start_char": 41, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "February 19, 1969\n\n[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.)"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 64, "end_char": 71, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 73, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 90, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "s. 3(2)", "label": "PROVISION", "start_char": 154, "end_char": 161, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 145", "label": "PROVISION", "start_char": 629, "end_char": 635, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 636, "end_char": 642, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 145", "label": "PROVISION", "start_char": 1023, "end_char": 1029, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 1030, "end_char": 1036, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 3(2)", "label": "PROVISION", "start_char": 1570, "end_char": 1577, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Right to Properties Act, 1937", "label": "STATUTE", "start_char": 1599, "end_char": 1628, "source": "regex", "metadata": {}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 3459, "end_char": 3487, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 3626, "end_char": 3651, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated September 17, 1962 of the Madhya Pradesh High Court in Misc."}}, {"text": "M. V. Goswami", "label": "LAWYER", "start_char": 3686, "end_char": 3699, "source": "ner", "metadata": {"in_sentence": "M. V. Goswami, for the appellant."}}, {"text": "S. C. Agarwala", "label": "LAWYER", "start_char": 3721, "end_char": 3735, "source": "ner", "metadata": {"in_sentence": "S. C. Agarwala and D. P. Singh, for respondent No."}}, {"text": "D. P. Singh", "label": "LAWYER", "start_char": 3740, "end_char": 3751, "source": "ner", "metadata": {"in_sentence": "S. C. Agarwala and D. P. Singh, for respondent No."}}, {"text": "Grover", "label": "JUDGE", "start_char": 3819, "end_char": 3825, "source": "ner", "metadata": {"in_sentence": "I.\n\nThe Judgment of the Court was delivered by Grover, J.\n\nTitis is an appeal in former pauperis by special leave from a judgment of the Madhya Pradesh High Court at J abalpur dismissing the suit of the appellant for a declaration that she was the owner of the suit properties and for possession thereof."}}, {"text": "Madhya Pradesh High Court at J abalpur", "label": "COURT", "start_char": 3909, "end_char": 3947, "source": "ner", "metadata": {"in_sentence": "I.\n\nThe Judgment of the Court was delivered by Grover, J.\n\nTitis is an appeal in former pauperis by special leave from a judgment of the Madhya Pradesh High Court at J abalpur dismissing the suit of the appellant for a declaration that she was the owner of the suit properties and for possession thereof."}}, {"text": "Jangi Jogi", "label": "PETITIONER", "start_char": 4078, "end_char": 4088, "source": "ner", "metadata": {"in_sentence": "Jangi Jogi had inherited from his father properties consisting of some groves and a house in village MuklJ?Cfpur which was in the erstwhile State of Rewa which later became a oart of the State now called Madhya Pradesh.", "canonical_name": "Jangi Jogi"}}, {"text": "Laldas", "label": "OTHER_PERSON", "start_char": 4312, "end_char": 4318, "source": "ner", "metadata": {"in_sentence": "He had a son Laldas who is stated to have died in 1945 leavin~ the appe!Jant, hi< widow, as his heir and legal representative."}}, {"text": "Laldas Jangi Jogi", "label": "OTHER_PERSON", "start_char": 4446, "end_char": 4463, "source": "ner", "metadata": {"in_sentence": "After the death of Laldas Jangi Jogi is alleged to have married Mst."}}, {"text": "Jugli Bai", "label": "PETITIONER", "start_char": 4496, "end_char": 4505, "source": "ner", "metadata": {"in_sentence": "Jugli Bai in the year 1948.", "canonical_name": "J ugli Bai"}}, {"text": "Jangi Jogi", "label": "PETITIONER", "start_char": 4525, "end_char": 4535, "source": "ner", "metadata": {"in_sentence": "Jangi Jogi himself died sometime in 1950.", "canonical_name": "Jangi Jogi"}}, {"text": "s. 145", "label": "PROVISION", "start_char": 4739, "end_char": 4745, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 4747, "end_char": 4770, "source": "regex", "metadata": {}}, {"text": "December 29, 1962", "label": "DATE", "start_char": 4778, "end_char": 4795, "source": "ner", "metadata": {"in_sentence": "On the basis of that deed he moved the criminal courts under s. 145, Criminal Procedure Code and on December 29, 1962 an order was made directin, g the possession of the properties to be delivered to the said respondent."}}, {"text": "Rewa", "label": "GPE", "start_char": 4974, "end_char": 4978, "source": "ner", "metadata": {"in_sentence": "instituted a suit in the coun of Civil Judge at Rewa for a declaration in respect of her ri)!hts and for possession of the properties mentioned in the pfaint."}}, {"text": "Jug-Ii Bai", "label": "PETITIONER", "start_char": 5487, "end_char": 5497, "source": "ner", "metadata": {"in_sentence": "2 Jug-Ii Bai but she had as a matter of fact not joined in the suit and her thumb impression on the plaint had been obtained by fraud."}}, {"text": "Jugli Bai", "label": "PETITIONER", "start_char": 5747, "end_char": 5756, "source": "ner", "metadata": {"in_sentence": "2 Jugli Bai entered into compromise with respondent No.", "canonical_name": "J ugli Bai"}}, {"text": "s. 145", "label": "PROVISION", "start_char": 6260, "end_char": 6266, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 6268, "end_char": 6274, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 145", "label": "PROVISION", "start_char": 6401, "end_char": 6407, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 6409, "end_char": 6415, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "District Judge, Rewa", "label": "COURT", "start_char": 6952, "end_char": 6972, "source": "ner", "metadata": {"in_sentence": "The appellant went up in appeal to the court of District Judge, Rewa."}}, {"text": "s. 312", "label": "PROVISION", "start_char": 7999, "end_char": 8005, "source": "regex", "metadata": {"statute": null}}, {"text": "Prooertv Act 1937", "label": "STATUTE", "start_char": 8038, "end_char": 8055, "source": "regex", "metadata": {}}, {"text": "April 16. 1950", "label": "DATE", "start_char": 8312, "end_char": 8326, "source": "ner", "metadata": {"in_sentence": "The aforesaid Act had been etended to Rewa State by the Part C (State Laws) Act\n\n1950 which came into force on April 16."}}, {"text": "Ranibai", "label": "PETITIONER", "start_char": 8864, "end_char": 8871, "source": "ner", "metadata": {"in_sentence": "Ranibai at all.", "canonical_name": "RANI BAI"}}, {"text": "Juglibai", "label": "PETITIONER", "start_char": 8984, "end_char": 8992, "source": "ner", "metadata": {"in_sentence": "Juglibai on the property which was inherited by her from the last male holder, Jangi Jogi.", "canonical_name": "J ugli Bai"}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 10157, "end_char": 10177, "source": "regex", "metadata": {}}, {"text": "February 19, 1959", "label": "DATE", "start_char": 10182, "end_char": 10199, "source": "ner", "metadata": {"in_sentence": "23, r. 1, Civil Procedure Code, on February 19, 1959 before the trial court saying, inter alia, that her signature or thumb impression o, n the plaint had been obtained by misrepresentatiQn by the appellant."}}, {"text": "Richard Couch", "label": "OTHER_PERSON", "start_char": 11650, "end_char": 11663, "source": "ner", "metadata": {"in_sentence": "The following observation of Sir Richard Couch may be reproduced with advantage:\n\n\"It appears to their Lordships that there is here a misapprehqmion of the nature of the plaintiff's case upon the facts stated in the judgment."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 11945, "end_char": 11949, "source": "regex", "metadata": {"statute": null}}, {"text": "Specific Relief Act", "label": "STATUTE", "start_char": 11957, "end_char": 11976, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "J ugli Bai", "label": "PETITIONER", "start_char": 12693, "end_char": 12703, "source": "ner", "metadata": {"in_sentence": "Keeping the above statement of law in view it must be held that the High Court was in error in cqooidering that since J ugli Bai had entered into some compromise with respondent No.", "canonical_name": "J ugli Bai"}}, {"text": "Order 17, Rule 8", "label": "PROVISION", "start_char": 14379, "end_char": 14395, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court", "label": "COURT", "start_char": 14403, "end_char": 14416, "source": "ner", "metadata": {"in_sentence": "1 in accordance with Order 17, Rule 8 of the Supreme Court Rules."}}]}
{"document_id": "1969_3_796_803_EN", "year": 1969, "text": "KARAM CHAND THAPAR Ii: BROS. (P) L1D.\n\nCOMMISSIONER OF INCOME-TAX, (CENTRAL)·\n\nCALCUTTA\n\nFebruary 20, 1969\n\n[J. c. SHAH, v .. RAMA.SWAMI AND A. N. GROVl!R, JJ.)\n\nIncome Tax-Single transaction of salt resulting in profit-.,, lun such profit should be deemed to be revenue liable to tax-lncomt-tax A.•t\n\n(11 of 1922), •. 24(1) and (2)-Sale in one accounting year t:nd ••1111 ment of price in the succeeding year-Sale resulting in cessation al b&. ness and in loss-Assessment proceedings for th• latter Y•-lf Ion .., C allowable deduction under s. 24(1).\n\nThe assessee-company was carzying on the business of coal minin1 uol of a Dry Ice Factory, in addition to various other kinds of busineas, Jt obtained a prospecting licence, and after prospecting for coal sold it wit•- in a short time of its acquisition and thereby earned profits in the accouating years 1948-49 and 1949-50. It sold the Ice Factory in 1948. Thoop the purchaser took possession of the ice factory in 1948, the price was )) finally settled in December 1949. By that sale the assesseo-compaay suffered a loss.\n\nThe assessee claimed : ( 1) that the profits were gains of a capital nature and hence not liable to tax; and (2) that the loss was deductiblo from its income in the assessment year 1950-51.\n\n(I) The department, Tribunal and High Court held that the pr .. 11 E. from the sale of colliery were in the nature of rev011ue and were liable '° tax under the Income Tax Act, in the two corresponding asses.went yean, namely, 1949-50 and 1950-51; and\n\n(2) It was held that Joss in the ice factory transaction was suJrerl<I in the accounting year 1948-49 and assessee's claim could be sustainlll only under s. 24( 2), elf the Income tax Ac~ 1922, but that the .... section was not applicable, because, the business ceased completely bclon y the commencement of the following accounting year 1949-50 (usesalllHt year 1950-51).\n\nIn appeal to this Court, HELD : { 1 ) Where a person disposes of a part or the whole of llis assets the general rule is that the mere c; hange or realization of an iutMtment d0es not attract liability to income tax, but, where such a realiaatiOll. is an act which in itself is a trading transaction, profit earned by sale or G conversion is taxable. In determining whether the gain is realization of a mere enahancement of value (capital gain) or is a gain made in H. operation of business in carrying out a scheme for pofit\"!\"akin.g (revenue) no uniform rule can be evolved. Though a transaction IS an 1Solated ODO, it may be intimately related to the normal business of the tax-payer. h such a case, the profit arising from the transaction will be out of the tax payer's business and will be assessable as business profits. (799 C-D, P;\n\n800 B..CJ H Prospecting of coal was a part of the mining .busintJS which , tile assessee was carrying on. Therefore, the transaction of p~ developing and selling the colliery was one in )he nature of ~.\n\nA Hence, the profit arising from the oale, thoogh it was an isolated transaction, was in the nature of revenue and liable to tax. [801 F-H]\n\nJanki Ram Bah4dur Ram v. Commi&rioner of lncom•-tax, 57 l.T.ll. 21, 2S(S.C.), followed.\n\nCommissioner of Tax'S v. M•lbour,.. Trust Ltd. [1914] A.C. 1001, 1010 (P.C.), Califorrncn Copper Syndicat• (Limited and R•duc•d) v.\n\nHarris (Surv•yor of Tax.s) S T.C. 159, 166, Imperial Tobacco Co. v.\n\nKelly, 25 T; C. 292, Beynon & Co. Ltd. v. Ogg (Surveyor of Tax'1) 7 T.C. 125 and Glouc.si.r Railwa, v Carriag• and Wagon Co. Ltd. v. Commi.uioners of Inland Rev.nu•. 12 T.C. 720, referred to.\n\n(2) By s. 24(1) the loss or profits or gains suffered under any bead in any year was liable to be set off in that year against the income, prollta or gains under any other h•cd; but by s. 24(2) where the loss suffered ia\n\nany business, profession or vocation could not be wholly set off under •uh-•. (I) the loss not so set off has to be carried forward to the following year and set off against the profits and gains of th• scm• bus;,..., ia the •ubsequent year. [802 F-G]\n\nIn the present case, loss was suffered in the accounting year 1949-50 when the pbce was settled and not in 1948-49 when the sale took place.\n\nTherefore, under s. 24( 1) the loss was allowable against the busine51 in come ot the assessee for the adcounting year 1949-50, that is, in proceedinp for the assessment year 1950-51. [803 A-Bl CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1594 and 1595 of 1968.\n\nAppeals from the judgment and order dated August 29, 1963 of the Calcutta High Court in Income Tax Reference No. 38 of 1960.\n\nSachin Chaudhuri, T. A. Ramachandran and D. N. Gupt11, for the appellant (in both the appeals).\n\nD. Narsaraju, S. K. Aiyar, R. N. Sachthey and B. D. Shann• for the respondent (in both the appeals) .\n\nThe Judgment of the Court was delivered by\n\nShah, 1. In respect of assessment years 1949-50 and 1950-51 the Income-tax Appellate Tribunal referred five questions to the High Court of. Calcutta under s. 66 (I) of the Indian Incomtax Act, 1922. Three of those questions which are canvassed in these appeals need be set out :\n\nAssessment year 1949-50 \" ( I ) Whether on the facts and in the circumstances of the case, the sum of Rs. 51,550/- was a profit in the nafure of revenue and therefore liable to tax under the Indian Income-tax Act ?\"\n\nAssessment year 1950-51 \" ( 3) Whether, on the facts and in the circumstances\n\nof the case, the sum of Rs. 8,756/- was a profit\n\n'798\n\nSUPREME COURT REPORTS [1969] 3 SoC.R.\n\nin the nature of revenue and was subject to tax A under the Indian Income-tax Act ? ( 4) Whether, on the facts and in the circumstances of the case, the loss of Rs. 34,891/· was allowable as a deduction against the business income of the assessee for the assessme.ni year 1950·5 I ?\"\n\nThe appellant-a limited Company incorporated under the Indian Companies Act, 1913-,-carries on business as managing agents, dealers in shares and stocks, stores -and spare parts of machinery and acts as insurance agents and manufacturers of carbon dioxide.\n\nIt also works certain coal mines.\n\nThe Company obtained a prospecting licence from the State of Korea for the Chirimiri Colliery in 1944 and after pr0specting for coal sold the colliery, and thereby earned a profit of Rs. 51,550 in the account year 1948-49 and Rs. 8,756 iru the account year 1949-50.\n\nThe Income-tax Officer brought the profits arising out of the sale of the colliery to tax as business profits.\n\nThe order was confirm ed in appeal by the Appellate Assistant Commissioner and the Income-fax Appellate Tribunal.\n\nThe Company conducted a Dry Ice Factory at Lahore. The factory was sold in September 1948 to the Inda-Pakistan Corpo rati001 Ltd. The purchaser took over the factory on October 1, 1948, but the price was finally settled in December, 1949. By the sale the Company suffered a IOss of Rs. 34,891.\n\nThe Com pany claimed to deduct this loss from its income assessable to tax m the assessment year 1950-51.\n\nThe Income-tax Officer disallowed the claim.\n\nThe Appellate Assistant Commissioner agreed with that view, and the Tribunal confirmed the order.\n\nIn answering questions ( 1 ) & ( 3) the High Court observed :\n\n\"The Chirimiri Colliery was sold after prospecting and proying coal. The sale in such a case was a part of the trading activities of the assessee and such activity co1,1ld be gathered from the surrounding circum stances as also from the manner in which it was sold, that is, within a very short time after its acquisition and after it was made fit for obtainin1t a reasonably higher price at the sale. . . . . . . The profit thus acquired c~ not be treated as a capital asset.\" ln answering question ( 4) the High Court observed :\n\n\"The loss of Rs. 34,891 sustained by the assessee after the sale of Dry Ice Factory at Lahore in September 1948 cannot be treated as a 10ss of the business of sale, inasmuch as the Tribunal found as a fact that the loss not having occurred in the relevant accoumJting\n\nyear, was referable to the transaction of business during a period when the business completely ceased before the commencement of the accounting year. . . . \"\n\nCounsel for the Company urges that prospecting for coal Ulllder a licence obtained from the State of Korea was not pa.rt of the business operations of the Company and that by selling the rights in the mine, the Company disposed of its assets and made gains of a capital nature. In any event, it was urged, this was a single transaction and in the absence of evidence that the Company carried on the business of obtaining prospecting licences and of selling the mines if \"coal was proved\", the profit arising out of sale of the mine which was a capital asset acquired by that transaction was not taxable.\n\nWhere a person disposes of a part or the whole of his assets the general rule is that the mere change or realisation of an investment does not attract liability to income-tax but where such a realisation is an act which in itself is a trading transaction, profit earned by sale or conversion is taxable : Commissioner of Taxes v. Melbourne Trust Ltd.(') The cases which illustrate this distinction fall broadly into two categories-those where the sales formed part of trading activity, and, those in which the sale or realisation was not an act of trading.\n\nAs observed in Califprnian Copper Syndicate (Limited and Reduced) v. Harris (Surve- , vor of Taxes) (') the test is-\"Is the sum of gain that has been made a mere enhancement of value by realising l} security, or is it a gailfl made in an operation of business in carrying out a scheme for profit-making ?\"\n\nIn determining whether the gain is realization of mere enhancement of value or is a gain made in an operation of business in carrying out a scheme for profit-making, l11o uniform rule can be evolved. It was observed by this Court in fanki Ram Bahadur\n\nRam v. Commissioner of Income-tax(') :\n\n.\". . . . . . no single fact has decisive significance, and the question whether a transaction is an adventure ini the nature of trade must depend upon the collective effect of 'all the relevant materials brought on the record. But general criteria indicating that certain facts have dominaint signific'ance in the context of other facts have been adopted in the decided cases. If, for instance, a transaction is related to the business which is normally carried on by 'the assessee, though not directly part of it, an intention to faunch upon an advnture in the nature ..0f -trade may readily bci inferred.\n\n(1) [1914f A.C. 1001, 1010 (P.C.)\n\n(2) 5 T.C. 159, 166.\n\n(3) 57 l.T.R. 21, 25.\n\nSUPllEME COURT REPORTS\n\n[1969] 3 S.C.R.\n\nA similar inference would arise where a commodity is purchased and sub-dividedJ altered, treate'£1 or repaired\n\nand sold, or is converted into a different commodity ll,!ld then sold.\n\nMagnitude of the transaction of purchase, the nature of the commodity, subsequent dealings and the manner of disposal may be such that the transaction may be stamped with the character of a trading venture : . . . . \"\n\nA transaction of sale may in a given case be isolated : in another it may be intimately related to the normal business of the tax-payer. In the latter class profit arising from the transaction will probably arise out of the tax-payer's busij!less and will be assessable as business profits. An instructive case of this class is Imperial Tobacco Co. (of Great Britain and Ireland) Ltd. v.\n\nKelly ( 1). In that case the Company carried on the business of tobacco manufacture, for which large quantities of tobacco leaf were purchased in the United States, where the Company maintained a large buyi111g organisation. To finance the purchases and the expenses of this organisation the Company bought dollars in the United Kingdom through its bankers wh:o remitted them to the banking accounts of the Company in the United States, and it was the practice of the Compapy to accumulate a large holding of dollars each year before the leaf season commenced.\n\nThe Company never bought dollars for the purpose of resale as a speculation.\n\nOn the outbreak of war, in September 1939. the appellant Company, at the request of the Treasury, stopped all further purchases of tobacco leaf in the United States, and, as a result, the Company had on hand, a holding of dollars accumulated between January and August, 1939.\n\nOn September 30, 1939, the Company was ordered under the:_ Defence (Finance) Regulations,\n\n1'39, to sell its surplus do!lars to the Treasury, and, owing to the rise in the rate of exchange, the sale resulted in a profit to the Company.\n\nIt was held b_y the Court of Appeal that the profit was liable to be included. as profits of its trade under Sch. D Case I. The tax-payer was not carrying on business in dollars, but the transactions in dollars -were intimately related to their principal business and the profits earned by sale of dollars were treated as profits taxable as business profits.\n\nIn T. Beynon &: Co. Limited v. Ogg (Surveyor of Ta.re$(') the tax-payer carrying on business as Coal Merch~'ts. Ship and Insurance Brokers, and as sole selling agent for various Colliery Companies, in which latter capacity it was part of its duty to purchase viagons on half of its clients, bought ii large number of wagons on .his own accOuiIJt with the intention of re-selling them\n\n(I) 25 T. C. 292.\n\n(2) 7 T. C. 125.\n\nat profit.\n\nThe contention of the tax-payer that th~ transaction bdng an isolated one, the profit was in the nature of a capital profit on the realisation of an investmQilt was negatived.\n\nThe profits realised in this transaction were held to result from the operation of the Company's business and properly includible in the computation of the Company's profits for assessment under Sch. D.\n\nIn Gloucester Railway Carriage and Wagon Co. Ltd.\n\nv. The Commissioners of Inland Revenue(') the tax-payer carried on the business of manufacturing wagons for sale or hire. The tax-payer sold some of the wagons which were formerly hired out. The tax-payer contended that the profit realired by sale was an isolated transaction resulting in a capital profit.\n\nThe House of Lords held that the \"bus\\µtess was alJ one\", namely, to make profit out of wagons and on that account the profits realized by sale of wagons were taxable.\n\nThe Tribunal in the present case recorded .the following findings :\n\n\"It is no doubt true that this was a single transaction.\n\nBut we were told by the assessec's collnsel that the assessec obtained prospecting licence in the colliery, developed the colliery and then sold out. What was the purpose of obtaining the prospecting licence has not been told to us. The assessee was carrying on business of coal mining. The prospecting of coal is a part of the coal mining business.\n\nTherefore, in our opinion, the transaction of prospecting, develoP.ing and sellin~ the colliery is a transaction in the nature of a busmess.\n\nTherelorc, the profit arising from the sale is a profit in the nature of revenue has been rightly brought to tax.\"\n\nF Our task would have been lightened if the Tribunal had stated the findings in greater detail.\n\nNevertheless the Tribunal has found that the Company was carrying on the business of coal mining and prospectiing of coal was a part of the coal mining business and on that account the transaction of prospecting, developing and selling the colliery was a transaction in the nature of a busi- G ness. On the findings recorded by the Tribunal it follows that the prospecting fO!i coal being a part of the coal mining business, the income was properly regarded as taxable. The answer recorded by the High Court on questions ( 1) & ( 3) must be upheld.\n\nTurning to the fourth question : the sale transaction of the Dry Ice Factory was completed on October 1, 1948, but the price wlS finally settled in December 1949. In the settlement, the Company suffered a loss of Rs, 34,891. The loss was suffered in the '\n\n{I) 12 T. C. 720.\n\n8 02\n\nSUPREME COURT REPORTS\n\n\nbusiness transaction and the ortly dispute raised before the Tribunal related tq the year in which the loss was liable to be taken futo account. The Tribunal disallowed the loss iJll the assessment of income for the year 1950-51.\n\nThe Tribunal held that the busi: ness of the Dry Ice Factory was not carried on in the year of account-April 1, 1949 to March 31, 1950, and on that account the loss was not admissible as a permissible deductio, n in computing the taxable income of the Company for the assessment' year\n\n1950-51.\n\nThe High Court agreed with the Tribunal.\n\nIn our judgment, the High Court was in error iii holding that the, loss was not a permissible deduction.\n\nSection 24 of the Income-tax Act, 1922, in the relevant year of assessment read as follows :\n\n\"(1) Where any assessee sustains a loss of profits 1Jr gains in any year under any of the heads mentioned in section 6, he shall be entitled to have the amount of the loss set off against his income, profits or gains under lljl)y other head in that year : ·\n\nProvided that\n\n( 2) Where any sessee sustains a loss of profits or\n\nains in any year, being a previous year not earlier than the previous year for the assessment for the year ending on the 31st day of March, 1940, under the head profits of business, profession or vocation, and the loss not be wholly set off under sub-section ( 1 ) the portion not so set off shal! be carried forward to the following year and set off against the profits or gains, if any, of the assessee from the same business, profession or vocation for that year :\n\nProvided that\n\nBy sub-s. ( 1) the loss or profits or gains suffered under any head in any year was liable to be set off against the income, profits or gains under any other head, and by sub-s. ( 2) where the loss suffered in any business, profession ot vocation could pat be wholly .set off under sub-s. ( 1) the loss not so set off had to be carried forward to the following year and set off against the profits and gains of the same business in the subsequent years. The Tribunal 3jlld the High Court applied sub-s. (2) of s. 24 in C:omputing the taxable income of the Company for the assessment year 1950-51. But in so proceeding, in our judgment, they were in error. The business of Dry Ice Factory was sold in October,\n\n1948. We will assume that the Dry Ice FactQrV was a separate business of the Company and was not a part of the oiher business carried on by the Company. But the price for which the business was sold was settled in December 1949.\n\nUntil the price was\n\n.A settled, loss did not accrue or arise to the Company.\n\nThe loss was suffered in .the account year 1949-50 and could be allowed against the income of that year uinder s. 24 (l ) . The assulIIPtion that the Joss was suffered in the previous year i.e., 1948-49 was, in our judgment, not warranted.\n\nThe case was plainly-governed by sub-s. ( 1) of s. 24. The answer to the fourth questron record- B ed by the High Court must be discharged,\n\nThe answers to questions ( 1) & (3) recorded by the High Court are affirmed.\n\nQuestion ( 4) yvill be answer~ in the affir mative and in favour of the Company. In view of the divided. success, there will be no order as to costs in this Court.\n\nThe . order as to costs in the High Court is maintained.\n\nV.P.S.\n\nAppeals allowed in part.\n\nMii Sup. Cl/69-2", "total_entities": 37, "entities": [{"text": "KARAM CHAND THAPAR Ii: BROS. (P)", "label": "PETITIONER", "start_char": 0, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "KARAM CHAND THAPAR & BROS. (P) LTD", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX, (CENTRAL)·\n\nCALCUTTA", "label": "RESPONDENT", "start_char": 39, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, (CENTRAL) CALCUTTA", "offset_not_found": false}}, {"text": "c. SHAH", "label": "JUDGE", "start_char": 112, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "s. 24(1)", "label": "PROVISION", "start_char": 542, "end_char": 550, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24( 2)", "label": "PROVISION", "start_char": 1676, "end_char": 1685, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24(1)", "label": "PROVISION", "start_char": 3572, "end_char": 3580, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 3750, "end_char": 3758, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24( 1)", "label": "PROVISION", "start_char": 4199, "end_char": 4208, "source": "regex", "metadata": {"statute": null}}, {"text": "Sachin Chaudhuri", "label": "LAWYER", "start_char": 4576, "end_char": 4592, "source": "ner", "metadata": {"in_sentence": "Sachin Chaudhuri, T. A. Ramachandran and D. N. Gupt11, for the appellant (in both the appeals)."}}, {"text": "T. A. Ramachandran", "label": "LAWYER", "start_char": 4594, "end_char": 4612, "source": "ner", "metadata": {"in_sentence": "Sachin Chaudhuri, T. A. Ramachandran and D. N. Gupt11, for the appellant (in both the appeals)."}}, {"text": "D. N. Gupt11", "label": "LAWYER", "start_char": 4617, "end_char": 4629, "source": "ner", "metadata": {"in_sentence": "Sachin Chaudhuri, T. A. Ramachandran and D. N. Gupt11, for the appellant (in both the appeals)."}}, {"text": "D. Narsaraju", "label": "LAWYER", "start_char": 4673, "end_char": 4685, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju, S. K. Aiyar, R. N. Sachthey and B. D. Shann• for the respondent (in both the appeals) ."}}, {"text": "S. K. Aiyar", "label": "LAWYER", "start_char": 4687, "end_char": 4698, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju, S. K. Aiyar, R. N. Sachthey and B. D. Shann• for the respondent (in both the appeals) ."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4700, "end_char": 4714, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju, S. K. Aiyar, R. N. Sachthey and B. D. Shann• for the respondent (in both the appeals) ."}}, {"text": "B. D. Shann•", "label": "LAWYER", "start_char": 4719, "end_char": 4731, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju, S. K. Aiyar, R. N. Sachthey and B. D. Shann• for the respondent (in both the appeals) ."}}, {"text": "Shah", "label": "JUDGE", "start_char": 4820, "end_char": 4824, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, 1."}}, {"text": "High Court of. Calcutta", "label": "COURT", "start_char": 4945, "end_char": 4968, "source": "ner", "metadata": {"in_sentence": "In respect of assessment years 1949-50 and 1950-51 the Income-tax Appellate Tribunal referred five questions to the High Court of."}}, {"text": "s. 66", "label": "PROVISION", "start_char": 4975, "end_char": 4980, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Incomtax Act, 1922", "label": "STATUTE", "start_char": 4992, "end_char": 5017, "source": "regex", "metadata": {}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 5298, "end_char": 5312, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 5558, "end_char": 5572, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "appellant-a limited Company incorporated under the Indian Companies Act, 1913", "label": "STATUTE", "start_char": 5780, "end_char": 5857, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Korea", "label": "GPE", "start_char": 6130, "end_char": 6135, "source": "ner", "metadata": {"in_sentence": "The Company obtained a prospecting licence from the State of Korea for the Chirimiri Colliery in 1944 and after pr0specting for coal sold the colliery, and thereby earned a profit of Rs."}}, {"text": "Lahore", "label": "GPE", "start_char": 6606, "end_char": 6612, "source": "ner", "metadata": {"in_sentence": "The Company conducted a Dry Ice Factory at Lahore."}}, {"text": "Inda-Pakistan Corpo rati001 Ltd.", "label": "ORG", "start_char": 6660, "end_char": 6692, "source": "ner", "metadata": {"in_sentence": "The factory was sold in September 1948 to the Inda-Pakistan Corpo rati001 Ltd. The purchaser took over the factory on October 1, 1948, but the price was finally settled in December, 1949."}}, {"text": "October 1, 1948", "label": "DATE", "start_char": 6732, "end_char": 6747, "source": "ner", "metadata": {"in_sentence": "The factory was sold in September 1948 to the Inda-Pakistan Corpo rati001 Ltd. The purchaser took over the factory on October 1, 1948, but the price was finally settled in December, 1949."}}, {"text": "Chirimiri Colliery", "label": "ORG", "start_char": 7178, "end_char": 7196, "source": "ner", "metadata": {"in_sentence": "In answering questions ( 1 ) & ( 3) the High Court observed :\n\n\"The Chirimiri Colliery was sold after prospecting and proying coal."}}, {"text": "United States", "label": "GPE", "start_char": 11568, "end_char": 11581, "source": "ner", "metadata": {"in_sentence": "In that case the Company carried on the business of tobacco manufacture, for which large quantities of tobacco leaf were purchased in the United States, where the Company maintained a large buyi111g organisation."}}, {"text": "United Kingdom", "label": "GPE", "start_char": 11740, "end_char": 11754, "source": "ner", "metadata": {"in_sentence": "To finance the purchases and the expenses of this organisation the Company bought dollars in the United Kingdom through its bankers wh:o remitted them to the banking accounts of the Company in the United States, and it was the practice of the Compapy to accumulate a large holding of dollars each year before the leaf season commenced."}}, {"text": "September 30, 1939", "label": "DATE", "start_char": 12338, "end_char": 12356, "source": "ner", "metadata": {"in_sentence": "On September 30, 1939, the Company was ordered under the:_ Defence (Finance) Regulations,\n\n1'39, to sell its surplus do!lars to the Treasury, and, owing to the rise in the rate of exchange, the sale resulted in a profit to the Company."}}, {"text": "Section 24", "label": "PROVISION", "start_char": 16639, "end_char": 16649, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 16657, "end_char": 16677, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 6", "label": "PROVISION", "start_char": 16842, "end_char": 16851, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "31st day of March, 1940", "label": "DATE", "start_char": 17181, "end_char": 17204, "source": "ner", "metadata": {"in_sentence": "Section 24 of the Income-tax Act, 1922, in the relevant year of assessment read as follows :\n\n\"(1) Where any assessee sustains a loss of profits 1Jr gains in any year under any of the heads mentioned in section 6, he shall be entitled to have the amount of the loss set off against his income, profits or gains under lljl)y other head in that year : ·\n\nProvided that\n\n( 2) Where any sessee sustains a loss of profits or\n\nains in any year, being a previous year not earlier than the previous year for the assessment for the year ending on the 31st day of March, 1940, under the head profits of business, profession or vocation, and the loss not be wholly set off under sub-section ( 1 ) the portion not so set off shal!"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 18054, "end_char": 18059, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 18674, "end_char": 18679, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 18852, "end_char": 18857, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_804_812_EN", "year": 1969, "text": "COMMISSIONER OF INCOMETAX, CALCUTTA, NOW A WEST BENGAL m v.\n\nIMPERIAL CHEMICAL INDUSTRIES (INDIA) PRIVATE\n\nLTD.\n\nFebruary 20, 1969\n\n(J. C. SHAH, V. RAMASWAMI AND A. N. GROVER; JJ.]\n\nIndian Income-tax Act, 1922, ss. 3, 10(2) (xv) and 66(1)-Assessee appointed sole selling agent of principal-Compensation paid to former selling agents through accounts of assessee--Compensation paid through assessee's accounts whether deductible expenditure-Payment whether expenditure IG'id out for purposes of business-Payment whether urtdtr overriding title-Tribunal's finding of fact that compensation was not paid\n\nby assessee under any agreement with principal cannot be interfered with by High Court when question not referred to it.\n\nThe Imperial Chemical Industries (Export) Glasgow was a subsidiary of Imperial Chemical dustries London. With effect from 1st April 1948 the former terminated the services of four selling agents in India and in their 'pface appointed the. respondent company (another subsidiary of the Im pert al Chemiclll Industries, London) as their sole selling agents. The four former selling agents were to be paid compensation fo~ the termination of their services and this was done through the accounts of the respondent. In its income returns for the years 1949-50, 1950..51, 1951-52 and 1952-53 the respondent showed as its income the net amount of commission arrived at after deducting from the gross commission the compen sation paid to the former selling agents. The Income-tax Officer in his order for the year 1951-52 held that the said deductions were not permissible. His order was confirmed by the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal. The Tribunal held that there was no agreement between the Imperial Chemical Industries (Export) Glasgow and the respondent company casting on the latter the liability to pay the compensation to the former selling agents out of the commission earned by it; the Tribunal further said that even if there was an agreement it was not acted upon. In reference under s. 66( I) of the Indian Income-tax Act, 1922 the lligh Court took the opposite view and held that the claim made by the respondent company was allowable. The revenue appealed to this Court. The questions that fell for consideration were : (i) whether the High Court was justified in interferin2 with the Tribunal's finding of fact on a question not referred to it;\n\n(ii) whether the compensation amounts paid by the resPond.ent to the former selling agent• were expenditure laid out wholly and exclusively for the purpose of business; (iii) whether the income in question was diverted before it reached the respondent by virtue of an overriding title.\n\nHELD : (i) It is well-established that the High Court is not a Court of Appeal in a reference under s. 66( I) of the Act and it is not open to the High Court in such a reference to embark upon a reappraisal of the evidence and to arrive at findings of fact contrary to those of the Appellate' Tribunal. It is the duty of the High Court while hearing the reference to confine itself to the facts as foand by the Appellate Tribunal and to answer the question of law in the context of those facts.\n\nIt is true that the finding of fact will be defective in law if there is no evidence\n\nC.I.T. V. IMPERIAL CHEMICAL LTD. 805\n\nto support it or if the finding is perverse.\n\nBut in the hearing of a reference under s. 66(1) Of the Act it is not open to the assessee. to challenge such a finding of fact unless he has applied for the reference of the speoific question under s. 66( 1). [809 B-D]\n\nIn the present case the assessee bad in its applications under s. 66(1) expressly raised the question about the validity of the finding of the Appellate Tribunal as regards the agreement but the question was not referred by the Appellate Tribunal to the High Court and the contention of the assessee with regard to the question must be deemed to have been .rejected. The assessee did not thereafter move the High Court under s. 66(2) of the Act requiring it to call for a statement of the case on that specific question.\n\nThe High Court was therefore in error in embarking upon a reappraisal of the evidence before the Appellate Tribunal and setting aside the finding of the Appellate Tribunal that there was no agreement as claimed by the assessee for the payment of compensation to the former selling aents out of its own commission and that if there was such an agreement it was not acted upon. [809 F-H]\n\nIndia Cements Ltd. v. Commissioner of Income-tax, 60\n\nI.T.R. 52, Commissioner of Income-tax v. Sri Meenakshi Mills Ltd., 63 J.T.R. 609 and Commissioner of Income-tax, Bombay City 1 v. Greaves Cotton cl Co.\n\nLtd., 68 I.T.R. 200, applied.\n\n(ii) In the absence of proof of the exact terms and condit.ions of the agreement it was not possible to accept the argument that the amount paid as compensation to the ex-agents was an 'expenditure laid out wholly and exclusively for !he purpose of the business under s. 10(2) (xv) of the Act. [810 DJ\n\n(iii) The assessee's documents suggested that the payment of compensation was the exclusive liability of the I.C.I. (Exports) Ltd. and the assessee was not under a legal obligation to pay the amount of compensa~ tion to the outgoing agents.\n\nIt was not established that the payment of compensation was by an ove'rriding title created either by the Act of the parties or by the operation of law.\n\nAn obligation to apply the income in a particular way before it is received by the assessee or before it has accrued dr arisen to the assessee results in the diversion of income.\n\nAn obligation to apply income accrued, arisen Or received amounts merely to the apportionment of income and the income so applied is not deductible. The true test for the application of the rule of diversion of income by an overriding title is whether the amount sought to be deducted in truth never reached the assessee as his income. [810 H-811 HJ\n\nRaja Bejoy Singh Dudhuria v. Commissioner of Income-tax, [1933] 1 I.T.R. 135, P .. C. Mullick v. Commissioner of Income-tax, [1938] 6 I.T.R. 206 and Commissioner of Income-tax, Bombay City 11 v. Sitaldas Tirathdas, 41 I.T.R. 367, applied.\n\nCML APPELLATE JURISDICTION: Civil Appeals Nos. 1549 to 1552 of 1968.\n\nAppeals from the judgment airld order dated September 28, 1964 of the Calcutta High Court in Income-tax Reference No. 18 1961.\n\nSukumar Mitra, S. K. Aiyar, R. H. Dhebar, R. N. Sachthey and B. D. Sharma, for the appellant (in all the appeals).\n\nM. C. Chagla, T. A. Ramachandran and D. N. Gupta, for the A respondent (in all the appeals) .\n\nThe Judgment of the Court was delivered by\n\nRama.swami, J. These appeals are brought by certificate from the judgment of the Calcutta High Court oated 28th September, 1964 in Income Tax Reference No. 18 of 1961.\n\nThe respondent (hereinafter called the assessee) is a private limited company incorporated in India a.nd is a subsidiary of the Imperial Chemical Industries, London, which holds the entire share capital of the assessee.\n\nThe business of the assessee consists mainly of acting as selling agents in India for a large variety of goods such as chemicals, dyes, explosives etc., manufactured or purchased by its London principals and sold in India. The Imperial Chemical Industries (Export) Glasgow [hereinafter referred to as the LC.I. (Export) Ltd.] is another subsidiary of LC.I.\n\nLondon which holds the entire share capital of LC.I. (Export) Ltd.\n\nThe l.C.I. (Export) Ltd. had appointed as their selling agents in India four companies, viz., ( 1) Gillanders Arbuthnot & Co. Ltd., Calcutta, (2) Best & Co. Ltd., Madras, (3) Anglo-Thai Co. Ltd. Bombay and ( 4) Shaw Wallace & Co. Ltd.\n\nWith effect from 1st April, 1948, the l.C.I. (Export) Ltd. terminated the services of the aforesaid selling agents and appointed the assessee as its sole selling agent. The I.C.I. (Export) Ltd. had agreed to pay to the former selling agents compensation at the rate of two fifth, two fifth and one and two fifths of the commission earned by the assessee for the three years from 1st April, 1948. The compensation was paid to the four companies through the accounts of the assessee.\n\nFor this purpose the modus operandi adopted was as follows :-The compensatiQD. payable to the former agents was spread over a period of three years and on the assumption that the turnover was constant, the compensation payable to the selling agents was on an average, an amount equal to the I 1/15th of the commission earned by the assessee at the 1normal rates. In order to a•rive at the amount of commission to be credited to the assessee's profit and loss account each year the as•essee in the first place credited the commission account and debited the I.CI.\n\n(Export) Ltd. account with the full amount of compensation earned by it at normal rates on sales effected during the year.\n\nNext, the assessee transferred from the commission account to a special reserve account called the 'Exp1osives Ex-Airents Compensation Reserve Account', the proportion payable to the exagents as compensation, namely, II/15th (2/5+2/5+7l5= 11/5 x 1/3 = 11/15) (leaving 4/15th towards commissioo account) so that funds misi; ht be accumulated for payment to the four companies from time to time.\n\nThe year of account of the assessee is from 1st October to 30th September every year.\n\nAs a result of the above method of accounting, the following figures appeared in the assessee's books of accounts :-\n\nGross Transfer to Net Commission Reserve for Commission\n\ncompensati on\n\nRs.\n\nRs.\n\nRs.\n\n1st April 1948 to 30th September I 948 .. 2,91,396 2,03,503 87,893 Year ending 30th September 1949 •• 7,67,294 5,41,526 2,25,768\n\nYear ending 30th September 1950 7,52,204 5,29,284 2,22,920\n\nYear ending 30th September J951\n\nI0,20,922 4,00,052 6,20,870\n\nTOTAL 28,31,816 16,74,365 11,57,451\n\nFor the assessment years 1949-50, 1950-51, 1951-52 and 1952-53 the assessee showed the net amounts of commission earned on the selling agencies by the I.C.I. (Export) Ltd. adding a foot note that the amounts were arrived at after deducting the amount of compensation payable to the out-going agents. By his order dated 28th January, 1957 for the assessment year 1951-52 the Income Tax Officer held that the deductions were not pennissible. In an appeal preferred by the assessee the Appellate Assis- •ant Commissioner confirmed the assessment by his order dated .<5th November, 1957. The assessee took the matter in further appeal to the Appellate Tribunal which dismissed the appeal. The Appellate Tribunal held that there was no justification for the abence of a written agreement between the I.C.I. (Export) Ltd. dl!d the assessee when the former selling agencies were terminated an '. the assessee was appointed as the sole selling agent. It was ob.; erved that the assessee was not collecting any commission on behalf of the outgoing agents and it was not their legal obligation to pay compensation to the out-going agents. If the assessee was noi entitled to more than 3/5th of commission during the first\n\ntwo years, it should have credited that amount whereas the assessee had actually credited four-fifteenth on a notional basis which was not in consonance with the arrangement. The conclusion reached by the App.ellate Tribunal was that \"there was no agreement between the assessee and the I.C.I. (Export) Ltd, and if there was one it was not acted upon\".\n\nIt was held by the Appellate Tribunal' that the payment of compensation was not becacse of an overridin title created either by the act of the parties or by operation of Jaw.\n\nAt the instance of the assessee the following question of law wa, s referred to the High Court under section 66 ( 1 ) of the Income-\n\nTax Act, 1922 (hereinafter called the Act) :-\n\n\"Whether the inclusion by the Income Tax Officr.r of Rs. 2,03,503, Rs. 5,41,526, Rs. 5,29,284 and Rs. 4,00,052 in the assessment for the years 1949-50, 1950-51, 1951-52 and 1952-53, for relevant accounting years ending the 30th Sept. 1948, 1949, 1950 and 1951 respectively in the computation of the total income of the assessee is justified and correct ?\"\n\nThe High Court answered the question in the negative in favour of the assessee holding that the inclusion of the amount of compensation in the total income of the assessee for the relevant assessment years was not justified.\n\nOn behalf of the appellant it was contended that the High Court had no legal justification for interfering with the finding of the Appellate Tribunal that there was no proof of the agreement between the assessee and the I. C. I. \"(Export) Ltd. with regard to the quantum of commission to be paid to the assessee for the period between 1st April, 1948 and 31st March, 1.951.\n\nOn this point reference was made by Mr. Chagla to (a) the Jetter dated 11th March, 1947 from the I.C.I. (Export) Ltd. to M/s.\n\nGillanders Arbuthnot & Co., (b) the affidavits of Mr. W. A. Bell and Mr. J. W. Donaldson and ( c) the Jetter dated 3rd January, 1958 of M/s. Lovelocke and Lewes, Chartered Accountants, Calcutta.\n\nIt was argued that these documents established that there was an agreement between the I.C.I. (Export) Ltd. and the assessee, that for the period !st April 1948 to 31st March, 1951 the assessee was entitled to receive as its commission only the amounts representing the difference between the normal rates of commission and the compensation payable to the former agents during that period. The Appellate Tribunal had considered all these documents and reached the conclusion that there was no agreement between the I.C.I. (Export) Ltd. and the assessee and 'if there was one it was not acted upon'. The Appellate Tribunal remarked that the letter dated 11th March, 1947 from the I.CJ. (Export) Ltd. set forth only the terms and conditions subject to which the selling agencies of the out-going agents were terminated.\n\nIt was silent on the crucial question of commission to be paid to the assessee during the three years from the date of its appo; ntment as sole selling agent.\n\nThe affidavits of Mr. Bell and Mr.\n\nDonaldson were produced for the first time before the Appeltate Assistant Commissioner.\n\nThe affidavits were made. tnany years after the cru<; iaJ date of the appointment of the asse<•ee as the . sole selling agent of the I.C.I. (Export) Ltd.\n\nThe affidavits did not mention the amount of commission to be paid to the out-2oing agents and the affidavits were also not consistent with the entries in the books of accounts of the assessee. The letter of M/s Lovelocke and Lewes was produced at a very late stage during the hearing of the appeal before the Tribunal and even otherwise the\n\n~ merely explains the method of accounting adopted by the ••sessee and did not carry the matter any further. In the circumstances, the Appellate Tribunal held that there was no agreement between the assesseo and the I.CJ. (Export) Ltd. and if there was any such agreement it was not acted upon. It is manifest that the finding of the Appellate Tribunal on this question is a finding on question of fact and the High Court was not entitled to interfere with this finding. It is well established that the High Court is not.a Court of Aweai in a reference under s. 66(1) of the Act andit is llot open to the High Court in such a reference to embark upon a reappraisal of the evidence and to arrive at findings of fact contrary to those of the Appellate Tribunal. It is the duty of the High Court whilC hearing the reference to confine itself to the facts as found by the Appellate Tribunal and to answer the question of law in the context of those facts. It is true that the finding o( fact will be defective law if there is no evidence to support it or if the finding is perverse. But in the hearing of a reference under s. 66(1) of d,!e Act it is not open to the assessee to challenge such a finding of fact unless he has applied for the reference of the 0 specific question under s.66(1 ). In India Cements Ltd .. v.\n\nCommissioner of Income Tax(') it was held by this Court that in a reference. the High Court must accept the findings of fact reached by the Appellate Tribunal and it is for the party who applied for a reference to challenge those findings of fact, first, by an\n\napplicatioo. under s. 66 ( 1 ) . If the party concerned has failed to file an application under s. 66( 1) expressly raising the question about the validity of the finding of fact, he is not entitled to urge before the High Court that the finding is vitiated for any reason.\n\nThe same view has been expressed by this Court in Commissioner of Income Tax v. Sri Meenakshi Mills Ltd.(') and Commissioner\n\nof Income Tax, Bombay City Iv. Greaves Cotton & Co. Ltd. (8).\n\nIn the present case the assessee has in his application under s. 66 ( 1) expressly raised the question about the validity of the\n\nfing of the Appellate Tribunal as regards the agreement but the questjon was not refer.red by the Appellate Tribunal to the High <;:ourt and the CQiltentJon of the assessee with regard to the quesuon must be deemed to have been rejected. The assessee did not\n\n!heafter move the High Court under s. 66(2) of the Act requirmg 1t to call for a sta~t of th.I) case on that specific question.\n\nWe are. therefore ofopllllon that the High Court was in error in embarkmg upon a reappraisal of the evidence before the Aopellate Tribunal and setting aside the finding of the Appellate Tribunal. that \"there .was no agreement as alleged in the affidavits of Mr, W. A. BeU and Mr. J. W. Donaldson\" and \"if there was such an agreement it was not acted upon\".\n\n(I) 60 I.T .R. 52.\n\n(2) 63 I.T.R. 609.\n\n(3) 68 I.T.R. 200.\n\nIt was argued by Mr. Chagla that even if the agreement was not established, the amount paid by the assessee as compe, nsation to the ex-agents was an expenditure laid out wholly and exclusively for the purpose of the business and as such is allowable under s. 10 ( 2 )(xv) of the Act. The contrary view point was urged on behalf of the appellant. It was Pointed out that the assessee was acting as the agent of the l.C.I. (Export) Ltd. for the payment of compensation to the ex-agents and the payment was made not in the character of a trader but in the character of the agent of its principal. The contention of the appollant was that the assessee got the right to sell goods after 1st April 1948 and for getting that right the assessee parted with a portion of its commission for the first two years after 1st April 1948 and paid very much more than the commission earned in the third year. This position was borne out by the accounts of the respondent which show that the assessee received the commission at full rates and out of it created a reserve account of which these compensations were made to the ex-agents.\n\nWe have already referred to the finding of the Appellate Tribunal that no agreement between the assessee and the I.C.I. (ExPort) Ltd. has been proved. , In the absence of proof of the exact tenns and conditions of the agreement it is not possible to accept the argument of the assessee that the amount paid as compensation to the ex-agents was an \"expenditure laid out wholly .aind exclusively for the purpose of the business\" under s. 10(2)(xv) of the Act.\n\nIt was finaUy contended on behalf of the resPondent that by virtue of an overriding title the income was diverted before it reached the assessee, and so, the amount of compensation paid to the ex-agents did not form part of the income of the assessee. In other words,_ the contention was that the compensation payable to the ex-agents was diverted from the income of the assessee by an overriding title arising under th_e agreement between the assessee and the I.CJ. (Export) Ltd.\n\nThe argument was stressed that the commission payable as compensation to the ex-agents did not form part of the income of the assessee.\n\nWe are unable to accept this argument as correct.. 'We have already Pointed out that the finding of the Appellate Tribunal is that the precise terms of the agreemnt between the assessee and the I.C.I, (ExPort) Ltd. have not been established. In any event, even on the basis of the affidavits of Mr. Bell and Mr. Donaldson the payment of compensation to the ex-agents was apparently made bv the assessee for and on behalf of the I.C.I. (Export) Ltd.\n\nThe assessee's documents suggest that the payment of compensation was the exclusive liability of the I:C.I. (Export) Ltd. and the assessee as not uEder a le¥al obligation to pay the aount of compensation to the out-gong agents. It is not established that the payment of compensatt?n was by an overriding title created either by the act of the parties\n\nor by the operation of law.\n\nAn obligatioino to apply the income in a particular way before it is received by the assessee or Before it has accrued or arisen to the assessee results in the diversion oi. income. An obligation to apply income accrued, arisen or received amounts merely !!> the apportionment of income and the income so applied is not deductible. The true test for the applicati0\\11 of the rule of diversion of income by an overriding title is whether the amount sought to be deducted in truth never reached the assessee as his income.\n\nThe leading case on the subject is Raja Bejoy Singh Dudhuria v. Commissioner of Income Tax(') where the step mother of the Raya had brought a suit for maintenance amid a compromise decree was passed in which the step mother was to be paid Rs. 1,100 per month, which amount was declared a charge upon the properties in the hands of the Raja by the Court.\n\nThe Raja sought to .deduct this amount from his assessable inco~: 1 which was disallowed by the High Court at Calcutta. On apJ?Cll' to the Judicial Committee Lord Macmillan observed as follows :-\n\n\"But their Lordships do not agree with the learned Chief Justice in his rejection oi. the view that the sums paid by the appellant to his step mother were not 'income' of the appellant at all. This \\II their Lordships' opinion is the true view of the matter.\n\nWhen the Act by section 3 subjects to charge 'all income' of the individual, it is what reaches the individual as income which it is intended to charge. In the present case the decree of the court by charging the appellant's whole resources with a specific payment to his step-mother has to that extent diverted his income from him. and has directed it to his step-mother; to that extent what he receives for her is not his income. It is not a case of the application by the appellant of part of his income in a particular way, it is rather the allotion of a sum out of his revnue before it becomes income in his hands\".\n\nAnother case of the Judicial Committee is reported in P. C. Mullick\n\nv. Commisisoner of Income Tax('), where, a testator appointed the appellants as executors and directed them to pay Rs. 1 O 000 out of th~ income on the occasion of his addya sradh. The 'executors paid Rs. 5,537 for such expenses, and sought to deduct the amount from the assessable income. The Judicial Committee confirmed the decision of the Calcutta High Court disallowing the deduction and observed that the payments were made out of the income of the estate coming to the hands of the executors and in\n\npursuan~. of an oligation imposed upon them by the testator.\n\nThe Jud1c1al Committee observed that it was not a case in which\n\n(I) [1933] 1 l.T.R. 135.\n\n(2)'[1938] 6 I.T.R. 206.\n\na portion of the income had been diverted by an overriding title from the person who would have received it otherwise and distinguished Bejoy Singh Dudhuria's case('). In Commissioner of .Jncome Tax Bombay City II v. Sitaldas Tirathdas('), Hidayatullah, J., speaking for the Court observed as follows :-\n\n\"There 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 cqnBequence, in law, does not follow. It is the first kind of payment which can truly be excused and not the second.\n\nThe second paymqn.t is merely an obligation to pay another a portion of one's inme, 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\nIn view of the principle laid down in these authorities we are of opinion that the payment of compensation , by the assessee to the ex-agents was not by an overriding title created either by act of the parties or by operation of law.\n\nWe accordingly reject the argument of Mr. Chagla onl this aspect of the case.\n\nFor the reasons expressed we hold that the judgment of the Calcutta HiglrCourt dated 28th September, 1964 should be set aside and the question referred by the App:l!ate Tribunal should be answered in the affirmative and agamst the assessee.\n\nThe appeals are accordingly allowed with costs. One hearing fee.\n\nG.C.\n\nAppeals allowed.\n\n(1) (1933) I.T.R. 135.\n\n(2) 41 I.T.R. 367.", "total_entities": 78, "entities": [{"text": "COMMISSIONER OF INCOMETAX, CALCUTTA, NOW A WEST BENGAL", "label": "PETITIONER", "start_char": 0, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, CALCUTTA, NOW WEST BENGAL III", "offset_not_found": false}}, {"text": "IMPERIAL CHEMICAL INDUSTRIES (INDIA) PRIVATE\n\nLTD", "label": "RESPONDENT", "start_char": 61, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "IMPERIAL CHEMICAL INDUSTRIES (INDIA) PRIVATE LTD", "offset_not_found": false}}, {"text": "February 20, 1969", "label": "DATE", "start_char": 113, "end_char": 130, "source": "ner", "metadata": {"in_sentence": "February 20, 1969\n\n(J. C. SHAH, V. RAMASWAMI AND A. N. GROVER; JJ.]"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 136, "end_char": 143, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 145, "end_char": 157, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER", "label": "JUDGE", "start_char": 162, "end_char": 174, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 182, "end_char": 209, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 3, 10(2)", "label": "PROVISION", "start_char": 211, "end_char": 223, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-tax Act, 1922", "statute": "Indian Income-tax Act, 1922"}}, {"text": "Imperial Chemical Industries (Export) Glasgow", "label": "ORG", "start_char": 728, "end_char": 773, "source": "ner", "metadata": {"in_sentence": "The Imperial Chemical Industries (Export) Glasgow was a subsidiary of Imperial Chemical dustries London."}}, {"text": "Imperial Chemical dustries London", "label": "ORG", "start_char": 794, "end_char": 827, "source": "ner", "metadata": {"in_sentence": "The Imperial Chemical Industries (Export) Glasgow was a subsidiary of Imperial Chemical dustries London."}}, {"text": "1st April 1948", "label": "DATE", "start_char": 846, "end_char": 860, "source": "ner", "metadata": {"in_sentence": "With effect from 1st April 1948 the former terminated the services of four selling agents in India and in their 'pface appointed the."}}, {"text": "India", "label": "GPE", "start_char": 922, "end_char": 927, "source": "ner", "metadata": {"in_sentence": "With effect from 1st April 1948 the former terminated the services of four selling agents in India and in their 'pface appointed the."}}, {"text": "Im pert al Chemiclll Industries", "label": "ORG", "start_char": 1009, "end_char": 1040, "source": "ner", "metadata": {"in_sentence": "respondent company (another subsidiary of the Im pert al Chemiclll Industries, London) as their sole selling agents."}}, {"text": "London", "label": "GPE", "start_char": 1042, "end_char": 1048, "source": "ner", "metadata": {"in_sentence": "respondent company (another subsidiary of the Im pert al Chemiclll Industries, London) as their sole selling agents."}}, {"text": "s. 66( I)", "label": "PROVISION", "start_char": 2054, "end_char": 2063, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 2071, "end_char": 2098, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 66( I)", "label": "PROVISION", "start_char": 2807, "end_char": 2816, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "s. 66(1)", "label": "PROVISION", "start_char": 3413, "end_char": 3421, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66( 1)", "label": "PROVISION", "start_char": 3572, "end_char": 3581, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(1)", "label": "PROVISION", "start_char": 3657, "end_char": 3665, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(2)", "label": "PROVISION", "start_char": 4019, "end_char": 4027, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 5009, "end_char": 5017, "source": "regex", "metadata": {"statute": null}}, {"text": "I.C.I. (Exports) Ltd.", "label": "ORG", "start_char": 5153, "end_char": 5174, "source": "ner", "metadata": {"in_sentence": "810 DJ\n\n(iii) The assessee's documents suggested that the payment of compensation was the exclusive liability of the I.C.I. (Exports) Ltd. and the assessee was not under a legal obligation to pay the amount of compensa~ tion to the outgoing agents."}}, {"text": "Sukumar Mitra", "label": "OTHER_PERSON", "start_char": 6409, "end_char": 6422, "source": "ner", "metadata": {"in_sentence": "Sukumar Mitra, S. K. Aiyar, R. H. Dhebar, R. N. Sachthey and B. D. Sharma, for the appellant (in all the appeals)."}}, {"text": "S. K. Aiyar", "label": "LAWYER", "start_char": 6424, "end_char": 6435, "source": "ner", "metadata": {"in_sentence": "Sukumar Mitra, S. K. Aiyar, R. H. Dhebar, R. N. Sachthey and B. D. Sharma, for the appellant (in all the appeals)."}}, {"text": "R. H. Dhebar", "label": "OTHER_PERSON", "start_char": 6437, "end_char": 6449, "source": "ner", "metadata": {"in_sentence": "Sukumar Mitra, S. K. Aiyar, R. H. Dhebar, R. N. Sachthey and B. D. Sharma, for the appellant (in all the appeals)."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 6451, "end_char": 6465, "source": "ner", "metadata": {"in_sentence": "Sukumar Mitra, S. K. Aiyar, R. H. Dhebar, R. N. Sachthey and B. D. Sharma, for the appellant (in all the appeals)."}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 6470, "end_char": 6482, "source": "ner", "metadata": {"in_sentence": "Sukumar Mitra, S. K. Aiyar, R. H. Dhebar, R. N. Sachthey and B. D. Sharma, for the appellant (in all the appeals)."}}, {"text": "M. C. Chagla", "label": "LAWYER", "start_char": 6525, "end_char": 6537, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, T. A. Ramachandran and D. N. Gupta, for the A respondent (in all the appeals) ."}}, {"text": "T. A. Ramachandran", "label": "LAWYER", "start_char": 6539, "end_char": 6557, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, T. A. Ramachandran and D. N. Gupta, for the A respondent (in all the appeals) ."}}, {"text": "D. N. Gupta", "label": "LAWYER", "start_char": 6562, "end_char": 6573, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, T. A. Ramachandran and D. N. Gupta, for the A respondent (in all the appeals) ."}}, {"text": "Rama.swami,", "label": "JUDGE", "start_char": 6664, "end_char": 6675, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRama.swami, J. These appeals are brought by certificate from the judgment of the Calcutta High Court oated 28th September, 1964 in Income Tax Reference No."}}, {"text": "Imperial Chemical Industries, London", "label": "ORG", "start_char": 6961, "end_char": 6997, "source": "ner", "metadata": {"in_sentence": "The respondent (hereinafter called the assessee) is a private limited company incorporated in India a.nd is a subsidiary of the Imperial Chemical Industries, London, which holds the entire share capital of the assessee."}}, {"text": "LC.I. (Export) Ltd.", "label": "ORG", "start_char": 7359, "end_char": 7378, "source": "ner", "metadata": {"in_sentence": "The Imperial Chemical Industries (Export) Glasgow [hereinafter referred to as the LC.I. (Export) Ltd.] is another subsidiary of LC.I.\n\nLondon which holds the entire share capital of LC.I. (Export) Ltd.\n\nThe l.C.I. (Export) Ltd. had appointed as their selling agents in India four companies, viz., ("}}, {"text": "LC.I.\n\nLondon", "label": "ORG", "start_char": 7405, "end_char": 7418, "source": "ner", "metadata": {"in_sentence": "The Imperial Chemical Industries (Export) Glasgow [hereinafter referred to as the LC.I. (Export) Ltd.] is another subsidiary of LC.I.\n\nLondon which holds the entire share capital of LC.I. (Export) Ltd.\n\nThe l.C.I. (Export) Ltd. had appointed as their selling agents in India four companies, viz., ("}}, {"text": "l.C.I. (Export) Ltd.", "label": "ORG", "start_char": 7484, "end_char": 7504, "source": "ner", "metadata": {"in_sentence": "The Imperial Chemical Industries (Export) Glasgow [hereinafter referred to as the LC.I. (Export) Ltd.] is another subsidiary of LC.I.\n\nLondon which holds the entire share capital of LC.I. (Export) Ltd.\n\nThe l.C.I. (Export) Ltd. had appointed as their selling agents in India four companies, viz., ("}}, {"text": "Gillanders Arbuthnot & Co. Ltd.", "label": "ORG", "start_char": 7579, "end_char": 7610, "source": "ner", "metadata": {"in_sentence": "1) Gillanders Arbuthnot & Co. Ltd., Calcutta, (2) Best & Co. Ltd., Madras, (3) Anglo-Thai Co. Ltd. Bombay and ( 4) Shaw Wallace & Co. Ltd.\n\nWith effect from 1st April, 1948, the l.C.I. (Export) Ltd. terminated the services of the aforesaid selling agents and appointed the assessee as its sole selling agent."}}, {"text": "Calcutta", "label": "GPE", "start_char": 7612, "end_char": 7620, "source": "ner", "metadata": {"in_sentence": "1) Gillanders Arbuthnot & Co. Ltd., Calcutta, (2) Best & Co. Ltd., Madras, (3) Anglo-Thai Co. Ltd. Bombay and ( 4) Shaw Wallace & Co. Ltd.\n\nWith effect from 1st April, 1948, the l.C.I. (Export) Ltd. terminated the services of the aforesaid selling agents and appointed the assessee as its sole selling agent."}}, {"text": "Best & Co. Ltd., Madras", "label": "ORG", "start_char": 7626, "end_char": 7649, "source": "ner", "metadata": {"in_sentence": "1) Gillanders Arbuthnot & Co. Ltd., Calcutta, (2) Best & Co. Ltd., Madras, (3) Anglo-Thai Co. Ltd. Bombay and ( 4) Shaw Wallace & Co. Ltd.\n\nWith effect from 1st April, 1948, the l.C.I. (Export) Ltd. terminated the services of the aforesaid selling agents and appointed the assessee as its sole selling agent."}}, {"text": "Anglo-Thai Co. Ltd. Bombay", "label": "ORG", "start_char": 7655, "end_char": 7681, "source": "ner", "metadata": {"in_sentence": "1) Gillanders Arbuthnot & Co. Ltd., Calcutta, (2) Best & Co. Ltd., Madras, (3) Anglo-Thai Co. Ltd. Bombay and ( 4) Shaw Wallace & Co. Ltd.\n\nWith effect from 1st April, 1948, the l.C.I. (Export) Ltd. terminated the services of the aforesaid selling agents and appointed the assessee as its sole selling agent."}}, {"text": "Shaw Wallace & Co. Ltd.", "label": "ORG", "start_char": 7691, "end_char": 7714, "source": "ner", "metadata": {"in_sentence": "1) Gillanders Arbuthnot & Co. Ltd., Calcutta, (2) Best & Co. Ltd., Madras, (3) Anglo-Thai Co. Ltd. Bombay and ( 4) Shaw Wallace & Co. Ltd.\n\nWith effect from 1st April, 1948, the l.C.I. (Export) Ltd. terminated the services of the aforesaid selling agents and appointed the assessee as its sole selling agent."}}, {"text": "1st April, 1948", "label": "DATE", "start_char": 7733, "end_char": 7748, "source": "ner", "metadata": {"in_sentence": "1) Gillanders Arbuthnot & Co. Ltd., Calcutta, (2) Best & Co. Ltd., Madras, (3) Anglo-Thai Co. Ltd. Bombay and ( 4) Shaw Wallace & Co. Ltd.\n\nWith effect from 1st April, 1948, the l.C.I. (Export) Ltd. terminated the services of the aforesaid selling agents and appointed the assessee as its sole selling agent."}}, {"text": "I.C.I. (Export) Ltd.", "label": "ORG", "start_char": 7889, "end_char": 7909, "source": "ner", "metadata": {"in_sentence": "The I.C.I. (Export) Ltd. had agreed to pay to the former selling agents compensation at the rate of two fifth, two fifth and one and two fifths of the commission earned by the assessee for the three years from 1st April, 1948."}}, {"text": "I.CI.\n\n(Export) Ltd.", "label": "ORG", "start_char": 8756, "end_char": 8776, "source": "ner", "metadata": {"in_sentence": "In order to a•rive at the amount of commission to be credited to the assessee's profit and loss account each year the as•essee in the first place credited the commission account and debited the I.CI."}}, {"text": "I.C.I. (Export) Ltd", "label": "ORG", "start_char": 11363, "end_char": 11382, "source": "ner", "metadata": {"in_sentence": "The conclusion reached by the App.ellate Tribunal was that \"there was no agreement between the assessee and the I.C.I. (Export) Ltd, and if there was one it was not acted upon\"."}}, {"text": "section 66", "label": "PROVISION", "start_char": 11707, "end_char": 11717, "source": "regex", "metadata": {"statute": null}}, {"text": "Tax Act, 1922", "label": "STATUTE", "start_char": 11740, "end_char": 11753, "source": "regex", "metadata": {}}, {"text": "I. C. I. \"(Export) Ltd.", "label": "ORG", "start_char": 12590, "end_char": 12613, "source": "ner", "metadata": {"in_sentence": "On behalf of the appellant it was contended that the High Court had no legal justification for interfering with the finding of the Appellate Tribunal that there was no proof of the agreement between the assessee and the I. C. I. \"(Export) Ltd. with regard to the quantum of commission to be paid to the assessee for the period between 1st April, 1948 and 31st March, 1.951."}}, {"text": "Chagla", "label": "OTHER_PERSON", "start_char": 12785, "end_char": 12791, "source": "ner", "metadata": {"in_sentence": "On this point reference was made by Mr. Chagla to (a) the Jetter dated 11th March, 1947 from the I.C.I. (Export) Ltd. to M/s.\n\nGillanders Arbuthnot & Co., (b) the affidavits of Mr. W. A. Bell and Mr. J. W. Donaldson and ( c) the Jetter dated 3rd January, 1958 of M/s. Lovelocke and Lewes, Chartered Accountants, Calcutta."}}, {"text": "W. A. Bell", "label": "LAWYER", "start_char": 12926, "end_char": 12936, "source": "ner", "metadata": {"in_sentence": "On this point reference was made by Mr. Chagla to (a) the Jetter dated 11th March, 1947 from the I.C.I. (Export) Ltd. to M/s.\n\nGillanders Arbuthnot & Co., (b) the affidavits of Mr. W. A. Bell and Mr. J. W. Donaldson and ( c) the Jetter dated 3rd January, 1958 of M/s. Lovelocke and Lewes, Chartered Accountants, Calcutta.", "canonical_name": "W. A. Bell"}}, {"text": "J. W. Donaldson", "label": "OTHER_PERSON", "start_char": 12945, "end_char": 12960, "source": "ner", "metadata": {"in_sentence": "On this point reference was made by Mr. Chagla to (a) the Jetter dated 11th March, 1947 from the I.C.I. (Export) Ltd. to M/s.\n\nGillanders Arbuthnot & Co., (b) the affidavits of Mr. W. A. Bell and Mr. J. W. Donaldson and ( c) the Jetter dated 3rd January, 1958 of M/s. Lovelocke and Lewes, Chartered Accountants, Calcutta."}}, {"text": "31st March, 1951", "label": "DATE", "start_char": 13232, "end_char": 13248, "source": "ner", "metadata": {"in_sentence": "st April 1948 to 31st March, 1951 the assessee was entitled to receive as its commission only the amounts representing the difference between the normal rates of commission and the compensation payable to the former agents during that period."}}, {"text": "11th March, 1947", "label": "DATE", "start_char": 13721, "end_char": 13737, "source": "ner", "metadata": {"in_sentence": "The Appellate Tribunal remarked that the letter dated 11th March, 1947 from the I.CJ. ("}}, {"text": "I.CJ. (Export) Ltd.", "label": "ORG", "start_char": 13747, "end_char": 13766, "source": "ner", "metadata": {"in_sentence": "The Appellate Tribunal remarked that the letter dated 11th March, 1947 from the I.CJ. ("}}, {"text": "Bell", "label": "OTHER_PERSON", "start_char": 14069, "end_char": 14073, "source": "ner", "metadata": {"in_sentence": "The affidavits of Mr. Bell and Mr.\n\nDonaldson were produced for the first time before the Appeltate Assistant Commissioner."}}, {"text": "Donaldson", "label": "OTHER_PERSON", "start_char": 14083, "end_char": 14092, "source": "ner", "metadata": {"in_sentence": "The affidavits of Mr. Bell and Mr.\n\nDonaldson were produced for the first time before the Appeltate Assistant Commissioner."}}, {"text": "Lovelocke", "label": "OTHER_PERSON", "start_char": 14539, "end_char": 14548, "source": "ner", "metadata": {"in_sentence": "The letter of M/s Lovelocke and Lewes was produced at a very late stage during the hearing of the appeal before the Tribunal and even otherwise the\n\n~ merely explains the method of accounting adopted by the ••sessee and did not carry the matter any further."}}, {"text": "Lewes", "label": "OTHER_PERSON", "start_char": 14553, "end_char": 14558, "source": "ner", "metadata": {"in_sentence": "The letter of M/s Lovelocke and Lewes was produced at a very late stage during the hearing of the appeal before the Tribunal and even otherwise the\n\n~ merely explains the method of accounting adopted by the ••sessee and did not carry the matter any further."}}, {"text": "s. 66(1)", "label": "PROVISION", "start_char": 15229, "end_char": 15237, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(1)", "label": "PROVISION", "start_char": 15789, "end_char": 15797, "source": "regex", "metadata": {"statute": null}}, {"text": "s.66(1 )", "label": "PROVISION", "start_char": 15950, "end_char": 15958, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 16269, "end_char": 16274, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66( 1)", "label": "PROVISION", "start_char": 16346, "end_char": 16355, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 16776, "end_char": 16781, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(2)", "label": "PROVISION", "start_char": 17139, "end_char": 17147, "source": "regex", "metadata": {"statute": null}}, {"text": "W. A. BeU", "label": "LAWYER", "start_char": 17495, "end_char": 17504, "source": "ner", "metadata": {"in_sentence": "that \"there .was no agreement as alleged in the affidavits of Mr, W. A. BeU and Mr. J. W. Donaldson\" and \"if there was such an agreement it was not acted upon\".", "canonical_name": "W. A. Bell"}}, {"text": "s. 10", "label": "PROVISION", "start_char": 17908, "end_char": 17913, "source": "regex", "metadata": {"statute": null}}, {"text": "I.C.I. (ExPort) Ltd.", "label": "ORG", "start_char": 18884, "end_char": 18904, "source": "ner", "metadata": {"in_sentence": "We have already referred to the finding of the Appellate Tribunal that no agreement between the assessee and the I.C.I. (ExPort) Ltd. has been proved. ,"}}, {"text": "s. 10(2)(xv)", "label": "PROVISION", "start_char": 19204, "end_char": 19216, "source": "regex", "metadata": {"statute": null}}, {"text": "I.C.I, (ExPort) Ltd.", "label": "ORG", "start_char": 20043, "end_char": 20063, "source": "ner", "metadata": {"in_sentence": "We are unable to accept this argument as correct.. 'We have already Pointed out that the finding of the Appellate Tribunal is that the precise terms of the agreemnt between the assessee and the I.C.I, (ExPort) Ltd. have not been established."}}, {"text": "I:C.I. (Export) Ltd.", "label": "ORG", "start_char": 20400, "end_char": 20420, "source": "ner", "metadata": {"in_sentence": "In any event, even on the basis of the affidavits of Mr. Bell and Mr. Donaldson the payment of compensation to the ex-agents was apparently made bv the assessee for and on behalf of the I.C.I. (Export) Ltd.\n\nThe assessee's documents suggest that the payment of compensation was the exclusive liability of the I:C.I. (Export) Ltd. and the assessee as not uEder a le¥al obligation to pay the aount of compensation to the out-gong agents."}}, {"text": "Macmillan", "label": "JUDGE", "start_char": 21720, "end_char": 21729, "source": "ner", "metadata": {"in_sentence": "On apJ?Cll' to the Judicial Committee Lord Macmillan observed as follows :-\n\n\"But their Lordships do not agree with the learned Chief Justice in his rejection oi."}}, {"text": "section 3", "label": "PROVISION", "start_char": 22030, "end_char": 22039, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 23048, "end_char": 23067, "source": "ner", "metadata": {"in_sentence": "The Judicial Committee confirmed the decision of the Calcutta High Court disallowing the deduction and observed that the payments were made out of the income of the estate coming to the hands of the executors and in\n\npursuan~. of an oligation imposed upon them by the testator."}}, {"text": "Bejoy Singh Dudhuria", "label": "OTHER_PERSON", "start_char": 23527, "end_char": 23547, "source": "ner", "metadata": {"in_sentence": "a portion of the income had been diverted by an overriding title from the person who would have received it otherwise and distinguished Bejoy Singh Dudhuria's case(')."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 23631, "end_char": 23643, "source": "ner", "metadata": {"in_sentence": "In Commissioner of .Jncome Tax Bombay City II v. Sitaldas Tirathdas('), Hidayatullah, J., speaking for the Court observed as follows :-\n\n\"There 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."}}, {"text": "Calcutta HiglrCourt", "label": "COURT", "start_char": 24939, "end_char": 24958, "source": "ner", "metadata": {"in_sentence": "For the reasons expressed we hold that the judgment of the Calcutta HiglrCourt dated 28th September, 1964 should be set aside and the question referred by the App:l!ate Tribunal should be answered in the affirmative and agamst the assessee."}}, {"text": "28th September, 1964", "label": "DATE", "start_char": 24965, "end_char": 24985, "source": "ner", "metadata": {"in_sentence": "For the reasons expressed we hold that the judgment of the Calcutta HiglrCourt dated 28th September, 1964 should be set aside and the question referred by the App:l!ate Tribunal should be answered in the affirmative and agamst the assessee."}}]}
{"document_id": "1969_3_813_817_EN", "year": 1969, "text": "H.V.KAMATH\n\nCH. NITIRAJ SINGH\n\nFebruary 24, 1969\n\n[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.j\n\nRepresentation of People Act (43 of 1951), s. 123--Government fasued Ordinance henefitinJ? certain agriculturists prior .fo election-Successful candidate's party in power-Allowances granted to Government\n\nemployees-Du111111y pa111phlets omitting unJ'uccessful candidate's election s_rnzbol-Whether an1~)11nt.s to corrupt practice.\n\nThe appellant, an unsuccessful candidate filed an election petition tor setting aside the election of the respondent who got elected as a Congress candidate to a Parliamentary constituency.\n\nThe respondent was chraged with several corrupt practices, viz.. (i) by an ordinance the Government of the State in which the Congress Party was in power, granted exemption to certain agriculturists' holdings from payment of land revenue and the Chief Minister announced the bonefit though the exemption was claimed for snmetime past by the opposition parties the ordinance was passed prior to the election; the opposition parties started a campaign stating that the object of the exemption was to forfeit the land; the Chief Minister refuted the charge and told the voters that the exemption should be granted and that the opposition parties should be routed in the election; a member of the Conress Party-D, published a pamphlet refuting the false propaganda that exemption was temporary and urging the electors to vote for the Congress; (ii) the Chief Minister on the eve of the election announced inc'reased dearness allowance to rtain Government employees; (iii) the respondent or bis agent distributed dummy ballot papers with the respondent's name and his election symbol, and also that of appellant's name but without 'his election symbol printed thereon, thereby conveying an impression tht the appet1ant had withdrawn his candidature, and further, that the respondent and his agents on the eve of the election told the voters that the appellant had withdrawn, so the respondent had committed corrupt practice under s. 123(4); and (iv) a member of the police force in the service of the Government with the consent of the respondent actively canvassed for the respondent, thereby committing corrupt practice under s. 12'3(7). The High Court dismissed the petition,\n\nHELD : The appeal must be dismissed.\n\n(i) On the materials, on the record,. it was impossible to hold that the respondent committed the corrupt practice under s. 123(1)A. The ordinance was passed by the Government of Madhya Pradesh. As a result of the ordinance a large number of agriculturists got exemption from land revenue.\n\nSuch an exemption did not amount to a gift, offer or promise of any gratification within the meaning of s. 123 ( 1 )(A) nor was it possible to say that the Government was the agent of the respondent.\n\nThe Congress Party was then in Power. But the exemption was not given by the Congress Party. It was given by the Ordinance which was passed by the Government. Nor does the announcement of the declaration by the Chief Minister or by the pamphlet carry the matter any ful'ther. It was not possible to say that either the Chief Minister or D acted as the agent of the respondent. [815 GJ\n\n(ii) The grant of the increased dearness allowance could not be re- A garded as a gift, offer or promise of any gratification within the meaning of s. 123(l)(A) nor it was possible to say that the Government or the Chief Minister was the agent of the respondent. The employees of the Government had given notice to go on strike a week before the election and without their cooperation the entire election would have been at a standstill. The Government thought that the demand of the employees was legitimate and therefore announced it on the eve of the election to B meet it. !816 D-F]\n\n(iii) The dummy ballot papers were in contravention of the instructions issued by the Election Commission of India. The appellant's name should not have been printed in them. But it was impossible to say that the dummy papers conveyed to the voters the impression that the appellant had withdrawn his candidature. The statement of the appellant's witnesses could not be accepted that on the eve of the election the respondent and C his agents informed the voters that the appellant had withdrawn his candidature.\n\nThe voters knew that there were two candidates in the field.\n\nEven a few days prior to the election the Chief Minister stated that the appellant was contestin2 the election. The respondent carried on rigorous election propaganda till the last day. [816 HJ\n\n(iv) On the evidence the charge that the member of the police force <anvassed for the respoqdent was not established.\n\nCML APPELLATE JURISDICTION: Civil Appeal No. 1517 of 1968.\n\nAppeal under s. 116-A of the Representation of the People Act, 1951 from the judgment apd order dated March 13, 1968 of the Madhya Pradesh High Court, Indore Bench in Election Peti- I: tion No. 45 of 1967.\n\nK. A. Chitaley, Y. S. Dharmadhikari, S. S. Khanduja - and K:. B. Rohatgi, for the appellant.\n\nG. N. Dikshit, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. This appeal is directed against the judgment of a Single Judge of the High Court of Madhya Pradesh dismissing an election petition for setting aside the election of the respondent Chaudhury Nitiraj Singh to the Hoshangabad Parliamentary Constituency No. 27. The appellant was the Praja Socialist Party candidate with the election symbol \"hut\". The respondent was the Congress Party Candidate with the election symbol \"Two bullocks with voke on\".\n\nThe voting took place on February 20,\n\n1967. The votes were counted on February 21 and February 20,\n\n1967. The respondent having got a majority of about 20,000 votes was declared duly elected. The oetition charged the re>pondent with seve•al corrupt practices. The appellant now presses before\n\nus only the charge unde' parap; raph 5(i), (ii). (iii) and (iv), oaragraph 5(v), paragraph 6 and paragraph ?(ii),\n\nI!'\n\nAt the time of the election, the Congress Party, was in power and the Chief Minister Shri D. P. Mishra be1onged to the Congress Party. In November 1966 the respondent was nominated by the Coogress Party as its caµdidate for the Hoshangabad Parliamentary Constituency. The substance of the charge as made in paragraph 5 (i), (ii), (iii) and (iv) and as pressed before us is that on December 23, 1966 the Government of Madhya Pradesh headed by Shri D. P. Mishra promulgated an Ordinamce No. 19 of 1966 exempting agriculturists holdmgs land less than 7 .50 acres or payip.g land revenue not exceeding Rs. 5 from payment of land revenue, that Shri D. P. Mishra as the agent of the respondent and with his consent made speeches at Narsinghpur and Piparia on February 16, 1967 announcing the benefit of such exemption and that the respondent thus committed the corrupt practice under s. 123 (1 )(A) of the Representation of the People Act, 1951.\n\nThe evidence shows that the question of exemption of uneconomic holding from payment of land revenue was being agitated for some time past Towards the close of 1966 a resolution was moved by the members of the opposition parties in the Madhya Pradesh Vidhan Sabha urging such exemption.\n\nBut no bill to that effect was then passed.\n\nThe Government reconsidered the matter aiDd when the Vidhan Sabha was not in session it passed Ordinance No. 19 of 1966 granting the exemption. The Ordinance was later replaced by Act. No. 6 of 1967 which was published on April 26, 1967. The exemption was advocated by the P•aja Socialist Party also and was welcomed by all parties. Nevertheless on the eve of the election the opposition parties started a campaign stating that the object of the exemption was to forfeit the land to the State and raised the slogan \"Lagan Maaf Zamin Saar'.\n\nThe propaganda was refuted by the Con11; ress Party. In an election speech on February 16, 1967 Shri D. P. Mishra raised the slogan \"Lag3ill Miraf Sab party Saaf\".\n\nHis\n\nobjct yvas to tell the voters that the exemption should be granted and that the opposition parties should be routed in the election. It also appears that one Shri S. K. Dixit a member of the Cong•ess PartY. published a pamphlet Ex. P-2 on or about February 7, 1967 refuting the false propag:anda that the exemption was temporary and was granted with a view to forfeit the lands and ugiing the electors to vote for the congress.\n\nOn the materials on the record it is impossible to hold that the respondent committed the corrupt practice under s. 123 (1 )(A). The O•dinance was passed by the Government of Ma'1hya Pradesh. As a result of the Ordinance a large number of agriculturists got exemption frnm land revenue.\n\nSuch an exemption does not amount to a gift. offer or promise of any l!Tatification within the meaning of s. 123(1 )(A). Nor is it possible to sav that the eovemment was th~ agent of the respondent. It is true that the Cong•ess Partv was then i; o power.\n\nBut the exemption was not eiven bv the Conss Partv.\n\nIt was given by the Ordinance which was passed by the Government. Nor does\n\nthe announcement of the declaration at the meeting held on February 16, 1967 or by the pamphlet Ex. P-2 cax:ry the matter any further. On the materials on the record it is not possible to say that either Shri D. P. Mishra or Shri S. K. Dixit acted as the agent of the respondent. The charge under :paragraph 5 ( i), (ii) , (iii) and (iv) is not established. Some additional embellishments of the charge were dealt with by the learned Judge <md they were not pressed before us.\n\nThe substance of the charge as laid in paragraph 5 ( v) and as pressed before us is that on the eve of the election the Government of Madhya Pradesh headed by Shri D. P. Mishra declared that Class III and Class IV government employees would get increased dearness allowance from April 1, 1967 according to the rates sanctioned for Central GovelJillllent employees, that Shri D. P.\n\nMishra with the consent of the respondent and as his agent announced the grant of these benfits at the meetings held on February 16, 1967 at N<!rsinghpur aiid Piparia a:nd that the respondent thus c01nmitted the corrup_t practice under s. 123(1) (A). It appears that Class III and Class IV employees gave a notice to the government . stating that they would go on strike with effect from February 13, 1967. Without their co-operation the entire election would have been at a standstill.\n\nThe Government thought that the demand of the employees for i, rl.creased dearness allowance was legitimate and therefore announced on or about February 11, 196,7 its decision to grant the increased dearness allowance with effect from April l, 1967. The grant of the increased dearness allowance cannot be regarded as a gift, offer or promise of gratification within the meaning of s. 123(1) (A) nor is it possible to say that the Government or Shri D. P. Mishra was the agent of the respondent. The announcement of the grl!J11t of the increased dearness allowance at the meeting held on February 16, 1967 does not carry the matter any further.\n\nThe charge under paragraph 5 ( v) is not established.\n\nThe charge under paragraph 6 is that the respondent or his ageint distributed dummy ballot papers with the respondent's name and his election symbol of \"Two bullocks with yoke on\" and, also the appellant's rrame without his election symbol printed thereon, that those papers conveyed to the voters the impression that the appellant had withdrawn his candidature, that the appellant and hts agents qn the eve of the election told the voters that the appellant had withdrawn his candidature and that the respondent thereby committed the corrupt practice under s. 123 ( 4). The evidence shows that dummy ballot papers as mentioned above were printed and distributed on behalf of the respondent. Such dummy ballot papers were in contravention of the ilnstructions issued by the Election Commission of India. The appellant's name should not have\n\nbeen printed in them. But it is impossible to say that the dummy ballot papers conveyed to the voters. the impression that the appellant had withdrawn his candidature. On this issue the appellant exam'1ed P.W. 6, PW 7, PW 10, PW 23, PW 25, PW 27, PW 29, PW 30, PW 31 and PW 32 and the respondent examined RW 2, RW 3, RW 11 and RW 13. In agreement with the learned Judge we do not accept the statement of the appellant's witnesses that on the eve of the election the respondent apd his agents informed the voters that the appellant had withdrawn his candidature. The voters knew that there were two candidates in the field, viz., the appellant and the respondent. Even on February 16, 1967 Shri D. P. Mishra stated that the appellant was contesting the election.\n\nThe respondent carried on a vigorous election propaganda until February 18, 1967. If the respondent or his agent had informed the voters that the appellant had with.drawn his candidature it was not likely that such inteinsive propaganda would be carried on onti! that date. The charge under paragraph 6 is therefore not established.\n\nThe charge under paragraph 7 (ii) was that Chaudhary Diwan Singh, the Station House Officer at Sohagpur, and a member of. the police force in the service of the government, with the consent of the respondent actively cain'Vassed for the respondent and that the respondent thereby committed corrupt practice under s. 123 (7).\n\nTo prove this charge the appellant examined PW 3, PW 4 and PW 9.\n\nChaudhary Diwan Singh and the respondent denied the charge. For the reasons given by the learned Judge, it is impossible to accept the testimquy of PW 3, PW 4 and PW 9. Their evidence does not ring true: P.W. 3 never spoke to anybody that he was asked by Chaudlrary Diwan gh to vote for the respondent. t is not likely that. Diwan 'Singh would approach P. W. 4.\n\nIt is impossible to believe that P.W. 9 could overhear a conversation between Diwan Singh aind, the respondent when the respondent is said to have asked Diwan Singh to canvass for him. the charge under paragraph 7 (ii) is also not established.\n\nIn the result, the appeal is dismissed with costs.\n\nY.P.\n\nAppeal dismissed.", "total_entities": 59, "entities": [{"text": "H.V.KAMATH", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "H. V. KAMATH", "offset_not_found": false}}, {"text": "CH. NITIRAJ SINGH", "label": "RESPONDENT", "start_char": 12, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "CH. NITIRAJ SINGH", "offset_not_found": false}}, {"text": "February 24, 1969", "label": "DATE", "start_char": 31, "end_char": 48, "source": "ner", "metadata": {"in_sentence": "NITIRAJ SINGH\n\nFebruary 24, 1969\n\n[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.j\n\nRepresentation of People Act (43 of 1951), s. 123--Government fasued Ordinance henefitinJ?"}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 51, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 64, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "K. S. HEGDE, JJ", "label": "JUDGE", "start_char": 83, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "Representation of People Act", "label": "STATUTE", "start_char": 102, "end_char": 130, "source": "regex", "metadata": {}}, {"text": "s. 123", "label": "PROVISION", "start_char": 145, "end_char": 151, "source": "regex", "metadata": {"linked_statute_text": "Representation of People Act", "statute": "Representation of People Act"}}, {"text": "Government of the State", "label": "ORG", "start_char": 714, "end_char": 737, "source": "ner", "metadata": {"in_sentence": "The respondent was chraged with several corrupt practices, viz.. (i) by an ordinance the Government of the State in which the Congress Party was in power, granted exemption to certain agriculturists' holdings from payment of land revenue and the Chief Minister announced the bonefit though the exemption was claimed for snmetime past by the opposition parties the ordinance was passed prior to the election; the opposition parties started a campaign stating that the object of the exemption was to forfeit the land; the Chief Minister refuted the charge and told the voters that the exemption should be granted and that the opposition parties should be routed in the election; a member of the Conress Party-D, published a pamphlet refuting the false propaganda that exemption was temporary and urging the electors to vote for the Congress; (ii) the Chief Minister on the eve of the election announced inc'reased dearness allowance to rtain Government employees; (iii) the respondent or bis agent distributed dummy ballot papers with the respondent's name and his election symbol, and also that of appellant's name but without 'his election symbol printed thereon, thereby conveying an impression tht the appet1ant had withdrawn his candidature, and further, that the respondent and his agents on the eve of the election told the voters that the appellant had withdrawn, so the respondent had committed corrupt practice under s. 123(4); and (iv) a member of the police force in the service of the Government with the consent of the respondent actively canvassed for the respondent, thereby committing corrupt practice under s. 12'3(7)."}}, {"text": "s. 123(4)", "label": "PROVISION", "start_char": 2050, "end_char": 2059, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 2248, "end_char": 2253, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123(1)", "label": "PROVISION", "start_char": 2459, "end_char": 2468, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of Madhya Pradesh", "label": "ORG", "start_char": 2503, "end_char": 2531, "source": "ner", "metadata": {"in_sentence": "it was impossible to hold that the respondent committed the corrupt practice under s. 123(1)A. The ordinance was passed by the Government of Madhya Pradesh."}}, {"text": "s. 123", "label": "PROVISION", "start_char": 2733, "end_char": 2739, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123(l)(A)", "label": "PROVISION", "start_char": 3364, "end_char": 3376, "source": "regex", "metadata": {"statute": null}}, {"text": "Election Commission of India", "label": "ORG", "start_char": 3890, "end_char": 3918, "source": "ner", "metadata": {"in_sentence": "816 D-F]\n\n(iii) The dummy ballot papers were in contravention of the instructions issued by the Election Commission of India."}}, {"text": "s. 116", "label": "PROVISION", "start_char": 4767, "end_char": 4773, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 4783, "end_char": 4821, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "K. A. Chitaley", "label": "LAWYER", "start_char": 4961, "end_char": 4975, "source": "ner", "metadata": {"in_sentence": "K. A. Chitaley, Y. S. Dharmadhikari, S. S. Khanduja - and K:."}}, {"text": "Y. S. Dharmadhikari", "label": "LAWYER", "start_char": 4977, "end_char": 4996, "source": "ner", "metadata": {"in_sentence": "K. A. Chitaley, Y. S. Dharmadhikari, S. S. Khanduja - and K:."}}, {"text": "S. S. Khanduja", "label": "LAWYER", "start_char": 4998, "end_char": 5012, "source": "ner", "metadata": {"in_sentence": "K. A. Chitaley, Y. S. Dharmadhikari, S. S. Khanduja - and K:."}}, {"text": "K:. B. Rohatgi", "label": "LAWYER", "start_char": 5019, "end_char": 5033, "source": "ner", "metadata": {"in_sentence": "K. A. Chitaley, Y. S. Dharmadhikari, S. S. Khanduja - and K:."}}, {"text": "G. N. Dikshit", "label": "LAWYER", "start_char": 5055, "end_char": 5068, "source": "ner", "metadata": {"in_sentence": "G. N. Dikshit, for the respondent."}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 5135, "end_char": 5143, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBachawat, J. This appeal is directed against the judgment of a Single Judge of the High Court of Madhya Pradesh dismissing an election petition for setting aside the election of the respondent Chaudhury Nitiraj Singh to the Hoshangabad Parliamentary Constituency No."}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 5218, "end_char": 5246, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBachawat, J. This appeal is directed against the judgment of a Single Judge of the High Court of Madhya Pradesh dismissing an election petition for setting aside the election of the respondent Chaudhury Nitiraj Singh to the Hoshangabad Parliamentary Constituency No."}}, {"text": "February 20,\n\n1967", "label": "DATE", "start_char": 5620, "end_char": 5638, "source": "ner", "metadata": {"in_sentence": "The voting took place on February 20,\n\n1967."}}, {"text": "Congress Party", "label": "ORG", "start_char": 6043, "end_char": 6057, "source": "ner", "metadata": {"in_sentence": "At the time of the election, the Congress Party, was in power and the Chief Minister Shri D. P. Mishra be1onged to the Congress Party."}}, {"text": "D. P. Mishra", "label": "OTHER_PERSON", "start_char": 6100, "end_char": 6112, "source": "ner", "metadata": {"in_sentence": "At the time of the election, the Congress Party, was in power and the Chief Minister Shri D. P. Mishra be1onged to the Congress Party.", "canonical_name": "D. P.\n\nMishra"}}, {"text": "Hoshangabad", "label": "GPE", "start_char": 6238, "end_char": 6249, "source": "ner", "metadata": {"in_sentence": "In November 1966 the respondent was nominated by the Coogress Party as its caµdidate for the Hoshangabad Parliamentary Constituency."}}, {"text": "December 23, 1966", "label": "DATE", "start_char": 6391, "end_char": 6408, "source": "ner", "metadata": {"in_sentence": "The substance of the charge as made in paragraph 5 (i), (ii), (iii) and (iv) and as pressed before us is that on December 23, 1966 the Government of Madhya Pradesh headed by Shri D. P. Mishra promulgated an Ordinamce No."}}, {"text": "Narsinghpur", "label": "GPE", "start_char": 6736, "end_char": 6747, "source": "ner", "metadata": {"in_sentence": "5 from payment of land revenue, that Shri D. P. Mishra as the agent of the respondent and with his consent made speeches at Narsinghpur and Piparia on February 16, 1967 announcing the benefit of such exemption and that the respondent thus committed the corrupt practice under s. 123 (1 )(A) of the Representation of the People Act, 1951."}}, {"text": "Piparia", "label": "GPE", "start_char": 6752, "end_char": 6759, "source": "ner", "metadata": {"in_sentence": "5 from payment of land revenue, that Shri D. P. Mishra as the agent of the respondent and with his consent made speeches at Narsinghpur and Piparia on February 16, 1967 announcing the benefit of such exemption and that the respondent thus committed the corrupt practice under s. 123 (1 )(A) of the Representation of the People Act, 1951."}}, {"text": "February 16, 1967", "label": "DATE", "start_char": 6763, "end_char": 6780, "source": "ner", "metadata": {"in_sentence": "5 from payment of land revenue, that Shri D. P. Mishra as the agent of the respondent and with his consent made speeches at Narsinghpur and Piparia on February 16, 1967 announcing the benefit of such exemption and that the respondent thus committed the corrupt practice under s. 123 (1 )(A) of the Representation of the People Act, 1951."}}, {"text": "s. 123", "label": "PROVISION", "start_char": 6888, "end_char": 6894, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 6910, "end_char": 6948, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Madhya Pradesh Vidhan Sabha", "label": "ORG", "start_char": 7187, "end_char": 7214, "source": "ner", "metadata": {"in_sentence": "The evidence shows that the question of exemption of uneconomic holding from payment of land revenue was being agitated for some time past Towards the close of 1966 a resolution was moved by the members of the opposition parties in the Madhya Pradesh Vidhan Sabha urging such exemption."}}, {"text": "April 26, 1967", "label": "DATE", "start_char": 7506, "end_char": 7520, "source": "ner", "metadata": {"in_sentence": "6 of 1967 which was published on April 26, 1967."}}, {"text": "P•aja Socialist Party", "label": "ORG", "start_char": 7557, "end_char": 7578, "source": "ner", "metadata": {"in_sentence": "The exemption was advocated by the P•aja Socialist Party also and was welcomed by all parties."}}, {"text": "S. K. Dixit", "label": "OTHER_PERSON", "start_char": 8158, "end_char": 8169, "source": "ner", "metadata": {"in_sentence": "It also appears that one Shri S. K. Dixit a member of the Cong•ess PartY. published a pamphlet Ex."}}, {"text": "February 7, 1967", "label": "DATE", "start_char": 8243, "end_char": 8259, "source": "ner", "metadata": {"in_sentence": "P-2 on or about February 7, 1967 refuting the false propag:anda that the exemption was temporary and was granted with a view to forfeit the lands and ugiing the electors to vote for the congress."}}, {"text": "s. 123", "label": "PROVISION", "start_char": 8537, "end_char": 8543, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of Ma'1hya Pradesh", "label": "ORG", "start_char": 8585, "end_char": 8614, "source": "ner", "metadata": {"in_sentence": "The O•dinance was passed by the Government of Ma'1hya Pradesh."}}, {"text": "s. 123(1 )(A)", "label": "PROVISION", "start_char": 8818, "end_char": 8831, "source": "regex", "metadata": {"statute": null}}, {"text": "April 1, 1967", "label": "DATE", "start_char": 9854, "end_char": 9867, "source": "ner", "metadata": {"in_sentence": "The substance of the charge as laid in paragraph 5 ( v) and as pressed before us is that on the eve of the election the Government of Madhya Pradesh headed by Shri D. P. Mishra declared that Class III and Class IV government employees would get increased dearness allowance from April 1, 1967 according to the rates sanctioned for Central GovelJillllent employees, that Shri D. P.\n\nMishra with the consent of the respondent and as his agent announced the grant of these benfits at the meetings held on February 16, 1967 at N<!rsinghpur aiid Piparia a:nd that the respondent thus c01nmitted the corrup_t practice under s. 123(1) (A)."}}, {"text": "D. P.\n\nMishra", "label": "OTHER_PERSON", "start_char": 9950, "end_char": 9963, "source": "ner", "metadata": {"in_sentence": "The substance of the charge as laid in paragraph 5 ( v) and as pressed before us is that on the eve of the election the Government of Madhya Pradesh headed by Shri D. P. Mishra declared that Class III and Class IV government employees would get increased dearness allowance from April 1, 1967 according to the rates sanctioned for Central GovelJillllent employees, that Shri D. P.\n\nMishra with the consent of the respondent and as his agent announced the grant of these benfits at the meetings held on February 16, 1967 at N<!rsinghpur aiid Piparia a:nd that the respondent thus c01nmitted the corrup_t practice under s. 123(1) (A).", "canonical_name": "D. P.\n\nMishra"}}, {"text": "s. 123(1)", "label": "PROVISION", "start_char": 10193, "end_char": 10202, "source": "regex", "metadata": {"statute": null}}, {"text": "February 13, 1967", "label": "DATE", "start_char": 10345, "end_char": 10362, "source": "ner", "metadata": {"in_sentence": "stating that they would go on strike with effect from February 13, 1967."}}, {"text": "February 11, 196,7", "label": "DATE", "start_char": 10589, "end_char": 10607, "source": "ner", "metadata": {"in_sentence": "The Government thought that the demand of the employees for i, rl.creased dearness allowance was legitimate and therefore announced on or about February 11, 196,7 its decision to grant the increased dearness allowance with effect from April l, 1967."}}, {"text": "April l, 1967", "label": "DATE", "start_char": 10680, "end_char": 10693, "source": "ner", "metadata": {"in_sentence": "The Government thought that the demand of the employees for i, rl.creased dearness allowance was legitimate and therefore announced on or about February 11, 196,7 its decision to grant the increased dearness allowance with effect from April l, 1967."}}, {"text": "s. 123(1)", "label": "PROVISION", "start_char": 10827, "end_char": 10836, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 11704, "end_char": 11710, "source": "regex", "metadata": {"statute": null}}, {"text": "February 18, 1967", "label": "DATE", "start_char": 12814, "end_char": 12831, "source": "ner", "metadata": {"in_sentence": "The respondent carried on a vigorous election propaganda until February 18, 1967."}}, {"text": "Chaudhary Diwan Singh", "label": "OTHER_PERSON", "start_char": 13128, "end_char": 13149, "source": "ner", "metadata": {"in_sentence": "The charge under paragraph 7 (ii) was that Chaudhary Diwan Singh, the Station House Officer at Sohagpur, and a member of."}}, {"text": "Sohagpur", "label": "GPE", "start_char": 13180, "end_char": 13188, "source": "ner", "metadata": {"in_sentence": "The charge under paragraph 7 (ii) was that Chaudhary Diwan Singh, the Station House Officer at Sohagpur, and a member of."}}, {"text": "s. 123", "label": "PROVISION", "start_char": 13398, "end_char": 13404, "source": "regex", "metadata": {"statute": null}}, {"text": "Chaudhary Diwan Singh", "label": "WITNESS", "start_char": 13477, "end_char": 13498, "source": "ner", "metadata": {"in_sentence": "Chaudhary Diwan Singh and the respondent denied the charge."}}, {"text": "Chaudlrary Diwan", "label": "OTHER_PERSON", "start_char": 13732, "end_char": 13748, "source": "ner", "metadata": {"in_sentence": "Their evidence does not ring true: P.W. 3 never spoke to anybody that he was asked by Chaudlrary Diwan gh to vote for the respondent."}}, {"text": "Diwan 'Singh", "label": "WITNESS", "start_char": 13802, "end_char": 13814, "source": "ner", "metadata": {"in_sentence": "Diwan 'Singh would approach P. W. 4."}}, {"text": "Diwan Singh", "label": "OTHER_PERSON", "start_char": 13918, "end_char": 13929, "source": "ner", "metadata": {"in_sentence": "It is impossible to believe that P.W. 9 could overhear a conversation between Diwan Singh aind, the respondent when the respondent is said to have asked Diwan Singh to canvass for him."}}]}
{"document_id": "1969_3_818_826_EN", "year": 1969, "text": "COMMISSIONER OF INCOME TAX, MADRAS A v.\n\nS. CHENNIAPPA MUDALIAR, MADURAI\n\nFebruary 24, 1969\n\n[J. C. SHAH, V. RAMASWAM! AND A. N. GROVER, JJ.]\n\nIncome Tax Act 1922, section 33(4)-Appellate Tribunal Rules !946; Rule 24-lf Appellate Tribunal has powers to dismiss appeal for default in appearance-Whether Tribunal bound to pass orders on merits-If rule 24 ultra vires section 33(4).\n\nThe respondent's appeal against an order of assessment was rejected by the Appellate Assistant Commissioner and he, the -.after appealed to C the Appellate Tribunal. The Tribunal, after having granted some adjournments, dismissed the appeal for default in appearance Qn a day fixed for the hearing, purporting to do so under rule 24 of the Appellate Tribunal Rules, 1946. The Hih Court directed the Tribunal to refer two questions to itself, one relating to the merits and the other to the effect whether rule 24 of the Appellate Tribunal Rules, 1946, in so far as it enabes the Tribunal to dismiss an appeal in default in appearance, is ultra vlres. A D special bench of the High Court took the view that under section 3 3 ( 4) the Tribunal was bound to dispose of the. appeal on the merits, whether the appellant was present or not.\n\nOn appeal to this Court,\n\nHELD : It follows from the language of s. 33 ( 4) and in particular the use of the word \"thereon\" that the Tribunal has to go into the cor- E rectness or otherwise of the points decided by the departmental authorities in the light of the submissions made by the appellant. This can only be done by giving a decision on the merits on questions of fact and law and not by merely disposing of the appeal on the ground that the party concerned bad failed to appear, [824 C-D]\n\nThe provisions contained in s, 66 about making a reference on QUO$• lions of law to the High Court would be rendered nugatory if a power is F attributed to the Appellate Tribunal by which it can dismiss an appeal, which has otherwise been properly filed, for default, without making an order thereon in accordance with s. 33(4). So far as the questions of fact are concerned the deci:sion of the Tribunal is final and reference can be sought to the High Court only on questions of law. The High Court exercises purely advisory jurisdiction and has no appellate or revisional powers. The advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself bas passed G a proper order under s. 33(4). [824 E-H]\n\nRule 24 clearly comes into conflict with section 33(4) and in the event of repugnancy between the substantive p'rovisions of the Act and, a rule, it is the rule which must give way to the provisions of the Act. [825 HJ\n\nShri Bhtgwan Radha Kishen v. Commissioner of Income tax, U.P. 22 l.T.R. 104; Ruvula Subba Rao & Ors. v. Commis.<ioner of Income tax H MttdMs, 27 l.T.R. 164; Mangat Ram Kurhiala & Ors. v. Commissioner of Income tax, Punjab, 38 I.T.R. 1; Hukumchand Mi/ls Lrd. v. Commissioner of Income tax, Central Bombay, 63 I.T.R. 232; Com'11issloner of lnco1118\n\ntax Madr/18 v. Mtt. Ar. S. Ar. Aru11JJcha/am Ch<ttiar, 23 I.T.R. 180 and Co1nmissioner of Income tax, Bombay v. Scirtdia Steam Navigation Co.\n\nLtd. 42 J.T.R. 589, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1015 of 1968.\n\nAppeal from. the judgment and order dated April 30, 1964 of the Madras High Court in T.C. No. 194 of 1961 (Reference No. 74 of 1961).\n\nD. Narsaraju, R.H. Dhebar, R. N. Sachthey and B. D. Sharma, for the appellll\\.'lt.\n\nR. Gopalkrishnan and R. Ba/asubramaniam, for the respondent.\n\nThe Judgment of the Court was delivered by Grover, J.\n\nThis is an appeal by certificate from a judgment of the Special Bench of the Madras High Court in which the sole question that has to be determined is whether Rule 24 of the Appellate Tribunal Rules, 1946, insofar as it enables the Tribunal to dismiss an appeal for default of appearance was ultra vires the provisions of s. 33 of the Income tax Act, 1922, hereinafter called the \"Act\".\n\nThe facts which gave rise to the reference which was made to the High Court by the Appellate Tribunal lie within a narrow E compass. The assessee owned 1674 shares in Asher Textiles Ltd. and 9 out of 20 shares in Textile Corporation (Private) Ltd. t Tiruppur. The latter company was the managing agents of the Asher Textiles Ltd. The assessee was a Joint Managing Director of the Textile Corporation (Private) Ltd. along with one P. D.\n\nAsher. The assessee sold on December 21, 1954 his entire holding F in two companies to Asher and some of his relations. These sales resulted in a profit of Rs. 72,515/- and Rs. 3,14,100/- respectively.\n\nThe Income tax Officer assessed these amounts to tax for the assesment year 1956-57 under s. 10(5A) of the Act as compensation earned for parting with the effective power of management.\n\nThe assessment was upheld by the Appellate Assistant Commis- G sioner. The assessee appealed to the Appellate Tribunal.\n\nAfter some adjournments the appeal was finally fixed for hearing on Augu,:·. 26, 1958.\n\nOn that date no one was present on behalf of the assessee nor was there any application for an adjournment.\n\nOn August 28, 1958 the Tribunal dismissed the appeal for default of appearance. This the Tribunal purported to do under Rule 24 H of the Appellate Tribunal Rules, 1946 as amended by notification dated January 26, 1948.\n\nFive weeks after the disposal of the appeal the assessee filed a petition before the Appellate Tribunal praying for its restoration. It was stated, inter alia, in that petition L 11 Sup Cl/69-3\n\nthat it was owing to some misapprehension on the part of the assessee's auditors at Coimbatore that the date of the hearing of the appeal was not intimated to the counsel at Madras who was convalescing there after a surgical operation. The Tribunal did not consider that there was sufficient cause for restoration and rejected the petition. The assessee applied for a reference under s. 66( 1) of the Act on two questions of law but that application was rejected by the Tribunal. The assessee approached the High Court under s. 66(2) of the Act and on April}, 1960 the High Court directed the Tribunal to state the case on two questions.\n\nThe matter was first heard by a division bench but owing 10 the validity of Rule 24 having been canvasse~ a special bench consist ing of the Chief Justice arid two judges was constituted.\n\nThe special bench reframed the first question thus :\n\n\"Whether rule 24 of the Appellate Tribunal Rules, 1946 in so far as it enables the tribunal to dismiss an appeal for default of appearance, is ultra vires.\"\n\nThe second question was\n\n\"Whether on the facts and in the circumstances of the case the two sums of Rs. 72,515 and Rs. 3,14,100 were assessable to tax under s. 10(5A) of the Income tax Act?\"\n\nRule 24 was framed under sub-s. (8) of s. 5A of the Act. This provision confers power on the Appellate Tribunal to frame Rules regulating its own procedure. Section 5A (8) reads :\n\n\"Subject to the provisions of this Act, the appellate tribunal shall have power to regulate its own procedure and the procedure of Benches of the Tribunal in all matters arising out of the discharge of its functions, including the places at which the Benches shall hold their sittings.\"\n\nThe Appellate Tribunal first made certain Rules which were published by means of anotification dated Feburary 1, 1941. Rule 36 provided that the Tribunal shall determine the appeal on merits notwithstanding the fact that the appellant did not choose to appear.\n\nThe Tribunal was also empowered to restore an appeal which had been disposed of Without hearing the appellant.\n\nThe Rules made in 1941 were substituted by the Appellate Tribunal Rules, 1946 which were promulgated by means of Income tax Appellate Tribunal Notification, dated October 31, 1946. Rule 24 was in the followfug tenns :\n\n\"Where on the day fixed for hearing or any other day to which the hearing may be adjourned, the appel-\n\nC.I.T. V. CHBNNIAPPA (Grover,/.}\n\nlant does not appear when the appeal is called on for hearing, the Tribunal may, in its discretion, either dismiss the appeal for default or may hear it ex parte .\"\n\nThis Rule was amended by means of a notification dated January 26, 1948 and it took the following shape :\n\nB \"Where on the day fixed for hearing or any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the tribunal may dismiss the appeal for default.\"\n\nThe Rule contained no provision for restoring an appeal dismissed\n\n C for default.\n\nThe Special Bench o~ the High Court noticed the previous history of Rule 24 as also the terms in which it came to be framed after the passing of the Income tax Act, 1961 which enables the Tribunal, in its discretion, either to dismiss the appeal for default D or to hear it ex parte in case of non-appearance of the parties and further enables the Tribunal to set aside the dismissal on sufficient cause being shown for non-appearance.\n\nAfter referring to various decided cases and examining the relevant provisions of the Act, the Special Bench sun'Uned up the position thus :\n\n\"To sum up the position, the Appellate Tribunal is the appointed machinery under the Act for finally deciding questions of fact in relation to assessment of incometax. Its composition, consisting as it does of qualified persons in law and accountancy, makes it peculiarly qualified to deal with all questions raised . in a case, whether there be a5sistance from the party or his counsel or riot. Section 33 ( 4) obliges it to decide an appeal, after giving an opportunity to the parties to put forward their case. The giving of the opportunity only emphasises the character of the quasi-judicial function pet, formed by the Appellate Tribunal. The fact that that opportunity is not ayailed of in a particular case, will not entitle the Tribunal not to decide the case. There can be no decision 'of the case on its merits if the matter is to be disposed of for default of appearance of the parties. Further, an adjudication on the merits of the case is essential to enable the High Coun to pedorm its statutory duty and for the Supreme Coun to hear lllll appeal filed under section 66-A. Section 33 ( 4) itself indicate& by the use of the word ''thereon\" that the. decision . should relate to the subject matter of the appeal Rule 24, therefore, to be consistent with s. 33 ( 4) could only empower the Tribunal to dispose of the appeal on\n\nits merits, whether there. be an appearance of the party before it or not. This was iDdeed the rule when it was first promulgated in the year 1941. The rule in its present form, as amended in the year 1948, in so far as it enables the dismissal of an appeal before the Income tax Appellate Tribunal for default of appearance of the appellant, will, therefore, be ultra vires, as being in conflict with the provisions of Section 33 ( 4) of the Act.\"\n\nOn behalf of the appellant it was urged that the powers of the Appellate Tribunal relating to an appeal are derived from s. 33 ( 4) as also from s. 5A ( 8) and the Rules made thereunder and when Rule 24 cannot be said to be ultra vires the latter provision it cannot be impugned as being repugnant to s. 33 ( 4).\n\nTher~ is nothing, either express or implied, in the language of s. 33 ( 4) from which it could be held that the order of the Tribunal in an appeal must always be made on the merits. The decisions of the Allahabad, Madras and Punjab High Courts in Shri Bhawan Radha Kishen v. Commissioner of Income tax, U.P.,(') Ruvula Subba Rao & Ors. v. Commissioner of Income tax, Madras( 2) and Mangat Ram Kuthiala & Ors. v. Commissioner of Income tax, Punjab(') have also been pressed in support of the appellant'•\n\ncontention.\n\nNow s. 5A of the Ac~ appears in Chapter 2A relating to the Appellate Tribunal. Sub-ss. (I) to ( 4) provide for the constitution of the Tribunal and the appointment of its President and Members.\n\nSub-sections (5) to (7) provide for the manner iii which the benches of the Tribunal have to function. Sub-section ( 8) is to this effect :\n\n\"Subject to the provisions of this Act the Appellate Tribunal shall have the , power to regulate its own procedure and the procedure of benches of the Tribunal in all matters arising out of the discharge of its functions including the places at which the bench shall hold their sittings.\" The powers, functions and duties of the Appellate Tribunal are \"'t out in ss. 28, 33, 35, 37, .48 and 66. For our purpose reference may be made only to ss. 33 and 66. Sub-sections (I) nd\n\n(2) of s. 33 give a right to the assessee and the Commissioner to a; ipcal to lhc Appellate Tribunal against the order passed by ihe Appellate Assistant Commissioner within sixty days of the communication of his order. Under sub. s. (2A) the Tribunal can admit an appeal after the expiry of sixty days if it is satisfied that there was sufficient cause for not presenting it within that period.\n\nSub-section (3) lays down the formalities in the matter of the filing of an appeal. Sub-s. ( 4) is to the effect that the Appellate\n\n(I) 22 J.T.R. 104.\n\n(3) 38 I.T.R. 1.\n\n(2) 27 I.T.R. 164.\n\nTribunal may, after giving toth parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit and shall communicate any such. orders to the assesse.: and to the Commissioner. Sub-s. ( 5) deals with the changes to be made in the assessment as a result of the orders of the Appellate Tribunal.\n\nSub-section ( 6) makes the orders of the Tribunal on appeal final, the only saving being with reference to the provisions of s. 66.\n\nUnder that section the assessee or the Commissioner can require the Appellate Tribunal to refer to the High Court any question of law arising out of the order of the Appellate Tribunal and if the Tribunal refuses to state the case on the ground that no question of law arises the assessee or the Commissioner can, within the prescribed period, apply to the High Court and the High Court can direct the Appellate Tribunal to state the case and make a reference. It is unnecessary to refer to all the previsions of s. 66 except to notice the power of the High Court to decide the question of law which decision has to be implemented by the Appellate Tribunal.\n\nNow Rule 24 cannot be said to be ultra vires sub-s. ( 8) of s. 5A but what has to be essentially seen is whether it is repugnant to the provisions of s. 3 3 ( 4). The reasoning which prevailed with the Special Bench of the High Court, in the present case, was that under s. 33 ( 4) the Tribunal is bound to dispose of the appeal on the merits, no matter whether the appellant is absent or not.\n\nReference in particular was made to the remedies, namely, the provisions contained in s. 66 relating to reference on question of law and the further right of appeal to this Court under s. 66A if the case is certified to be fit one for appeal. The Special Bench found it difficult to accept that by exercising the power to dismiss an appeal for default of appearance under Rule 24, these remedies which were open to an aggrieved party could be defeated or rendered infructuous. The fact that there was no provision in Rule 24 or any other Rule for restoring an appeal once it was dismissed for default was also considered weighty in the matter. The cases\n\ni':l which the valiity of Rule 24 has been upheld may now be considered.\n\nIn Shn Bhagwan Radha Kishen v. Commissioner of Income ax, U.P. ('.) the discussion on lhe question of validity of the rule ts somewhat meagre. It was no doubt said that Rule 24 did not in any way come into conflict with s. 33 ( 4) but hardly any reasons were given in respect of that view. It was recognised that there w:is o specific rule empowering the Tribunal to restore an appeal d1snussed for default of appearance but it was observed that the Tribunal would have inherent jurisdiction to set aside such an order if satisfied with regard to the tlxistence of a sufficient cause. According to Ravula Subba Rao & Ors. v. Commissioner of Income tax, Madras(') a very wide power was given to\n\n(I) 22 l.T.R. 104.\n\n(2) 27 1.T.R. IM.\n\nthe Appellate Tribunal by s. 33 ( 4) a11d it could pass any order which the circumstances of the case ·\" quired. It was immaterial whether the opportunity of being heard had been availed of by the party ..ir not.\n\nThis provision, it was held, did not make it obligatory for the Appellate Tribunal to dispose of the appeal on merits. In this case again there was 1,, udly much discussion and the Ail aha bad decision was simply fo !lowed.\n\nIn Mangat Ram Kuthiala &. Ors. v. Commissioner of Income tax, Punjab('), the points raised were different and arose in a petition filed under Arts. 226 and 227 of the Constitution. It does not appear that the validity of Rule 24 was canvassed.\n\nThe scheme of the provisions of the Act relating to the Appellate Tribunal apparently is that it has to dispose of an appeal by making such orders as it thinks fit on the merits. It follows from the language of s. 33 ( 4) and in particular the use of the word \"thereon\" that the Tribunal has to go into the correctness or otherwise of the points decided by the departmental authorities in the light of the submissions made by the appellant.\n\nThis can only be done by giving a, decision on the merits on questions of fact and law and not by merely disposing of the appeal on the ground that the party concerned has failed to appear. As observed in H ukumchand Mills Lid. v.\n\nCommissioner of Income tax, Central [Jombay(') the word \"thereon\" in s. 33 ( 4) restricts the jurisdiction of the Tribunal to the subject matter of the appeal and the words \"pass .such orders as the Tribunal thinks fit\" include all the powers (except possibly the power of enhancement) which are conferred upon th.e Appellate Assistant Commissioner by s. 31 of the Act. The provisions contained in s. 66 about making a reference on question of law to the High Court will be rendered nugatory if any such power is attributed to the Appellate Tribunal by which it can dismiss an appeal, which has otherwise been properly filed, for default without making any order thereon in acor dance with s. 33 ( 4). The position becomes quite simple when it is remembered that the assessee or the Commissioner of Income tax, if aggrieved by the orders of the Appellate Tribunal, can have resort only to the provisions of s. 66.\n\nSo far as the questions of fact are concerned the decision of the Tribunal is final and reference can be sought to the High Court only on questions of Jaw.\n\nThe High Court execcises purely advisory jurisdiction and'has no appellate or revisional powers.\n\nThe advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed proper order under s. 33(4). It follows from all this that the Appellate Tribunal is bound to give a proper decision on questions of fact as well as law which can only be done if the appeal is disposed of on the merits\n\n(1) J81.T.R. 1.\n\n(2) 6'.\\ 1.T.R. :!32.\n\nand not dismissed owing to the absence of the appellant. It was laid down as far back as the year 195 3 by S. R. Das, J. (as he then was) in Commissioner of Income tax, Madras v. Mtt. Ar. S.\n\nAr. Arunachalam Chettiar(') that the jurisdiction of the Tribunal and of the High Court is conditional on there being an order by the Appellate Tribunal which may be said to be one under s. 33 ( 4) and a question of law arising out of such an order. The Special Bench, in the present case, while examining this aspect quite appositely referred to the observations of Venkatarama Aiyar, J. in Commissioner of Income tax, Bombay v. Scindia Steam Navigation Co. Ltd. (2 ) indicating the necessity of the disposal oi\n\nthe appeal on .the merits by the Appellate Tribunal. This is how the learned judge had put the matter in the form of interrogation :\n\n\"How can it be said that the Tribunal should seek for advice on a question which it was not called upon to consider and in respect of which it had no opportunity of deciding whether the decision of the Court should be sought. ?\"\n\nThus looking at the substantive provisions of the Act there is no escape from the conclusion that under s. 33 ( 4) the Appellate Tribunal has to dispose of the appeal on the merits And cannot short circuit the same by dismissing it for default o.f appearance.\n\nNow although Rule 24 provides for dismissal of an appeal for the failure of appellant to appear, the Rules at the material time did not contain any provision for restoration of the appeal. Owing to this difficulty some of the High Courts had tried to find an inherent power in the Tribunal to set aside the order of dismissal Ivide Shri Bhagwan Ratfha Kishen v. Commissioner of Income\n\ntax, U.P.(8 ) and Mangat Ram Kuthia/a & Ors. v. Commissioner of Income tax, Punjab(')]. There is a conflict of opinion among the High Courts whether there is any inherent power to restore an appeal dismissed for default under the Civil Procedure Code. (Mulla, Civil Procedure Code. Vol. IT, pp. 1583, 1584). It is unnecessary to resolve that conflict in the present case. It is true that the Tribunal's powers in dealing with appeals are of the widest amplitude and have, in some cases, been held similar to and identical with the power of an appellate court under the Civil Procedure , Code .. Assuming that for the aforesaid reasons the Appellate Tnbunal 1s competent to set aside an order dismissing an apoeal for default in exercise of its inherent power there are serious difficulties in upholding the validity of Rule 24. It clearly comes into conflict with sub.-s. ( 4) of s. 33 and in the event of repuanancy between the substantive provisions of the Act and a rule it is\n\n(I) 2J J.T.R. 180.\n\n(2) 42 l.T.R. 589.\n\n(3) 22 I.T.R. 104.\n\n(4) 38 I.T.R. 1.\n\nthe rule which must give way to the provisions of the Act. We would accordingly affirm the decision of the Special Bench of the High Court and hold that the answer to the question which was referred was rightly given in the affirmative.\n\nThe appeal fails and it is dismissed with costs.\n\nR.K.P.S.\n\nAppeal dismissed.", "total_entities": 86, "entities": [{"text": "COMMISSIONER OF INCOME TAX, MADRAS", "label": "PETITIONER", "start_char": 0, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME TAX, MADRAS", "offset_not_found": false}}, {"text": "S. CHENNIAPPA MUDALIAR, MADURAI", "label": "RESPONDENT", "start_char": 41, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "S. CHENNIAPPA MUDALIAR, MADURAI", "offset_not_found": false}}, {"text": "February 24, 1969", "label": "DATE", "start_char": 74, "end_char": 91, "source": "ner", "metadata": {"in_sentence": "COMMISSIONER OF INCOME TAX, MADRAS A v.\n\nS. CHENNIAPPA MUDALIAR, MADURAI\n\nFebruary 24, 1969\n\n[J. C. SHAH, V. RAMASWAM!"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 97, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 123, "end_char": 140, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Income Tax Act 1922", "label": "STATUTE", "start_char": 143, "end_char": 162, "source": "regex", "metadata": {}}, {"text": "section 33(4)", "label": "PROVISION", "start_char": 164, "end_char": 177, "source": "regex", "metadata": {"linked_statute_text": "Income Tax Act 1922", "statute": "Income Tax Act 1922"}}, {"text": "Appellate Tribunal Rules", "label": "STATUTE", "start_char": 178, "end_char": 202, "source": "regex", "metadata": {}}, {"text": "section 33(4)", "label": "PROVISION", "start_char": 365, "end_char": 378, "source": "regex", "metadata": {"linked_statute_text": "Appellate Tribunal Rules", "statute": "Appellate Tribunal Rules"}}, {"text": "Appellate Tribunal Rules, 1946", "label": "STATUTE", "start_char": 721, "end_char": 751, "source": "regex", "metadata": {}}, {"text": "Appellate Tribunal Rules, 1946", "label": "STATUTE", "start_char": 901, "end_char": 931, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 1093, "end_char": 1102, "source": "regex", "metadata": {"linked_statute_text": "the Appellate Tribunal Rules, 1946", "statute": "the Appellate Tribunal Rules, 1946"}}, {"text": "s. 33", "label": "PROVISION", "start_char": 1282, "end_char": 1287, "source": "regex", "metadata": {"linked_statute_text": "the Appellate Tribunal Rules, 1946", "statute": "the Appellate Tribunal Rules, 1946"}}, {"text": "s. 33(4)", "label": "PROVISION", "start_char": 2035, "end_char": 2043, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(4)", "label": "PROVISION", "start_char": 2460, "end_char": 2468, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33(4)", "label": "PROVISION", "start_char": 2522, "end_char": 2535, "source": "regex", "metadata": {"statute": null}}, {"text": "D. Narsaraju", "label": "OTHER_PERSON", "start_char": 3424, "end_char": 3436, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju, R.H. Dhebar, R. N. Sachthey and B. D. Sharma, for the appellll\\.'lt."}}, {"text": "R.H. Dhebar", "label": "OTHER_PERSON", "start_char": 3438, "end_char": 3449, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju, R.H. Dhebar, R. N. Sachthey and B. D. Sharma, for the appellll\\.'lt."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3451, "end_char": 3465, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju, R.H. Dhebar, R. N. Sachthey and B. D. Sharma, for the appellll\\.'lt."}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 3470, "end_char": 3482, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju, R.H. Dhebar, R. N. Sachthey and B. D. Sharma, for the appellll\\.'lt."}}, {"text": "R. Gopalkrishnan", "label": "LAWYER", "start_char": 3508, "end_char": 3524, "source": "ner", "metadata": {"in_sentence": "R. Gopalkrishnan and R. Ba/asubramaniam, for the respondent."}}, {"text": "R. Ba", "label": "LAWYER", "start_char": 3529, "end_char": 3534, "source": "ner", "metadata": {"in_sentence": "R. Gopalkrishnan and R. Ba/asubramaniam, for the respondent."}}, {"text": "Grover", "label": "JUDGE", "start_char": 3613, "end_char": 3619, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Grover, J.\n\nThis is an appeal by certificate from a judgment of the Special Bench of the Madras High Court in which the sole question that has to be determined is whether Rule 24 of the Appellate Tribunal Rules, 1946, insofar as it enables the Tribunal to dismiss an appeal for default of appearance was ultra vires the provisions of s. 33 of the Income tax Act, 1922, hereinafter called the \"Act\"."}}, {"text": "Appellate Tribunal Rules, 1946", "label": "STATUTE", "start_char": 3799, "end_char": 3829, "source": "regex", "metadata": {}}, {"text": "s. 33", "label": "PROVISION", "start_char": 3947, "end_char": 3952, "source": "regex", "metadata": {"linked_statute_text": "the Appellate Tribunal Rules, 1946", "statute": "the Appellate Tribunal Rules, 1946"}}, {"text": "Income tax Act, 1922", "label": "STATUTE", "start_char": 3960, "end_char": 3980, "source": "regex", "metadata": {}}, {"text": "Asher Textiles Ltd.", "label": "ORG", "start_char": 4180, "end_char": 4199, "source": "ner", "metadata": {"in_sentence": "The assessee owned 1674 shares in Asher Textiles Ltd. and 9 out of 20 shares in Textile Corporation (Private) Ltd. t Tiruppur."}}, {"text": "Textile Corporation (Private) Ltd. t Tiruppur", "label": "ORG", "start_char": 4226, "end_char": 4271, "source": "ner", "metadata": {"in_sentence": "The assessee owned 1674 shares in Asher Textiles Ltd. and 9 out of 20 shares in Textile Corporation (Private) Ltd. t Tiruppur."}}, {"text": "Textile Corporation (Private) Ltd.", "label": "ORG", "start_char": 4393, "end_char": 4427, "source": "ner", "metadata": {"in_sentence": "The latter company was the managing agents of the Asher Textiles Ltd. The assessee was a Joint Managing Director of the Textile Corporation (Private) Ltd. along with one P. D.\n\nAsher."}}, {"text": "P. D.\n\nAsher", "label": "OTHER_PERSON", "start_char": 4443, "end_char": 4455, "source": "ner", "metadata": {"in_sentence": "The latter company was the managing agents of the Asher Textiles Ltd. The assessee was a Joint Managing Director of the Textile Corporation (Private) Ltd. along with one P. D.\n\nAsher."}}, {"text": "December 21, 1954", "label": "DATE", "start_char": 4478, "end_char": 4495, "source": "ner", "metadata": {"in_sentence": "The assessee sold on December 21, 1954 his entire holding F in two companies to Asher and some of his relations."}}, {"text": "Asher", "label": "OTHER_PERSON", "start_char": 4537, "end_char": 4542, "source": "ner", "metadata": {"in_sentence": "The assessee sold on December 21, 1954 his entire holding F in two companies to Asher and some of his relations."}}, {"text": "s. 10(5A)", "label": "PROVISION", "start_char": 4743, "end_char": 4752, "source": "regex", "metadata": {"linked_statute_text": "the Income tax Act, 1922", "statute": "the Income tax Act, 1922"}}, {"text": "Augu,:·. 26, 1958", "label": "DATE", "start_char": 5029, "end_char": 5046, "source": "ner", "metadata": {"in_sentence": "After some adjournments the appeal was finally fixed for hearing on Augu,:·."}}, {"text": "August 28, 1958", "label": "DATE", "start_char": 5161, "end_char": 5176, "source": "ner", "metadata": {"in_sentence": "On August 28, 1958 the Tribunal dismissed the appeal for default of appearance."}}, {"text": "Appellate Tribunal Rules, 1946", "label": "STATUTE", "start_char": 5295, "end_char": 5325, "source": "regex", "metadata": {}}, {"text": "January 26, 1948", "label": "DATE", "start_char": 5359, "end_char": 5375, "source": "ner", "metadata": {"in_sentence": "This the Tribunal purported to do under Rule 24 H of the Appellate Tribunal Rules, 1946 as amended by notification dated January 26, 1948."}}, {"text": "Coimbatore", "label": "GPE", "start_char": 5657, "end_char": 5667, "source": "ner", "metadata": {"in_sentence": "It was stated, inter alia, in that petition L 11 Sup Cl/69-3\n\nthat it was owing to some misapprehension on the part of the assessee's auditors at Coimbatore that the date of the hearing of the appeal was not intimated to the counsel at Madras who was convalescing there after a surgical operation."}}, {"text": "Madras", "label": "GPE", "start_char": 5747, "end_char": 5753, "source": "ner", "metadata": {"in_sentence": "It was stated, inter alia, in that petition L 11 Sup Cl/69-3\n\nthat it was owing to some misapprehension on the part of the assessee's auditors at Coimbatore that the date of the hearing of the appeal was not intimated to the counsel at Madras who was convalescing there after a surgical operation."}}, {"text": "s. 66( 1)", "label": "PROVISION", "start_char": 5957, "end_char": 5966, "source": "regex", "metadata": {"linked_statute_text": "the Appellate Tribunal Rules, 1946", "statute": "the Appellate Tribunal Rules, 1946"}}, {"text": "s. 66(2)", "label": "PROVISION", "start_char": 6098, "end_char": 6106, "source": "regex", "metadata": {"linked_statute_text": "the Appellate Tribunal Rules, 1946", "statute": "the Appellate Tribunal Rules, 1946"}}, {"text": "Appellate Tribunal Rules, 1946", "label": "STATUTE", "start_char": 6479, "end_char": 6509, "source": "regex", "metadata": {}}, {"text": "s. 10(5A)", "label": "PROVISION", "start_char": 6770, "end_char": 6779, "source": "regex", "metadata": {"linked_statute_text": "the Appellate Tribunal Rules, 1946", "statute": "the Appellate Tribunal Rules, 1946"}}, {"text": "s. 5A", "label": "PROVISION", "start_char": 6844, "end_char": 6849, "source": "regex", "metadata": {"linked_statute_text": "the Appellate Tribunal Rules, 1946", "statute": "the Appellate Tribunal Rules, 1946"}}, {"text": "Section 5A", "label": "PROVISION", "start_char": 6962, "end_char": 6972, "source": "regex", "metadata": {"linked_statute_text": "the Appellate Tribunal Rules, 1946", "statute": "the Appellate Tribunal Rules, 1946"}}, {"text": "Appellate Tribunal Rules, 1946", "label": "STATUTE", "start_char": 7695, "end_char": 7725, "source": "regex", "metadata": {}}, {"text": "October 31, 1946", "label": "DATE", "start_char": 7811, "end_char": 7827, "source": "ner", "metadata": {"in_sentence": "The Rules made in 1941 were substituted by the Appellate Tribunal Rules, 1946 which were promulgated by means of Income tax Appellate Tribunal Notification, dated October 31, 1946."}}, {"text": "Income tax Act, 1961", "label": "STATUTE", "start_char": 8728, "end_char": 8748, "source": "regex", "metadata": {}}, {"text": "Section 33", "label": "PROVISION", "start_char": 9554, "end_char": 9564, "source": "regex", "metadata": {"linked_statute_text": "the Income tax Act, 1961", "statute": "the Income tax Act, 1961"}}, {"text": "Supreme Coun", "label": "COURT", "start_char": 10185, "end_char": 10197, "source": "ner", "metadata": {"in_sentence": "Further, an adjudication on the merits of the case is essential to enable the High Coun to pedorm its statutory duty and for the Supreme Coun to hear lllll appeal filed under section 66-A. Section 33 ( 4) itself indicate& by the use of the word ''thereon\" that the."}}, {"text": "section 66", "label": "PROVISION", "start_char": 10231, "end_char": 10241, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 33", "label": "PROVISION", "start_char": 10245, "end_char": 10255, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 10425, "end_char": 10430, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 33", "label": "PROVISION", "start_char": 10917, "end_char": 10927, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 11068, "end_char": 11073, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5A", "label": "PROVISION", "start_char": 11092, "end_char": 11097, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 11248, "end_char": 11253, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 11325, "end_char": 11330, "source": "regex", "metadata": {"statute": null}}, {"text": "Allahabad, Madras and Punjab High Courts", "label": "COURT", "start_char": 11464, "end_char": 11504, "source": "ner", "metadata": {"in_sentence": "The decisions of the Allahabad, Madras and Punjab High Courts in Shri Bhawan Radha Kishen v. Commissioner of Income tax, U.P.,(') Ruvula Subba Rao & Ors."}}, {"text": "s. 5A", "label": "PROVISION", "start_char": 11782, "end_char": 11787, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 28, 33, 35, 37", "label": "PROVISION", "start_char": 12477, "end_char": 12495, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 33 and 66", "label": "PROVISION", "start_char": 12555, "end_char": 12568, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 12598, "end_char": 12603, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 13629, "end_char": 13634, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 14150, "end_char": 14155, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5A", "label": "PROVISION", "start_char": 14356, "end_char": 14361, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 14446, "end_char": 14450, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 14567, "end_char": 14572, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 14777, "end_char": 14782, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66A", "label": "PROVISION", "start_char": 14876, "end_char": 14882, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 15640, "end_char": 15645, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 16180, "end_char": 16185, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 226 and 227", "label": "PROVISION", "start_char": 16735, "end_char": 16752, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 17049, "end_char": 17054, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 17581, "end_char": 17586, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 31", "label": "PROVISION", "start_char": 17864, "end_char": 17869, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 17910, "end_char": 17915, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 18202, "end_char": 18207, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 18419, "end_char": 18424, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(4)", "label": "PROVISION", "start_char": 18839, "end_char": 18847, "source": "regex", "metadata": {"statute": null}}, {"text": "S. R. Das", "label": "JUDGE", "start_char": 19187, "end_char": 19196, "source": "ner", "metadata": {"in_sentence": "It was laid down as far back as the year 195 3 by S. R. Das, J. (as he then was) in Commissioner of Income tax, Madras v. Mtt."}}, {"text": "s. 33", "label": "PROVISION", "start_char": 19459, "end_char": 19464, "source": "regex", "metadata": {"statute": null}}, {"text": "Venkatarama Aiyar", "label": "JUDGE", "start_char": 19639, "end_char": 19656, "source": "ner", "metadata": {"in_sentence": "The Special Bench, in the present case, while examining this aspect quite appositely referred to the observations of Venkatarama Aiyar, J. in Commissioner of Income tax, Bombay v. Scindia Steam Navigation Co. Ltd. (2 ) indicating the necessity of the disposal oi\n\nthe appeal on .the merits by the Appellate Tribunal."}}, {"text": "s. 33", "label": "PROVISION", "start_char": 20254, "end_char": 20259, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 21057, "end_char": 21077, "source": "regex", "metadata": {}}, {"text": "s. 33", "label": "PROVISION", "start_char": 21677, "end_char": 21682, "source": "regex", "metadata": {"linked_statute_text": "Civil Procedure Code", "statute": "Civil Procedure Code"}}]}
{"document_id": "1969_3_827_835_EN", "year": 1969, "text": "82 7\n\nV. VENUGOPALA RAVI VARMA RAJAH\n\nUNION OF INDIA & ANR.\n\nFebruary 26, 1969\n\n[J. C. SHAH, V. RAMASWAMl AND A. N. GROVER, JJ.J\n\nExpenditure Tax Act (29 of 1957), ' 3(1)-Applicable to Hindu f1u11ilies governed hy Mafumakkattayam [.aw hut not to. Mappilla fatnilies governed by the Marumakkattayam law-If violative of Ari. 14 Constitution of India, 1950.\n\nThe mcn1bcrs of a Hindu undivided family governed by the Al11ru11iakkattaya111 law, while 'remaining joint, had entered into an agreement for separate enjoyment of certain properties of the family by different members as permitted by their customary law.\n\nFor the assessment vear 1958-59 its karta, in the status of a Hindu undivided family, filed a return under the Expenditure-tax Act. 1957, of the expenditure incurred by him in respect of the property under his 'personal control and direct enjoyment'. l'hc Expenditure-tax Officer. added the expenditure incurred by the other n1cmbers of the family in 'respect of properties set apart for their use and enjoyment as the expenditure of the llindu undivided family under s. 3(1).\n\nOn the question, \\Vhether s. 3 is violative of Art. 14 because, a Hindu undivided family governed by the Mcruninkkattayani law has to pay the tax at a higher rate by reason of -the unit of taxation under the section being the Hindu undivided family there is an amalgamation of the ex~ penditurc of all the members of the family, whe'reas, a Mappilla family may pay tax at a tower rate since the members of a Mappilla undivided family governed by the MarunU1kkattayan1 law arc Jiable to be taxed as 'individuals' under the section,\n\nHELD : The equal protection clause of the Constitution allows a large play to legislative discretion in the matter of classification. The power to\n\ncJac; sifv may be exercised so as to adjust the system of taxation in all prope'r and reasonable ways : the Legislature may select persons, properties, transactions and objects, and apply different methods and even rates of tax, if the Legislature does so reasonably and if the classification is rational.\n\nA taxing statute may contravene Art. 14 if it seeks to impose on the sanie class of property,_ persons, transactions or occupations simi Iarly situate, an incidence of taxation which leads to obvious inequality. but, a taxing statute is not exposed to attack on the ground of disc'rimina tion merely because different rates of taxation are prescribed for differe1tt categories of persons, transactions. occupations or objects.\n\nThe courts \\\\ill not strike down an Act as denying the equal protection of laws me'rely because other objects ould have been, but are not, taxed by the Legislature. [832 H; 833 A-F] ·\n\nThough the law applicable to Hindu undivided families govorned by the MarumakkattayGm law and to the Mappilla tarwad in North Malabar has the same characteristics in two respect\"'. namely, (a) tracing descent through females: and (b) community of interest Rnd unity of posc; ession in respect of the family property, the laws applicable to them in other respects differ widely. Initially a common system of law relating to family property o'f the tarwad was applicable to Hindus and Mappillas governed\n\nby the Maru1nakkattuya1n law, but since the enactment of the Madras Marumakkattayam Act (22 of 1933) and other enactments governing Hindus, and the Mappilla Marumakkattayam Act (17 of 1939) governing the Mappillas, there are few points of similarity in property matters in the tarwads. The application of the Islamic laws of marriage and inheritance to the Mappillas has led to greater cleavage.\n\nThe community of Mappillas governed by Marumakkattayam law is a small community, restricted only to the Northern area of Malabar district and is dwindling because of the impact of the Muslim law of inhe'ritance applicable to shares obtained on partition. Parliament has been accustomed t.o treating a Hindu undivided family as a unit of taxation and to enacting tax laws making a distinction between a Hindu undivided family consisting of Hindus and undivided families of Mappillas.\n\nThe long course of legislative history in matters of taxing income. wealth, gifts, capital gains and business profits indicates that the Legislature tegarded undivided Hindu families as a class to which the legislation may appropriately be applied.\n\nEven though the basic scheme of a Hindu undivided family governed by lhe Mitakshara law is different from that of a family governed by the Maru111akkattayam law. a Hindu undivided family governed by the l'tlaru1nakkattaya1n law fails within he expression 'Hindu undivided family.\n\nTherefore, Parliament. by making the Act applicable to Hindu families and not to Mappilla 'families governed by the Marurnakkattayam law, has not attempted any obvious inequaJity or made any discrimination violative of Art. 14. [832 B-C, G-H; 834 E-0; 835 A-0]\n\nRaja Jagamwth Baksh Si111<h v. State of U.P., [1963] 1 S.C.R. 250, followed.\n\nU.S. law refcr'rcd to.\n\nCIVIL APPELLATE JuRJSDICTioN : Civil Appeals Nos. 2436\n\nand 2437 of 1966.\n\nAppeals by special leave from the judgment and order dated November 5, 1965 of the Kerala High Court in Writ Appeals Nos. 9 and 44 of 1964.\n\nM. C. Chag/a, C. K. Vishwa Nath Aiyar and R. Gopalakrish-\n\n11a11, for the appellant (in both the appeals).\n\nD. Narsaraju, T. A. Ramachandran, and B. D. Sharma, for the respondents (in both the appeals).\n\nThe Judgment of the.Court was delivered by Shah, J. Rajah Padmanabha Ravi Varma was the karta of a Hindu undivided family governed by the Marumakkattayam G law. On his death in 1961 the appellant-his brother-became the karta of the family.\n\nIn 1909 the members of the family, while remaining joint, had entered into an arrangement for separate enjoyment of certain properties of the family by different members.\n\nFor the assessment year 1958-59 Rajah Padmanabha filed in the status of a Hindu undivided family, a return H under the Expenditure-tax Act of the taxable expenditure incurred by him in respect of the property under his \"personal control and direct enjoyment\". The Expenditure-tax Officer added thereto\n\nVENUGOPAIA V. UNION (Shah, J,) 8 29\n\nthe expenditure incurred by the other members of the family i'1l respect of properties set apart for their use and enjoyment. The Expenditure-tax Officer also served a notice of assessment under s. 15(2) calling for a return of expenditure by the Hindu undivided family for the assessment year 1959-60.\n\nThe appellant thC1n 111nved petitions before the High Court of Kerala under Art. 226 of the Constitution for writs quashing the assessment and the 11·1tice of demand for the year 1958-59 and the notice calling for a return for the assessment year 1959- 60 contend-ng, inter alia, that he was not liable to be assessed to tax on expenditure incurred in respect of property not \"under his personal control and direct enjoyment\".\n\nA single Judge of the High Court of Kerala upheld the contentiQn.\n\nIn appeal a Division Bench of the High Court set aside the order of the single Judge.\n\nThe appellant contc1ds that the Jaw which enables the Expenditure-tax Ofliccr to Jssess tax on the expenditure of all members of the Hincu ur 'ivided family governed by the Marumakkattayam law. discri•. iates, Q\\n the ground of religion, between the Hindu undivled family and a Mappilla undivided family governed by the M urumakkattayam law resident in North Malabar.\n\nSection 3 of the Expenditure-tax Act 29 of 1957 is the charging section : insofar as it is relevant it reads :\n\n\" (I) Subject to the other provisions contained in this Act, there shall be charged for every financial year, commencing on and from the first day of April, 1958, a tax (hereinafter referred to as expendituretax) at the rate or rates specified in the Schedule in respect of the expenditure incurred by any individual or H\\ndu undivided family in the previous year :\n\nProvided that\n\nUnder the charging section tax is imposed on individuals and Hindu undivided families.\n\nAn -undivided family which consists of Hindus alone may be treated as a unit of assessment : an undivided family whose members are not Hindus will be assessed to tax as an \"individual\".\n\nCounsel for the appellant contends that whereas a Hindu family governed by the Marumakkattayam law is assessed to expenditure-tax on the total expenditure incurred by all the members of the undivided family, because the unit\n\nol taxation under s. 3 is the Hindu Ullldivided family, a Mappill~ undivided family governed by the Marumakkattayam law in\n\nNorth Malabar is liable to be assessed to tax as an \"individual\", and on that account at a lower rate.\n\nMarumakkattayam law applied originally by usage to a section of the Hindus inhabiting the South-Western coastal region in India. Some centuries ago a section of the Hindu inhabitants of North Malabar were converted en masse to Is/am, but they sti!J continued to remain 'governed by the Marumakkattayam law especially in matters of property relations among members of the family.\n\nThe law administered by the Courts to these communities is, subject to express statutory provisions, a body of customs and usages which have received judicial recognition.\n\nThe Mitakslzara law of joint family is founded upon agnatic relationship : the U; lldivided family is characterised by community of interest and unity of possession among persons descended from a common ancestor in the male line.\n\nThe principal incident of Marumakkattayam law is that it is matriarchate : members of the family constituting a Marumakkattayam tarwad are descemded through a common ancestress in the female line with equal rights in the property of the family.\n\nUnder the customary Marumak kattayam law no partition of the family estate may be made, but items of the family property may by agreement be separately enjoyed by the members. On death of the interest of a member devolved by survivorship.\n\nManagement of the family property remained in the hands of the eldest male member, and in the absense of a male member a female member. A tarwad may consist of two or more branches known as thavazhies; each tavazhi or branch consisting of one of the female members of the tarwad and her children and all her descendants in the female line.\n\nEvery tarwad consisted of a mother a, nd her children-male and female-living in commensality, with joint rights in property.\n\nThe District c.f Malabar formed part of the State of Madras till October 31. 1956.\n\nThe customary Marumakkattayam law applicable to Malabar was modified in certain respects from time to time by the Madras Legislature e.g. the Malabar Marriage Act 4 of 1896. the Malabar Wills Act 5 of 1898. But the law relating to property relations between the members of the tarwad remained in its customary fom1 till the fourth decade of this century.\n\nUnder the customary law partition of the property of the family could not be claimed by a, n. individual member or even by a thavazlzi. It was so laid down by a course of judicial decisions for over 75 years, and this rule was accepted iis settled Jaw ti!1 the Madras Legislature enacted the Madras Marumak kattayam Act, 22 of 1933 and the Mappilla Marumakkattayam Act 17 of 1939. the former applying to Hindus and the latter to Mappillas who are Muslims.\n\nThere were however significant differences between the two Act~. Under Act 22 of 1933 only\n\na tarwad could claim partition ( s. 3 8) (by the Madras Marumakkattayam (AmendmMt) Act 26 of 1958 enacted by the Ker-dla Legislature the right to claim partition was also granted to individual members); property obtained by partition was held with incidents of tarwad property [s. 38 (2) ]; and the Karnavan was not required to maintain an inventory of the property, but had to mai.ntain a true and correct account of the income and expenditure :if the tarwad.\n\nBy the Madras Act 17 of 1939 any member o: a Mappilla tanvad could claim partition ( ss. I 3 & 14); succession to prope, ty obtained by partition was governed by Islamic law ( s. 18) ; the Karnavan was required to maintain an inventory of family property (s. 3); any member of the family could apply to the Court for an order directing the Karfl(lvan to give inspection of accounts or inventory [s. 5(2)]; surplus income had to be invested by the Karna van ( s. 7) ; and the Kamavan could be removed by a suit ( s. 11).\n\nThese and other statutory modifications were applicable only to the Malabar area which was originally part of the State of Madras and not to the State of Travancore-Cochin as it existed before the States R.eorganization Act, 1956. Ther.e were several legislative measures in the States of Travancore and Cochin before those States merged with the Indian Union, and in the State of Travancore-Cochin after merger and in the State of Kerala, making changes in the customary Marumakkattayam law: these were the Cochin Makkathayam Thiyya Act 17 of 1115 (M.E.); Cochin Marumakkattayam Act 13 of 1095 (M.E.). Cochin Nair Act 13 of 1095 (M.E.) and Act 29 of 1113 (M.E.); Cochin Paliam Tarwad Act 8 of 1097\n\n(M.E.); Cochin Thiyya Act 8 of 1107 (M.E.); Travancore Nanjinad Vellala Regulation 6 of 1101 (M.E.); Travancore Nayar Regulation I of 1088 (M.E.) and II of 1100 (M.E.); Travaocore Wills Act 6 of 1074 (M.E.). It is sufficient to observe that by these statutes significant changes were made in the customary laws governing the family and property relations between the members governed by the Marumakkattayam law.\n\nThe Hindu Succ.:ssion Act 30 of 1956 also made inroads upon the customary law. Sectio.n 3 (h) defined the expression \"Marumakkattayam law\", and by s. 7 it was pcovided that if a Hindu to whom the Marumakkattayam or Nambudri law would have applied, if the Hindu Succession Act had not been passed. dies, his or her interest in the property of a tanvad, tavazhi or il/om shall devolve by testamentary or intestate succession, not according to the Marumakkatta, vam law or the Nambudri law, but under the Hindu Succession Act. By s. 17 of the Act ss.8, 10, 15 and 23 apply to persons governed by the Marumakkattavam law snbject to certain modifications.\n\nThe Hindu Adoptions and Maintenance Act 78 of 1956 and the Hindu Marriage Act 23 of 1955 also apply to Hindus governed by the Marumakkattayam law and modify the law relating to family relations.\n\nInitially a common system of law relating to family property of the tarwad was applicable 1.0 Hindus and Mapillas governed by the Marumakkattayam law.\n\nSince the enactment of Madras Act 22 of 1933 and the other Acts governing the Hindus, and Act 17 of 1939 governing the Mappillas, points of similarity even in property relations in the tarwads have considerably narrowed.\n\nApplication of the Islamic laws of marriage and inheritance to the Mappillas led to greater cleavage. If a member of a Mappilla Marumakkattayam family married a person not governed by the Marumakkattayam Jaw, the property of the person governed by the Marumakkattayam law apparently devolved according to that system of law, whereas the property of the person governed by the Islamic law devolved according to Islamic rules of succession.\n\nThe result was th?t whereas the interest of a Mappilla governed by the Marumakkattayam law devolved by survivorship, his separate property desceinded by inheritance in accordance with the Islamic law. Hindus governed by the Marumakkattayam law,. since the enactment of the Hindu Succession Act remained members of the undivided family, but on death the interest devolved by the rules prescribed by the Hindu Succession Act.\n\nIn a Hindu tanvad governed by the Marumakkattayam Jaw the descent is matriarclrate and all members male and female have equal shares in the property of the tarwad. Though not a family governed by the M itakshara law, it is still a Hindu undivided family within the meaning of the Expenditure-tax Act. The property relations between members of a Mappilla Marumakkattayam tarwad governed by the matriarchate with equal shares for males and females were in certain respects, already stated, different from the relations between members of a Hindu joint family governed by the Marumakkattayam law.\n\nThe community of Mappillas governed by the Marumakkattaya!!' law is, compared to the Hindus, a small community restricted only to the northern area f the Mafabar District. It is again a dwindling community because of the impact of the Jaw of inheritance applicable to share obtained on partition.\n\nJt is in the light of these special characteristics that the plea of discrimination must be considered.\n\nEqual protection clause of the Constitution does not enjoin equal protection of the laws as abstract propositions.\n\nLaws being the expression of legislative will intended to solve specific\n\n.I.I\n\nproblems or to achieve _defini_te objectives by Sj)t:Cc reedies, absolute equality or uniformity of treatment is nnposs1ble of achievement. Again tax laws are aimed at dealing with complex problems of infinite variety necessitating_ adjustmet of . several disparate elements. The c;,::ourts accordmgly admit, subiect to adherence to the fundamental principles of the doctrine of equality, a larger play to legislative _discretion in the ID:atter of classification.\n\nThe power to c!ass1iy may be exercised so as to adjust the system of taxation in all proper and reasonable ways : the Legislature may select persons, properties, transactions and objects, and apply different methods and even rates of tax, if the Legislature does so reasonably.\n\nProtection of the equality clause does not predicate a mathematically precise or logically complete or symmetrical classification : it is not a condition of the guarantee of equal protection that all transactions, properties, objects or persons of the same genus must be affected by it or •none at all. If the classification is rational, the Legislature is free to choose objects of taxation, impose different rates, exempt classes of property from taxation, subject different classes of property to tax in different ways and adopt different modes of assessment. A taxing statute may contravene Art. 14 of the Constitution if it seeks to impose on the same clas, of property, persons, transactions or occupations similarly situate. incidence of taxation, which leads to obvious inequality. A taxing statute is not, therefore, exposed to attack on the ground of discrimination merely because different rates of taxation are prescribed for different categories of persons, transactions, occupations or objects.\n\nIt is for the Legislature to determine the objects on which tax shall be levied, and the rates thereof.\n\nThe Courts will not strike down an Act as denyijllg the equal protection of Jaws merely because other objects could have been, but are not, taxed by the Legislature : Raja Jagannath Baksh Singh v. State of Uttar Pradesh and Another('). The same rule has been accepted by the Courts in America.\n\nWillis in his ConstitutiQ!lal Law of the United States has stated at p. 587 :\n\n\"A state does not have to tax everything in order to tax something. It is allowed to pick and choose districts, objects, persons, methods, and even rates for taxation if it does so reasonably.\"\n\nAs stated in Weaver's Constitutional Law Art. 275 at p. 405 :\n\n\"The Fourteenth Amendmemt was not designed to prevent a state from establishing a system of taxation or from effecting a change in its system in all proper\n\n(I) [19631 I S.C.R. 220.\n\nand reasonable ways, nor to require the states to adopt an ironclad rule of equality to prevent the classification of property for purposes of taxation or the impositioo of different rates upon different classes.\"\n\nWeaver again says at p. 397 :\n\n\"Class legislation is that which makes an improper discrimination by conferring particular privileges upon a class of pe.rsons, arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privilege granted and between whom and the persons not so favoured no reasonable distinction or substantial difference can be found justifying the inclusion o~ one and the exclusion of the other from such privilege ...... A classification must not be arbitrary, artificial or evasive and there must be a reasonable, natural and substantial distinction in the nature of the class or classes upon which the Jaw operates.\n\nIn respect to such distinction, a legislative body has a wide discretiO\\'l and an Act will not be held invalid unless the classification is clearly unreasonable and arbitrary.\"\n\nIt is unnecessary to multiply citations.\n\nThe Parliament has declared for the purpose of the Expenditure-tax Act an undivided family of Hindus as a unit of taxation and imposed tax at the rates prescribed. To fall within the description the unit must'be an undivided family of Hindus. Within the expression \"Hindu undivided family\" will fall an undivided family of Hindus governed by the Marumakkattayam law. Even though the basic scheme of a Hindu undivided family governed by the Mitakshara law and the Marwnakkattayam law is different in two important respects, l'iz. the descent is through females and childrci.'l both males and females have equal rights to pro perty-these families are still Hindu undivided families.\n\nThe law applicable to Hi.ndu undivided family governed by the Mammakkattayam Jaw. and to the Mappilla tanmd in North Malabar has the same cha:acteristics in two principal rc>pects-\n\n(a) descent is traced through fem1les: anJ (b) there is community of interest and unity of possession i.11 respect of the family property. But the Jaws applicahle to those families in other re<- pects widely differ.\n\nThe Mappilla families governed by the Mmwnakkattayam law reside in a small part of the country and fonn !lUmerically a small community. The Parliament has again ben accustomed\n\nVENJJGOPALA V. UNION (Shah, J.) 8 35\n\nin enact4ng tax laws to make a distinction between a Hindu Undivided Family consisting of Hindus and undivided families of Mappmas.\n\nBy the taxing Acts the Parliament could have treated MappiJJa tarwads as units of taxation. But the mere fact that the Jaw could have been extended to another class of persons who have certain characteristics similar to a section of the Hindus but have not been so included is not a ground for striking down the Jaw. In treating a Hindu Undivided Family as a unit of taxation under the Expenditure-tax Act and not a Non-Hindu Undivided Family the Parliament has not attempted an \"obvious inequality\".\n\nUnder the taxing Acts the scheme of treating a Hindu Undivided Family has been adopted for a Jong time, e.g., the Indian Income-tax Act IX of 1869, Indian Income-tax Act IX of 1870, Indian Income-tax Act XII of 1871, Act VIII of 1872, Act JI of 1886, Act Vll of 1918, Act XI of 1922. Act 43 of 1961 have treated a Hindu Undivided Family as a distinct taxable entity.\n\nSimilarly under the Wealth-tax Act 27 of 1957 and the Gift-tax Act 18 of 1958, the Hindu Undivided Family is made a unit of taxation. Under the Business Profits Tax Act 21 of 1947 and the Excess Profits Tax Act, 1940 also the Hindu Undivided Family was made \" unit of taxation. For the purposes of these Acts Mappilla tarwads governed by the Marumakkattayam law have been regarded as individuals.\n\nThis Jong course of legislative history in matters of taxing income. wealth, gifts, capital gains and business profits ckarly indicates that the legislature regarded undivided families of Hindus as a class to whiCh the legislation may appropriately .be applied. An intention to effectively administer the taxing Acts and not to discriminate on the ground of religion may be attributed to the Legislature.\n\nThe Parliament in the present case having made the Expenditure-tax Act applicable to Hindus governed by the law of the joint family, but not including Mappilla families who are governed by the Mappilla Marumakkattayam Act has not made ailly discrimination and the charging section is not liable to be struck <lown on the ground that the Mappilla family may have to pay tax at a lower rate, whereas a Hindu Undivided Family, by reason of the amalgamation of the expenditure of all the members of the family. may have to pay tax at a higher rate.\n\nThe appeal> fail and are dismissed with costs.\n\nOne hearing\n\nfe. '\n\nV.P.S.\n\nA /ll'ea/s dismincd.\n\nL 11 S1p Cl/69--4", "total_entities": 85, "entities": [{"text": "7\n\nV. VENUGOPALA RAVI VARMA RAJAH", "label": "PETITIONER", "start_char": 3, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "V. VENUGOPALA RAVI VARMA RAJAH", "offset_not_found": false}}, {"text": "UNION OF INDIA & ANR", "label": "RESPONDENT", "start_char": 38, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ANR", "offset_not_found": false}}, {"text": "February 26, 1969", "label": "DATE", "start_char": 61, "end_char": 78, "source": "ner", "metadata": {"in_sentence": "February 26, 1969\n\n[J. C. SHAH, V. RAMASWAMl AND A. N. GROVER, JJ.J\n\nExpenditure Tax Act (29 of 1957), ' 3(1)-Applicable to Hindu f1u11ilies governed hy Mafumakkattayam [.aw hut not to."}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 84, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "A. N. 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Ramachandran", "label": "OTHER_PERSON", "start_char": 5307, "end_char": 5325, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju, T. A. Ramachandran, and B. D. Sharma, for the respondents (in both the appeals)."}}, {"text": "B. D. Sharma", "label": "OTHER_PERSON", "start_char": 5331, "end_char": 5343, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju, T. A. Ramachandran, and B. D. Sharma, for the respondents (in both the appeals)."}}, {"text": "Shah", "label": "JUDGE", "start_char": 5432, "end_char": 5436, "source": "ner", "metadata": {"in_sentence": "Court was delivered by Shah, J. 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before the High Court of Kerala under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 6522, "end_char": 6530, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 7397, "end_char": 7406, "source": "regex", "metadata": {"statute": null}}, {"text": "Expenditure-tax Act", "label": "STATUTE", "start_char": 7414, "end_char": 7433, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3", "label": "PROVISION", "start_char": 8410, "end_char": 8414, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 8742, "end_char": 8747, "source": "ner", "metadata": {"in_sentence": "Marumakkattayam law applied originally by usage to a section of the Hindus inhabiting the South-Western coastal region in India."}}, {"text": "North Malabar", "label": "GPE", "start_char": 8806, "end_char": 8819, "source": "ner", "metadata": {"in_sentence": "Some centuries ago a section of the Hindu inhabitants of North Malabar were converted en masse to Is/am, but they sti!J continued to remain 'governed by the Marumakkattayam law especially in matters of property relations among members of the family."}}, {"text": "State of Madras", "label": "ORG", "start_char": 10401, "end_char": 10416, "source": "ner", "metadata": {"in_sentence": "The District c.f Malabar formed part of the State of Madras till October 31."}}, {"text": "October 31. 1956", "label": "DATE", "start_char": 10422, "end_char": 10438, "source": "ner", "metadata": {"in_sentence": "The District c.f Malabar formed part of the State of Madras till October 31."}}, {"text": "Madras Legislature", "label": "ORG", "start_char": 10555, "end_char": 10573, "source": "ner", "metadata": {"in_sentence": "The customary Marumakkattayam law applicable to Malabar was modified in certain respects from time to time by the Madras Legislature e.g. the Malabar Marriage Act 4 of 1896."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 11379, "end_char": 11383, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 38", "label": "PROVISION", "start_char": 11624, "end_char": 11629, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 18", "label": "PROVISION", "start_char": 11984, "end_char": 11989, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 12064, "end_char": 12068, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 12204, "end_char": 12211, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 12267, "end_char": 12271, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 12320, "end_char": 12325, "source": "regex", "metadata": {"statute": null}}, {"text": "Malabar", "label": "GPE", "start_char": 12397, "end_char": 12404, "source": "ner", "metadata": {"in_sentence": "These and other statutory modifications were applicable only to the Malabar area which was originally part of the State of Madras and not to the State of Travancore-Cochin as it existed before the States R.eorganization Act, 1956."}}, {"text": "State of Travancore-Cochin", "label": "ORG", "start_char": 12474, "end_char": 12500, "source": "ner", "metadata": {"in_sentence": "These and other statutory modifications were applicable only to the Malabar area which was originally part of the State of Madras and not to the State of Travancore-Cochin as it existed before the States R.eorganization Act, 1956."}}, {"text": "Travancore", "label": "GPE", "start_char": 12618, "end_char": 12628, "source": "ner", "metadata": {"in_sentence": "Ther.e were several legislative measures in the States of Travancore and Cochin before those States merged with the Indian Union, and in the State of Travancore-Cochin after merger and in the State of Kerala, making changes in the customary Marumakkattayam law: these were the Cochin Makkathayam Thiyya Act 17 of 1115 (M.E.); Cochin Marumakkattayam Act 13 of 1095 (M.E.)."}}, {"text": "Cochin", "label": "GPE", "start_char": 12633, "end_char": 12639, "source": "ner", "metadata": {"in_sentence": "Ther.e were several legislative measures in the States of Travancore and Cochin before those States merged with the Indian Union, and in the State of Travancore-Cochin after merger and in the State of Kerala, making changes in the customary Marumakkattayam law: these were the Cochin Makkathayam Thiyya Act 17 of 1115 (M.E.); Cochin Marumakkattayam Act 13 of 1095 (M.E.)."}}, {"text": "Travancore-Cochin", "label": "GPE", "start_char": 12710, "end_char": 12727, "source": "ner", "metadata": {"in_sentence": "Ther.e were several legislative measures in the States of Travancore and Cochin before those States merged with the Indian Union, and in the State of Travancore-Cochin after merger and in the State of Kerala, making changes in the customary Marumakkattayam law: these were the Cochin Makkathayam Thiyya Act 17 of 1115 (M.E.); Cochin Marumakkattayam Act 13 of 1095 (M.E.)."}}, {"text": "Kerala", "label": "GPE", "start_char": 12761, "end_char": 12767, "source": "ner", "metadata": {"in_sentence": "Ther.e were several legislative measures in the States of Travancore and Cochin before those States merged with the Indian Union, and in the State of Travancore-Cochin after merger and in the State of Kerala, making changes in the customary Marumakkattayam law: these were the Cochin Makkathayam Thiyya Act 17 of 1115 (M.E.); Cochin Marumakkattayam Act 13 of 1095 (M.E.)."}}, {"text": "Cochin Marumakkattayam Act", "label": "STATUTE", "start_char": 12886, "end_char": 12912, "source": "regex", "metadata": {}}, {"text": "Cochin Nair Act", "label": "STATUTE", "start_char": 12932, "end_char": 12947, "source": "regex", "metadata": {}}, {"text": "Cochin Paliam Tarwad Act", "label": "STATUTE", "start_char": 12993, "end_char": 13017, "source": "regex", "metadata": {}}, {"text": "Cochin Thiyya Act", "label": "STATUTE", "start_char": 13037, "end_char": 13054, "source": "regex", "metadata": {}}, {"text": "Travancore Nanjinad Vellala Regulation", "label": "STATUTE", "start_char": 13073, "end_char": 13111, "source": "regex", "metadata": {}}, {"text": "Travancore Nayar Regulation", "label": "STATUTE", "start_char": 13130, "end_char": 13157, "source": "regex", "metadata": {}}, {"text": "Travaocore Wills Act", "label": "STATUTE", "start_char": 13198, "end_char": 13218, "source": "regex", "metadata": {}}, {"text": "s. 7", "label": "PROVISION", "start_char": 13589, "end_char": 13593, "source": "regex", "metadata": {"linked_statute_text": "Travaocore Wills Act", "statute": "Travaocore Wills Act"}}, {"text": "Hindu Succession Act", "label": "STATUTE", "start_char": 13697, "end_char": 13717, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Hindu Succession Act", "label": "STATUTE", "start_char": 13944, "end_char": 13964, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 17", "label": "PROVISION", "start_char": 13969, "end_char": 13974, "source": "regex", "metadata": {"linked_statute_text": "Travaocore Wills Act", "statute": "Travaocore Wills Act"}}, {"text": "ss.8, 10, 15 and 23", "label": "PROVISION", "start_char": 13986, "end_char": 14005, "source": "regex", "metadata": {"linked_statute_text": "Travaocore Wills Act", "statute": "Travaocore Wills Act"}}, {"text": "Hindu Adoptions and Maintenance Act", "label": "STATUTE", "start_char": 14098, "end_char": 14133, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Hindu Marriage Act", "label": "STATUTE", "start_char": 14153, "end_char": 14171, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Since the enactment of Madras Act", "label": "STATUTE", "start_char": 14442, "end_char": 14475, "source": "regex", "metadata": {}}, {"text": "Hindu Succession Act", "label": "STATUTE", "start_char": 15377, "end_char": 15397, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Hindu Succession Act", "label": "STATUTE", "start_char": 15506, "end_char": 15526, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Hindu undivided family within the meaning of the Expenditure-tax Act", "label": "STATUTE", "start_char": 15760, "end_char": 15828, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Mafabar District", "label": "GPE", "start_char": 16278, "end_char": 16294, "source": "ner", "metadata": {"in_sentence": "law is, compared to the Hindus, a small community restricted only to the northern area f the Mafabar District."}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 18063, "end_char": 18070, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "America", "label": "GPE", "start_char": 18868, "end_char": 18875, "source": "ner", "metadata": {"in_sentence": "The same rule has been accepted by the Courts in America."}}, {"text": "Willis", "label": "OTHER_PERSON", "start_char": 18878, "end_char": 18884, "source": "ner", "metadata": {"in_sentence": "Willis in his ConstitutiQ!lal Law of the United States has stated at p. 587 :\n\n\"A state does not have to tax everything in order to tax something."}}, {"text": "United States", "label": "GPE", "start_char": 18919, "end_char": 18932, "source": "ner", "metadata": {"in_sentence": "Willis in his ConstitutiQ!lal Law of the United States has stated at p. 587 :\n\n\"A state does not have to tax everything in order to tax something."}}, {"text": "Weaver", "label": "OTHER_PERSON", "start_char": 19165, "end_char": 19171, "source": "ner", "metadata": {"in_sentence": "As stated in Weaver's Constitutional Law Art."}}, {"text": "Art. 275", "label": "PROVISION", "start_char": 19193, "end_char": 19201, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Expenditure-tax Act", "label": "STATUTE", "start_char": 20562, "end_char": 20581, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Expenditure-tax Act", "label": "STATUTE", "start_char": 22326, "end_char": 22345, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 22563, "end_char": 22577, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Indian Income-tax Act", "label": "STATUTE", "start_char": 22590, "end_char": 22611, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Income-tax Act", "label": "STATUTE", "start_char": 22624, "end_char": 22645, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Similarly under the Wealth-tax Act", "label": "STATUTE", "start_char": 22810, "end_char": 22844, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Gift-tax Act", "label": "STATUTE", "start_char": 22864, "end_char": 22876, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Excess Profits Tax Act, 1940", "label": "STATUTE", "start_char": 22998, "end_char": 23026, "source": "regex", "metadata": {}}, {"text": "Expenditure-tax Act", "label": "STATUTE", "start_char": 23665, "end_char": 23684, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Mappilla families who are governed by the Mappilla Marumakkattayam Act", "label": "STATUTE", "start_char": 23765, "end_char": 23835, "source": "regex", "metadata": {}}, {"text": "S1", "label": "PROVISION", "start_char": 24263, "end_char": 24265, "source": "regex", "metadata": {"linked_statute_text": "Mappilla families who are governed by the Mappilla Marumakkattayam Act", "statute": "Mappilla families who are governed by the Mappilla Marumakkattayam Act"}}]}
{"document_id": "1969_3_836_848_EN", "year": 1969, "text": "JINDAS OIL MILL & ORS.\n\nGODHRA ELECTRICITY CO. LTD.\n\nFebruary 26, 1969\n\n[S, M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.] B\n\nElectricity Supply Act, 1948, s. 51(2)(c)-Rates of supply licensus fixed by Government on recommendation of rating comn1it/lee-Act amenlled in 1956 s. 57(A)(l)(e) of amended Act read with amended Schedule VJ-Licensee's power under amended Act to en/lance rates of supply- Rates \"fixed under original Act whether can be enhanced by licensee unilatera/1)-Vested righ! whether afj.cted-App/icability of General Clauses Act, 1897, s. 6. c\n\nThe respondent helO a licence for the supply of Electricity under the Indian Electricity Act, 1910 in the Godhra area of undivided Bombay.\n\nOn the creation of the State of Gujarat the area went to that State. The Electricity (Supply) Act came into force in 1948 and under it the conditions in Schedule VI thereof were deemed to be incorpo'rated ill; the licence of every licensee.\n\nUnder s. 57(2)(c) of the Act the Government could fix the rates for supply of electricity and under cl. I of the Schedule VI D a I icensee could reduce the rates for keeping the profit at a reasonable level. A lictnsee bad no power to enhance the rate&. except by requesting the Government to fix ne1rv rates on the recommendation of a fresh rating committee.\n\nIn 1952 the Government fixed certain rates on the recommendations of a rating committee. In 1956 the Supply Act of 1948 wao\n\namended. By s. 57A( I )(e) of the amended Act the rates fixed by the Government under s. 57(A) (l)(d) on the recommendation of a rating E committee we're to enure for a maximum of three years.\n\nUnder cl. I of the amended Schedule VI the licensee shall so adjust his charges for the sale of electricity whether by enhancing dr reducing them that hii clear profit in any year of acdount shall not as far as possible exceed the amount of reasonable return.\n\nIn 1963 the respondent enhanced the rates of supply without having them fixed by the Government on the recommendations of a rating committee.\n\nThe appellants who were consumers df electricity in the Godhra area filed suits seeking to restrain the respon- F dent from enforcing the enhanced charges.\n\nThe suits were decreed by the trial court and the decrees were confirmed by the first appellate court and in second appeal by a single Judge.\n\nIn Letters Patent appeal ho..,- ever the High Court held that under the Supply Act as amended in 1956 the re•pondent had a unilateral right to enhance the charges subje(\\t to the conditions prescribed in Schedule VI of the Act.\n\nThe appellants came to this Court contending that they had a vested right in the rates; fixed by Government in 1952, that under the amended Act the respondent did G not have a unilateral right to enhance those rates, and that the amended provi5ions not being retrospective nor inconsistent with the old provisions the charges fixed by the Government in 1952 must in view of s, 6 of the General Clauses Act, 1897 continue to be in operation.\n\nHELD : The law declared by the Amending Act does not affect any\n\nriht or privilege, accrued under the repea1ed provision. It merely prescnbes as to what can or should be done in the future.\n\nTherefore there H is no basis for saying that it affects vested rights. [847 F]\n\nFor finding out the power of the licensee to alter the ch\"!ges one has to look at the terms of the license in the light of the law as 1t stands, the\n\nJINDAS OIL MILL v. GODHRA ELFCT. co. (Hegde, J.)\n\npa•t history of that law being wholly irrelevant. If the tellII& of the licence, including the deemed term! permit him to unilaterally alter the charges then he has that right. Jn the pr•e\"nt case looking at tbooe term!, the respondent was certainly within itll rigms in enhancing the chargeo as\n\nadmittedly it had followed the procedure pre.\\Cribed by law. [847 F-GJ\n\nThe contention that there w.. no inconsistency between the present •cheme relating to the enhanceme.nt of cilarges viso{;-v/s the scheme provided under the Supply Act prior to its amendment in 1956 could not be accepted. The two schemes are rubstantially different. Under the former scheme once the Govemment fixed the charges the licensee could not enhance them but at present at the end of the period fixed in the Government order the licensee has a unilateral right to enhance the qbargea in accordance with the conditions pre!Cribed in Schedule VI. Therefore in view of ' 57 the provisions contained in that Schedule have an over'ridini: effect. [847 H-848 A]\n\nThe intention of the legislature beinr c\"ar and unambiguous there was no need to call into aid any rule of statutory construction or any lepl presumption.\n\nFurther, there was no reason why those who obtained licences prior to the amendment of the Supply Act in 1956 should be in a more disadvantageous position than those who got their licenceo thceafter.\n\nCorrespondingly there wao no reason why those who are eerved by licencees who obtained their licences prior to the amendment of the\n\npply Act in 1956 should be plac.d m a better position than thooc !!Orved by licensees who obtained their licence. thereafter. [847 CJ\n\nSection 57(A)(l)(e) was intended to meet the qbanging economic oircumstances. The pur(lO'e behind the new provisions appears to be to permit the licencees to adjuot their charges to get reasonable profitll. But at the same time a machinery ha, been provided to see whether any exce.s charges haYe been levied and if levied get the •ame refunded lo the consumen.[847 El\n\nIn view of the above comiderations and findin!I\" the appeals muet fail.\n\nStatt of Punjab v. Mohar Singh, [19SS) S.C.R. 893 and Du, C/uJlld\n\nv. Statt of U.P. & Ors. [1959) 2 Supp. S.C.R. 8, distinguished\n\nAmalgamated Electricity Co. Lli. v. N. S. Bhathtna .t Anr. !1964] 7 S.C.R. 503, applied.\n\nCML APPELLATE Jfilm>ICTJON: Civil Appeals Nos. 15 and 16 of 1969.\n\nAppeals from the judgment and order dated December 3 1968 of the Gujarat High Court in Letters Patent Appeals Nos. 43 and 42 of 1966 respectively.\n\nM. C. Chagla, P. C. Bhartari, P. N. Tiwari and J. B. Dtldachanji, for the appellants (in both the appeals).\n\nI. N. Shroff, for the respondent (in both the appeals).\n\nThe Judgment of the Court was delivered by Hegde, J. Common questions of law arise for decision in these appeals, by cei:ificate. The suits fro~ which these appeals arise have been considered together and decided by common judgmems\n\nboth in the High Court as well as in the courts below. It is convemient to do so in this Court as well.\n\nThe smls in questions are representative suits. The plaintiffsappellants who are consumers of electricity in the Godhra area sued the respondent-company on behalf of all the consumers in that area ; ecking to restrain the respondent from enforcing the enhanced charges sought to be collected from the consumers of power used for lights and fans as well as of motive power.\n\nThe facts leading to these appeals may now be stated.\n\nOn November 19, 1922, the then Government of Bombay granted a licence under the Indian Eleclricity Act, 1910 to a concern called Lady Sulochna Chinubhai & Co. authorising it to generate and supply electricity to the consumers in Godhra area. Clause 10 of the licence prescribed the maximum charges that the licensee could levy for the power supplied. The respondent is the successor of the said licensee. After the Electricity (Supply) Act, 1948 (to be hereinafter referred to as the Supply Act) came into force, a rating committee was constituted under s. 57(2) of the Supply Act at the request of the respondent on January !9, 1950.\n\nOn the recommendation of that committee, the Government fixed wirh effect from February I, 1952, the following charges for the power supplied : '\n\n(i) 0-7-9 pies per unit for th~ electricity supplied for lights and fans with a minimum of Rs, 3/- per month per installation and\n\n(ii1 for motive power at 4 annas per unit with a minimum of Rs, 4-8-0 per month per installation,\n\nThe Supply Act was amended in 1956, The respondent incre.\"Lsed\n\nthe charges for motive power from January 1, 1963 to 35 NP, per unit with a minimum of Rs, 7 /- per month for every installation, On June 22, 1963, the rates for lights and fans were increased with effect from July I, 1963 to 70 NP. per unit with a minimum of Rs, 5/- per month for every installation, The contention of the appellants is that the respondent was not competent to enhance the charges in question without the matter having been considered by a rating committee, Their suits to restrain the respondent from levying the proposed increased charges were decreased by the trial court Those decrees were affirmed by the first appellate court as well as by a single judge of the Gujarat High Court in second appeals but the appetlate bench of the Gujarat High Court reversed those decrees and dismissed the suits holding that under the Supply Act' as amended-in 1956 the respondent has a unilateral right to enhance the charges subject to the conditions prescribed in the VI ScheduJe to that Act It is\n\nj A\n\nas agail15t those decisions these appeals have been brought. Civil Appeal No. 15 of 1969 relates to the enhancement of charges for\n\nelectricity power for lights and fans and Civil Appeal No. 16 of 1969 relates to the enhancement of charges for the motive power.\n\nThe only question that arises for decision in these appeals is whether under the provisions of the Supply Act as amended in 1956, the respondent was competent to unilaterally enhance the charges.\n\nIn thee appeals we are not concerned with the provisions of the Electricity Act, 1910. There is no disp11te as regards the charges fixed by the Government with effect from February 1, 1952, under s. 57(2)(c) of the Supply Act on the basis of the r!'COlllmendation made by the rating committee. The appellants admit their liability to pay enhanced charges that may be fixed by the Government on the basis of any recommendation by a freshly appointed rating committee.\n\nThey merely challenge the respondent's right to unilaterally enhance the charges.\n\nAccording to the appellants they have a vested right to be governed by the charges fixed in 1952 until the same is revised by the Government on the basis of the recommendation of a rating committee.\n\nIt was urged on their behalf that the amendments made in 1956 do not affect the charges fixed in 1952 and they continue to rule till altered by the Government in accordance with law. The respondent repudiates those contentions.\n\nIt denies that the appellants have any vested right in the charges fixed.\n\nIt was urged on its behalf that the amendments made to the Supply Act in 1956 have substantially altered the scheme as regards levying charges; it is now open to a licensee to alter the charges fixed by the Govermnent unilaterally subject to the conditions prescribed in s. 57(A) and in Sch. VI of the Supply Act. We may mention at this stage that even according to the appellants the charges that may be fixed by the Government now on the basis of the recommenation of a rating co.mmittee can be unilaterally altered by the licensee after the penod fixed in the Government order in accordance with cl. {e) of s. 57(A){l), expires.\n\nIn on; ier t~ ctecide the point in controversy, we have to take mto cons1derallon t; he relevan! provi.sions of the Supply Act as it stands now and as 1! stood pnor to tis amendment in 1956. For the s.e of convenience we shall set out side by side the relevant proV1S10ns.\n\nThe Supply Act u ii llood before 1956.\n\nS, 57. Llcenaces charges to consumen.\n\nThe Supply Act as amended in 1956\n\nS. 57. The Provisions of tho Slxtlt Schedule and the Seventh Scbodul<>\n\n(I) The provisions of the Sixth\n\nSchedule and the Table •Ppended to the Seventh Schodule shall be deemed to be incorporated in the licence of evtrf licensee, not being a local authority, from the dale of the commencement of the lcense-e's next mcceeding year of account. and from such date the licensee shall comply therewith accordingly and any provisions of such licence or ot the Indian Electricity Act, 1910 (LX of 1910), or any other law, agreement or inatrurnent applicable to the licengee iall, in relation to the licensee, be void and of no effect in so far as they are\n\ninconsistent with the provisions of thiS section and the said Schedule and Table.\n\n(2) Where the provisions of the\n\nSixth Schedule and the Table appended to the Seventh Schedule are under sub-section ( 1) deemed to be incorporated in the licence of any licensee. 1he following provisions shall ilavc effect in relation to the said licensee, namely :-\n\n(a) The Board or where no\n\nBoard is constituted under this Act, the Provincial Government, may, if it iS satisfied that the liceneee bas failed to comply with any provisions of the Sixth Schedule and shall when requested so to do by the licensee. constitute a rating com mittee to examine the licensee's charges for the supply of electricity and to recommend thereon to the Provincial Government;\n\nProl'ided t.'iat no rating com .. mittee shall be constituted in respect of a licensee within three\n\nshall be deemed to be incorporated in the licence of every licensee. not being a local authority :-\n\n( •) in the case of a licence granted\n\nbeore the commencement of. this Ac~ from the date of the commencement of the Jicea. .. see's next succeeding year of account; and\n\n( b) in the case of a Ucencee graated after the commencemeat of this Act, from tho date Ill the commencement of suJ)l'ly, and as from the said date, the licensee shall comply with tho provisions of the said Schedules accordingly, and aay provisions of the Indiaa Electricity Ac~ 1910, and tbe the licence granted to hi• thereunder and of any other Jaw, agreement or instrumCllt applicable to the licensee Shill, in relation to the licensee, be void and of no effect in so far\n\nas they are inconsistent with the provisions of section S7 A and the said Schedules.\n\nS. 57(A) (!): wh•retheprovisions of the Sixth Schedale and the Seventh Schedule are under section S7 deemed to be incorporated in the licence of any licensee, the following\n\nprovision~ shall have effect in relation to. the said licenaec namely:- (•) the Board or where no Board is constituted under this Act. the State Government-\n\n(i) may, if satisfied that tbe\n\nlicensee has failed to comply with any of the provisions of the Sixth Schedule, and\n\n(ii) shali when so requoated\n\nby the liceruec in writing conttitute a rating committee to examine the licensee's charges for the supply of electricity and\n\nyears trom the date on which such a committee has reported in respect of that licensee, unless the Provincial Government declares that in its opinion circumstances bavo arisen readoring the orders passed on the recommendation of the previ, om: rating committee unfair to the licensee or any of his\n\nconsumers.\n\n( b) The rating committee shall\n\nafter giving the licensee a reasonable opportunity of being heard and after taking into consideration the efficiency of operation and management and the potentialities of his undertaking report to the Provincial Government making recommendations (and giving reasons therefore) regarding the charges for electricity which the licencee may make to any clas~ or classes\n\not consumers so however that the recommendations arc not likely to prevent Lie licensee from earning clear profits sufficient when taken with the sums available in the Tariffs and Dividends Control Reserve to afford him a reasonable return during his next succeeding three year!: of account if the potentialities of the undertaking of the 1icensee, with efficient operation and management, so perm.it.\n\n(c) Within one month after the receipt of the report under clause (b) the Provincial Government shall cause the repart to be published in\n\ntho official Gazette. and may at the same time make an order in accordance therewith fixing the licenee's charges for the supply\n\nto make reeommenda. tions in that behalf to the State Government :\n\nProvided that where it is pro pooed to constitute a rating com\n\nmittee under this section on account of. the failure of the licensee to coinply with any provisions of the Sixth Schedule. such committee shall not be constituted unlei:s the licensee has been given a notice\n\nin writing of thirty clear days (which period. if the circumstances so warrant may be extended from time to time) to show cauSe against the action proposed to be taken :\n\nProvided further that no such rating committee shall be constitu. ted if the alleged failure of the Iicen*e to comply with any pro-. visions of the Sixth Schedule raises any dispute or difference as to the interpretation of the said provisions or any matter arising therefrom and such difference or dispute has been referred by the licensee to the arbitration of the Authority under paragraph XVI of that Schedule before the notice referred to in the preceding proviso was given or i~ so referred within the period of the said notice :\n\nProvided further that no rating committee shall be constituted in respect of a licensee within three years from the date on which such a committee has reported in res))Cct of that licensee. unless the State Government declares that in its opinion circum!.1ances have arisen rendering the orders passed on the recommendations of the previouo; rating committee unfair to the licensee or any of the consumers :\n\n( b) a rating committee under clause (a) shall,- J i) where such committee is to he constituted under sub clause (i) of that clause. be constituted not later than three months after the\n\nof electricity with effect from such date, not earlier than two months after the date of publication of the report, as may be fi'(>ecified in the order; and the licensee shall forthwith . give effect to such order :\n\nProvided that nothing in this clause shall be deemed to prevent a licensee from reducing at any time any charges. so fixed.\n\nTHE SIXTH SCHEDULE\n\n1. The Licensee shall so adjust his rates for the &\"ale of' electricity by periodical revision that his clear profit in any year shall not as far as possible exceed the amount of reasonable return :\n\nProvided that the licensee shall not be considered to have failed so to adjust his rates if the clear profit in any year of account has not exceeded the a1nount of tbe reasonable return by more than thirty per centum of the amount of the reasonable return.\n\nII. (I) If the clear profit of a licensee in any year of account is in excess of the amount of reasonable return one-third of such excess. not exceeding 7 1/2 per cent of the amount of reasonable return shall b; e at the disposal of the undertaking.\n\nOf the balance of the excess. one half r,'hall be appropriated to a reserve which shall be called the Tariffs and Dividends Control Reserve and the remaining half shall either be distributed in the form of a proportionabte rebate on the amounts coHected from the sale of electricity and meter rentals or carried forward in the accounts of the licensee for distribution to the consumer!t in future, in\n\nexpiry of the notice referred to in the first proviso to\n\ntha~ clause :\n\ntii) where such committee is to be constituted at the request of the licensee, be constituted within three months of the date of such request;\n\n(c) a rating committee shall, after giving the licensee a reasonable opportunity of being heard and after taking into con!tideration the efficiency of operation and management and the potentialities of his undertaking, report to the State Government within three months from the date of its constitution, making recommendations wit!l reasons therefor, regarding the charges for electricity which the licensee may make to any class or classes of conr,'umers so, however. that the recommen. dations are not likely to pre. vent the licensee from earning clear profit, sufficient when taken with the sums available in the Tariffs and Dividends Control Reserve to afford him a reasonable return as define; d in the Sth Schedule during his next succeeding three years of account:\n\nProvided that the State Govern~ rnent may, if it o deems neceary, extend the said period of three months by a further period not exceeding three monthS' within which the report of the rating committee may be submitted to it;\n\n(d) within one month after the receipt of the report under clause (c), the State Government shall cause the report to be published in the Official Gazette, and may at the same time make an order in accord .. ance therewith fixine; the licensee's charges for tbc\n\nJINDAS OIL MILL v. GODHRA ELECT. co. (Hegdc, /.) 843\n\nsuch manner as the Provincial Government may direct\n\n(2) The Tariffs and Dividends Control Reserve shall be available for disposal by the licensee only to the extent by which the clear profit is less than the reasonable return in any year of account.\n\n( 3) On the purchage of the undertaking under the terms of its licence any balance remaining in the Tariff:t and Dividends Control Reserve shall be handed over to the purchaser and maintained as such Tariffs and Dividends Control Reserve.\n\nsupply of electricity with\n\nffect from such date, not earlier than two months or later than three months, after the date of publication of the report as may be specified in the order and the licensee shall forthwith give effect to such order;\n\n( e} the charges for the supply of electricity fixed under clause ( d) shall be in operation for such period not exceeding three years as the State Oov~ ernment may specify in the order :\n\nProvided that nothing 1n this clause shall be deemed to prevent a licensee from reducing at any time any charges 00 fixed.\n\nTHE SIXTH SCHEDULE\n\nI. Notwithstanding anything con~ tained in the Indian Electricity Act. 1910 except sub-aection (2) of section 9 of 1910, 22A. and the provisions in the licence of a licensee. the licensee shall so adjust his (charges) for the sale of electricity whether by enw hancing or reducing them that his clear profit in any year or account shall not, as far as possible, exceed the amount of reasonable return :\n\nProvided that such (charges) snau not be enhanced more thaa once in any year of account :\n\nProvided further that the licensee\n\nshall not be deemed to have failed so to adjust his (charges) if the clear profit in any year or account has not exceeded the amount of reasonable return by (twenty) per centum of the amount of reasonable return ~\n\nProvided further that the licmlset\n\n'1lall not enhance the ( charces) for the supply of electricity nntil after the expiry of a notice in wtiting of not 1.,. than sixty\n\nSUPIU!MB COURT IU!PORTS\n\n[J 969] 3 S.C.R.\n\nclear days of his intention to so enhanc:e the (charges) given by him to the State Government and and to the Board :\n\nProvided further th at i( the\n\n(charges) of supply fixed m pursuance of the recommendations of a rating committee. constituted under sec. S7 A are lower than those notified by the licensee under and in accordance with the preceding proviso, the licensee\n\nshall refund to the consumers the excess amount recovered by him from them :\n\nProvided aJso that nothing in this C Schedule shall be deemed to prevent a licensee from levying. with the previous approval of the State Govt. minimum charges for supply of electricity t'or any purpose.\n\nIA. The notice referred to in the third proviso to paragraph I shall D be accompanied by such financial and technical data in rupport of the proposed enhancement of charges as the State Government_ may, by general _or special order, specify,\n\nII. (!) If the clear profit of a licensee in any year of E account is in excess of the amount of reasonable return. one-third of such excess, not exceeding (five per cent) of the amount of reasonable return, shall be at the dh;- posal of the undertaking, Of the balance of the exccis, one-half shall be appro- F priated to a resrve which shall be called the Tariffs and Dividends Control Reserve and the remaining half shall either be distributed in the form of a proportional rebate on the amounts collected from the G sale of electricity and meter rentals or carried forward in the accounts of the licensee for digtribution to the consumers in future, in such manner as the State Government may direct.\n\n(2) The Tariffs and Dividends H Contrdt Reserve shall be available for disposal by the 1iccnsee only to the\n\nxtent hy which the clear\n\n.!)\n\nF '\n\nprofit is less than the reasonable return in any year of account.\n\n(3) On the purcha~ of the undertaking under the terms of its licence any balance remaining in the Tariffs and Dividends Control Roserve shall be handed over to tho purchaser and maintained aa such Tariffs and Dividends Control Reserve: Provided that where the undertaking is purcbasod bY the Board or the State Government the amount of the Reserve may be ded\\lcted from the prico payable to the licensee.\n\nFrom an examination of these provisions it would be seen that under the Supply Act prior to its amendment in 1956, the charges fixed by tile Govt. under s. 57(2)(c) remained in force unless reduced by the licensee in the meantime till the same were altered by a subsequent order made by the Govt. after getting a fresh recommendation from the rating committee but under the law as it now stands the rate fixed by the Government under s. 57 (A)(l)(d) would be in operation only for such period not exceeding three years as the State Govt. may specify in the order. Thereafter it can be enhanced by the licensee in accordance with the provisions contained in Sch. VI. It was urged on behalf of the appellants that the present s. 57(A(l )(e) can only govern the charges fixed under s. 57(A)(l)(d) and it has not impact on an order made under the old s. 57(2)(c). According to the appellants the charges so fixed can only be modifi,, d by the Government aftec getting a report from the rating committee.\n\nMr. Chagla, learned Counsel for the appellants contended that the consumers who get power from the respondent have a vested right in the charges fixed in 1952 and that vested right cannot be considered to have been taken away by the provisions of the Amending Act.\n\nHe argued that the provisions of the Amending Act are not retrospective in character nor is there any inconsistency between those provisions and the present provisions as the two operate on different fields; hence in view of s. 6 of the General Clauses Act,\n\n1897, we must hold that the charges fixed by the Government in 1952 continue to be in operation. In this connection he relied on certain observations made by this Court in Stare nf Punjab v. illohar Singh(') and Deep Chand v. State of U.P. & Ors.( 2 ). On the other hand it was contended hy the learned Counsel for the respondent that the rights and liabilities of the respondents at present are exclusively regulated by the provisions of the Supply\n\n(I) [195'] S.C.R. 89.1.\n\n(2) [1950] c S•mr. S C.R. ~.\n\nAct as it stands now; the terms of licence as they originally stood or as they stood on the coming into force of the Supply Act in 1948 are of no consequence now; they cannot be looked into for finding out the rights or duties of the licensee as at present; for that purpo; e we must look into those terms as modified by the provisions of the Supply Act as it is now. It was also urged on its behalf that there is no 4uestion of vested rights in these cases; herein we are only concerned with the procednre to be adopted in modifying the charges fixed in 1952.\n\nIn Mohar Singh's case(') this Court laid down that the provisions of s. 6 ( c), ( d) and ( e) of the General Clauses Act, 1897 relating to the consequences of the repeal of a law are applicable not only when an Act or Regulation is repealed simpliciter but also to a case of repeal and simultaneous enactment re-enacting all the provisions of the repealed law.\n\nIn the course of its judgment this Court observed that when the repeal is followed by a fresh legislation on the same subject, the Court has undoubtedly to look into the provisions of the new Act but that only for the purpose of determining whether they indicate a different intention.\n\nThe line of inquiry would be, not whether the new Act keeps alive the old rights and liabilities but whether it manifests any intention to destroy them.\n\nIn Deep Chand's case(') this Court was considerin7 the effect of repugnancy between a State Act and a Central Act.\n\nThe observations made in that context, we think, have no bearing on the point in issue in this case. It is true that when an existing Statute or Regulation is repealed and the same is replaced by fresh Statute or Regulation unless the new Statute or Regulation specifically or by necessary implication affects rights created under the old law those rights must be held to continue in force even after the new Statute or Regulation comes into force.\n\nBut in the cases before us there is no question of affecting any vested right.\n\nThere is no dispute that the charges fixed can be altered.\n\nThe controversy relates to the procedure to be adopted in altering them.\n\nThat controversy does not touch any vested right.\n\nThe procedure in question must necessarily be regulated by the law in force at the time of the alteration of the charges.\n\nSection 57 of the Supply Act as it stands now lays down that the provisions of Sch. VI shall be deemed to be incorporated in the licence of every licensee not being a local authority, in the case of a licence granted before the commencement of the Act from the date of the commencement of the licensee's next succeeding year of account Admittedly the licence with which we are concerned in these cases was granted even before the Supply Act was enacted.\n\nTherefore quite clearly the licence in. question is governed by the present s. 57. Hence we haveto read into that licence the provisions contained in Sch. VI. If any of the earlier\n\n(I) [19551 S.C.R. 893.\n\n(2) [1959] 2 Supp. S.C.R. 8.\n\nprovisions in the licence either as they stood when the licence was originally granted or as they stood modified as per the provisions of the Supply Act prior to its amendment in 1956 are inconsistent with the provisions of Sch. VI or s. 57(A) as they are now they must be held to be void and of no effect. In other words we must read into the licence the provisions of Sch. VI and strike out therefrom such terms as are inconsistent with those provisions and thereafter give effect to Ihe same.\n\nFor determining the rights and duties of the licensee as at present we have only to look into the terms of the licence as modified by Sch. VI. We cannot go behind them.\n\nThat much is clear from the language of the Supply Act. The intention of the legislature is clear and unambiguous. Therefore there is no need to call into aid any rule of statutory construction or any legal presumption.\n\nFurther no reason was advanced before us, nor can we conceive of any why those who obtained licenses prior to the amendment of Supply Act in 1956 should be in a more disadvantageous position than those who got their licenses thereafter.\n\nCorrespondingly we fail to see why those who are served by licensees who obtained their licences prior to the amendment of the Supply Act in 1956 should be placed in a better position than those served by licensees who obtained their licenses thereafter.\n\nAfter all, every law has some reason behind it.\n\nSection 57(A)(2)(e) was intended to meet the changing economic circumstances.\n\nThe purpose behind the new provisions appears to be to permit the licensees to so adjust their charges as to get reasonable profits. But at the same time a machinery has been provided to see whether any excess charges have been levied and if levied, get the same refunded to the con- :; umers.\n\nThe law declared by the Amending Act does not affect any right or privilege, accrued under the repealed provision. It merely prescribes as to what could or should be done in future.\n\nTherefore there is no basis for saying that it affects vested rights.\n\nFor finding but the power of the licensee to alter the charges one\n\nas to look to the terms of the licence in the light of the law as 1t stands, the past history of that law being wholly irrelevant. If the trrns of the licence, including the deemed terms permit him to umlaterally alter the charges then he has that right. If we\n\nmerey look at those terms, as we think we ought to, then there is no dispute that the respondent was within its rights in enhancing the charges as admittedly it has followed the procedure prescribed by law. We also do not agree with Mr. Chagla in his contention that there is no inconsistency between the present scheme relating to the enhancement of charges vis-a.vis the scheme provided under the Supply Act prior to its amendment in 1956. The two schemes are substantially different. Under the fonner scheme once the Government fixes the charges the licensee cannot alter\n\nit but at present at the end of the period fixed in the Government order the licensee has a unilateral right to enhance the charge,, in\n\naccordance with the conditions prescribed in the VI Schedule.\n\nTherefore in view of s. 57 the provisions contained in that schedule. have an over-riding effect.\n\nIn Amalgamated Electricity Co., Ltd. v. N. S. Bhathena mid Anr. (') this Court was called upon to consider the scape of s. 57 (A) and the Sch. VI as it stands now. Therein the ontro versy was whether the appellant therein was entitled to levy charges more than the maximum charges prescribed in its licence issued in 1932. It may be noted that in that case the notice of enhancement of the charges was given on September 25, 1958.\n\nThis Court held that the maximum stipulated in the licence no longer governed the right of the licensee to enham; e the charg~; his rights were exclusively governed by the provisions contained in paragraph I of Sch. VI of the Supply Act. It is true that in that case this Court was considering the right of the licensee under the Supply Act vis-a-vis his right under the licence granted under the Indian Electricity Act, 1910 but th.at difference is not material. What this Court in fact considered was the right of the\n\nlicense under the existing Jaw to enhance the charges. Dealing with the scope ot paragraph I of Sch. VI, Ayyangar, J. who spoke for the majority observed thus :\n\n\"Para I of Sch. VI both as it originally stood. and as amended, as seen already, empowered the licensee\n\n\"to adjust his rates, so that his clear' profit in any year shall not, as far as possible, exceed the amount of reasonable return\". We shall reserve for later consideration the meaning 'of the expression \"so adjust his rates\".\n\nBut one thing is clear and that is that the adjustment is unilateral and that the licensee has a statutory right to adjust his rates provided he conforms to the requirements of that paragraph viz .• the rate charged does not yield a profit exceeding the amount of reasonable return.\n\nThe conclusion is therefore irresistible that the maxima prescribed by the State Government which bound the licensee under the Electricity Act of 1910 no longer limited the amount which a licensee could charge after the Supply Act, 1948 came into force since the \"clear profit\" and \"reasonable return\" which determined the rate to be charged was to be compul!:d on the basis of very different criteria and factors than what obtained under the Electricity Act.\" For the reasons above, these appeals fail and they are dismissed with costs.\n\nOne hearing fee.\n\nG.C.\n\nAppeals dismissd.\n\n(I) [1964) 7 S.C.R. 503.\n\nF ...", "total_entities": 90, "entities": [{"text": "JINDAS OIL MILL & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "JINDAS OIL MILL & ORS", "offset_not_found": false}}, {"text": "GODHRA ELECTRICITY CO. LTD", "label": "RESPONDENT", "start_char": 24, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "GODHRA ELECTRICITY CO. LTD", "offset_not_found": false}}, {"text": "February 26, 1969", "label": "DATE", "start_char": 53, "end_char": 70, "source": "ner", "metadata": {"in_sentence": "February 26, 1969\n\n[S, M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.]"}}, {"text": "M. SIKRI", "label": "JUDGE", "start_char": 76, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 86, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "K. S. HEGDE, JJ.", "label": "JUDGE", "start_char": 105, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "Electricity Supply Act, 1948", "label": "STATUTE", "start_char": 126, "end_char": 154, "source": "regex", "metadata": {}}, {"text": "s. 51(2)(c)", "label": "PROVISION", "start_char": 156, "end_char": 167, "source": "regex", "metadata": {"linked_statute_text": "Electricity Supply Act, 1948", "statute": "Electricity Supply Act, 1948"}}, {"text": "s. 57(A)(l)(e)", "label": "PROVISION", "start_char": 274, "end_char": 288, "source": "regex", "metadata": {"linked_statute_text": "Electricity Supply Act, 1948", "statute": "Electricity Supply Act, 1948"}}, {"text": "Schedule V", "label": "PROVISION", "start_char": 322, "end_char": 332, "source": "regex", "metadata": {"linked_statute_text": "Electricity Supply Act, 1948", "statute": "Electricity Supply Act, 1948"}}, {"text": "General Clauses Act, 1897", "label": "STATUTE", "start_char": 526, "end_char": 551, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 6", "label": "PROVISION", "start_char": 553, "end_char": 557, "source": "regex", "metadata": {"linked_statute_text": "General Clauses Act, 1897", "statute": "General Clauses Act, 1897"}}, {"text": "respondent helO a licence for the supply of Electricity under the Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 566, "end_char": 660, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Schedule VI", "label": "PROVISION", "start_char": 855, "end_char": 866, "source": "regex", "metadata": {"linked_statute_text": "The respondent helO a licence for the supply of Electricity under the Indian Electricity Act, 1910", "statute": "The respondent helO a licence for the supply of Electricity under the Indian Electricity Act, 1910"}}, {"text": "s. 57(2)(c)", "label": "PROVISION", "start_char": 950, "end_char": 961, "source": "regex", "metadata": {"linked_statute_text": "The respondent helO a licence for the supply of Electricity under the Indian Electricity Act, 1910", "statute": "The respondent helO a licence for the supply of Electricity under the Indian Electricity Act, 1910"}}, {"text": "Schedule VI", "label": "PROVISION", "start_char": 1057, "end_char": 1068, "source": "regex", "metadata": {"linked_statute_text": "The respondent helO a licence for the supply of Electricity under the Indian Electricity Act, 1910", "statute": "The respondent helO a licence for the supply of Electricity under the Indian Electricity Act, 1910"}}, {"text": "s. 57A( I )(e)", "label": "PROVISION", "start_char": 1442, "end_char": 1456, "source": "regex", "metadata": {"linked_statute_text": "The respondent helO a licence for the supply of Electricity under the Indian Electricity Act, 1910", "statute": "The respondent helO a licence for the supply of Electricity under the Indian Electricity Act, 1910"}}, {"text": "s. 57(A)", "label": "PROVISION", "start_char": 1516, "end_char": 1524, "source": "regex", "metadata": {"linked_statute_text": "The respondent helO a licence for the supply of Electricity under the Indian Electricity Act, 1910", "statute": "The respondent helO a licence for the supply of Electricity under the Indian Electricity Act, 1910"}}, {"text": "Schedule VI", "label": "PROVISION", "start_char": 1651, "end_char": 1662, "source": "regex", "metadata": {"linked_statute_text": "The respondent helO a licence for the supply of Electricity under the Indian Electricity Act, 1910", "statute": "The respondent helO a licence for the supply of Electricity under the Indian Electricity Act, 1910"}}, {"text": "Godhra", "label": "GPE", "start_char": 2084, "end_char": 2090, "source": "ner", "metadata": {"in_sentence": "The appellants who were consumers df electricity in the Godhra area filed suits seeking to restrain the respon- F dent from enforcing the enhanced charges."}}, {"text": "Schedule VI of the Act", "label": "STATUTE", "start_char": 2532, "end_char": 2554, "source": "regex", "metadata": {}}, {"text": "General Clauses Act, 1897", "label": "STATUTE", "start_char": 2943, "end_char": 2968, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Schedule VI", "label": "PROVISION", "start_char": 4380, "end_char": 4391, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 57(A)(l)(e)", "label": "PROVISION", "start_char": 5130, "end_char": 5149, "source": "regex", "metadata": {"statute": null}}, {"text": "1964] 7 S.C.R. 503", "label": "CASE_CITATION", "start_char": 5764, "end_char": 5782, "source": "regex", "metadata": {}}, {"text": "M. C. Chagla", "label": "OTHER_PERSON", "start_char": 6009, "end_char": 6021, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, P. C. Bhartari, P. N. Tiwari and J. B. Dtldachanji, for the appellants (in both the appeals)."}}, {"text": "P. C. Bhartari", "label": "LAWYER", "start_char": 6023, "end_char": 6037, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, P. C. Bhartari, P. N. Tiwari and J. B. Dtldachanji, for the appellants (in both the appeals)."}}, {"text": "P. N. Tiwari", "label": "LAWYER", "start_char": 6039, "end_char": 6051, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, P. C. Bhartari, P. N. Tiwari and J. B. Dtldachanji, for the appellants (in both the appeals)."}}, {"text": "J. B. Dtldachanji", "label": "LAWYER", "start_char": 6056, "end_char": 6073, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, P. C. Bhartari, P. N. Tiwari and J. B. Dtldachanji, for the appellants (in both the appeals)."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 6118, "end_char": 6130, "source": "ner", "metadata": {"in_sentence": "I. N. Shroff, for the respondent (in both the appeals)."}}, {"text": "Hegde", "label": "JUDGE", "start_char": 6218, "end_char": 6223, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Hegde, J. Common questions of law arise for decision in these appeals, by cei:ificate."}}, {"text": "November 19, 1922", "label": "DATE", "start_char": 6945, "end_char": 6962, "source": "ner", "metadata": {"in_sentence": "On November 19, 1922, the then Government of Bombay granted a licence under the Indian Eleclricity Act, 1910 to a concern called Lady Sulochna Chinubhai & Co. authorising it to generate and supply electricity to the consumers in Godhra area."}}, {"text": "Government of Bombay granted a licence under the Indian Eleclricity Act, 1910", "label": "STATUTE", "start_char": 6973, "end_char": 7050, "source": "regex", "metadata": {}}, {"text": "Sulochna Chinubhai & Co.", "label": "ORG", "start_char": 7076, "end_char": 7100, "source": "ner", "metadata": {"in_sentence": "On November 19, 1922, the then Government of Bombay granted a licence under the Indian Eleclricity Act, 1910 to a concern called Lady Sulochna Chinubhai & Co. authorising it to generate and supply electricity to the consumers in Godhra area."}}, {"text": "Clause 10", "label": "PROVISION", "start_char": 7184, "end_char": 7193, "source": "regex", "metadata": {"linked_statute_text": "Government of Bombay granted a licence under the Indian Eleclricity Act, 1910", "statute": "Government of Bombay granted a licence under the Indian Eleclricity Act, 1910"}}, {"text": "s. 57(2)", "label": "PROVISION", "start_char": 7496, "end_char": 7504, "source": "regex", "metadata": {"linked_statute_text": "Government of Bombay granted a licence under the Indian Eleclricity Act, 1910", "statute": "Government of Bombay granted a licence under the Indian Eleclricity Act, 1910"}}, {"text": "January !9, 1950", "label": "DATE", "start_char": 7559, "end_char": 7575, "source": "ner", "metadata": {"in_sentence": "After the Electricity (Supply) Act, 1948 (to be hereinafter referred to as the Supply Act) came into force, a rating committee was constituted under s. 57(2) of the Supply Act at the request of the respondent on January !"}}, {"text": "July I, 1963", "label": "DATE", "start_char": 8229, "end_char": 8241, "source": "ner", "metadata": {"in_sentence": "\"Lsed\n\nthe charges for motive power from January 1, 1963 to 35 NP, per unit with a minimum of Rs, 7 /- per month for every installation, On June 22, 1963, the rates for lights and fans were increased with effect from July I, 1963 to 70 NP."}}, {"text": "Gujarat High Court", "label": "COURT", "start_char": 8705, "end_char": 8723, "source": "ner", "metadata": {"in_sentence": "per unit with a minimum of Rs, 5/- per month for every installation, The contention of the appellants is that the respondent was not competent to enhance the charges in question without the matter having been considered by a rating committee, Their suits to restrain the respondent from levying the proposed increased charges were decreased by the trial court Those decrees were affirmed by the first appellate court as well as by a single judge of the Gujarat High Court in second appeals but the appetlate bench of the Gujarat High Court reversed those decrees and dismissed the suits holding that under the Supply Act' as amended-in 1956 the respondent has a unilateral right to enhance the charges subject to the conditions prescribed in the VI ScheduJe to that Act It is\n\nj A\n\nas agail15t those decisions these appeals have been brought."}}, {"text": "thee appeals we are not concerned with the provisions of the Electricity Act, 1910", "label": "STATUTE", "start_char": 9497, "end_char": 9579, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "February 1, 1952", "label": "DATE", "start_char": 9666, "end_char": 9682, "source": "ner", "metadata": {"in_sentence": "There is no disp11te as regards the charges fixed by the Government with effect from February 1, 1952, under s. 57(2)(c) of the Supply Act on the basis of the r!'COlllmendation made by the rating committee."}}, {"text": "s. 57(2)(c)", "label": "PROVISION", "start_char": 9690, "end_char": 9701, "source": "regex", "metadata": {"linked_statute_text": "In thee appeals we are not concerned with the provisions of the Electricity Act, 1910", "statute": "In thee appeals we are not concerned with the provisions of the Electricity Act, 1910"}}, {"text": "s. 57(A)", "label": "PROVISION", "start_char": 10820, "end_char": 10828, "source": "regex", "metadata": {"statute": null}}, {"text": "VI of the Supply Act", "label": "STATUTE", "start_char": 10841, "end_char": 10861, "source": "regex", "metadata": {}}, {"text": "s. 57(A)", "label": "PROVISION", "start_char": 11159, "end_char": 11167, "source": "regex", "metadata": {"linked_statute_text": "VI of the Supply Act", "statute": "VI of the Supply Act"}}, {"text": "S. 57", "label": "PROVISION", "start_char": 11570, "end_char": 11575, "source": "regex", "metadata": {"linked_statute_text": "VI of the Supply Act", "statute": "VI of the Supply Act"}}, {"text": "Sixth\n\nSchedule", "label": "PROVISION", "start_char": 11668, "end_char": 11683, "source": "regex", "metadata": {"linked_statute_text": "VI of the Supply Act", "statute": "VI of the Supply Act"}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 12025, "end_char": 12053, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 12337, "end_char": 12351, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 12382, "end_char": 12398, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 12754, "end_char": 12768, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "S7", "label": "PROVISION", "start_char": 13876, "end_char": 13878, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 57(A)", "label": "PROVISION", "start_char": 13906, "end_char": 13914, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 13969, "end_char": 13985, "source": "regex", "metadata": {"statute": null}}, {"text": "S7", "label": "PROVISION", "start_char": 14004, "end_char": 14006, "source": "regex", "metadata": {"statute": null}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 14334, "end_char": 14348, "source": "regex", "metadata": {"statute": null}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 16134, "end_char": 16148, "source": "regex", "metadata": {"statute": null}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 16555, "end_char": 16569, "source": "regex", "metadata": {"statute": null}}, {"text": "Electricity Act", "label": "STATUTE", "start_char": 21671, "end_char": 21686, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 9", "label": "PROVISION", "start_char": 21719, "end_char": 21728, "source": "regex", "metadata": {"statute": null}}, {"text": "S7", "label": "PROVISION", "start_char": 22832, "end_char": 22834, "source": "regex", "metadata": {"statute": null}}, {"text": "From an examination of these provisions it would be seen that under the Supply Act", "label": "STATUTE", "start_char": 24799, "end_char": 24881, "source": "regex", "metadata": {}}, {"text": "s. 57(2)(c)", "label": "PROVISION", "start_char": 24952, "end_char": 24963, "source": "regex", "metadata": {"linked_statute_text": "From an examination of these provisions it would be seen that under the Supply Act", "statute": "From an examination of these provisions it would be seen that under the Supply Act"}}, {"text": "s. 57", "label": "PROVISION", "start_char": 25233, "end_char": 25238, "source": "regex", "metadata": {"linked_statute_text": "From an examination of these provisions it would be seen that under the Supply Act", "statute": "From an examination of these provisions it would be seen that under the Supply Act"}}, {"text": "s. 57(A(l )(e)", "label": "PROVISION", "start_char": 25523, "end_char": 25537, "source": "regex", "metadata": {"linked_statute_text": "From an examination of these provisions it would be seen that under the Supply Act", "statute": "From an examination of these provisions it would be seen that under the Supply Act"}}, {"text": "s. 57(A)(l)(d)", "label": "PROVISION", "start_char": 25578, "end_char": 25592, "source": "regex", "metadata": {"linked_statute_text": "From an examination of these provisions it would be seen that under the Supply Act", "statute": "From an examination of these provisions it would be seen that under the Supply Act"}}, {"text": "s. 57(2)(c)", "label": "PROVISION", "start_char": 25646, "end_char": 25657, "source": "regex", "metadata": {"linked_statute_text": "From an examination of these provisions it would be seen that under the Supply Act", "statute": "From an examination of these provisions it would be seen that under the Supply Act"}}, {"text": "Chagla", "label": "OTHER_PERSON", "start_char": 25804, "end_char": 25810, "source": "ner", "metadata": {"in_sentence": "Mr. Chagla, learned Counsel for the appellants contended that the consumers who get power from the respondent have a vested right in the charges fixed in 1952 and that vested right cannot be considered to have been taken away by the provisions of the Amending Act."}}, {"text": "argued that the provisions of the Amending Act", "label": "STATUTE", "start_char": 26069, "end_char": 26115, "source": "regex", "metadata": {}}, {"text": "s. 6", "label": "PROVISION", "start_char": 26291, "end_char": 26295, "source": "regex", "metadata": {"linked_statute_text": "He argued that the provisions of the Amending Act", "statute": "He argued that the provisions of the Amending Act"}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 26303, "end_char": 26322, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Mohar Singh", "label": "OTHER_PERSON", "start_char": 27396, "end_char": 27407, "source": "ner", "metadata": {"in_sentence": "In Mohar Singh's case(') this Court laid down that the provisions of s. 6 ( c), ( d) and ( e) of the General Clauses Act, 1897 relating to the consequences of the repeal of a law are applicable not only when an Act or Regulation is repealed simpliciter but also to a case of repeal and simultaneous enactment re-enacting all the provisions of the repealed law."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 27462, "end_char": 27466, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act, 1897", "label": "STATUTE", "start_char": 27494, "end_char": 27519, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Deep Chand", "label": "OTHER_PERSON", "start_char": 28199, "end_char": 28209, "source": "ner", "metadata": {"in_sentence": "In Deep Chand's case(') this Court was considerin7 the effect of repugnancy between a State Act and a Central Act."}}, {"text": "State Act and a Central Act", "label": "STATUTE", "start_char": 28282, "end_char": 28309, "source": "regex", "metadata": {}}, {"text": "Section 57", "label": "PROVISION", "start_char": 29150, "end_char": 29160, "source": "regex", "metadata": {"linked_statute_text": "State Act and a Central Act", "statute": "State Act and a Central Act"}}, {"text": "s. 57", "label": "PROVISION", "start_char": 29681, "end_char": 29686, "source": "regex", "metadata": {"linked_statute_text": "Admittedly the licence with which we are concerned in these cases was granted even before the Supply Act", "statute": "Admittedly the licence with which we are concerned in these cases was granted even before the Supply Act"}}, {"text": "s. 57(A)", "label": "PROVISION", "start_char": 30076, "end_char": 30084, "source": "regex", "metadata": {"linked_statute_text": "Admittedly the licence with which we are concerned in these cases was granted even before the Supply Act", "statute": "Admittedly the licence with which we are concerned in these cases was granted even before the Supply Act"}}, {"text": "Section 57(A)(2)(e)", "label": "PROVISION", "start_char": 31272, "end_char": 31291, "source": "regex", "metadata": {"linked_statute_text": "Correspondingly we fail to see why those who are served by licensees who obtained their licences prior to the amendment of the Supply Act", "statute": "Correspondingly we fail to see why those who are served by licensees who obtained their licences prior to the amendment of the Supply Act"}}, {"text": "s. 57", "label": "PROVISION", "start_char": 33027, "end_char": 33032, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57", "label": "PROVISION", "start_char": 33225, "end_char": 33230, "source": "regex", "metadata": {"statute": null}}, {"text": "September 25, 1958", "label": "DATE", "start_char": 33516, "end_char": 33534, "source": "ner", "metadata": {"in_sentence": "It may be noted that in that case the notice of enhancement of the charges was given on September 25, 1958."}}, {"text": "VI of the Supply Act", "label": "STATUTE", "start_char": 33753, "end_char": 33773, "source": "regex", "metadata": {}}, {"text": "Electricity Act", "label": "STATUTE", "start_char": 33941, "end_char": 33956, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ayyangar", "label": "JUDGE", "start_char": 34163, "end_char": 34171, "source": "ner", "metadata": {"in_sentence": "VI, Ayyangar, J. who spoke for the majority observed thus :\n\n\"Para I of Sch."}}, {"text": "Electricity Act", "label": "STATUTE", "start_char": 34964, "end_char": 34979, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Supply Act, 1948", "label": "STATUTE", "start_char": 35057, "end_char": 35073, "source": "regex", "metadata": {}}, {"text": "Electricity Act", "label": "STATUTE", "start_char": 35280, "end_char": 35295, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "[1964) 7 S.C.R. 503", "label": "CASE_CITATION", "start_char": 35423, "end_char": 35442, "source": "regex", "metadata": {}}]}
{"document_id": "1969_3_849_854_EN", "year": 1969, "text": "STATE OF PUNJAB & ORS.\n\nM/S. CHANDU LAL KISHORI LAL & ORS. ETC,\n\nFebruary 27, 1969\n\n[M. HIDAYATULLAH, C.J., V. RAMASWAMI AND G. K. MITTEll, JJ.J\n\nPunjab Sal\" Tax Act (Punj. 46 of 1948), s. 5(2)(a)(vi)-Deduction of Jale price of cotton seeds from purchase turnover if permissible.\n\n. The respondent a dealer purchased unginned cotton and after ginnmg the cotton and removing the seeds sold the ginned cotton to customers outside the State.\n\nThe respondent paid purchase tax on the purchase turnover. In respect of cotton seeds sold by it to registered dealers\n\nthe respondent claimed deduction from the purchase turnover under s'. 5(2) (a) (vi) of the Punjab Sales Tax Act, 1948. But the as\"\"\"ing autho,\n\nrity did not allow the deduction holding that the goods sold viz .. cotton seeds were not the goods in respect of whitjb purchase tax had been levied as the unginned cotton underwent a manufacturing process and the goods produced were different from those purchased.\n\nThe respondent filed a writ petition in the High Court, which was allowed and the State's Letters Patent Appeal was dismissed.\n\nAllowing the State's appeal, this Court;\n\nHELD: The respondent was not entitled to deduction under s. 5(2)\n\n(a) (vi) of tlle Act in respect of cotton seeds sold by it to registered dca1ers.\n\n\"Declared goods\" in s. 14 of the Central Sales Tax Act 1956 are individually specified undc'r separate items. \"Cotton ginned or unginned\" is treated as a single commodity under one item of declared goods.\n\nIt is evident that cotton ginned or unginned being treated as a single commodity and as a single spes of declared goods cannot be aubject under\n\n' 15(a) of the Central Sales Tax Act to a tax exceeding two per cent of the sale or purchase price thereof or at more than one state. But so far as cotton seeds are concerned it cannot be held that the sale of cotton seeds mu•! be treated as a sale of declared goods for the purpose of s.\n\nl S (a) or (b) of the Central Sales Tax Act, 1956. Cotton in ita unginoed\n\ntate contaim cotton seeds, but it is by a manufacturing process that the cotton and the seed are separated and it i• not correct to oav that the seed so separated is cotton itself or part of the cotton. They are two distinct commercial good• though before the manufacturing process the seeds mi£ht have been a part of the cotton itself. [853 E]\n\nPott/ Cotton Company Private Ltd. v. State of Punjab & Ors., 15 S.T.C. 865, disapproved.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 2516 to 2519 of 1966.\n\nAppeals from the onlers dated February 10, 1965, March 31, 1965 and March 19, 1965 of the Punjab High Court i!J Letters.\n\nPatent Appeals Nos. 38, 36, 100 and 74 of 1965, respectively and Civil Appeals Nos. 806 and 807 of 1967.\n\nAppeals from the judgments and. orders dated September 28.\n\nA 1964 of the Punjab High Court in Civil Writ Nos. 2159 and 2309 of 1963.\n\nV. D. Molzajan and R. N. Saclzthey, for the appellants (in all the appeals).\n\nHarder Singh, for the respondents (in C.As. Nos. 2517 \"1!ri 2519 of 1966) and for the respondents (in C.As. Nos. 806 and 807 of 1967).\n\nCivil Appeal No. 2518 of 1966\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J.\n\nIn this case the respondent is a partnership firm carrying on the business of buying and selling cotton and also of ginning and pressing cotton at Barnala. The respondent purchased unginned cotton and after ginning the cotton by a mechanical process and removing the seeds sold the ginned cotton to customers outside the State.\n\nFor th~ period from 1st April, 1961 to 31st March, 1962 the respondent paid purchase tax on the purchase turnover. In respect of cotton seeds sold by it to registered dealers, the respondent claimed deduction from the purchase turnover under s. 5(2)(a)(vi) of the Punjab Sales Tax Act, 1948 (Act No. 46 of 1948). But the assessing authority did not allow the deduction holding that the goods sold viz., cotton seeds were not the goods in respect of which purchase tax had been levied. In other words, the assessing authority took the stand that the unginned cotton underwent a manufacturing process and the goods produced were different from those purchased. So the respondent firm was assessed to pay a tax of Rs. 16,452 by the oq:ler of the assessing authority dated 11th September, 1963. The respondent firm thereafter filed a writ petition No. 1917 of 1963 in the Punjab High Court for quashing the assessment.\n\nThe writ petition was allowed by the High Court which quashed the assessment and . directed the assessing authority to re-detennine the tax in the light of its judgment. Jn allowing the writ petition of the respondent the High Court followed its previous decision in Patel Cotton Company Private Ltd. v. State of Punjab & Ors.( 1 ). The appellants preferred a Letters Patent Appeal which was dismissed. The present appeal is brought by certificate from the judgment of the\n\nPunjab High Court dated 31st March. 1965.\n\nIt is necessary at this stage to set out the relevant provisions of the Punjab Sales Tax Act. 1948 (Act No. 46 of 1948) (hereinafter called the Act). Section 2(ff) omitting immaterial portions defines 'purchase' thus :-\n\n0) 15 S.T.C. 865.\n\n\" 'Purchase' with all its grammatical or cognate expressions means the acquisition of_ goods specified in Schedule C .......... \"\n\nSchedule C Entry ( 1) and Entry ( 3) read thus :\n\n\" ( 1 ) Cotton, that is to say, all kinds of cotton (indigenous or imported) in its unmanufactured state whether gined or unginned, baled, pressed or otherwise, but not including cotton waste\".\n\n\"(3) Oil seeds, that is to say, seeds yieldmg nonvolatile oils used for human consumption or in industry, or in the manufacture of varnishes, soaps and the like or in lubrication and volatile oils used chiefly in medicines, perfumes, cosmatics and the like\".\n\nSection 5 ( 2 )(a)( vi) of the Act is to the following effect :\n\n\"5(2). In this Act the expression \"taxable turnover\" means that part of dealer's gross turnover during any period which remains after deducting therefrom\n\n(a) his turnover during that period on\n\n(vi) the purchase of goods which are sold not later than >Six months after the close of the year, to a Registered Dealer, or in the course of inter-State trade or commerce, or in the course of export out of the country\".\n\nSecti~ 2(c) of the Central Sales Tax Act, 1956 (Act No. 74 of 1956) defines 'declared goods' to mean goods declared under section 14 to be of special importance in inter-State trade or commerce.\n\nUnder section 14 of this Act certain goods were declared to be of special importance in inter-State trade or commerce and they included cotton, that is to say all kinds of cotton (indigenous or imported) in its unmanufactured state, whether or unginned, baled, processed or otherwise, but not includmg cotton waste. Section 15 of the-Central Sales Tax Act 1956 has been amended from time to time. Originally section 1'5 read as follows:-\n\n\" 15, Restrictions and conditions in regard to tax on sales or purchases of declared goods : Notwithstanding anything contained in the sales tax law of any State, the tax payable by any dealer under that law in respect H o~ ai:tY . sales or purchases of declared goods made by him ms.1de the State shall not exceed two per cent of the sale pnce theteof, and such tax shall not be levied at more than one stage in a State\"'. 11 Sup. C.I./69-5\n\nThis section was amended by the Central Sales Tax (Amendment) Act (No. 16 of 1957) and again by Central Act No. 31 of 1958 and the amended section reads as follows :-\n\n\"15. Restrictions and conditions in regard to tax on sale or purchase of declared goods within a State : Every sales tax law of a State shall, in so far as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions, namely :\n\n(a) the tax payable under that law in respect of any sale or purchase of such goods inside the State shall not exceed two per cent of the sale or purchase price thereof, and such tax shall not be levied at more than one stage;\n\n(b) where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter-State trade or commerce, the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be provided in any law in force in that State\".\n\nOn behalf of the appellants the argument was stressed that ginning process was a manufacturing process, and ginned cotton and cotton seeds were different commercial commodities and the respondent was not entitled to the exemption under s. 5(2)(a)\n\n(vi) of the Act. It was said that unginned cotton was transformed into two distinct commercial commodities and there was no substantial identity between unginned cotton and ginned cotton or cotton seeds. It was argued that the ginning process required complicated machinery of manufacture. Reference was made in this connection to the mechanical aspect of the ginning process described in Encyclopaedia Britannica, Vol. 6 :-\n\n\"Hand separation of lint and seed was replaced rapidly by use of saw-type gins n the United States after the inventions of Eli Whitney in 1794 and of Hokden Holmes in 1796. Whitney's gin was improved upon by Holmes who substituted toothed saws for the hooked cylinder and flat metal ribs for the slotted bar used by Whitney.\n\nThe saws, metal ribs and doffing brush in these early models persist in modern gins, with no basic change in ginning principle having been made, although some moucrn gins , uhstituk an air hlast for the doffing brushes.\n\nG •\n\nAdditional gin ffiachinery, has been developed . to keep pace with chainges in harvesting practices which have resulted in a trend from careful hand picking to rougher hand and machine harvesting. These developments include seed-cotton driers, seed-cotton cleaners, burr extractors, greenboll traps and magnetic devices for removing metal. Line cleaners, designed to remove trash from lint after it had been removed from the seed, were added to modem gins in the late 1940s and 1950s.\n\nImprovement in grade, which resulted in a higher price for the lint, was, W some cases, offset by th~ loss in weight.\n\nGin installations include presses for baling the lint and equipment for moving the seed away from the gin stands. While some of the seed is saved for planting purposes, most of it moves directly to an oil mill for processing\"(') .\n\nIn our opi, n:ion, the appellants are right in their contention that the ginning process is a manufacturing process. But the question presented for determination in the present case is somewhat diffe rent viz., whether the respondent is entitled to the exemption\n\ner s. 5(2)(a)(vi) of the Act in the context and setting of the language of sections 14 and 15 of the Central Sales Tax Act,\n\n1956. \"Declared goods\" in section 14 of the Central Sales Tax Act, 1956 are individually specified under separate items. \"Cotton ginned or unginned\" is treated as a single commodity under o; ie item of declared goods.\n\nIt is evident that cotton ginned or unginned being treated as a single commodity and as a siingle species of declared goods cannot be subject under s. 15(a) of the Central Sales Tax Act to a tax exceeding two per cent of the sale or pur chase price thereof or at more than one stage. But so far as cotton seeds are concerned, it is difficult to accept the contention that the sale of cotton seeds must be treated as a sale of declared goods for the purpose of s. 15(a) or (b) of the Central Sales Tax Act,\n\n1956. It is true that cotton in its unginned state contains cotton seeds. But it is by a manufacturing process that the cotton and the seed are separated alJd it is not correct to say that the seeds so separated is cotton itself or part of the cotton.\n\nThey are two distinct commercial goods though before the manufacturing pro cess the seeds might have been a part of the cotton itself. There is hence no warrant for the contention that cotton seed is not different from cotton. It follows that the res!l<¥ldent is not enti tied to deduct the sale price of the cotton seeds from the purchase turnover under s. 5(2)(a)(vi) of the Act. In our opinion, the assessing authority was right in holding that the respondent was not. entitled to deduction in respect of cotto.n seeds sold by it to registered dealers. It is conceded that the assessing authority had\n\n(1) Encyclopaedia Britannica, Vo!. 6, page 614.\n\nSUPREME C:lURT REPORTS [1969] 3 s.c.R.\n\nalready granted deduction under s. 5 (2) (a)(vi) so far as ginned A cotton is concerned.\n\nFor these reasons we hold that the judgment of the Punjab High Court dated 31st March, 1965 imJ Letters Patent Appeal No.\n\n100 of 1965 should be set aside and the writ petition No. 1917 of 1963 filed by the respondent should be dismissed. The appeal is accordingly allowed with costs.\n\nCivil Appeals Nos. 2516-2517 & 2519 of 1966 and Civil Appeals Nos. 806 and 801 of 1967\n\nThe question of Jaw arising in these appeals has been the subject matter of consideration in Civil Appeal No. 2518 of 1966.\n\nFor the reasons given in that judgmetnt we hold that these appeals also should be allowed and the judgments of the Punjab High Court should be set aside and the writ petitions filed by the respondents in each case should be dismissed.\n\nThese appeals are accordingly allowed with costs.\n\nThere will be one hearing fee for these appeals and for Civil Appeal No. 2518 of 1966.\n\nY.P.\n\nAppeals allowed.", "total_entities": 52, "entities": [{"text": "STATE OF PUNJAB & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "STATE OF PUNJAB & ORS", "offset_not_found": false}}, {"text": "M/S. CHANDU LAL KISHORI LAL & ORS. ETC", "label": "RESPONDENT", "start_char": 24, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "M/S. CHANDU LAL KISHORI LAL & ORS. ETC", "offset_not_found": false}}, {"text": "February 27, 1969", "label": "DATE", "start_char": 65, "end_char": 82, "source": "ner", "metadata": {"in_sentence": "ETC,\n\nFebruary 27, 1969\n\n[M. HIDAYATULLAH, C.J., V. RAMASWAMI AND G. K. MITTEll, JJ.J\n\nPunjab Sal\" Tax Act (Punj."}}, {"text": "M. HIDAYATULLAH, C.J.", "label": "JUDGE", "start_char": 85, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 108, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "s. 5(2)(a)(vi)", "label": "PROVISION", "start_char": 186, "end_char": 200, "source": "regex", "metadata": {"statute": null}}, {"text": "Punjab Sales Tax Act, 1948", "label": "STATUTE", "start_char": 651, "end_char": 677, "source": "regex", "metadata": {}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 1199, "end_char": 1206, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Sales Tax Act, 1948", "statute": "the Punjab Sales Tax Act, 1948"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 1311, "end_char": 1316, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Sales Tax Act, 1948", "statute": "the Punjab Sales Tax Act, 1948"}}, {"text": "Central Sales Tax Act 1956", "label": "STATUTE", "start_char": 1324, "end_char": 1350, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 1657, "end_char": 1678, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Central Sales Tax Act, 1956", "label": "STATUTE", "start_char": 1954, "end_char": 1981, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "V. D. Molzajan", "label": "LAWYER", "start_char": 2878, "end_char": 2892, "source": "ner", "metadata": {"in_sentence": "V. D. Molzajan and R. N. Saclzthey, for the appellants (in all the appeals)."}}, {"text": "R. N. Saclzthey", "label": "LAWYER", "start_char": 2897, "end_char": 2912, "source": "ner", "metadata": {"in_sentence": "V. D. Molzajan and R. N. Saclzthey, for the appellants (in all the appeals)."}}, {"text": "Harder Singh", "label": "LAWYER", "start_char": 2956, "end_char": 2968, "source": "ner", "metadata": {"in_sentence": "Harder Singh, for the respondents (in C.As."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 3167, "end_char": 3176, "source": "ner", "metadata": {"in_sentence": "2518 of 1966\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J.\n\nIn this case the respondent is a partnership firm carrying on the business of buying and selling cotton and also of ginning and pressing cotton at Barnala.", "canonical_name": "V. RAMASWAMI"}}, {"text": "Barnala", "label": "GPE", "start_char": 3329, "end_char": 3336, "source": "ner", "metadata": {"in_sentence": "2518 of 1966\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J.\n\nIn this case the respondent is a partnership firm carrying on the business of buying and selling cotton and also of ginning and pressing cotton at Barnala."}}, {"text": "1st April, 1961", "label": "DATE", "start_char": 3531, "end_char": 3546, "source": "ner", "metadata": {"in_sentence": "For th~ period from 1st April, 1961 to 31st March, 1962 the respondent paid purchase tax on the purchase turnover."}}, {"text": "31st March, 1962", "label": "DATE", "start_char": 3550, "end_char": 3566, "source": "ner", "metadata": {"in_sentence": "For th~ period from 1st April, 1961 to 31st March, 1962 the respondent paid purchase tax on the purchase turnover."}}, {"text": "s. 5(2)(a)(vi)", "label": "PROVISION", "start_char": 3753, "end_char": 3767, "source": "regex", "metadata": {"statute": null}}, {"text": "Punjab Sales Tax Act, 1948", "label": "STATUTE", "start_char": 3775, "end_char": 3801, "source": "regex", "metadata": {}}, {"text": "11th September, 1963", "label": "DATE", "start_char": 4280, "end_char": 4300, "source": "ner", "metadata": {"in_sentence": "16,452 by the oq:ler of the assessing authority dated 11th September, 1963."}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 4379, "end_char": 4396, "source": "ner", "metadata": {"in_sentence": "1917 of 1963 in the Punjab High Court for quashing the assessment."}}, {"text": "31st March. 1965", "label": "DATE", "start_char": 4925, "end_char": 4941, "source": "ner", "metadata": {"in_sentence": "The present appeal is brought by certificate from the judgment of the\n\nPunjab High Court dated 31st March."}}, {"text": "Section 2(ff)", "label": "PROVISION", "start_char": 5094, "end_char": 5107, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule C", "label": "PROVISION", "start_char": 5290, "end_char": 5300, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule C", "label": "PROVISION", "start_char": 5315, "end_char": 5325, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5", "label": "PROVISION", "start_char": 5820, "end_char": 5829, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act, 1956", "label": "STATUTE", "start_char": 6321, "end_char": 6348, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 14", "label": "PROVISION", "start_char": 6424, "end_char": 6434, "source": "regex", "metadata": {"linked_statute_text": "the Central Sales Tax Act, 1956", "statute": "the Central Sales Tax Act, 1956"}}, {"text": "section 14", "label": "PROVISION", "start_char": 6504, "end_char": 6514, "source": "regex", "metadata": {"linked_statute_text": "the Central Sales Tax Act, 1956", "statute": "the Central Sales Tax Act, 1956"}}, {"text": "Section 15", "label": "PROVISION", "start_char": 6814, "end_char": 6824, "source": "regex", "metadata": {"linked_statute_text": "the Central Sales Tax Act, 1956", "statute": "the Central Sales Tax Act, 1956"}}, {"text": "Central Sales Tax Act 1956", "label": "STATUTE", "start_char": 6832, "end_char": 6858, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 1", "label": "PROVISION", "start_char": 6906, "end_char": 6915, "source": "regex", "metadata": {"linked_statute_text": "Central Sales Tax Act 1956", "statute": "Central Sales Tax Act 1956"}}, {"text": "Central Sales Tax (Amendment) Act", "label": "STATUTE", "start_char": 7412, "end_char": 7445, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 5(2)(a)", "label": "PROVISION", "start_char": 8673, "end_char": 8683, "source": "regex", "metadata": {"statute": null}}, {"text": "United States", "label": "GPE", "start_char": 9196, "end_char": 9209, "source": "ner", "metadata": {"in_sentence": "6 :-\n\n\"Hand separation of lint and seed was replaced rapidly by use of saw-type gins n the United States after the inventions of Eli Whitney in 1794 and of Hokden Holmes in 1796."}}, {"text": "Eli Whitney", "label": "OTHER_PERSON", "start_char": 9234, "end_char": 9245, "source": "ner", "metadata": {"in_sentence": "6 :-\n\n\"Hand separation of lint and seed was replaced rapidly by use of saw-type gins n the United States after the inventions of Eli Whitney in 1794 and of Hokden Holmes in 1796."}}, {"text": "Hokden Holmes", "label": "OTHER_PERSON", "start_char": 9261, "end_char": 9274, "source": "ner", "metadata": {"in_sentence": "6 :-\n\n\"Hand separation of lint and seed was replaced rapidly by use of saw-type gins n the United States after the inventions of Eli Whitney in 1794 and of Hokden Holmes in 1796."}}, {"text": "Whitney", "label": "OTHER_PERSON", "start_char": 9284, "end_char": 9291, "source": "ner", "metadata": {"in_sentence": "Whitney's gin was improved upon by Holmes who substituted toothed saws for the hooked cylinder and flat metal ribs for the slotted bar used by Whitney."}}, {"text": "Holmes", "label": "OTHER_PERSON", "start_char": 9319, "end_char": 9325, "source": "ner", "metadata": {"in_sentence": "Whitney's gin was improved upon by Holmes who substituted toothed saws for the hooked cylinder and flat metal ribs for the slotted bar used by Whitney."}}, {"text": "s. 5(2)(a)(vi)", "label": "PROVISION", "start_char": 10767, "end_char": 10781, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 14 and 15", "label": "PROVISION", "start_char": 10839, "end_char": 10857, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 10865, "end_char": 10886, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 14", "label": "PROVISION", "start_char": 10915, "end_char": 10925, "source": "regex", "metadata": {"linked_statute_text": "the Central Sales Tax Act,\n\n1956", "statute": "the Central Sales Tax Act,\n\n1956"}}, {"text": "Central Sales Tax Act, 1956", "label": "STATUTE", "start_char": 10933, "end_char": 10960, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 15(a)", "label": "PROVISION", "start_char": 11256, "end_char": 11264, "source": "regex", "metadata": {"linked_statute_text": "the Central Sales Tax Act, 1956", "statute": "the Central Sales Tax Act, 1956"}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 11272, "end_char": 11293, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 15(a)", "label": "PROVISION", "start_char": 11568, "end_char": 11576, "source": "regex", "metadata": {"linked_statute_text": "the Central Sales Tax Act, 1956", "statute": "the Central Sales Tax Act, 1956"}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 11591, "end_char": 11612, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 5(2)(a)(vi)", "label": "PROVISION", "start_char": 12223, "end_char": 12237, "source": "regex", "metadata": {"linked_statute_text": "the Central Sales Tax Act,\n\n1956", "statute": "the Central Sales Tax Act,\n\n1956"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 12594, "end_char": 12598, "source": "regex", "metadata": {"linked_statute_text": "the Central Sales Tax Act,\n\n1956", "statute": "the Central Sales Tax Act,\n\n1956"}}]}
{"document_id": "1969_3_855_859_EN", "year": 1969, "text": "A JAi NARAIN\n\nKISHEN CHAND\n\nFebruary 27, 1969\n\n[M, H!DAYATULLAH, C.J., V. RAMASWAMI AND G. K. MITTER, JJ.]\n\nDelhi Rent Control Act 1958, s. 57(1), first provicope of.\n\nThe respondent lanO!ord filed a suit for eviction against the appellant under section 13(l)(k) of the Delhi and Ajmer Rent Control Act, !9j2, on the ground that the appellant had c, itused damage to the premises. The trial court ordered ejecl!nent in February, 1959, and the appellate auth<>- rity dismissed an appeal in November, 1959.\n\nThe Delhi Rent Control Act 1958 came into force in February, 1959. In a revision application before the High Court, the appellant invoked the provisions of the 1958 Act and relied upon section 14(1) (j) read with s. 57 of the new Act.\n\nThe High Coun, acting under section 14 (1 )(j) and sub.,.ection ( 10) of the same section gave the appellant the alternative to pay compensation for the damages caused. The landlord then filed an application for review of the High Court order pointing out that the new Act was not applicable to the c:jase in view of the first proviso of section 57 ( 2) . The High Coun granted the review and reversed its earlier orders.\n\nIn appeal to this Court it was contended on behalf of the appellant that by virtue of the first proviso of section 57(2) the High Court was bound to have regard to the provisions of the 1958 Act even in proceedings pending and governed by the 1952 Act.\n\nHELD : Dismissing the appeal,\n\nThe language of the first proviso to section 57(2) clearly shows that the proviso applies to those cases only in which ection 54 cannot be made applicable. The area in the present case is admittedly subjected to the Slum Areas (Improvement and Clearance) Act 1956, which is one of the. enactments mentioned in s. 54. Accordingly the terms of the proviso would have no application in this case. [857 G; 859 BJ\n\nThe High Coun had rightly held that the phrase \"to which section 54 does not apply\", _goyerns the word \"premises\" and is not connected with the words 'in any such suit or proceedings\".\n\n[858A-B]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No 389 of G 1966. .\n\nAppeal by special leave from the judgment and order dated arch 25, 1964 of the Punjab High Court Circuit Bench at Delhi m Review Application No. 23-D of 1963'.\n\nC. B. Agarwa/a, Uma Mehta, M. L. Kapur and K. K. Sinha, H for the appellant.\n\nII( fl C. Misr\", Hishamber [al and H. K. Puri, for the respon- (lent.\n\nThe Judgment of the Court was delivered by Hidayatullah, C.J., This is appeal by a tenant who had rented a shop No. 2687 in Kinari Bazar, Delhi from the respondent on Rs. 13.50 P per month. In those premises he was selling Usha sewing machines and fans. It appears that the level of te shop was too high from the road and his clients were troubled m going to his shop and so he lowered the level and thereby altered the premises to suit his convenience.\n\nThe landlord thereupon filed a suit against him for his eviction under s. 13(1)(k) of the Delhi and Ajmer Rent Control Act 1952. The suit was filed on November 13, 1957. The trial court ordered on February 19, 1959 ejectment and payment of Rs. 145/- as arrears of rent. An appeal against the order of the trial court was dismissed by the appellate authority on November 16, 1959.\n\nA revision application was then filed by the tenant on March 25, 1960. During the course of that revision he invoked the provisions of the Delhi Rent Control Act, 1956 which had come into force on February 9, 1959 and relied upon s. 14 (1) (j) of the new Act read withs. 57.\n\nPreviously he had not relied upon the new Act although the Act had been in force during the pendency of the previous proceedings. The High Court acting under s. 14(1)(j) and sub-s. (10) of the same section, gave him the alternative of paying compensation in the sum of Rs. 500 which it appears that the landlord hi.mself had assessed as the damages caused by the act of the tenant. The landlord later filed an application for review of the order and pointed out that the new Act was not applicable to the case in view of the first proviso of s. 57 sub. s. (2). The High Court thereupon granted the review and reversed its earlier order and ordered the eviction of the tenant.\n\nIn this appeal it is contended that the High Court was in error in passing the order on review and that the previous order was the correct order in the light of the provisions of the Act of\n\n1958. We have therefore to consider which of the two orders of the High Court is the correct order and whether the review was properly granted or not.\n\nAs is very frequent in our country, Rent Control Acts are changed from time to time causing numerous difficulties in their interpretation and application. Here too, we have a succession of Acts which were passed, to say nothing of the amendments which were made in the body of each of the Acts as they came.\n\nWe are concerned first with the Act of 1952, namely. The Delhi a11d Ajmer Rent Control Act, 1952.\n\nSection 13(1)(k) of that Act gave a right to the landlord to evict a tenant who, whether before or after the commencement of the Act had caused or permitted to be caused substantial damage to the premises, or notwithstanding previous notice. had used or dealt with the premises\n\nJAi NARAIN v. KISHEN CHAND (Hidayatu/lalr, C.J.) 8 57\n\nin a manner contrary to any condition imposed on the landlord by the Government or the Delhi Improvement Trust while giving him a lease of the land on which the premises were situated. We are not concerned with the latter part but with the first part where the tenant before or after the commencement of the Act had caused or permitted to be caused substantial damage to the premises. Whether the lowering of the floor was causing substantial damage to the premises is a question into which we need not go, because the concurrent finding of the courts of fact is that it did so.\n\nThis question was not raised before us.\n\nTherefore, if s. 13 (l)(k) of the Delhi and Ajmer Rent Control Act, 1952 applied, the eviction of the tenant was the proper order to make in view of the finding .that he had caused substantial damage to the premises. However, the matter comes to the Court because of the passing of the Delhi Rent Control Act, 1958 which came into force on February 9, 1959. Section 57(1) of that Act provided that the Delhi an&! Ajmer Rent Control Act, 1952 in so far as it was applicable to the Uniop. Territory of Delhi, was being repealed. While repealing it, a special saving was however made, by sub-s. (2) of the same section in favour of all suits and other proceedings which were then pending under the repealed Act and it was provided that those suits and proceedings should be cO.ntinued and disposed of in accordance with the provisions of the Act as if that Act had continued to be in force and the new Act had not been passed. This would have really been a very proper provision to make to separate the operation of the two Acts but the Legislature went still further and added two provisos.\n\nWe are ccmcerned only with the first of the two provisos on which much dispute has arisen in this case. That proviso reads as follows:\n\n\"Pro_vided that in any such suit or proceeding for the fixatmn of standard rent or for the eviction of a tenant from any premises to which section 54 does not apply, the court or other authority shall have regard to the provisions of this Act :\"\n\nThis proviso contains a proviso within itself which excepts the case. of preises to which s. 54 of the Act does not apply. That sectmn proVIdes as follows :\n\n\"Nothing in this Act shall affect the provisions of the Administration of Evacuee Property Act, 1950, or the Slum Aras (Improvement and Clearance) Act, 1956 or the Delhi Tenants (Temporary Protection) Act 1956.\" '\n\nThe ffect. of the proviso which we have quoted above is variously\n\ndscnbed by counsel on opposite sides. According to Mr. C. B.\n\nAgarwala who argued for the tenant, the ords \"to w_hich section 54 does not apply\" govern the words ' any such smt or proceeding\" and not the words \"any premises\".\n\nThe High Court in the order passed on review was of the opinion that these words governed the words \"any premises\". In our opinion, this is the correct view to take of the matter. ·\n\nTo begin with, it must be noticed that the proviso speaks of two things, namely, tlie fixation of standard rent and the eviction of a tenant from any premises. The wocds \"from any premises\" cannot be connected with the phrase \"for the fixation of standard rent'', because then the preposition would have been \"of any premises\" or \"for any premises\" and , not \"from any premises.\" This means that the first phrase has to be read as complete in itself beginning from the words \"for the fixation\" and ending with the words, \"standard rent\". The second phrase then reads\n\n\"or for the eviction of a tenant from any premises\".\n\nThe words \"from any premises\" go very clearly with the words \"eviction of a tenant\" and not with the words \"any suit or proceeding\".\n\nThe question then arises, where does the phrase \"to which s. 54 does not apply\" connect itself ?\n\nAccording to Mr. Agarwala that phrase must be connected with the words \"in any such s.uit or proceeding\".\n\nSince the suits contain two kinds of matters, namely, fixation of standard rent and eviction of a tenant from any premises, we have to turn to the provisions of the statutes to which s. 54 refers, namely, the Administration of Evacuee Property Act, 1950, the Slum Areas (Improvement and Clearance) Act, 1956 and the Delhi Tenants (Temporary Protection) Act,\n\n1956. The first two do not deal at all with the fixation of fair rent and the third speaks of fair rent, but it does not provide for its fixation. It would be pointless to use the language 'any suit or proceeding to which s. 54 does not apply' in relation to fixation of standard rent. It follows therefore that the phrase \"to which s. 54 does not apply\" really governs 'premises'.\n\nRead in that way, all the three Acts fall in lin_e, because they provide for premises and not for fixation of standard rent. The Administration of Evacuee Property Act. 1950, the Slum Areas (Improvement and Clearance) Act, 1956 and the Delhi '.fenants (Temporary Protection) Act, 1956 all deal with premises and property and therefore the phrase \"to which section 54 does not apply\" is connected with the words \"premises\".\n\nThat is the view which the High Court has taken and we think rightly. The proviso did not apply and the matter had to be governed by the old Delhi and Ajmer Rent Control Act, 1952 which had repealed.\n\nIt was contended before us that this legislation was intended to soften action against tenants still further and that the policy\n\nJAi NARAIN v. K!SHEN CHAND (Hidayatullah, C.J.) 8 59\n\nA of the law had been to give more and more protecti~ to the tenants and we must therefore read the statute in consonance with that policy.\n\nThiS would be an argument to consider if the language of the statute was not quite clear.\n\nBut the language is clear enough to show that the proviso applies only to those cases in which s. 54 cannot be made applicable. It is admitted before R us that thiS area is subjected to the Slum Areas (Improvement and Clearance) Act, 1956. If that is so, then, on the terms of the proviso on which much reliance is placed by Mr. Agarwala, the provisions of the Delhi Rent Control Act, 1958 cannot be taken into consideration. They are to be taken into consideration only in those cases to which the Acts mentioned in s. 54 do not apply, that is to say, in respect of premises not governed by those statutes.\n\nSince this shop iS governed by one of the statutes, the J:li'oviSo has no application. The High Court's' view was therefore right. In the circumstances, the appeal fails and will be dismissed with costs.\n\nR.K.P.S.\n\nAppeal dismissed.", "total_entities": 68, "entities": [{"text": "A JAi NARAIN", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "JAI NARAIN", "offset_not_found": false}}, {"text": "KISHEN CHAND", "label": "RESPONDENT", "start_char": 14, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "KISHEN CHAND", "offset_not_found": false}}, {"text": "February 27, 1969", "label": "DATE", "start_char": 28, "end_char": 45, "source": "ner", "metadata": {"in_sentence": "A JAi NARAIN\n\nKISHEN CHAND\n\nFebruary 27, 1969\n\n[M, H!DAYATULLAH, C.J., V. RAMASWAMI AND G. K. MITTER, JJ.]"}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 71, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "G. K. MITTER, JJ.", "label": "JUDGE", "start_char": 88, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER", "offset_not_found": false}}, {"text": "Delhi Rent Control Act 1958", "label": "STATUTE", "start_char": 108, "end_char": 135, "source": "regex", "metadata": {}}, {"text": "s. 57(1)", "label": "PROVISION", "start_char": 137, "end_char": 145, "source": "regex", "metadata": {"linked_statute_text": "Delhi Rent Control Act 1958", "statute": "Delhi Rent Control Act 1958"}}, {"text": "section 13(l)(k)", "label": "PROVISION", "start_char": 246, "end_char": 262, "source": "regex", "metadata": {"linked_statute_text": "Delhi Rent Control Act 1958", "statute": "Delhi Rent Control Act 1958"}}, {"text": "Delhi and Ajmer Rent Control Act", "label": "STATUTE", "start_char": 270, "end_char": 302, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Delhi Rent Control Act 1958", "label": "STATUTE", "start_char": 510, "end_char": 537, "source": "regex", "metadata": {}}, {"text": "section 14(1)", "label": "PROVISION", "start_char": 691, "end_char": 704, "source": "regex", "metadata": {"linked_statute_text": "The Delhi Rent Control Act 1958", "statute": "The Delhi Rent Control Act 1958"}}, {"text": "s. 57", "label": "PROVISION", "start_char": 719, "end_char": 724, "source": "regex", "metadata": {"linked_statute_text": "The Delhi Rent Control Act 1958", "statute": "The Delhi Rent Control Act 1958"}}, {"text": "section 14", "label": "PROVISION", "start_char": 770, "end_char": 780, "source": "regex", "metadata": {"linked_statute_text": "The Delhi Rent Control Act 1958", "statute": "The Delhi Rent Control Act 1958"}}, {"text": "section 57", "label": "PROVISION", "start_char": 1080, "end_char": 1090, "source": "regex", "metadata": {"linked_statute_text": "The Delhi Rent Control Act 1958", "statute": "The Delhi Rent Control Act 1958"}}, {"text": "section 57(2)", "label": "PROVISION", "start_char": 1272, "end_char": 1285, "source": "regex", "metadata": {"linked_statute_text": "The Delhi Rent Control Act 1958", "statute": "The Delhi Rent Control Act 1958"}}, {"text": "section 57(2)", "label": "PROVISION", "start_char": 1487, "end_char": 1500, "source": "regex", "metadata": {"linked_statute_text": "The Delhi Rent Control Act 1958", "statute": "The Delhi Rent Control Act 1958"}}, {"text": "Slum Areas (Improvement and Clearance) Act", "label": "STATUTE", "start_char": 1666, "end_char": 1708, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 54", "label": "PROVISION", "start_char": 1760, "end_char": 1765, "source": "regex", "metadata": {"statute": null}}, {"text": "section 54", "label": "PROVISION", "start_char": 1917, "end_char": 1927, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 2056, "end_char": 2084, "source": "ner", "metadata": {"in_sentence": "[858A-B]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No 389 of G 1966. ."}}, {"text": "Punjab High Court Circuit Bench at Delhi", "label": "COURT", "start_char": 2200, "end_char": 2240, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated arch 25, 1964 of the Punjab High Court Circuit Bench at Delhi m Review Application No."}}, {"text": "C. B. Agarwa", "label": "OTHER_PERSON", "start_char": 2282, "end_char": 2294, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwa/a, Uma Mehta, M. L. Kapur and K. K. Sinha, H for the appellant.", "canonical_name": "C. B.\n\nAgarwala"}}, {"text": "Uma Mehta", "label": "OTHER_PERSON", "start_char": 2298, "end_char": 2307, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwa/a, Uma Mehta, M. L. Kapur and K. K. Sinha, H for the appellant."}}, {"text": "M. L. Kapur", "label": "OTHER_PERSON", "start_char": 2309, "end_char": 2320, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwa/a, Uma Mehta, M. L. Kapur and K. K. Sinha, H for the appellant."}}, {"text": "K. K. Sinha", "label": "OTHER_PERSON", "start_char": 2325, "end_char": 2336, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwa/a, Uma Mehta, M. L. Kapur and K. K. Sinha, H for the appellant."}}, {"text": "H. K. Puri", "label": "LAWYER", "start_char": 2395, "end_char": 2405, "source": "ner", "metadata": {"in_sentence": "II( fl C. Misr\", Hishamber [al and H. K. Puri, for the respon- (lent."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 2474, "end_char": 2486, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Hidayatullah, C.J., This is appeal by a tenant who had rented a shop No.", "canonical_name": "M. HIDAYATULLAH*"}}, {"text": "Delhi", "label": "GPE", "start_char": 2569, "end_char": 2574, "source": "ner", "metadata": {"in_sentence": "2687 in Kinari Bazar, Delhi from the respondent on Rs."}}, {"text": "s. 13(1)(k)", "label": "PROVISION", "start_char": 2957, "end_char": 2968, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi and Ajmer Rent Control Act 1952", "label": "STATUTE", "start_char": 2976, "end_char": 3013, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "November 13, 1957", "label": "DATE", "start_char": 3037, "end_char": 3054, "source": "ner", "metadata": {"in_sentence": "The suit was filed on November 13, 1957."}}, {"text": "February 19, 1959", "label": "DATE", "start_char": 3083, "end_char": 3100, "source": "ner", "metadata": {"in_sentence": "The trial court ordered on February 19, 1959 ejectment and payment of Rs."}}, {"text": "November 16, 1959", "label": "DATE", "start_char": 3247, "end_char": 3264, "source": "ner", "metadata": {"in_sentence": "An appeal against the order of the trial court was dismissed by the appellate authority on November 16, 1959."}}, {"text": "March 25, 1960", "label": "DATE", "start_char": 3322, "end_char": 3336, "source": "ner", "metadata": {"in_sentence": "A revision application was then filed by the tenant on March 25, 1960."}}, {"text": "During the course of that revision he invoked the provisions of the Delhi Rent Control Act, 1956", "label": "STATUTE", "start_char": 3338, "end_char": 3434, "source": "regex", "metadata": {}}, {"text": "February 9, 1959", "label": "DATE", "start_char": 3464, "end_char": 3480, "source": "ner", "metadata": {"in_sentence": "During the course of that revision he invoked the provisions of the Delhi Rent Control Act, 1956 which had come into force on February 9, 1959 and relied upon s. 14 (1) (j) of the new Act read withs."}}, {"text": "s. 14", "label": "PROVISION", "start_char": 3497, "end_char": 3502, "source": "regex", "metadata": {"linked_statute_text": "During the course of that revision he invoked the provisions of the Delhi Rent Control Act, 1956", "statute": "During the course of that revision he invoked the provisions of the Delhi Rent Control Act, 1956"}}, {"text": "Previously he had not relied upon the new Act although the Act", "label": "STATUTE", "start_char": 3543, "end_char": 3605, "source": "regex", "metadata": {}}, {"text": "s. 14(1)(j)", "label": "PROVISION", "start_char": 3701, "end_char": 3712, "source": "regex", "metadata": {"linked_statute_text": "Previously he had not relied upon the new Act although the Act", "statute": "Previously he had not relied upon the new Act although the Act"}}, {"text": "s. 57", "label": "PROVISION", "start_char": 4085, "end_char": 4090, "source": "regex", "metadata": {"linked_statute_text": "Previously he had not relied upon the new Act although the Act", "statute": "Previously he had not relied upon the new Act although the Act"}}, {"text": "Rent Control Act", "label": "STATUTE", "start_char": 4599, "end_char": 4615, "source": "regex", "metadata": {}}, {"text": "Ajmer Rent Control Act, 1952", "label": "STATUTE", "start_char": 4940, "end_char": 4968, "source": "regex", "metadata": {}}, {"text": "Section 13(1)(k)", "label": "PROVISION", "start_char": 4971, "end_char": 4987, "source": "regex", "metadata": {"linked_statute_text": "Ajmer Rent Control Act, 1952", "statute": "Ajmer Rent Control Act, 1952"}}, {"text": "Delhi Improvement Trust", "label": "ORG", "start_char": 5392, "end_char": 5415, "source": "ner", "metadata": {"in_sentence": "had used or dealt with the premises\n\nJAi NARAIN v. KISHEN CHAND (Hidayatu/lalr, C.J.) 8 57\n\nin a manner contrary to any condition imposed on the landlord by the Government or the Delhi Improvement Trust while giving him a lease of the land on which the premises were situated."}}, {"text": "s. 13", "label": "PROVISION", "start_char": 5940, "end_char": 5945, "source": "regex", "metadata": {"linked_statute_text": "Ajmer Rent Control Act, 1952", "statute": "Ajmer Rent Control Act, 1952"}}, {"text": "Delhi and Ajmer Rent Control Act, 1952", "label": "STATUTE", "start_char": 5960, "end_char": 5998, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Court because of the passing of the Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 6176, "end_char": 6240, "source": "regex", "metadata": {}}, {"text": "Section 57(1)", "label": "PROVISION", "start_char": 6284, "end_char": 6297, "source": "regex", "metadata": {"linked_statute_text": "the Court because of the passing of the Delhi Rent Control Act, 1958", "statute": "the Court because of the passing of the Delhi Rent Control Act, 1958"}}, {"text": "Ajmer Rent Control Act, 1952", "label": "STATUTE", "start_char": 6339, "end_char": 6367, "source": "regex", "metadata": {}}, {"text": "section 54", "label": "PROVISION", "start_char": 7291, "end_char": 7301, "source": "regex", "metadata": {"linked_statute_text": "Ajmer Rent Control Act, 1952", "statute": "Ajmer Rent Control Act, 1952"}}, {"text": "s. 54", "label": "PROVISION", "start_char": 7489, "end_char": 7494, "source": "regex", "metadata": {"statute": null}}, {"text": "Nothing in this Act shall affect the provisions of the Administration of Evacuee Property Act, 1950", "label": "STATUTE", "start_char": 7558, "end_char": 7657, "source": "regex", "metadata": {}}, {"text": "C. B.\n\nAgarwala", "label": "OTHER_PERSON", "start_char": 7894, "end_char": 7909, "source": "ner", "metadata": {"in_sentence": "According to Mr. C. B.\n\nAgarwala who argued for the tenant, the ords \"to w_hich section 54 does not apply\" govern the words ' any such smt or proceeding\" and not the words \"any premises\".", "canonical_name": "C. B.\n\nAgarwala"}}, {"text": "section 54", "label": "PROVISION", "start_char": 7957, "end_char": 7967, "source": "regex", "metadata": {"linked_statute_text": "Nothing in this Act shall affect the provisions of the Administration of Evacuee Property Act, 1950", "statute": "Nothing in this Act shall affect the provisions of the Administration of Evacuee Property Act, 1950"}}, {"text": "s. 54", "label": "PROVISION", "start_char": 9063, "end_char": 9068, "source": "regex", "metadata": {"statute": null}}, {"text": "Agarwala", "label": "OTHER_PERSON", "start_char": 9120, "end_char": 9128, "source": "ner", "metadata": {"in_sentence": "According to Mr. Agarwala that phrase must be connected with the words \"in any such s.uit or proceeding\"."}}, {"text": "s. 54", "label": "PROVISION", "start_char": 9393, "end_char": 9398, "source": "regex", "metadata": {"statute": null}}, {"text": "Administration of Evacuee Property Act, 1950", "label": "STATUTE", "start_char": 9419, "end_char": 9463, "source": "regex", "metadata": {}}, {"text": "Slum Areas (Improvement and Clearance) Act, 1956", "label": "STATUTE", "start_char": 9469, "end_char": 9517, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 54", "label": "PROVISION", "start_char": 9791, "end_char": 9796, "source": "regex", "metadata": {"linked_statute_text": "the Administration of Evacuee Property Act, 1950", "statute": "the Administration of Evacuee Property Act, 1950"}}, {"text": "s. 54", "label": "PROVISION", "start_char": 9902, "end_char": 9907, "source": "regex", "metadata": {"linked_statute_text": "the Administration of Evacuee Property Act, 1950", "statute": "the Administration of Evacuee Property Act, 1950"}}, {"text": "Slum Areas (Improvement and Clearance) Act, 1956", "label": "STATUTE", "start_char": 10131, "end_char": 10179, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 54", "label": "PROVISION", "start_char": 10308, "end_char": 10318, "source": "regex", "metadata": {"linked_statute_text": "the Administration of Evacuee Property Act, 1950", "statute": "the Administration of Evacuee Property Act, 1950"}}, {"text": "Delhi and Ajmer Rent Control Act, 1952", "label": "STATUTE", "start_char": 10517, "end_char": 10555, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 54", "label": "PROVISION", "start_char": 11088, "end_char": 11093, "source": "regex", "metadata": {"linked_statute_text": "The proviso did not apply and the matter had to be governed by the old Delhi and Ajmer Rent Control Act, 1952", "statute": "The proviso did not apply and the matter had to be governed by the old Delhi and Ajmer Rent Control Act, 1952"}}, {"text": "Slum Areas (Improvement and Clearance) Act, 1956", "label": "STATUTE", "start_char": 11183, "end_char": 11231, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 11354, "end_char": 11382, "source": "regex", "metadata": {}}, {"text": "s. 54", "label": "PROVISION", "start_char": 11510, "end_char": 11515, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}]}
{"document_id": "1969_3_860_864_EN", "year": 1969, "text": "COMMISSIONER OF INCOME-TAX, BIHAR v.\n\nRAMNIKLAL KOTHARI\n\nMarch 1, 1969\n\n[J. C. SHAH AND ~- N. GROVER, JJ.]\n\nIncome-tax Act (11 of 1922), s.r. 10(1) & (2), J6(1)(b) and 23(5)\n\n(a) (ii) Partnership carrying on business-Partner's lvhere determined- Partner if further entitled to deductions under s. 10(2).\n\nThe respondent was carrying on business in diverse lines as a partner in four different firms.\n\nFor the assessment years 1955-56 and 1956-57 he declared his share df pmfits from the four firms and claimed deductions made up of saJarv and bonus to staff. expense$ for maintenance and depreciation of motor-car, traveJiing expenses and interest.\n\nThe Incbmetax Officer and the Appellate Assistant Commissioner allowed only the claim for interest as a permissible deduction. The Tribunal set aside the orders and remanded the cases for the two years for an examination of the nature of expenditure claimed to have been incurred by the respon~ dent. as, in its view, deductions admissible under s. 10(2) of the Incometax Act, 1922 were allowable in computing the taxable income of the respondent.\n\nOn the question, whether expenses incurred by the respondent (who was not carrying on any independent business of his own), in\n\ncarnin~ income from the various firms in which he wa~ a partner, were allowable in law as deductions, the High Court held in favour of the 'respondent.\n\nTn appeal to this Court,\n\nHELD: Section 23 (5)(a)(ii) of the Income-tax Act, 1922 provides that the share of the partner in the profits and gains of a registered firm shall be included in the total income of the partner. The share so received by the partner is 'profits and gains of business' earned on by him and is on that account liable to be computed under s. 10. The receipt being business income for the ourpose of s. 10(1) expenditure necessary for the purpose of earning that income and allowances appropriate under s. 10(2) are deductible therefrom in determining the taxable income of the partner.\n\nThe facts that in computing the total profits of the partnership allowances admissible to the pcrtnership in the computation of its profits and gains were taken into acbount, in the manner provided by s. 10, or that s. 16(1) (b) reauires that salary, i.nterest, commission or othe'r remuneration payable by the firm besides the share in the balance of profit is to be taken into account, do not imply that in determining the taxable income of the partner, expenditure incurred by the partner in earning the profits.\n\nsalary, interest, commission or other remuneration is not to be allowed.\n\n[862 C-H]\n\nShantikumar Narnttam Morarji v.\n\nCommissioner of Income-tax, Bombay Citv, 27 I.T.R. 69 . .Titmal Bhurama/ v. Commissioner of Incometax, Bihar & Orl<ro. 37 J.T.R. 528 and Basantlal Gupta v. Commissioner of Income-tax, Madras, 50 I.T.R. 541, approved.\n\nM/1. !JWardas Subhkaran v. Commf.r•ioner of lncom•-tax West Bengal, Jncome-tax Reference No. 38 of 1952 dated June 2. 1953, of the Calcutta Hih Court, disapproved.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 575\n\nand 576 of 1966.\n\nAppeals by special leave from the judgment and order dated October 5, 1963 of the Patna High Court in Misc. Judicial Cases Nos. 1274 and 1275 of I 960.\n\nD. Narasaraju, S. K. Aiyar, R. N. Sachthey and B. D. Sharma, for the appellants (in both the appeals).\n\nM. C. Chagla and U. P. Singh, for the respondent (in both the appeals).\n\nThe Judgment of the Court was delivered by\n\nShah, J. The respondent Ramniklal Kothari carried on business in diverse lines as a partner in four different firms.\n\nHe received from time to time income from the different registered firms as his share of profits.\n\nFor the assessment year I 955-56 the respondent declared his share of profits from the four firms at Rs. 77,027 /- and he claimed an allowance of Rs. 13,283/- being payment of salary and bonus to staff, expenses for maintenance and depreciation of motor-car, travelling expenses and interest. The Income-tax Officer, Hazaribagh, allowed the claim for interest as a permissible deduction and disallowed the rest. In the view of the Income-tax Officer since the respondent did not carry on any independent business, the amount, except interest, were not claimable by the respondent on_ his own account; if at all, the amounts should have been claimed as business expenses incurred in the accounts of the four firms.\n\nFor the assessment year 1956-57 the respondent declared Rs. 53 ,540 as his share of the profits in the four firms and claimed an aggregate amount of Rs. 19,380 as admissible deduction on various grounds including Rs. I ,956 as interest paid by him. The Income-tax Officer allowed the claim for interest and disallowed the rest of the claim.\n\nThe Appellate Assistant Commissioner confirmed the orders of the Income-tax Office•.\n\nBut the Income-tax Appellate Tribunal set . aside the orders passed by the Income-tax Officer and remanded the cases for examination of the nature of expenditure claimed tci have been incurred by the respondent.\n\nIn the view of the Tribunal share of the profits received by the respondent from the firms was taxable as business income and approprite deductions admissible under s. I 0(2) of the Incoe-tax Act 1922 were allowable in computing the taxable income of the 'respon'. dent.\n\nThe Tribunal then referred the following question in the two cases to the High Court of Patna for opinion under s. 66(1) of the Indian Income-tax Act, 1922 :\n\n\"Whether the expenses incurred by the assessee (who was not carrying on any independent business of his own), in earning income from various firms in which he was a partner, are allowable in law as deductions?\"\n\nThe High Court of Patna answered the reference in favour _of the respondent.\n\nWith special leave granted by this Court, these two appeals have been preferred by the Commissioner of Incometax.\n\nWhere a person carries on business by himself or in partnership with others, profits and gains earned by him are income liable to be taxed under s. JO of the Indian Income-tax Act, 1922.\n\nShare in. the profits of a partnership received by a partner is \"profits and gains of business\" carried on by him and is on that account liable to be computed under s. 10, and it is a matter of no moment that the total profits ol the pannership were computed in the manner provided by s. 10 of the Income-tax Act and allowances admissible to the partnership in the computation of the profits and gains were taken into account.\n\nIncome of the partnership carryin, g on business is computed as business income.\n\nThe share of the partner in the taxable profits of the 1egistered firms liable to be included under s. 23(5)(a)(ii) in his total income is still received as income from business carried on by him.\n\nCounsel for the Commissioner accepted, and in our judgment counsel was right in so doing, that the share of the respondent from the profits of the firm was income from business carried on by the partner. Business carried on by a firm is business carried on by the partners. Profits of the firm are profits earned by all the partners in carrying on the business. In the individual assessment of the partner, his share from the firm's business is liable to be taken into account under s. 10(1).\n\nBeing income from business, allowances appropriate under s. 10(2) are admissible before the taxable income is determined.\n\nSection 23(5)(a)(ii) provides that the share of the partner in the profits and gains of a registered firm shall be included in the total income of the partner; and s. 16(1)(b)· requires that salary, interest, commission or other remuneration payable by the firm beside the share in the balance of profits is to be taken into account in determining the total income.\n\nBut it is not thereby implied that expenditure properly allowable in earning the profits, salary, interest, commission or other remuneration is not to be allowed in determining the taxable total income of the partner.\n\nThe receipt by the partner is business income for the purpose of\n\ns. 10(1), and being business income, expenditure necessary for the purpose of earning that income and appropriate .allowances are deductible therefrom in determining the taxable income of the partner.\n\nThe legal principles which we have endeavoured to set out are well settled by several decisions. In ShanJikumar Narottam J.!o rarji v. Commissioner of Income-tax, Bombay City(') the Htgh Court of Bombay held that it is not correct as a general legal proposition that a partner in a registered firm is not entitled to claim any deduction against the share of the profits included in his total income, the share having been arrived at on the assessment of the firm with regard to its profits.\n\nIt would be open to the partner to claim a .deduction provided he satisfies the taxing\n\na..uthority that such deduction represents necessary expenditure, the expenditure being incurred in order to enable him to earn the profits which are being subjected to tax.\n\nIn Basantlal Gupta v. Commissioner of Income-tax, Madras(') the High Court of Madras held that in determining the income of an assessee who is a partner, deduction under s. 10(2) of the Income-tax Act may be made from his share of income in the firm even after the share has been ascertained.\n\nAn allowance under s. 10(2) will be permissible in proper cases even after the share has been ascertained if the expenditure sought to be deducted was incurred by the partner solely and exclusively for the purpose of earning his share in the income of the firm.\n\nIn a case decided by the High Court of Patna in litmal Bhuramal v. Commissioner of Income-tax, Bihar & Orissa(') a Hindu undivided family which was a partner in a firm claimed that the salary paid to its members for attending to the business of the firm was incurred as a matter of commercial expediency and for the purpose of earning profits from the partnership business. Tue Court held that in the assessment of the Hindu undivided family the expenditure would be properly claimed as an allowance under s. 10(2) (xv) of. the Indian Income-tax Act, 1922.\n\nJitmal Bhuramars case( 8 ) was brought i:n appeal to this Court: see Jitmal Bhuramal v.\n\nCommisioner of Income-tax, Bihar & Orissa('). It was observed by this Court that a Hindu undivided family will be owed t<;> deduct salary paid to members of the family, if the\n\npyment 1S made 3;8 a matter of commercial or business expediency, but the service rendered must be to the family in relation to the business of the family.\n\nCounsel for t!ie Commissioner relied upon an unreported 1udgment of the High Court of Calcutta in Messrs. Iswardas Subh-\n\n(1) 27 l.T.R. 69.\n\n(3) 371.T.R. 528~\n\n(2) 50 l.T.R. 541.\n\n(4) 44 I.T.R. 887. (S.C.)\n\nkaran v. Commissioner of Income-tax, West Bengal('). In that case a Hindu undivided family entered into a partnership agree- ' ment with third parties for the purpose of carrying. on a rice mill business.\n\nIt .was not possible for any of the members of the family to attend personally to that business and, therefore, the family employed a Munim to look after its interest. Salary paid to the Munim was claimed as an allowance in determining the taxable income out. o.f the share of the partnership income. Chakravartti, C.J., delivering the judgment of the Coun was of the opinion that since the Munim did not look after the interest of the assessee in the firm's business, but only as a servant of the assessee, the amount paid to the Munirn was not an allowance admissible in determining the taxable income.\n\nIn any event, observed the learned Chief Justice, the profits which have come to the assessee from the partnership have come as net profits, and after they have so come, there cannot be any futther deduction on account of expenditure incurred not by the partnership but by the partner who received the share or incurred on any account whatsoever.\n\nWe are unable to agree with the view expressed by the learned Chief Justice. The case was apparently not fully argued and counsel for the assessee conceded. that the amount paid to the Munim was not a permissible deduction in assessing the taxable income of the family out of the share of the profits received from\n\nthe firm.\n\nThe appeals fail and are dismissed with costs.\n\nOne hearing fee.\n\nV.P.S.\n\nAppeals dismissed.\n\n-{\\) lncomc Tax Reference No. 38 of 1952 decided on lune, 2, 1953.", "total_entities": 53, "entities": [{"text": "COMMISSIONER OF INCOME-TAX, BIHAR", "label": "PETITIONER", "start_char": 0, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, BIHAR", "offset_not_found": false}}, {"text": "RAMNIKLAL KOTHARI", "label": "RESPONDENT", "start_char": 38, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "RAMNIKLAL KOTHARI", "offset_not_found": false}}, {"text": "March 1, 1969", "label": "DATE", "start_char": 57, "end_char": 70, "source": "ner", "metadata": {"in_sentence": "COMMISSIONER OF INCOME-TAX, BIHAR v.\n\nRAMNIKLAL KOTHARI\n\nMarch 1, 1969\n\n[J. C. SHAH AND ~- N. GROVER, JJ.]"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 76, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "N. GROVER, JJ.", "label": "JUDGE", "start_char": 91, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 108, "end_char": 122, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 294, "end_char": 302, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 996, "end_char": 1004, "source": "regex", "metadata": {"statute": null}}, {"text": "Incometax Act, 1922", "label": "STATUTE", "start_char": 1012, "end_char": 1031, "source": "regex", "metadata": {}}, {"text": "Section 23", "label": "PROVISION", "start_char": 1412, "end_char": 1422, "source": "regex", "metadata": {"linked_statute_text": "the Incometax Act, 1922", "statute": "the Incometax Act, 1922"}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 1441, "end_char": 1461, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 10", "label": "PROVISION", "start_char": 1741, "end_char": 1746, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 1801, "end_char": 1809, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 1904, "end_char": 1912, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "s. 10", "label": "PROVISION", "start_char": 2190, "end_char": 2195, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 2205, "end_char": 2213, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 3007, "end_char": 3035, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeals Nos."}}, {"text": "D. Narasaraju", "label": "OTHER_PERSON", "start_char": 3233, "end_char": 3246, "source": "ner", "metadata": {"in_sentence": "D. Narasaraju, S. K. Aiyar, R. N. Sachthey and B. D. Sharma, for the appellants (in both the appeals)."}}, {"text": "S. K. Aiyar", "label": "OTHER_PERSON", "start_char": 3248, "end_char": 3259, "source": "ner", "metadata": {"in_sentence": "D. Narasaraju, S. K. Aiyar, R. N. Sachthey and B. D. Sharma, for the appellants (in both the appeals)."}}, {"text": "R. N. Sachthey", "label": "OTHER_PERSON", "start_char": 3261, "end_char": 3275, "source": "ner", "metadata": {"in_sentence": "D. Narasaraju, S. K. Aiyar, R. N. Sachthey and B. D. Sharma, for the appellants (in both the appeals)."}}, {"text": "B. D. Sharma", "label": "OTHER_PERSON", "start_char": 3280, "end_char": 3292, "source": "ner", "metadata": {"in_sentence": "D. Narasaraju, S. K. Aiyar, R. N. Sachthey and B. D. Sharma, for the appellants (in both the appeals)."}}, {"text": "M. C. Chagla", "label": "OTHER_PERSON", "start_char": 3337, "end_char": 3349, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla and U. P. Singh, for the respondent (in both the appeals)."}}, {"text": "U. P. Singh", "label": "LAWYER", "start_char": 3354, "end_char": 3365, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla and U. P. Singh, for the respondent (in both the appeals)."}}, {"text": "Shah", "label": "JUDGE", "start_char": 3454, "end_char": 3458, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J. The respondent Ramniklal Kothari carried on business in diverse lines as a partner in four different firms."}}, {"text": "Ramniklal Kothari", "label": "RESPONDENT", "start_char": 3478, "end_char": 3495, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J. The respondent Ramniklal Kothari carried on business in diverse lines as a partner in four different firms.", "canonical_name": "RAMNIKLAL KOTHARI"}}, {"text": "Hazaribagh", "label": "GPE", "start_char": 3988, "end_char": 3998, "source": "ner", "metadata": {"in_sentence": "The Income-tax Officer, Hazaribagh, allowed the claim for interest as a permissible deduction and disallowed the rest."}}, {"text": "Incoe-tax Act 1922", "label": "STATUTE", "start_char": 5209, "end_char": 5227, "source": "regex", "metadata": {}}, {"text": "High Court of Patna", "label": "COURT", "start_char": 5373, "end_char": 5392, "source": "ner", "metadata": {"in_sentence": "The Tribunal then referred the following question in the two cases to the High Court of Patna for opinion under s. 66(1) of the Indian Income-tax Act, 1922 :\n\n\"Whether the expenses incurred by the assessee (who was not carrying on any independent business of his own), in earning income from various firms in which he was a partner, are allowable in law as deductions?\""}}, {"text": "s. 66(1)", "label": "PROVISION", "start_char": 5411, "end_char": 5419, "source": "regex", "metadata": {"linked_statute_text": "the Incoe-tax Act 1922", "statute": "the Incoe-tax Act 1922"}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 5427, "end_char": 5454, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "JO of the Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 6011, "end_char": 6048, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 10", "label": "PROVISION", "start_char": 6216, "end_char": 6221, "source": "regex", "metadata": {"linked_statute_text": "JO of the Indian Income-tax Act, 1922", "statute": "JO of the Indian Income-tax Act, 1922"}}, {"text": "s. 10", "label": "PROVISION", "start_char": 6336, "end_char": 6341, "source": "regex", "metadata": {"linked_statute_text": "JO of the Indian Income-tax Act, 1922", "statute": "JO of the Indian Income-tax Act, 1922"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 6349, "end_char": 6363, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 23(5)(a)(ii)", "label": "PROVISION", "start_char": 6661, "end_char": 6676, "source": "regex", "metadata": {"linked_statute_text": "JO of the Indian Income-tax Act, 1922", "statute": "JO of the Indian Income-tax Act, 1922"}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 7242, "end_char": 7250, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 7310, "end_char": 7318, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23(5)(a)(ii)", "label": "PROVISION", "start_char": 7376, "end_char": 7396, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(1)(b)", "label": "PROVISION", "start_char": 7540, "end_char": 7551, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 8028, "end_char": 8036, "source": "regex", "metadata": {"statute": null}}, {"text": "Htgh Court of Bombay", "label": "COURT", "start_char": 8412, "end_char": 8432, "source": "ner", "metadata": {"in_sentence": "In ShanJikumar Narottam J.!o rarji v. Commissioner of Income-tax, Bombay City(') the Htgh Court of Bombay held that it is not correct as a general legal proposition that a partner in a registered firm is not entitled to claim any deduction against the share of the profits included in his total income, the share having been arrived at on the assessment of the firm with regard to its profits."}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 9049, "end_char": 9069, "source": "ner", "metadata": {"in_sentence": "In Basantlal Gupta v. Commissioner of Income-tax, Madras(') the High Court of Madras held that in determining the income of an assessee who is a partner, deduction under s. 10(2) of the Income-tax Act may be made from his share of income in the firm even after the share has been ascertained."}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 9155, "end_char": 9163, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 9171, "end_char": 9185, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 9298, "end_char": 9306, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 10048, "end_char": 10056, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 10070, "end_char": 10097, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Jitmal Bhuramars", "label": "OTHER_PERSON", "start_char": 10100, "end_char": 10116, "source": "ner", "metadata": {"in_sentence": "Jitmal Bhuramars case( 8 ) was brought i:n appeal to this Court: see Jitmal Bhuramal v.\n\nCommisioner of Income-tax, Bihar & Orissa(')."}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 10595, "end_char": 10617, "source": "ner", "metadata": {"in_sentence": "Counsel for t!ie Commissioner relied upon an unreported 1udgment of the High Court of Calcutta in Messrs. Iswardas Subh-\n\n(1) 27 l.T.R. 69."}}, {"text": "Iswardas Subh-", "label": "OTHER_PERSON", "start_char": 10629, "end_char": 10643, "source": "ner", "metadata": {"in_sentence": "Counsel for t!ie Commissioner relied upon an unreported 1udgment of the High Court of Calcutta in Messrs. Iswardas Subh-\n\n(1) 27 l.T.R. 69."}}, {"text": "Chakravartti", "label": "JUDGE", "start_char": 11237, "end_char": 11249, "source": "ner", "metadata": {"in_sentence": "Chakravartti, C.J., delivering the judgment of the Coun was of the opinion that since the Munim did not look after the interest of the assessee in the firm's business, but only as a servant of the assessee, the amount paid to the Munirn was not an allowance admissible in determining the taxable income."}}, {"text": "Munim", "label": "OTHER_PERSON", "start_char": 12075, "end_char": 12080, "source": "ner", "metadata": {"in_sentence": "that the amount paid to the Munim was not a permissible deduction in assessing the taxable income of the family out of the share of the profits received from\n\nthe firm."}}, {"text": "lune, 2, 1953", "label": "DATE", "start_char": 12363, "end_char": 12376, "source": "ner", "metadata": {"in_sentence": "38 of 1952 decided on lune, 2, 1953."}}]}
{"document_id": "1969_3_865_874_EN", "year": 1969, "text": "WESTERN U.P. ELECTRIC POWER & SUPPLY\n\nCOMPANY LTD.\n\nSTATE OF U.P. & ANR.\n\nMarch 7, 1969\n\n(J. C. SHAH AND V. RAMASWA, MI, JJ.)\n\nIndian Electricity Act 9 of 1910 as amended by the Indian Electricity (Uttar Pradesh Sanshodhan) Adhiniyam 1961, ss. 3(1) and 3(2)(e)(ii)- Constitution of India Arts. 14 and 31(1) and (ZA)-Licencee under s. 3 ( 1) of Electricity Act supplying electricity in certain area--State Gov- C ernment ordering under s. 3(2)(e) (ii) that energy be supplied lo a factory in the said area directly by Electricity Board-Whether discrimination results-'Public interest'., in s. 3 (2) (e) (U)-SatLrfaction under sec .. tion whether subjective-Order of direct supply by Board whether compulsory acquisition of licencee's property without compensation-Natural justice, whether satisfied.\n\nThe appellant held a licence under s. 3(1) of the Indian Electricity Act, 1910 to supply electricity in certain areas in the State of U.P. The 3rd respondent was a factory manufacturing electrical equipment in the appellant's area of supply, and was redeiving energy from the appellant.\n\nThe 3rd respondent made complaints to the State Government that the supply of electrical energy by the appellant was inadequate and fluctuating. There was no improvement in the supply even a'fter discussions between the parties. Thereafter at the request of the 3rd respondent the State Government by order dated December 26, 1961 under s. 3(2)(e) (ii) of the Indian Electricity Act, 1910 as •mended by the Indian Electricity\n\n(Uttar Pradesh SanshO'dhan) Adhiniy•m, 1961 directed the State Electricity Board to supply electrical energy directly to the 3rd respondent. The appellant made representations to the Gove'rnment against the order but these were rejected. The appellant then filed a writ petition in the High Court which was dismissed by a Single Judge. A Letters Patent Appeal against the decision was also dismissed although the High Court allowed the appellant to raise an additional plea based on Art. 14 of the Constitution without allowing further evidence to be given for that purpose. In this Court, in , appeal against the High Court's order it was contended :\n\n(i) That owing to the different rates at which electricity was supplied by the State Government, there was discrimination, (a) between the 3rd respondent and other consumers, and (b) between the 3rd respondent and the appellant; (ii) That the impugned order of the State Government was not made in the public interest within the meaning of s. 3(2)(e)(ii) of the Act; (iii) That the impugned order amounted to compulsory acquisition of the property of t.he appellant without compensation; and (iv) That the impugned order was passed in violation of the principles of natural justice.\n\nHELD : (i) Article 14 of the Constitution ensures equality among equals : its aim is to protect persons similarly placed against discriminatory treatment.\n\nIt does not operate against ratiollal classiJidation.\n\nA person setting up a grievance of denial of equal treatment by law must establish that between persons similarly circumstanced, some were treated to their prejudice and the differential treatment had no relation to the object sought to be achieved by the law. [870 DJ\n\nIn the present case, as .to the' alleged discrimination between the 3rd A respondent and the other consumers in the area there was no evidence on record showing the operative rates on the date of the impugned order, and no grievance by any consumer of any prejudicial treatment accorded to him.\n\nFurther the 3rd respondent and other consumers did not belong to the same class because in the one case energy .was being slJpplied by the appellant and in the other by the Electricity Board. (870 E-GJ\n\nSimilarly in respect of the alleged discrimination between the 3rd B respondent and the appellant there \"'as no evidence that the 'rates Charged by the State Electricity Board to the 3rd respondent were lower than the raies charged to the appellant. The appellant and the 3rd respondent again did not belong to the same class inasmuch as the appelJant was a distributor of electrical energy, whereas the 3rd respondent was a consumer.\n\n[870 H-871 BJ\n\nThe plea of violation of Art. 14 of the Constitution on behalf of the C appellant, could not therefore be accepted.\n\nThe Western U.P. Electric Power and Supply Co. Ltd. v. State of U.P. & Ors., A.l.R. 1968 S.C. 1099, distinguished.\n\n(ii) The question whether an order under s. 3(2)(e) as amended by U.P. At 30 of 1961 is in public interest is not one on which the opinion of the Government is :finaJ.\n\nIf challenged, the Gove'rnment must show that exercise of the power was necessary in the public interest. The court is thereby not intended to sit in appeal over the satisfaction of the Government.\n\nIf there be prima jacie evidence on which a reasonable body of persons may hold that it is in the public iterest to supply energy directly to the consumers. the requirements of the statute are fulfilled.\n\nNormally a licencee of electrical energy, though he has no monopoly, is the person through whom electrical energy would be distributed within the area of supply, since the licencee has to lay down electric supply lines for transmission of energy and to maintain its establishment. An inroad may be made in that right in the conditions which a're statutorily prescribed, but the s_atisfaction of the Government that the supply is necessary in the public interest is in appropriate cases not excluded from judicial review. [872 B-D)\n\nIn the present case there was ample evidence on record to prove that uninterrupted supply of electrical energy to the 3rd respondent was necessary i~ he public. interest .and the appellat was unabe to ensure it.\n\nFor ma1ntam1ng effective working of a large industry which gave scope of employment to the local population and earned foreign exchange, if it was necessary to give direct supply of electrical energy to the 3'rd respondent, the order to the Electricity Board to make a direct supply to the 3rd respondent was in the public interest within the meaning of s. 3(2) (e)\n\n(ii) of the Act. [872 G; 873 D-El\n\n(iii) Even assuming that the right to supply electrical energy is property (a question on which the court expressed no opinion) there was in the present case no infringement of the guarantee under Art. 31(2). By\n\ncl. (2A) of Art. 31 there. is no .dompulsory aquisition or requisitioning of property unless ownership or right to possession of the property stands\n\ntransferred to the State or a corporation owned or controllCd.by the State.\n\nBy the order granting direct supply of electrical energy ownership of property or right to possession of property was not transferred to the State or to a corporation owned or controlled by the State, and on that limited ground it must be held that Art. 31(2) had no application to the case. [873 G-874 D]\n\n(iv) In view of the fact that the complaints made by the 3rd respondent were discussed with the appellant and that several reprc:sentJ.tious \\Vere n1ade by the appellant to the State Government whit.:h \\Vere co11sidered by the latter and rejected it could not be said that the appellant had been denied natural justice. [874 E-GJ\n\nC1vu. /\\ PPELLATE JURISDICTION : Civil Appeal Nu .. '.482 of 1968.\n\nAppeal by special leave from the judgment and on.icr cbtcd March 18, 1968 of the Allahabad High Court in Second Appeal No. 317 of 1965.\n\nMuhan Behari Lal, for the appellant.\n\nO. P. Rana, for respondents Nos. I and 2.\n\nC. K. Daphtary, B. R. L. Iyengar, Bishambar Lal and H. K.\n\nPuri, for respondent No. 3.\n\nThe Judgment of the Court was delivered by Shah, J. The Western U.P. Electric Power & Supply Company Ltd.-hereinafter called 'the Company'-holds a licence under s. 3(1) of the Indian Electricity Act 9 of 1910 to supply electricity in certain areas in the State of U .P.\n\nMessrs Htnd Lamps Private Ltd. set up a factory for manufacturing electrical equipment within the area of supply of the Company.\n\nHind Lamps was receiving energy from the Company. Hind Lamps made several representations to the State Government that the supply of energy by the Company was inadequate to meet its requirements and was 'interrupted and fluctuating·. Meetings were held between the Company, the State officials and HinaLamps for devising means to ensure uninterrupted and adequate supply of energy required by Hind Lamps, but there was no improvement in the supply position.\n\nHind Lamps then applied to the Government of U.P. to grant direct supply of electricr.1 energy from the State Electricity Board.\n\nThe State Government by order dated December 26, 1961. issued in exercise of th~ powers conferred by s. 3(2)(e)(ii) of the Indian Electricity Act, 1910 as amended by the Indian Electricity G (Uttar Pradesh Sanshodhan) Adhiniyam, 1961, directed the State Electricity Board \"to supply electrical energy directly to Hind Lamps upon terms a; nd conditions similar to those on which it supplied electrical energy to other customers\". In reply to a representation to reconsider the decision, the Government informed\n\nhe Company that the \"decision was necessitated in the public H mterest and there was no justification for revising it\".\n\nAnother representation made by the Company was also turned down and direct supply of electrical energy was commenced by the State Electricity Board to Hind Lamps.\n\nLil Sup. C.1.-69.-6\n\nA petition moved by the Company in the High Court of Allahabad for a writ of certiorari quashing the order dated December 26, 1961 was rejected by R. S. Pathak, J. In appeal under the Letters Patent against the order passed by the learned Judge, counsel for the Company applied for leave to plead that the order dated December 26, 1961, resulted in discriliiination between Hind Lamps and other consumers within the area of supply of the Company, and also between Hind Lamps and the Company and the order was on that account invalid.\n\nThe High Court permitted the Company to raise the contention, but declined to give opportunity to \"enlarg11 the evidence on record at that stage\".\n\nSole reliance was therefore placed by counsel for the Company on paragraph-2 of the Government Gazette Notification issued by the U.P. Government on April 24/28, 1962, containing the revised tariff for the supply of electrical energy to licensees obtaining bulk supply from the U.P. State Electricity Board and to other consumers. It stated :\n\n\"The revised tariff shall, except in the case of the licensees, be applicable to consumers in respect of consumption in the month of May 1962. In the case of licensees, obtaining bulk supply of energy from the Board, the revised tariff shall apply to supplies made from 1st July, 1962 and onwards.\"\n\nThe Schedules in the Gazette Notification set out the rates at which electrical energy was to be supplied by the Board to licensees as well as to diverse classes of consumers who received supply of energy from the Board. The High_ Court held that there was no evidence on the record to prove the rates at which energy was being supplied to the Company on December 25, 1961, and the rates at which the energy was being supplied to Hind Lamps.\n\nThe High Court observed that before the order dateOl>ecember 26, 1961 could be challenged on the ground of discrimination between Hind Lamps and other consumer! as also between Hind Lamps and the Company, it was necessary for the Company to establish by evidence the rates of supply of energy to the Company, the Hind Lamps and to the other consumers obtaining at the time of the impugned order, i.e. December 26, 1961, and in the absence of that evidence the plea of discrimination must fail.\n\nThe High Court also rejected the contention raised by the Company that the impugned order was not made in public interest, that granting direct supply of electrical energy to Hind Lamps amounted to compulsory acquisition of property of the Company without payment of compensation, and that in refusing to give an opportunity to the Company to object the rules of natural justice were violated.\n\nThe Indian Electricity Act 9 of .1910 makes provision by s. 3 for the grant of a licence to supply energy in any specified area and also to lay down or place electric supply lines for transmission of energy. Clause (e) of sub-s. (2) as amended by U.P. Act 30 of 1961, and sub-s. (3) provide :\n\n\"(2)(e) grant of a licence under this Part for any purpose shall not in any way hinder or restrict-\n\n(i) the grant of licence to another person withfo the same area of supply for a like purpose; or\n\n(ii) the supply of energy by the State Government or the State Electricity Board within the same area, where the State Government deems such supply necessary in public interest;\"\n\n\"(3) Where the supply of energy in any area by the State Electricity Board is deemed necessary under subclause (ii) of clause (e) of sub-section (2), the Board may, subject to any terms and conditions that may be laid down by the State Government, supply energy in that area notwithstanding anything to the contrary contained in this Act or the Electricity Supply Act, 1948.\"\n\nThe State Government may grant a licence to supply electrical energy to consumers within a specified area on terms and conditions prescribed in the licence and subject to statutory conditions, but on that account the State Government is not debarred from granting a licence to another person or to supply energy directly to a consumer within the same area if the State Government deemed it necessary so to do in the public interest\n\nSection 3(2)(e) is challenged on the ground of denial of the guarantee of the equal protection clause of the Constitution.\n\nStrong reliance was placed by counsel for the appellant upon a recent judgment of this Court: The Western U.P. Electric Power and Supply Co. Ltd. v. The State of U.P. and Ors. (1) In that G case the Government of U.P. had by Notification dated September 21, 1966, authorised the State Electricity Board to supply energy directly to consumers in the area of supply for which a licence was already granted.\n\nThis Court held that a licensee supplying electrical energy in an area has no monopoly under its licence; but the Notification issued by the U.P.\n\nGovemment directing the State Electricity Board to supply energy directly to H a consumer at a rate lower than the rate at which it was supplied to the licensee Company amounted to discrimination between that\n\n(2) A.LR. 1968 S.C. 1099\n\nconsumer and the other consumers and also between the consumer and the licensee and the Notification on that account was invalid.\n\nCounsel for the Company says that the question which falls to be determined in the present appeal is concluded by the judgment in The Western U.P. Electrical Power and Supply Company's case('), for the Court in that case held that the Notification of the Government of U.P. directing the State Elvctricity Board to supply energy directly to certain concerns at a rate lower than the rate at which energy was supplied to the licensee Company amounts to discrimination between those concerns on the one hand and the other consumers on the other, and also between the concerns and the Company.\n\nArticle 14 of the Constitution ensures equality among equals: its aim is to protect persons similarly placed against discriminatory treatment. It does not however operate against rational classification. A person setting up a grievance of denial of equal treatment by law must establish that between persons similarly circumstanced, some were treated to their prejudice and the differential treatme, nt had no reasonable relation to the object sought to be achieved by the law. In the present case there is no evidence about the rate charged for energy supplied by the\n\nState Electricity Board to the Company on December 26. 1961. nor is there any evidence on the record about the rates charged for electrical energy supplied to the consumers by the Company.\n\nThe plea of discrimination has to be considered from two different points of view-(1) the discrimination between Hind Lamps and the other consumers within the area of supply in re,- l'ect of which the Company held the licence; and (2) discrimination in the rates of supply charged by the State Electricity B:>ard, to the Company and to Hind Lamps.\n\nThere is no evi\n\nence on the record about the operative rates on the date of the impugned order. Again Hind Lamps was a consumer of electrical energy and so were the other consumers within the area of\n\nmpply in respect of which the Company held the licence. But on that account it does not follow that they belong to the same class.\n\nIn one case energy is being supplied by the Company and in the other by the State Electricity Board. Again, there is no grievance made by any consumer of energy that he is by the grant of preferential rates to Hind Lamps prejudicially treated.\n\nOther consumers of energy and Hind Lamps therefore do not belong to the same class,· and there is no grievance by any consumer of any prejudicial treatment accorded to him.\n\nThere is aiso no evidence that the rates charged by the State Electricity Board to Hind Lamps were lower than the rates charg-\n\n0> A.l.R. 1968 S.C. 1099.\n\ned to the Company.\n\nThe Company and Hind Lamps again do not belong to the same class.\n\nThe Company is a distributor of electrical energy, whereas Hind Lamps is a consumer. If the State Government charged different rates from persons belonging to the same class, in the absence of any rational basis for that treatment, the plea of discrimination founded on differential rates may probably have some force.\n\nBut the Company and Hind Lamps did not belong to the same class, and there is no evidence that for energy supplied different rates were charged. In The Western U.P. Electric Power and Supply Co. Ltd. v. The State of U.P.(') the position was different.\n\nThat case was decided on the footing that the consumer and the Western U.P. Electric Power and Supply Co. Ltd. belonged to the same class, and the Board charged higher rates from the distributing Company than the rate charged from the third respondent in that case. The Court observed in that case :\n\n\" ...... the notification and the Government's direction to the Board therein results in clear discrimination. If the Board were to supply energy directly to the 3rd rspondent it has to do so at rates lower than' the rates at which electricity is supplied by it to the petitioner\n\ncomp.ny. The petitioner company being thus cliargect at higher rates from its other consumers with tile result that the 3rd respondent would get energy at substantially lower rates than other consumers including other industrial establishments in the area.\n\nThe notification thus results in discrimination between the 3rd respondent on the one hand and the other consumer on the other as also between the 3rd respondent and the petitioner company.\" The first contention was, therefore, rightly negatived by the High Court.\n\nBy the amendment made by U.P. Act 30 of 1961 electrical energy may be -supplied by the State Government or the State Electricity Board within the same area in respect of which a licence is granted only if the State Government deems such sup ply \"necessary in public interest\". The High Court observed that \"the State Government was the sole Judge of the question whether direct supply of energy to Hind Lamps was or was not in the pub!lc _interest.\n\nThe test is of a subjective nature, no objective test bemg contemplated.\n\nThus it is not open to this Court to exan1ine whether it was necessary in the public interest. The subjective opinion of the Government is final in the matter, and the same is not justiciable or subject to judicial scrutiny as to the sufficiency of the grounds on which the State 0-overnment has_ rmed its op_h1ion. In other words the Legislature has left\n\n(I)\n\nA.LR. 1968 S.C. 1099.\n\nit to the sole discretion of the State Government to decide whether a direct supply of energy was in the public interest\".\n\nWe are unable to agree with that view.\n\nBy s. 3(2)(e) as amended by the U.P. Act 30 of 1961, the Government is authorised to supply energy to consumers within the area of the license in certain conditions : exercise of the power is conditioned by the Government deeming it necessary in public interest to make such supply. If challenged, the Goverllffient must show that exercise of the power was necessary in public interest. The Court is thereby not intended to sit in appeal over the satisfaction of the Government. If there be prima facie evidence on which a reasonable body of persons may hold that it -is in the public interest to supply energy directly to the consumers, th~ requirements of the statute are fulfilled. Normally a licensee of electrical energy, though he has no monopoly, is the person through whom electrical energy would be distribuied within the area of supply, since the licensee has to lay down electric supplylines for transmission of energy and to maintain its establishment.\n\nAn inroad may be made in that right in the conditions which are statutorily prescribed.\n\nIn our judgment, the satisfaction of the Government that the supply is necessary in the public interest is in appropriate cases not excluded from judicial review.\n\nBut the decision of the High Court must still be maintained.\n\nThe order issued by the Government recited :\n\n\"The Governor is satisfied that it is necessary in the public interest for the State Electricity Board to make the supply of electricity direct to the industry (Hind Lamps Private Ltd.) and is, therefore, pleased to order in exercise of the powers vested in him under section 3(2)(e)(ii) of the Indian Electricity Act, 1910 (Act No.\n\nIV of 1910) as amended by the Indian Electricity (Uttar Pradesh Sanshodhan) Adhiniyam, 1961 (U.P. Act No.\n\nXXX of 1961) that the U.P. State Electricity Board make the supply of electricity direct to the Hind Lamps Ltd., Shikohabad.\"\n\nThere is ample evidence on the record to prove that uninterrupted\n\nupply of electrical energy to Hind Lamps was necessary in public mterest, and the Company was unable to ensure it.\n\nThe only averment made in the petition filed by the Company before the\n\nRig~ Court was that \"the giving of the supply to Hind Lamps\n\n(Private) Ltd. could not be said to be in public interest as required by section 3(2)(e)(ii) of the Indian Electricity Act, 1910\n\ns amended by Indian Electricity (U.P. Amendment) Act XXX of 1961\". No particulars were furnished in the petition. In the affidavit filed on behalf of the State Electricity Board it was affirmed that Hind Lamps was engaged in the manufacture of electric bulbs fluorescent tubes etc. and the process required uninterupted spply; that it was one of the major industries of the State and was the only industry of its kind in the State; that as a result of the defective supply by the Company, the Hind Lamps felt dissatisfied and informed the Government that if the supply position was not improved it would be forced to shift its factory from the State to some other State; that the industry gave employment to a number of people in the State and saved a large amount of foreign exchange and on that account the State Government was keen to give it fair and due protection that it deserved; that the total supply of electricity to the Company was 1700 K.W. and even if the entire supply under the agreement was made available by the Company to Hind Lamps it would fall short of its requirements. It was, therefore, in public interest that direct supply of energy should be made available to Hind Lamps. An affidavit containing similar averments was also filed on behalf of the State of Uttar Pradesh.\n\nThere is no evidence on behalf of the Company to the contrary.\n\nFor maintaining effective working of a large industry which gave scope for employment to the local population and earned foreign exchange, if it was necessary to give direct supply of electrical energy to Hind Lamps, the order to the Electricity Board to make direct supply of electrical energy to Hind Lamps was unquestionably in public interest within the meaning of s. 3(2)(e) (ii) of the Act.\n\nThere is no substance in the contention that by the issue of the order dated December 26, 1961, there was compulsory acquisition of the property of the Company without providing for compensation. By the grant of a licence under Act 9 of 191 O no monopoly was created i.n favour of the Company. ~The statute\n\nexpresly reserves the nght of the State to authorise supply of electncal energy through another licensee in the same area or to a\n\nonsumer directly through the State Electricity Board.\n\nAssummg tat the right to supply. e.lectrical energy is property (on that 9ues1I?n e express no opmmn), we are of the view that there 1s.no.1nfnngement of the guarantee under Art. 3lr2) of the Cons1Itut10n.\n\nClause (2) of Art. 31 as-amended by the Constitution (Fourth Amendment) Act, 1955, insofar as it is material provides : '\n\n\"No proper!)'. shall be compulsorily acquired . . . save for a ubhc purpose and save by authority of a law which provides for compensation for the property so cquired and either fixes the amount of the compensation or specifies the principles on which, and\n\nthe manner in which, the compensation is to be determined and given. . , . . . \"\n\nClause (2A) in substance defines compulsory acquisition or requisitioning of property within the meaning of cl. (2). It provides:\n\n\"Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of poperty, notwithstanding that it deprives any person of his property.\"\n\nBy cl. (2A) there is no compulsory acquisition or requisitioning of property, unless ownership or right to possession of the property stands transferred to the State or a corporation owned or controlled by the State.\n\nBy the order granting direct supply of electrical energy ownership of property or right to possession o4' property was not transferred to the State or to a corporation owned or controlled by the State, and on that limited ground it must be held that Art. 31(2) has no application. The Company may, it may be assumed, as a result of direct supply of electrical energy to Hind Lamps, suffer loss; but Art. 31(2) does not guarantee protection against that loss.\n\nThe Company was afforded sufficient opportunity to make its representation before and after the impugned order was passed.\n\nHind Lamps had submitted several representations to the Government of U.P. regarding inadequate and irregular supply of electrical energy.\n\nThe Company was informed about the complaints made by Hind Lamps. Meetings were held in which certain steps to be taken by the Company to make the supply regular were agreed upon, but they were not carried out, presumably because the Company had not the requisite equipment for that purpose. The Company was asked to supply electrical energy as released in favour of Jiind Lamps; it failed to do so. Representations made by_ the Company, after the order was passed, requesting that the order dated December 26, 1961, be withdrawn, were also considered by the Government and rejected.\n\nAdequate opportunity of making a representation was afforded to the Company to satisfy the State Government that it was not in the public interest to supply electrical energy directly to Hind Lamps. ·\n\nThe appeal fails and is dismissed with costs.\n\nG.C.\n\nAppeal dismissed.", "total_entities": 77, "entities": [{"text": "WESTERN U.P. ELECTRIC POWER & SUPPLY\n\nCOMPANY LTD", "label": "PETITIONER", "start_char": 0, "end_char": 49, "source": "metadata", "metadata": {"canonical_name": "Western U.P. Electric Power & Supply Company Ltd.-hereinafter", "offset_not_found": false}}, {"text": "STATE OF U.P. & ANR", "label": "RESPONDENT", "start_char": 52, "end_char": 71, "source": "metadata", "metadata": {"canonical_name": "STATE OF U.P. & ANR", "offset_not_found": false}}, {"text": "March 7, 1969", "label": "DATE", "start_char": 74, "end_char": 87, "source": "ner", "metadata": {"in_sentence": "March 7, 1969\n\n(J. C. SHAH AND V. RAMASWA, MI, JJ.)"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 93, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "Indian Electricity Act", "label": "STATUTE", "start_char": 127, "end_char": 149, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 3(1) and 3(2)(e)(ii)", "label": "PROVISION", "start_char": 240, "end_char": 264, "source": "regex", "metadata": {"linked_statute_text": "Indian Electricity Act", "statute": "Indian Electricity Act"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 266, "end_char": 287, "source": "regex", "metadata": {}}, {"text": "Arts. 14 and 31(1)", "label": "PROVISION", "start_char": 288, "end_char": 306, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 331, "end_char": 335, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Electricity Act", "label": "STATUTE", "start_char": 344, "end_char": 359, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3(2)(e)", "label": "PROVISION", "start_char": 435, "end_char": 445, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 589, "end_char": 593, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 3(1)", "label": "PROVISION", "start_char": 835, "end_char": 842, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 850, "end_char": 878, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 3(2)(e)", "label": "PROVISION", "start_char": 1425, "end_char": 1435, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 1448, "end_char": 1476, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 1998, "end_char": 2005, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "s. 3(2)(e)(ii)", "label": "PROVISION", "start_char": 2508, "end_char": 2522, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 14", "label": "PROVISION", "start_char": 2763, "end_char": 2773, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 4208, "end_char": 4215, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 3(2)(e)", "label": "PROVISION", "start_char": 4457, "end_char": 4467, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(2)", "label": "PROVISION", "start_char": 6088, "end_char": 6095, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 6333, "end_char": 6343, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 6361, "end_char": 6368, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 6825, "end_char": 6835, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 7363, "end_char": 7383, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and on.icr cbtcd March 18, 1968 of the Allahabad High Court in Second Appeal No."}}, {"text": "Muhan Behari Lal", "label": "LAWYER", "start_char": 7419, "end_char": 7435, "source": "ner", "metadata": {"in_sentence": "Muhan Behari Lal, for the appellant."}}, {"text": "O. P. Rana", "label": "LAWYER", "start_char": 7457, "end_char": 7467, "source": "ner", "metadata": {"in_sentence": "O. P. Rana, for respondents Nos."}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 7500, "end_char": 7514, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, B. R. L. Iyengar, Bishambar Lal and H. K.\n\nPuri, for respondent No."}}, {"text": "B. R. L. Iyengar", "label": "LAWYER", "start_char": 7516, "end_char": 7532, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, B. R. L. Iyengar, Bishambar Lal and H. K.\n\nPuri, for respondent No."}}, {"text": "Bishambar Lal", "label": "LAWYER", "start_char": 7534, "end_char": 7547, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, B. R. L. Iyengar, Bishambar Lal and H. K.\n\nPuri, for respondent No."}}, {"text": "H. K.\n\nPuri", "label": "LAWYER", "start_char": 7552, "end_char": 7563, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, B. R. L. Iyengar, Bishambar Lal and H. K.\n\nPuri, for respondent No."}}, {"text": "Shah", "label": "JUDGE", "start_char": 7631, "end_char": 7635, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J. The Western U.P. Electric Power & Supply Company Ltd.-hereinafter called 'the Company'-holds a licence under s. 3(1) of the Indian Electricity Act 9 of 1910 to supply electricity in certain areas in the State of U .P.\n\nMessrs Htnd Lamps Private Ltd. set up a factory for manufacturing electrical equipment within the area of supply of the Company."}}, {"text": "Western U.P. Electric Power & Supply Company Ltd.-hereinafter", "label": "PETITIONER", "start_char": 7644, "end_char": 7705, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J. The Western U.P. Electric Power & Supply Company Ltd.-hereinafter called 'the Company'-holds a licence under s. 3(1) of the Indian Electricity Act 9 of 1910 to supply electricity in certain areas in the State of U .P.\n\nMessrs Htnd Lamps Private Ltd. set up a factory for manufacturing electrical equipment within the area of supply of the Company.", "canonical_name": "Western U.P. Electric Power & Supply Company Ltd.-hereinafter"}}, {"text": "s. 3(1)", "label": "PROVISION", "start_char": 7749, "end_char": 7756, "source": "regex", "metadata": {"statute": null}}, {"text": "Electricity Act", "label": "STATUTE", "start_char": 7771, "end_char": 7786, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Htnd Lamps Private Ltd.", "label": "ORG", "start_char": 7866, "end_char": 7889, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J. The Western U.P. Electric Power & Supply Company Ltd.-hereinafter called 'the Company'-holds a licence under s. 3(1) of the Indian Electricity Act 9 of 1910 to supply electricity in certain areas in the State of U .P.\n\nMessrs Htnd Lamps Private Ltd. set up a factory for manufacturing electrical equipment within the area of supply of the Company."}}, {"text": "Hind Lamps", "label": "ORG", "start_char": 8039, "end_char": 8049, "source": "ner", "metadata": {"in_sentence": "Hind Lamps made several representations to the State Government that the supply of energy by the Company was inadequate to meet its requirements and was 'interrupted and fluctuating·."}}, {"text": "HinaLamps", "label": "OTHER_PERSON", "start_char": 8287, "end_char": 8296, "source": "ner", "metadata": {"in_sentence": "Meetings were held between the Company, the State officials and HinaLamps for devising means to ensure uninterrupted and adequate supply of energy required by Hind Lamps, but there was no improvement in the supply position."}}, {"text": "Government of U.P.", "label": "ORG", "start_char": 8479, "end_char": 8497, "source": "ner", "metadata": {"in_sentence": "Hind Lamps then applied to the Government of U.P. to grant direct supply of electricr.1 energy from the State Electricity Board."}}, {"text": "December 26, 1961", "label": "DATE", "start_char": 8614, "end_char": 8631, "source": "ner", "metadata": {"in_sentence": "The State Government by order dated December 26, 1961."}}, {"text": "s. 3(2)(e)(ii)", "label": "PROVISION", "start_char": 8679, "end_char": 8693, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 8701, "end_char": 8729, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "High Court of Allahabad", "label": "COURT", "start_char": 9434, "end_char": 9457, "source": "ner", "metadata": {"in_sentence": "C.1.-69.-6\n\nA petition moved by the Company in the High Court of Allahabad for a writ of certiorari quashing the order dated December 26, 1961 was rejected by R. S. Pathak, J. In appeal under the Letters Patent against the order passed by the learned Judge, counsel for the Company applied for leave to plead that the order dated December 26, 1961, resulted in discriliiination between Hind Lamps and other consumers within the area of supply of the Company, and also between Hind Lamps and the Company and the order was on that account invalid."}}, {"text": "R. S. Pathak", "label": "JUDGE", "start_char": 9542, "end_char": 9554, "source": "ner", "metadata": {"in_sentence": "C.1.-69.-6\n\nA petition moved by the Company in the High Court of Allahabad for a writ of certiorari quashing the order dated December 26, 1961 was rejected by R. S. Pathak, J. In appeal under the Letters Patent against the order passed by the learned Judge, counsel for the Company applied for leave to plead that the order dated December 26, 1961, resulted in discriliiination between Hind Lamps and other consumers within the area of supply of the Company, and also between Hind Lamps and the Company and the order was on that account invalid."}}, {"text": "U.P. Government", "label": "ORG", "start_char": 10208, "end_char": 10223, "source": "ner", "metadata": {"in_sentence": "Sole reliance was therefore placed by counsel for the Company on paragraph-2 of the Government Gazette Notification issued by the U.P. Government on April 24/28, 1962, containing the revised tariff for the supply of electrical energy to licensees obtaining bulk supply from the U.P. State Electricity Board and to other consumers."}}, {"text": "April 24/28, 1962", "label": "DATE", "start_char": 10227, "end_char": 10244, "source": "ner", "metadata": {"in_sentence": "Sole reliance was therefore placed by counsel for the Company on paragraph-2 of the Government Gazette Notification issued by the U.P. Government on April 24/28, 1962, containing the revised tariff for the supply of electrical energy to licensees obtaining bulk supply from the U.P. State Electricity Board and to other consumers."}}, {"text": "1st July, 1962", "label": "DATE", "start_char": 10692, "end_char": 10706, "source": "ner", "metadata": {"in_sentence": "In the case of licensees, obtaining bulk supply of energy from the Board, the revised tariff shall apply to supplies made from 1st July, 1962 and onwards.\""}}, {"text": "December 25, 1961", "label": "DATE", "start_char": 11077, "end_char": 11094, "source": "ner", "metadata": {"in_sentence": "The High_ Court held that there was no evidence on the record to prove the rates at which energy was being supplied to the Company on December 25, 1961, and the rates at which the energy was being supplied to Hind Lamps."}}, {"text": "ecember 26, 1961", "label": "DATE", "start_char": 11218, "end_char": 11234, "source": "ner", "metadata": {"in_sentence": "The High Court observed that before the order dateOl>ecember 26, 1961 could be challenged on the ground of discrimination between Hind Lamps and other consumer!"}}, {"text": "Electricity Act", "label": "STATUTE", "start_char": 12066, "end_char": 12081, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3", "label": "PROVISION", "start_char": 12112, "end_char": 12116, "source": "regex", "metadata": {"statute": null}}, {"text": "Act or the Electricity Supply Act, 1948", "label": "STATUTE", "start_char": 13062, "end_char": 13101, "source": "regex", "metadata": {}}, {"text": "Section 3(2)(e)", "label": "PROVISION", "start_char": 13538, "end_char": 13553, "source": "regex", "metadata": {"linked_statute_text": "Act or the Electricity Supply Act, 1948", "statute": "Act or the Electricity Supply Act, 1948"}}, {"text": "September 21, 1966", "label": "DATE", "start_char": 13906, "end_char": 13924, "source": "ner", "metadata": {"in_sentence": "1) In that G case the Government of U.P. had by Notification dated September 21, 1966, authorised the State Electricity Board to supply energy directly to consumers in the area of supply for which a licence was already granted."}}, {"text": "U.P.", "label": "ORG", "start_char": 14209, "end_char": 14213, "source": "ner", "metadata": {"in_sentence": "This Court held that a licensee supplying electrical energy in an area has no monopoly under its licence; but the Notification issued by the U.P.\n\nGovemment directing the State Electricity Board to supply energy directly to H a consumer at a rate lower than the rate at which it was supplied to the licensee Company amounted to discrimination between that\n\n(2) A.LR."}}, {"text": "Western U.P. Electrical Power and Supply Company", "label": "ORG", "start_char": 14716, "end_char": 14764, "source": "ner", "metadata": {"in_sentence": "Counsel for the Company says that the question which falls to be determined in the present appeal is concluded by the judgment in The Western U.P. Electrical Power and Supply Company's case('), for the Court in that case held that the Notification of the Government of U.P. directing the State Elvctricity Board to supply energy directly to certain concerns at a rate lower than the rate at which energy was supplied to the licensee Company amounts to discrimination between those concerns on the one hand and the other consumers on the other, and also between the concerns and the Company."}}, {"text": "Article 14", "label": "PROVISION", "start_char": 15174, "end_char": 15184, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "December 26. 1961", "label": "DATE", "start_char": 15786, "end_char": 15803, "source": "ner", "metadata": {"in_sentence": "In the present case there is no evidence about the rate charged for energy supplied by the\n\nState Electricity Board to the Company on December 26."}}, {"text": "Western U.P. Electric Power and Supply Co. Ltd.", "label": "ORG", "start_char": 17914, "end_char": 17961, "source": "ner", "metadata": {"in_sentence": "That case was decided on the footing that the consumer and the Western U.P. Electric Power and Supply Co. Ltd. belonged to the same class, and the Board charged higher rates from the distributing Company than the rate charged from the third respondent in that case."}}, {"text": "s. 3(2)(e)", "label": "PROVISION", "start_char": 20033, "end_char": 20043, "source": "regex", "metadata": {"statute": null}}, {"text": "Hind Lamps Private Ltd.", "label": "ORG", "start_char": 21518, "end_char": 21541, "source": "ner", "metadata": {"in_sentence": "The order issued by the Government recited :\n\n\"The Governor is satisfied that it is necessary in the public interest for the State Electricity Board to make the supply of electricity direct to the industry (Hind Lamps Private Ltd.) and is, therefore, pleased to order in exercise of the powers vested in him under section 3(2)(e)(ii) of the Indian Electricity Act, 1910 (Act No."}}, {"text": "section 3(2)(e)(ii)", "label": "PROVISION", "start_char": 21625, "end_char": 21644, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 21652, "end_char": 21680, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "U.P. State Electricity Board", "label": "ORG", "start_char": 21820, "end_char": 21848, "source": "ner", "metadata": {"in_sentence": "XXX of 1961) that the U.P. State Electricity Board make the supply of electricity direct to the Hind Lamps Ltd., Shikohabad.\""}}, {"text": "Hind Lamps Ltd.,", "label": "ORG", "start_char": 21894, "end_char": 21910, "source": "ner", "metadata": {"in_sentence": "XXX of 1961) that the U.P. State Electricity Board make the supply of electricity direct to the Hind Lamps Ltd., Shikohabad.\""}}, {"text": "Shikohabad", "label": "GPE", "start_char": 21911, "end_char": 21921, "source": "ner", "metadata": {"in_sentence": "XXX of 1961) that the U.P. State Electricity Board make the supply of electricity direct to the Hind Lamps Ltd., Shikohabad.\""}}, {"text": "Hind Lamps\n\n(Private) Ltd.", "label": "ORG", "start_char": 22229, "end_char": 22255, "source": "ner", "metadata": {"in_sentence": "The only averment made in the petition filed by the Company before the\n\nRig~ Court was that \"the giving of the supply to Hind Lamps\n\n(Private) Ltd. could not be said to be in public interest as required by section 3(2)(e)(ii) of the Indian Electricity Act, 1910\n\ns amended by Indian Electricity (U.P. Amendment) Act XXX of 1961\"."}}, {"text": "section 3(2)(e)(ii)", "label": "PROVISION", "start_char": 22314, "end_char": 22333, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 22341, "end_char": 22369, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Uttar Pradesh", "label": "GPE", "start_char": 23654, "end_char": 23667, "source": "ner", "metadata": {"in_sentence": "An affidavit containing similar averments was also filed on behalf of the State of Uttar Pradesh."}}, {"text": "s. 3(2)(e)", "label": "PROVISION", "start_char": 24103, "end_char": 24113, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 24800, "end_char": 24806, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 24847, "end_char": 24854, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 26223, "end_char": 26233, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 26372, "end_char": 26382, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Jiind Lamps", "label": "OTHER_PERSON", "start_char": 27064, "end_char": 27075, "source": "ner", "metadata": {"in_sentence": "The Company was asked to supply electrical energy as released in favour of Jiind Lamps; it failed to do so."}}]}
{"document_id": "1969_3_875_881_EN", "year": 1969, "text": "V. P. GOPALA RAO\n\nPUBLIC PROSECUTOR, ANDHRA PRADESH\n\nMarch 7, 1969\n\n[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.]\n\n87 5\n\nF\"ctories Act (63 of 1948), ss. 2(k) (i), 2(1)-'Manufacturing proces~· and \"workers'-Meaning of.\n\nThe appellant who was the manager-cum-occupier. of a company's establishment at Elum was prosecuted for operating a factory without obtaining a licence as required by the Factories Act, 1948 and the Andhra Pradesh Factory Rules, 1950.\n\nThe company had its main fact<>ry at Bombay.\n\nIn the company's Eluru premises, sun-cu'red tobacco leave~ purc:hased from local producers were subjected to the processes of moistening, stripping and packing.\n\nThe tobacco leaves were moistened so that they could be handled without breakage. The moistening was done for IO to 14 days by sprinkling water on stacks of tobacco and shifting the top and bottom layers. The stalks were stripped from the leavs. The Thukku (wholly spoilt) and Pagu (partly spoilt) leaves were separated.\n\nThe leaves were tied up in bundles and stored in the premises. From time to time they were packed in gunny bags and exported to the company's factory at Bombay where they were used for manufacturing cigarettes.\n\nThe appellant's defence was that it was not necessary to obtain the licence or permission because (i) no manufacturing process was carried on in the premises; and (ii) the persons who worked in the premises we're not workers as they were employed by independent contractors. The Magistrate accepted the defence contentions, and -acquitted the appellant.\n\nBut the High Court convicted the appellant.\n\nDismissing the appeal, this Court:-\n\nHELD : The con1pany's premises at Eluru were a factory.\n\n(i) Manufacturing processes as defined in s. 2(k) (i) of the Factories Act were carried on in the premises.\n\nUnder s. 2(k) (i) manufadturing precess means any process for 'making. altering, repairing ornamenting, finishing. packing. oiling, \\\\'ashing. cleaning. breaking up, demolishing or other,\\ise treating or adapting any article or substance with a view to its use. sale, transport. delivery or disposal.\" The definition is widely worded.\n\nThe moistening \\vas an adaptation of the tobacco leaves. The stalks were stripped by breaking them up.\n\nThe leaves were packed by bundling them up rind putting them into gunny bags.\n\nThe breaking up, the adaptation and the pn.cking of the tobacco leaves were done with a view to their use and transport.\n\nAll these proce'ises a're manufacturing process within s. 2<kJ(i). [878 BJ\n\nState of Kenda v. V. M. Patel,\n\n[1961) I L.L.J. 549, Sardar C. S.\n\nAnwe v. The State, I.LR. [1965) 15 Raj. 117, referred to.\n\n(ii) The persons employed were workers as defined in s. 2 (I) of the Facto'ries Act.\n\nMore than 20 persons worked in the premises regularly every day. There was the positive evidence of P.W.s that the work of stripping stalks from the tobacco leaves was done under the supervision\n\n.of the management.\n\nThere was nu evidence to show that the other work in the premises was not done under like supervision. The prosecution adduced prima facie evidence showin2 that the relationship of master and servant existed between the workmen and the management. The appellant <lid not produce any rebutting evidence. In the cross-examination of P. W.\n\nI, it was suggested that the workmen were employed by independent contracts, but the suggestion was not borne out by the materials on the record. [881 B-EJ\n\nSri ChintQman Rao & Anr. v. State of Madhva Pradesh, [1958] S.C.R. 1340, 1349, Short v. J. W. Henderson Ltd., [1946] S.C. (H.L.) 24, 33-34.\n\nDharangadhara Chemical Works v. State of Saurashtra, [1957] S.C.R. 152, State of Kera/a v. V. M. Patel [1961] 1 L.L.J. 549, Shankar Ba/aji Waje\n\nv. State of Maharashtra, [19621 1 Lab. L.J. 119, Bridhichand Sharma v.\n\nFirst Civil Judge, Na11vur, [1961] 2 Lab. L.J. 86, and D. C. Dell'all Mohinder Saheb & Sons v, United Bidi Workers' Union, [19641\n\n2 L.L.J. 638, referred to.\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 271 of 1968.\n\nAppeal by special leave .from the judgment and order dated July 3, 1968 of the Aindhra Pradesh High Court in Criminal Appeal No. 883 of 1966.\n\nM. C. Setalvad, J. M. Mukhi and G. S. Rama Rao, for the appe!lant.\n\nP. Ram Reddy and A. V. V. Nair, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J.\n\nM/s. Golden Tobacco Co., Private Ltd. have their head office and main factory at Bombay where they manufacture cigarettes.\n\nThe appellant is ttie occupier-cum: manager of the company's premises at Eluru in Andhra Pradesh where sun-cured country tobacco purchased from the local producers is collected, processed and stored and then transported to the company's factory at Bombay. The prosecution case is that the aforesaid premises are a factory.\n\nThe appellant was prosecuted and tried for contravention of s. 6( 1) of the Factories Act 1948 and rules 3 and 5(3) of the Andhra Pradesh Factory Rules 1950 for operating the factory without obtaining a licence from the Chief Inspector of Factories and his previous permission approving the plans of the building.\n\nThe appellant's defence was that the premises did not constitute a factory and it was not necessary for him to obfain the licence or permission. The 2nd Addi. Munsif Magistrate, Eluru, accepted the defence contention and acquitted the appellant.\n\nAccording to the Magistrate the prosecution failed to establish that the premises were a factory <lr that any manufacturing process was carried on or that any worker was working therein.\n\nThe Public Prosecutor filed an\n\nappeal against the order.\n\nThe Andhra Pradesh High Court allowed the appeal, convicted the appellant under s. 92 for con travention of s. 6 ( 1) and rules 3 and 5 ( 3) and sentenced him to pay a fine of Rs.· 50 under each count. The present appeal has been filed by the appellant after obtaining special leave.\n\nThe question in this appeal is whether the company's premises at Eluru constitute a factory.\n\nSection 2(m) defines factory.\n\nUnder s. 2(m) factory means any premises including the precincts thereof \"whereon twenty or more workers are working, or 'were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on.\" It is not disputed that more than 20 persons were working on the premises. The points in issue are : (I ) whether those persons were\n\n\"workers\";' and (2) whether any manufacturing process was being carried on therein.\n\nFor the purpose of proving the prosecution case the respondent relied upon the following materials : (I) the testimony of PW I A. Subbarao, the Assistant Inspector of Factories; (2) his report of inspection of the premises on December 20, 1965; (Ex.\n\nPl); (3,) the show cause notice Ex. P3, and the appellant's reply dated January 15, 1966; (Ex. p5); (4) the testimony of PW 2 B. P. Chandrareddi, the Provident r'und Inspector; and ( 5) si'I returns (Exs. P7 to Pl2), submitted by the Eluru establishment, to the Regional Provident Fund Commissioner.\n\nThe materials on the record show that in the company's Eluru premises, sun-cured tobacco leaves bought from the growers were subjected to the processes of moistening, stripping and packing.\n\nThe tobacco leaves were moistened so that they may be handled without breakage. The moistening was done for 10 to 14 days by sprinkling water on stacks of tobacco and shifting the top and bottom layers.\n\nThe stalks were stripped from the leaves.\n\nThe Thukku (wholly spoilt) and Pagu (partly spoilt) leaves were separated. The leaves were tied up in bundles and stored in the premises.\n\nFrom time to time they were packed in gunny bags and exported to the company's factory at Bombay where they wer.e used for manufacturing cigarettes. All these processes are carried o~. in the tobacco industry. In Encyclopaedia Britannica, 1965 edition, Vol. 22, page 265 under the heading \"tobacco\n\nindstry'' j~ is stted ; \"After curing, only during humid periods or m special m01stenmg cellars can the leaf be handled without\n\nbreakae. It is remoed from the stalks or sticks and graded accordmg to colour, size, soundness and other recognizable elements of quality. It is tied nto hands, or bundles, of 15 to 30\n\nleaves by means of a tobacco leaf wrapped securely around the stem end of the leaves.\n\nAfter grading the leaf is ready for the market.\"\n\nIn our opinion, manufacturing processes as defined in s. 2\n\n(k) (i) were carried on in the premises .. Under s. 2(k) (i) manufacturing process means any process for \"making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal.\" The definition is widely worded.\n\nThe moistening was an adaptation -0f the tobacco leaves. The stalks were stripped by breaking them up.\n\nThe leaves were packed by bundling them up and putting them into gunny bags.\n\nThe breaking up, the adaptation and the packing of the tobacco leaves were done with a view to their use and transport.\n\nAll these processes are manufacturing processes within s. 2(k) (i).\n\nThe reported cases are of little help in deciding whether a particular process is a manufacturing process as defined in s. 2\n\n(k) (i). In State of Kera/av. V. M. Patel(') the Court held that the work of garbling pepper by winnowing, cleaning, washing and drying it on concrete floor and a similar process of curing ginger dipped in lime and laid out to dry in a warehouse were manufacturing processes.\n\nWith regard to the decision in Col.\n\nSardar C. S. Angre v. The State(') it is sufficient to say that the work of sorting and drying potatoes and packing and re-packing them into bags was held not to be a manufacturing process as the work was done for the purpose of. cold storage only and not for any of the purposes mentioned in s. 2(k) (i).\n\nThe next question is whether 20 or more persons worked on the premises. On behalf of the appellant it is admitted that more than 20 persons work there, but his contention is that they are employed by independent contractors and are not workers as defined in s. 2(1).\n\nSection 2(1) reads :-\"worker\" means a person employed, directly or through any agency, whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process;\"\n\nIn Sri Chintaman Rao & anr. v. State of Madhya Pradesh(') the Court gave a restricted meaning to the words \"directly or\n\n(!) [1961] I L.L.J. 549.\n\n(2) I.LR. [1%5] 15 Raj. 117.\n\n(3) [195RJ s.c.R .. 1340. 1349.\n\nA through an agency\" in s. 2 ( 1) and held that a worker was a person employed by the management and that there must be a contract of service and a relationship of master and servant between them.\n\nOn the facts of that case the Court held that certain Sattedars were independent contractors and that they and\n\nthe coolies engaged by them for rolling bidis were not \"workers\".\n\nIt is a question of fact in each case whether the relationship of master and servant exists between the management and the workmen.\n\nThe relationship is characterized by contract of service between them. In Short v. J. W. Henderson Limited(') Lord Thankerton recapitulated four indicia of a contract of service. As stated in Halsbury's Laws of England, 3rd ed. vol. 25, p. 448, Art. 872 :\n\n\"The following have been stated to be the indicia of a contract of service, namely, ( 1) the master's power of selection of his servant; (2) the payment of wages or other remuneration; ( 3) the master's right to control the method of doing the work; and ( 4) the master's right of suspension or dismissal (Sharl v. J. and W.\n\nHenderson Ltd. ( 1946 S. C. (H. L.) 24, at p~. 33, 34, Could v. Minister of National Insurance, [1951) I. K. B. 731 at p. 734; [1951) All E. R. 368 at p. 371; Pauley v.\n\nKe1111ldo Ltd. [1953] I All. E. R. 226, C. A., at p. 228) ; but modern industrial conditions have so affected the freedom of the master that it may be necessary at some future time to restate the indicia; e.g., heads (1), (2) and (4) and probably also head (3), are affected by statutory provisions (Short v.\n\nJ. W. Henderson Ltd., supra at p. 34.\"\n\nIn Dharangadlwra Chemical Works v. Stille of Saurashtra( 2 ) the Court held that the critical test of the relationship of master and servant is the master's right of superintendence and control of the method of doing the work.\n\nApplying this test workmen rolling bidis were found to be employees o[ independent contractors and not workers within s. 2 (I), in State of Kera/a v.\n\nPatel V. M.(') and Shankar Balaji Waje v. State of Maharashtra(') while they were found to be workers within s. 2 ( 1) in Bridhichand Sharma v. First Civil Judge, Nagpur(') and workmen within the meaning of s. 2 ( s) of the Industrial Disputes Act in D. C. Dewan Mohinder Saheb & Sons v. United Bidi Workers'\n\nUnion(').\n\n(I) [1946] S.C. (H.L.) 24, 33-34.\n\n(3) [1961] l L.L.J. 549.\n\n(5) [1961] 2 Lab. LJ 86.\n\n(2) [1957] S.C.R. 152.\n\n(4) [1962] 1 Lab. L.J. 119.\n\n16) [1964] 2 Lab. L. J, 638.\n\nThere is no abstract a priori test of. the work control required for establishing a contract of service. In Short v. J. N. Henderson Ltd.(') Lord Thankerton quoting Lord Justice Clerk's dicta in an earlier case said that the principal requirement of a contract of service was the right of the master \"in some reasonable sense\" to control the method of doing the work. As pointed out in Bridhichand's case(') the fact that tlie workmen have to work in the factory imply a certain. amount of supervision by the mainagement. The CoUrt held that the nature and extent of control varied in different industries and that when the operation was of a simple nature the control could be exercised at the end of the day by the method of rejecting the bidis which did not come up to the proper standard.\n\nIn the present case, the prosecution relied on ( 1) Bx. P7 to P 12, (2) the testimony of PW! and (3) Bxs. Pl and P5 to prove that the. persons working at the company's premises at Eluru were employed by the management.\n\nExhibits P7 to P12 are monthly returns for July to December 1966 submitted by the company's Bluru establishment to the Regional Provident Fund Commissioner under paragraph 38(2) of the Employees Provident Fund Scheme, 1952. The returns disclosed the number and names of about 200 persons employed every month and the recoveries from the wages and the company's contributions on account of the provident fund of each employee. At the top of each return it was stated that the employees were contract employees.\n\nSection 2 ( f) of the Employees Provident Fund Act 1952 defines \"employee\" as including any person employed by or through a contractor. Paragraphs 20 and 30 of the Employees , Provident Fund Scheme 1952 shows that the employer is required to pay contributions in respect of all such employees.\n\nParagraph 26 of the Scheme shows that employees who have actually worked for not less than 12 months or less in the factory or establishment is eptitled and required to become a member of the Fund. In view of the fact that the returns are in respect of all persons employed in the establishment either by the management or by or through a contractor they are not of much help in determining whether the employees were employed by the management or were employed by the contractors.\n\nThey only show that in the months of July to December 1966, 200 workers had been working in the establishment for not less than 240 days.\n\nThe testimony of PWl, A. Subbarao, the Assistant Inspector of Factories shows that on December 20, 1965 he found 120 workmen working in the premises.\n\nHe is corroborated by his inspection report Bx. Pl. In his reply Bx. P-5 the appellant did not dispute the fact that 120 persons were working there. PW 1\n\n(I) [1946] S.C. (H.L.) 24.\n\n(2) (1961] 2 L.L.J. 86.\n\n£ound workinen doing the work of stripping stalks from the tobacco leaves.\n\nThe work of stripping was being done under the supervision of the management's clerk J. Satyanarain Rao.\n\nAt the end of the day the clerk collected the stripped tobacco and noted the quantity of work done in the work sheet allotted to the worker.\n\nPWl found some workmen doing other work.\n\nThe onus of proving that the workmen were emp!Oyed by the management was on the prosecution. We think that the prosecution has discharged this onus. It is not disputed that more than\n\n20 persons worked in the premises regularly every day. 'rhere is the positive evidence of PWl that the work of stripping stalks from the tobacco leaves was done under the supervision of the management. There is no evidence to show that the other work in the premises was not done under the like supervision.\n\nThe prosecution adduced prima facie evidence showing that the relationship of master and servant existed between the workmen and the management.\n\nThe appellant did not produce any rebutting evidence. In the cross-examination of PWl, it was suggested that the workmen were employed by independent contractors, but the suggestion is not borne out by the materials on the record. We hold that the persons employed are workers as defined in s. 2 (1). The High Court rightly held that the company's premises at EJuru were a factory.\n\nIn the Courts below the appellant produced ( 1 ) an order of the Chief Inspector of Factories, Madras, and (2) a letter of Superintendent of Central Excise I.D.O., Vijayawada.\n\nMr.\n\nSetalvad conceded, and i:n our opinion: rightly, that these documents throw no. light on the qljtStion whether in 1966 the pr~ mises were a factory within tb, e meaning of s. 2(m). We, therefore say nothing more with regard to these documents.\n\nIn the .result, the appeal is dismissed.\n\nY.P.\n\nAppeal dismissed.", "total_entities": 63, "entities": [{"text": "RAO\n\nPUBLIC PROSECUTOR, ANDHRA PRADESH", "label": "RESPONDENT", "start_char": 13, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "PUBLIC PROSECUTOR, ANDHRA PRADESH", "offset_not_found": false}}, {"text": "March 7, 1969", "label": "DATE", "start_char": 53, "end_char": 66, "source": "ner", "metadata": {"in_sentence": "V. P. GOPALA RAO\n\nPUBLIC PROSECUTOR, ANDHRA PRADESH\n\nMarch 7, 1969\n\n[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.]"}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 69, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 82, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "K. S. HEGDE, JJ.", "label": "JUDGE", "start_char": 101, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "ss. 2(k)", "label": "PROVISION", "start_char": 154, "end_char": 162, "source": "regex", "metadata": {"statute": null}}, {"text": "Factories Act, 1948", "label": "STATUTE", "start_char": 395, "end_char": 414, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Andhra Pradesh Factory Rules, 1950", "label": "STATUTE", "start_char": 423, "end_char": 457, "source": "regex", "metadata": {}}, {"text": "Bombay", "label": "GPE", "start_char": 1143, "end_char": 1149, "source": "ner", "metadata": {"in_sentence": "From time to time they were packed in gunny bags and exported to the company's factory at Bombay where they were used for manufacturing cigarettes."}}, {"text": "Eluru", "label": "GPE", "start_char": 1673, "end_char": 1678, "source": "ner", "metadata": {"in_sentence": "Dismissing the appeal, this Court:-\n\nHELD : The con1pany's premises at Eluru were a factory."}}, {"text": "s. 2(k)", "label": "PROVISION", "start_char": 1738, "end_char": 1745, "source": "regex", "metadata": {"statute": null}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 1757, "end_char": 1770, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2(k)", "label": "PROVISION", "start_char": 1811, "end_char": 1818, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 2501, "end_char": 2505, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 2701, "end_char": 2705, "source": "regex", "metadata": {"statute": null}}, {"text": "M. C. Setalvad", "label": "JUDGE", "start_char": 4174, "end_char": 4188, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, J. M. Mukhi and G. S. Rama Rao, for the appe!lant."}}, {"text": "J. M. Mukhi", "label": "JUDGE", "start_char": 4190, "end_char": 4201, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, J. M. Mukhi and G. S. Rama Rao, for the appe!lant."}}, {"text": "G. S. Rama Rao", "label": "OTHER_PERSON", "start_char": 4206, "end_char": 4220, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, J. M. Mukhi and G. S. Rama Rao, for the appe!lant."}}, {"text": "P. Ram Reddy", "label": "LAWYER", "start_char": 4242, "end_char": 4254, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy and A. V. V. Nair, for the respondent."}}, {"text": "A. V. V. Nair", "label": "OTHER_PERSON", "start_char": 4259, "end_char": 4272, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy and A. V. V. Nair, for the respondent."}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 4339, "end_char": 4347, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBachawat, J.\n\nM/s. Golden Tobacco Co., Private Ltd. have their head office and main factory at Bombay where they manufacture cigarettes."}}, {"text": "Golden Tobacco Co., Private Ltd.", "label": "PETITIONER", "start_char": 4358, "end_char": 4390, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBachawat, J.\n\nM/s. Golden Tobacco Co., Private Ltd. have their head office and main factory at Bombay where they manufacture cigarettes."}}, {"text": "Andhra Pradesh", "label": "GPE", "start_char": 4559, "end_char": 4573, "source": "ner", "metadata": {"in_sentence": "The appellant is ttie occupier-cum: manager of the company's premises at Eluru in Andhra Pradesh where sun-cured country tobacco purchased from the local producers is collected, processed and stored and then transported to the company's factory at Bombay."}}, {"text": "s. 6( 1)", "label": "PROVISION", "start_char": 4861, "end_char": 4869, "source": "regex", "metadata": {"statute": null}}, {"text": "Factories Act 1948", "label": "STATUTE", "start_char": 4877, "end_char": 4895, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Andhra Pradesh Factory Rules 1950", "label": "STATUTE", "start_char": 4924, "end_char": 4957, "source": "regex", "metadata": {}}, {"text": "2nd Addi. Munsif Magistrate, Eluru", "label": "COURT", "start_char": 5265, "end_char": 5299, "source": "ner", "metadata": {"in_sentence": "The 2nd Addi."}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 5614, "end_char": 5639, "source": "ner", "metadata": {"in_sentence": "The Andhra Pradesh High Court allowed the appeal, convicted the appellant under s. 92 for con travention of s. 6 ( 1) and rules 3 and 5 ( 3) and sentenced him to pay a fine of Rs.·"}}, {"text": "s. 92", "label": "PROVISION", "start_char": 5690, "end_char": 5695, "source": "regex", "metadata": {"linked_statute_text": "the Andhra Pradesh Factory Rules 1950", "statute": "the Andhra Pradesh Factory Rules 1950"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 5718, "end_char": 5722, "source": "regex", "metadata": {"linked_statute_text": "the Andhra Pradesh Factory Rules 1950", "statute": "the Andhra Pradesh Factory Rules 1950"}}, {"text": "Section 2(m)", "label": "PROVISION", "start_char": 5989, "end_char": 6001, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(m)", "label": "PROVISION", "start_char": 6026, "end_char": 6033, "source": "regex", "metadata": {"statute": null}}, {"text": "I A. Subbarao", "label": "WITNESS", "start_char": 6667, "end_char": 6680, "source": "ner", "metadata": {"in_sentence": "For the purpose of proving the prosecution case the respondent relied upon the following materials : (I) the testimony of PW I A. Subbarao, the Assistant Inspector of Factories; (2) his report of inspection of the premises on December 20, 1965; (Ex."}}, {"text": "December 20, 1965", "label": "DATE", "start_char": 6768, "end_char": 6785, "source": "ner", "metadata": {"in_sentence": "For the purpose of proving the prosecution case the respondent relied upon the following materials : (I) the testimony of PW I A. Subbarao, the Assistant Inspector of Factories; (2) his report of inspection of the premises on December 20, 1965; (Ex."}}, {"text": "January 15, 1966", "label": "DATE", "start_char": 6865, "end_char": 6881, "source": "ner", "metadata": {"in_sentence": "P3, and the appellant's reply dated January 15, 1966; (Ex."}}, {"text": "B. P. Chandrareddi", "label": "WITNESS", "start_char": 6919, "end_char": 6937, "source": "ner", "metadata": {"in_sentence": "p5); (4) the testimony of PW 2 B. P. Chandrareddi, the Provident r'und Inspector; and ( 5) si'I returns (Exs."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 8476, "end_char": 8480, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(k)", "label": "PROVISION", "start_char": 8531, "end_char": 8538, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(k)", "label": "PROVISION", "start_char": 9217, "end_char": 9224, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 9351, "end_char": 9355, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(k)", "label": "PROVISION", "start_char": 9964, "end_char": 9971, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(1)", "label": "PROVISION", "start_char": 10236, "end_char": 10243, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2(1)", "label": "PROVISION", "start_char": 10246, "end_char": 10258, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 10847, "end_char": 10851, "source": "regex", "metadata": {"statute": null}}, {"text": "Sattedars", "label": "OTHER_PERSON", "start_char": 11075, "end_char": 11084, "source": "ner", "metadata": {"in_sentence": "On the facts of that case the Court held that certain Sattedars were independent contractors and that they and\n\nthe coolies engaged by them for rolling bidis were not \"workers\"."}}, {"text": "Thankerton", "label": "OTHER_PERSON", "start_char": 11448, "end_char": 11458, "source": "ner", "metadata": {"in_sentence": "In Short v. J. W. Henderson Limited(') Lord Thankerton recapitulated four indicia of a contract of service."}}, {"text": "England", "label": "GPE", "start_char": 11544, "end_char": 11551, "source": "ner", "metadata": {"in_sentence": "As stated in Halsbury's Laws of England, 3rd ed."}}, {"text": "Art. 872", "label": "PROVISION", "start_char": 11578, "end_char": 11586, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 12782, "end_char": 12786, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 12924, "end_char": 12928, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 13022, "end_char": 13026, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 13039, "end_char": 13062, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Clerk", "label": "OTHER_PERSON", "start_char": 13484, "end_char": 13489, "source": "ner", "metadata": {"in_sentence": "In Short v. J. N. Henderson Ltd.(') Lord Thankerton quoting Lord Justice Clerk's dicta in an earlier case said that the principal requirement of a contract of service was the right of the master \"in some reasonable sense\" to control the method of doing the work."}}, {"text": "Bridhichand", "label": "OTHER_PERSON", "start_char": 13692, "end_char": 13703, "source": "ner", "metadata": {"in_sentence": "As pointed out in Bridhichand's case(') the fact that tlie workmen have to work in the factory imply a certain."}}, {"text": "Section 2", "label": "PROVISION", "start_char": 14831, "end_char": 14840, "source": "regex", "metadata": {"statute": null}}, {"text": "Employees Provident Fund Act 1952", "label": "STATUTE", "start_char": 14853, "end_char": 14886, "source": "regex", "metadata": {}}, {"text": "A. Subbarao", "label": "WITNESS", "start_char": 15770, "end_char": 15781, "source": "ner", "metadata": {"in_sentence": "The testimony of PWl, A. Subbarao, the Assistant Inspector of Factories shows that on December 20, 1965 he found 120 workmen working in the premises."}}, {"text": "J. Satyanarain Rao", "label": "OTHER_PERSON", "start_char": 16268, "end_char": 16286, "source": "ner", "metadata": {"in_sentence": "The work of stripping was being done under the supervision of the management's clerk J. Satyanarain Rao."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 17403, "end_char": 17407, "source": "regex", "metadata": {"statute": null}}, {"text": "EJuru", "label": "GPE", "start_char": 17472, "end_char": 17477, "source": "ner", "metadata": {"in_sentence": "The High Court rightly held that the company's premises at EJuru were a factory."}}, {"text": "Madras", "label": "GPE", "start_char": 17590, "end_char": 17596, "source": "ner", "metadata": {"in_sentence": "In the Courts below the appellant produced ( 1 ) an order of the Chief Inspector of Factories, Madras, and (2) a letter of Superintendent of Central Excise I.D.O., Vijayawada."}}, {"text": "Setalvad", "label": "OTHER_PERSON", "start_char": 17677, "end_char": 17685, "source": "ner", "metadata": {"in_sentence": "Mr.\n\nSetalvad conceded, and i:n our opinion: rightly, that these documents throw no."}}, {"text": "s. 2(m)", "label": "PROVISION", "start_char": 17849, "end_char": 17856, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_882_893_EN", "year": 1969, "text": "N. y. NARENDRANATH\n\nCOMMISSIONER OF WEALTH TAX, ANDHRA PRADESH,\n\nHYDERABAD\n\nMarch 7, 1969\n\n(J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.j\n\nWel4.Jth Tax Act, '1957, section 3-Family consisting of sole surviving . Hindu coparcener, his wife and daughters, whether assessable as Hindu Undivided Family or as individual-Assessee receiving property from r.oparcenary on partition-Character of.\n\nIn respect of his assessment to wealth tax for the assessment years 1957-58, 1958-59 and 1959-60, the appellant filed returns in the status , of a Hindu Undivided Family. His family at the material time consisted of himself, his wife and two minor daughte'rs.\n\nJbe appellant claimed to be assessed in. the status of a Hindu Undivided Family inasmuch as the wealth returned consisted of ancestral property received or deemed to have been received by him on Partition with his father and b1others. The Wealth Tax Officer did not accept the contention of the appellant and assessed him as an individu.al.\n\nThe Appellate Assistant Commissioner confirmed this view.\n\nHowever, the Appellate Tribunal held that the appellant should be assessed in the status of Hindu Undivided Family but the High Court, upon a referen~, disagreed with the view of the Appellate Tribunal and held that as the appellant family did not have aay\n\nother male coparcener, all the assets forming the subject matter of the returns filed by the appellant belonged to him as an individual and not to a Hindu Undivided Family.\n\nOn appeal to this Court,\n\nHELD : Allowing the appeal :\n\nThe status of the appellant was rightly determined as that of a Hindu Undivided Family by the Appellate Tribunal.\n\nThe expression \"Hindu Undivided Family\" in the Wealth Tax Act is used in the sense in which a Hindu joint family is understood in the personal law of Hindus. Under the Hindu system of law a joint family may consist of a single male member and his wife and daughters and there is nothing in the scheme of the Wealth Tax Act to suggest that a Hindu Undivided Family as an assessable unit must consist of at least two male members. [886 C]\n\nUnder s. 3 of the Wealth Tax Act not a Hindu coparcenary but a Hindu Undhided Family is one of the assessable legal entities. A Hindu joint family consists of all persons lineally descended from a common an cestor, and includes their wives and unma'rried daughters. A Hindu coparcenary is a much narrower body than the Hindu joint family; it includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grand-sons and great grandsons of the holder of the joint property for the time bein2. [885 F-H]\n\nKalyanji Vitholdas v. Commissioner of Income Tax, 5 Commissioner of Income Tex v. Gomedalli Lakshminara, van T.R. 367 considered.\n\nI.T.R. 90,\n\n[1935] 3\n\nCommissioner of Income Tax v. A. P. Swam.v Gomedalli'. 5 l.T.R. 416, Attorney General of Ceylon v. A.R. Arunachal/am Chettwr [1957] A.C. 540, Gowali Buddanna's [1960] 6 1.T.R. 203 referred to.\n\nT. s. Srinivasan v. Commissioner of Income lax 60, l.T.R. 36 !tstinguished.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1477 to 1479 of 1968.\n\nAppeals from the judgment and order dated November 30, 1964 of the Andhra Pradesh High Court in Case Referred No. 49 of 1962. s. T. Desai and K. Jayaram, for the appellant (in aH the appeals).\n\nD. Narsaraju, G. C. Sharma, R. N. Sachthey and B. D. Sharma, for the respondent (in all the appeals).\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J.\n\nThese appeals are brought by certificate from the judgment of the Andhra. Pradesh High Court, dated 30th November, 1964 in Reference Case No. 49 of 1962.\n\nN. V. Rangarao; the father of the appellant, was the holder of an impartible estate called the \"Munagala Estate\" in the Krishna District in the State of Andhra Pradesh.\n\nThis estate was abolished under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, and compensation under section 45 of the Act was paid severally to the appellant, his father and his brothers. Other properties belonging to the joint family of the appellant, his father and brothers were also partitioned between them from time to time.\n\nThe assets forming the subject of reference to the High Court consisted of investments made from the compensation amount received by the appellant in securities; shares etc. and also other assets such as deposits in Banks.\n\nThe appellant filed returns for the assessment years 1957-58, 1958-59 and 1959-60 in the status of a Hindu Undivided Family. The appellant's family during the material time consisted of himself, his wife and his two minor daughters and there was no other male member. The appellant claimed to be assessed in the status of a Hindu Undivided Family inasmuch as the wealth returned consisted of ancestral property received or deemed to have been received by him on partition with his father and. brothers.\n\nThe Wealth Tax Officer did not accept the contention of the appellant and assessed him as an individual for the assessment years 1957-58, 1958-59 and 1959-60.\n\nOn appeal to the Appellate Assistant Commissioner of Wealth Tax the findmg that he must be assessed as an individual was confirmed.\n\nL It Sup.CJ/69-7\n\nThe Income Tax Appellate Tribunal however on appeal by, the appellant held that he should be assessed in the status of a Hindu\n\nUndivided Family.\n\nThereupon,, the Commissioner of Wealth Tax applied to the Tribunal to state a case to the High Court under section 27(1) of the Wealth Tax Act (Act No. 27 of\n\n1957) (hereinafter called the Act). The Tribunal accordingly referred the following question of law for the opinion of the B High Court:\n\n\"Whether the status of the assessee was rightly determined as Hindu Undivided Family ?\"\n\nThe High Court disagreed with the view of the Appellate Tribunal and held that as the appellaint's family did not have any . c other male coparcener all the assets forming the subject matte1 of the returns filed by the appellant belonged to him as an individual and not to a Hindu Undivided Family.\n\nThe High Court answered the question in favour of the appellant and against the Commissioner of Wealth Tax.\n\nIt is necessary at this stage to set out the relevant provisions D of the Act as they stood at the material time :-\n\n\"Section 2 : In this Act,· unless the context otherwise requires-\n\n( e) \"assets\" includes property of every description, movable or immovable, but does not include- E\n\n(i) agricultural land and growing crops, grass or standing trees on such land;\n\n(ii) any building owned or occupied by a cultivator or receiver of rent or revenue out of agricultural land: p\n\n(iii) animals;\n\n(ix) a right to anY' annuity in any case of where the terms and conditions relating thereto preclude the commutation of any portion thereof into a lump sum grant; G\n\n( v) any interest in property where the interest is available to an assessee for a period not exceeding six years;\n\n(m) \"net wealth\" means the amount by which the aggregate value computed in accordance with the provisions of this Act of all the assets, wherever located,\n\nbelonging to the assessee on the valuation date, including assets required to be included in his net wealth a; on that date under this Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than,-\n\n(i) debts which under section 6 are not to be taken into account; and\n\n(ii) debts which are secured on, or which have been incurred in relation to, any asset in respect of which wealth-tax is not payable under this ct.\n\nSection 3 : Charge of Wealth-tax : Subject to the other provisions contained in this Act, there shall be charged for every financial year commencing on and from the first day of April, 1957, a tax (hereinafter referred to as wealth-tax) in respect of every individual, Hindu Undivided Family and company at the rate or rates specified in the Schedule.\n\nSection 5 : Exemption in respect of certain assets :\n\n(i) Wealth-tax shall not be payable by an assessec in respect of the following assets and such assets shall not be included in the net wealth of the assessee-\n\n(ii) the interest of the assessee in the coparcenary property of any Hindu Undivided Family of which he is a inember\".\n\nUnder s. 3 of the Wealth Tax Act not a Hindu coparcenary but a Hindu Undivided Family is one of the assessable legal entities.\n\nA 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 nan-.Jwer body than the Hindu joint family; it includes only those prsons\n\nwho acquire by birth an interest in the joint or coparcnary property, these being the sons, grand-sons and great granc'-sons of the holder of the joint property for the time being.\n\nIn ;\\:alyanji Vithaldas v. Commissioner of Income Tax, (1) Sir George Rankin observed : ~\n\n\"The phrase \"Hindu Undivided Family\" is used in the statute with reference, not to one school only of\n\n(!) 5 J.T.R. 90.\n\nSUPREM/B COURT REPORTS\n\n[1969] 3 S.C.R.\n\nHindu 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 co-parcenary\", all the more that it is not possible to say on the face of the Act that no female can be a member\".\n\nThe first question involved in this case is whether the status of the appellant was that of a Hindu undivided family consisting of himself, his wife and his daughters. In our opinion, there is no warrant for the contention of the respondent that there must be at least two male members to form a Hindu Undivided Family as a taxable unit.\n\nThe expression \"Hindu Undivided Family\" in the Wealth Tax Act is used in the sense in which a Hindu joint family is understood in the personal law of Hindus. Under the Hindu system of law a joint family may consist of a single male member and his wife and daughters and there is nothing in the scheme of the Wealth Aax Act to suggest that a Hindu Undivided Family as an assessable unit must consist of at least two male members.\n\nThe next question is whether the assets which came lo the share of the appellant on partition ceased to bear the character of joint family properties and became the individual property in his hands. In this connection, a distinction must be drawn between two classes of cases where an assessee is sought lo be assessed in respect of ancestral property held by him : ( 1) where property not originally joint is received by the assessee and the question has to be asked whether it has acquired the character of a joint family property in the hands of the assessee and (2) where the property already impressed with the character of joint family properly comes into the hands of the assessee as a single coparcener and the question required to be considered is whether it has retlrined the character of joint family property in the hands of the assessee or is converted into absolute property of the assessee. In Kalyanji's(') case there were six appeals presented before the Judicial Committee by six partners of the firm of M/s.\n\nMoolji Sicka and Co., viz., Moolji, Purshottam, Kalyanji, Chalurbhuj, Kanji and Sewdas. Moolji, Purshottam and Kalyanji each had a son or sons from whom he was not divided. It was found by the appellate tribunal that the capital supplied by them to the partnership business belonged to them in their individual capacities and was their self acquired property. Hence the income of the firm which had to be assessed to super-tax was the separate income of each of these partners.\n\nChaturbhuj had a wife and daughter but no son.\n\nKanji and Sewdas, sons of Moolji, were married men but neither had a son. It was found by the appellate tribunal that Chaturbhuj Kanji and Sewdas had\n\n(J) 51.T.R. 90\n\nreceived by gift from Moolji their respective share capital in the firm, that the share capital belonged to them in their individual capacities and was self acquired. The question at issue was whether the existence of a son and a wife or a wife and a daughter made the income of the partners the income of the Hindu Undivided Family rather than the income of the individual partner.\n\nThe Judicial Committee held that though the income was from an ancestral source, the fact that each partner had a wife or daughter did not make that income from ancestral source income of the Hindu Undivided Family of the partner, his wife and daughter.\n\nDifferent considerations would be applicable, where property already impressed ; with the character of joint family property\n\nomes into the hands of a single coparcener. The question to be asked in such a case is whether the property retains the character of joint family property or whether it sheds the character of joint family property and becomes the absolute property of the single coparcener.\n\nIn Commissioner of Income Tax v.\n\nD Gomedalli Lakshminarayan, (') the property was ancestral in the hands of the father and the son had acquired an interest in it by birth.\n\nThere was a subsisting Hindu Undivided Family during the life-time of the father and that family did not come to an end on his death. On these facts, the Bombay High Court\n\nheld that the income received from the property was liable to super-tax as the income of the Hindu Undivided Family in the hands of the son who was the sole surviving male member of the Hindu Undivided Family in the year of assessment. The reasoning was that the property from which income accrued originally belonged to a Hindu Undivided Family and on the death of the father it did not cease to be property of that Hindu Undivided Family but continued to belong to that Hindu Undivided Family and its income in the hands of the son was, therefore, assessable as income of the Hindu Undivided Family.\n\nThere was .a Yitai distinction between the facts of this case and the facts in Kalymii!'s\n\ncase('). This distinction was not noticed by the Judicial Com mittee in Kalyanji's case.(') when it observed that the Bombay High Court \"arrived too readily at the conclusion that the income was the income of the family\".\n\nWh.-:n Gomeda/li's case(') was carried on appeal the Judicial Committee once again failed to notice the distinction and wrongly reversed the decision of the Bombay High Court holding that the facts of the case were not materially different from the facts in Kavanji's case(') [See the decisio, n of the Judicial Committee in Commissioner of lllcome Tax v. A. P. Swamy Gomedalli(')l.\n\n(I) (1935) 3 l.T.R. 367.\n\n(2) 5 1.T.R. 90.\n\n(J) 5 I.T.R. 416.\n\nSUPIU!ME COURT REPORTS [1970] I s.C.R\n\nThe recent decision of the Judicial Committee in Attorney General of Ceylon v. AR. Arunachalam Chettiar(') is important.\n\nOne Arunachalam-Nattukottai Chettiar-and his son constituted a joint family governed by the Mitakshara school of Hindu law. The father and son were domiciled in India and had trading and other interests in India, Ceylon and Far Eastern countries. The undivided son died in 1934 and Arunachalam became the sole surviving coparcener in the Hindu Undivided Family to which a number of female members belonged.\n\nArunachalam died in 1938 shortlv after the Estate Ordinance No. I of 1938 came into operation\" in Ceylon. By section 73 of the Ordinance it was provided that property passing on the death of a member of the Hindu Undivided Family was exempt from payment of estate duty. On a clairn to estate duty in respect of Arunachalam's estate in Ceylon, the Judicial Committee held that Arunachalam was at his death a member of the Hindu Undivided Family, the same undivided family of which his son, when alive, was a mem-· ber and of whii:h the continuity was preserved after Arunachalam's death by adoptions made by the widows of the family and since the undivided Hindu family continued to persist, the property in the hands of Arunachalam as a single coparcener was the property of the Hindu Undivided Family. The Judicial Committee observed at page 543 of the Report :-\n\n\". . . . . . though it may be correct to speak of him as the 'owner', yet it is still correct to describe that which he owns as the joint family property.\n\nFor his ownership is such that upon the adoption of a son it assumes a different quality; it is such, too, that female members cf 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 cwnership, just because the property has been and has not ceased to be joint family property. Once again their Lordships quote from the judgment of Gratiaen, J. (') \"To my mind it would make a mockery of the undivided family system if this temporary reduction of the coparcenary unit to a single individual were to convert what was previously joint property belonging to an undivided family into the separate property of the surviving coparcener\".\n\nTo this it may be added that it would not appear reasonable to impart to the legislature the intention to discriminate, so long as the family itself rnbsists, between property in the hands of a single copar-\n\n(I) (1957] A.C. 540.\n\n(2) (1953) 55 C.N.L.R. 496-501.\n\ncener and that in the hands of two or more coparceners\".\n\nThe Judicial Committee rejected the contention of the appellant that since a single coparcener had full power over the property held by him, he must be held to be the absolute owner and observed that fact that he possesses a large power of alienation :\n\n\" . . . . . . . . appears to their Lordships to be an irrelevant consideration. Let 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 propeny. That is what it is until he alienates it and, if he does not alienate it, that is what it remains ...... It is only by analysing the nature of the rights cf the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family propeny can properly be described as 'joint propeny• of. the undivided family.\"(')\n\nThe basis of the decision was that the propeny which was the joint family propeny of the Hindu Undivided Family did not cease to be so because of the \"temporary reduction of the coparcenary unit to a single individual\". The character of the property, viz., that it was the joint propeny of a Hindu Undivided Family, remained the same.\n\nThe same principle was applied by this Court in Gowali Buddanna's(') case. In that case, one Buddappa; his wife, his two unmarried daughters and his unmarried son, Budanna, were members of a Hindu Undivided Family. Buddappa died and after his death the question arose whether the income of the propenies held by Buddanna as 'the sole surviving coparcener was assessable as the individual income of Buddanna or as the income of the Hindu Undivided Family. It was held by this Court that since the propeny which came into the hands of Buddanna as the sole surviving coparcener was originally joint family property, it did not cease to belong to the joint family and income from it was assessable in the hands cf Buddanna as income of the Hindu Undivided Family. In the course of the judgment Shah, J. speaking for the Court examined the decision of the Judicial Committee in Kalyanji's case(') and Gomedalli's(') and pointed out that there was a clear distinction between the two classes of cases :\n\n\"It may however be recalled that in Kalyanji Vithaldas's case(') the income assessed to tax belonged separately to four out of six partners; of the remaining two\n\n(I) (1966) 60 l.T.R. 293.\n\n(2) 601.T.R. 293.\n\n{\\) 51.T.R. 90.\n\n(4) (!935) 3 1.T.R. 367.\n\nit was from an ancestral source, but the fact that each such partner had a wife or daughter did not make that income from an ancestral source income of the undivided family of the partner, his wife and daughter. In Gomeda//i Lakshminarayan's case('), the property 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.\n\nThe income from the property was and continued to remain the income of the undivided family.\n\nThis distinction, which had a vital bearin2 on the issue falling to be determined, was not given effect to by the Judicial Committee in A. P. Swami Gomedalli's case(').\n\nAt page 302 Shah, J. referred to the decision of the Judicial Committee in A runacha/am's (') case and concluded as follows:-\n\n''Property of a joint family, therefore. does 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 posesss. In the case in hand the property which yielded the income originally belonged to a Hindu Undivided Family. On the death of Budappa, the family which included a widow and females. born in the family was represented by Buddanna alone. but the property still continued to belong to that undivided family and income received therefrom was ; axable as income of the Hindu undivided family\".\n\nIn the present case the property which is sought to be taxed in the hands of the appellant ori, gina!ly belonged to the Hindu Undivided Family belonging to the appellant, his father and his brothers.\n\nThere were joint family properties of that Hindi: Undivided Family when the partition took place between the appellant, his father and his brothers and these properties came to the share of the appellant and the question presented for determination is whether they ceased to bear the character of joint family properties and became the absolute properties of the appellant.\n\nAs pointed out by the Judicial Committee in Arunachalam's case(\") \"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 property can properly be described as \"joint property of the undivided family\".\n\nApplying this test it is clear that. though in the absence of male issue the dividin~ coparcener may be properly described in a sense as the owner of the properties. that upon the adoption of a son or birth of a son to him. it would assume a different quality. It con -- --- -------\n\nll) (19.~'.i) .' 1.T.R. ~67. '.~) {1957] A.C. 5Hl\n\ntinues to be ancestral property in his hands as regards his male issue for their rights had already attached upon fr and the partition only cuts off the claims of the dividing coparceners. The father and his male issue still remain joint. The same rule would apply even when a partition had been made before the birth of the male issue or before a son is adopted, for the share which is taken at a partition by one of the coparceners is taken by him as representing his branch. Again the ownership of the dividing coparcener is such\n\n\"that female members of the family may have a right to maintenance out of it and in some circumstances to a charge for maintenance upon if\". (See Arunachalam's(') case). It is evident that these are the incidents which arise because the properties have been and have not been ceased to be joint family properties.\n\nIt is no doubt true that there was a partition between the assessee. his wife and minor daughters on the one hand and his father and brothers on the other hand.\n\nBut the effect of partition did not affect the character of these properties which did not cease t.: be joint family propl!rties in the hands of the appellant. Our conclusion is that when a coparcener having a wife and two minor daughters and no son receives his share of the joint family prop~ties on partition. such property in the hands of the coparcener be!cngs to the Hindu Undivided Family of himself, his wife and n:inor daughters and cannot be assessed as his individual property. It is clear that the present case fall> within the ratio of the decision of this Court in Gowa/i Buddanna's case(') and the Appellate Tribunal was right in holding that the status of the respondent was that of a Hindu Undivided Familv and not that of an individual. On behalf of the respondent reference was made to the decision of this Conrt in T. S. Srinivasan v.\n\nCommissioner of 'Income Tax('), and it was contended that the decision proceeded\n\ncm the basis that property received by the coparcener on partition cannot be regarded as property of a Hindu Undivided Family if he has merely a wife or daughter and no son.\n\nIt is therefore necessary to examine the material facts and find out what is the ratio decidendi of that case.\n\nThe appellant was a member of the Hindu Undivided family with his father and brothers. As a result of partial partition of properties beloncrin\" to the Hindu Undivided Family the appellant received certai~ shares and with tsese shares as nucleus he acquired house nroperties. shares and deposits.\n\nHis first son was born on 11th December. 1952 and it was common ground that the conception of the child must have taken place some time in March. 1952.\n\nFor the assessment year 1953-54 the relevant accounting year being !he_ financialy_ea_i-_ 1st April 1952 to 31st March, 19S3. the\n\nt 1 l jl957] A.C. 5!0.\n\nI~) 60 1.T_R. :'!93. ()) 60 l.T.R. )<.\n\nappellant claimed that the income from the assets should be assessed in the hands of the Hindu Undivided Family consisting of himself and his son which, according to him, had come into i:xistence in or about March, 1952 when the son was conceived.\n\nThe Income Tax Officer recognised the Hindu Undivided- Family only from the date of the birth of the son, viz., 1 lth December, 1952 and assessed the income till 11th Deci:mber, 1952 in the hands of the appellant as an individual.\n\nThe Appellate Assistant Commissioner and the Tribunal upheld this view on appeal.\n\nBefore the High Court the question debated was whether the Hindu Undivided Family came into existence in or about March, 1952 when the son was conceived and whether the assessei: could be assessed in the status of an individual for any part of the relevant accounting year.\n\nThe question was answi:red against the assessee by the High Court. The assessee appealed to this Court and the contention of the appellant was that according to the doctrine of Hindu law a son conceived is in the same position as a son actually in existence.\n\nThe argument was rejected by this Court which held that the Hindu Undivided Family did not come into existence on the conception of the son as claimed by the appellant, but came into being when the son was actually born. It was suggested on behalf of the respondent that the decisicn of this case must be taken to be implicitly, if not explicitly that there was no Hindu Undivided Family prior to the date of the. birth of the son. But we do not think that any such implication can be raised.\n\nThe case of the appellant throughout the course of the proceedings was that the Hindu Undivided Family came into existence for the first time in or about March, 1952 when the son was conceived and it was not his case at any time that a Hindu Undivided Family was in existence prior to the conception of the sop.\n\nIndeed, it was common ground between the parties that there wa5 no Hindu Undivided Family in existence prior to the conception of the son. The only dispute was whe ther the Hindu Undivided Familv came into existence for the first itme when the son was conceived as claimed by the assessee or whether it came into existence when the son was born as claimed by the Income Tax Department.\n\nThe appellant relied on the doctrine of Hindu law that the son conceived is in the same position as the son born and the respondent contended that this doctrine was inapplicable.\n\nThat was the only question raised before this Court which. it was called upon to decide and which in fact it decided. The question whether there was in any event even without a son conceived or born, a Hindu Undivided Family consisting of the apoellant and his wife and whether the properties received on partition belonged to that Hindu Undivided Family was neither raised nor argued before this Court which had no occasion to consider it. The decision of T. S. Srinivasan's case(') has therefore no bearin1 on the question now presented for determination in the present case. for the reasons already. expressed we hold that the status of the appellant was rightly determined as that of a Hindu Undivided Family by the Income Tax Appellate Tribunal and the question of law referred to the High Court must be answered in the affirmative and against the Commissioner of Wealth Tax.\n\nThese appeals arc accordingly allowell with costs. One hearing fee.\n\nR.K.P.S.\n\nAppeals allowed.\n\n(I) 60 l.T.R. 36.", "total_entities": 62, "entities": [{"text": "N. y. NARENDRANATH", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "N. V. NARENDRANATH", "offset_not_found": false}}, {"text": "COMMISSIONER OF WEALTH TAX, ANDHRA PRADESH,\n\nHYDERABAD", "label": "RESPONDENT", "start_char": 20, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF WEALTH TAX, ANDHRA PRADESH, HYDERABAD", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 95, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 104, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ", "label": "JUDGE", "start_char": 121, "end_char": 137, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Jth Tax Act", "label": "STATUTE", "start_char": 146, "end_char": 157, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 166, "end_char": 175, "source": "regex", "metadata": {"linked_statute_text": "Jth Tax Act", "statute": "Jth Tax Act"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 2101, "end_char": 2105, "source": "regex", "metadata": {"statute": null}}, {"text": "T. Desai", "label": "LAWYER", "start_char": 3281, "end_char": 3289, "source": "ner", "metadata": {"in_sentence": "s. T. Desai and K. Jayaram, for the appellant (in aH the appeals)."}}, {"text": "K. Jayaram", "label": "LAWYER", "start_char": 3294, "end_char": 3304, "source": "ner", "metadata": {"in_sentence": "s. T. Desai and K. Jayaram, for the appellant (in aH the appeals)."}}, {"text": "D. Narsaraju", "label": "LAWYER", "start_char": 3346, "end_char": 3358, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju, G. C. Sharma, R. N. Sachthey and B. D. Sharma, for the respondent (in all the appeals)."}}, {"text": "G. C. Sharma", "label": "LAWYER", "start_char": 3360, "end_char": 3372, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju, G. C. Sharma, R. N. Sachthey and B. D. Sharma, for the respondent (in all the appeals)."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3374, "end_char": 3388, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju, G. C. Sharma, R. N. Sachthey and B. D. Sharma, for the respondent (in all the appeals)."}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 3393, "end_char": 3405, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju, G. C. Sharma, R. N. Sachthey and B. D. Sharma, for the respondent (in all the appeals)."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 3493, "end_char": 3502, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J.\n\nThese appeals are brought by certificate from the judgment of the Andhra.", "canonical_name": "V. RAMASWAMI"}}, {"text": "N. V. Rangarao", "label": "PETITIONER", "start_char": 3663, "end_char": 3677, "source": "ner", "metadata": {"in_sentence": "N. V. Rangarao; the father of the appellant, was the holder of an impartible estate called the \"Munagala Estate\" in the Krishna District in the State of Andhra Pradesh."}}, {"text": "section 45", "label": "PROVISION", "start_char": 3959, "end_char": 3969, "source": "regex", "metadata": {"statute": null}}, {"text": "Income Tax Appellate Tribunal", "label": "COURT", "start_char": 5234, "end_char": 5263, "source": "ner", "metadata": {"in_sentence": "CJ/69-7\n\nThe Income Tax Appellate Tribunal however on appeal by, the appellant held that he should be assessed in the status of a Hindu\n\nUndivided Family."}}, {"text": "section 27(1)", "label": "PROVISION", "start_char": 5484, "end_char": 5497, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 6290, "end_char": 6299, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 7375, "end_char": 7384, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 7573, "end_char": 7582, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5", "label": "PROVISION", "start_char": 7926, "end_char": 7935, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 8266, "end_char": 8270, "source": "regex", "metadata": {"statute": null}}, {"text": "Kalyanji", "label": "PETITIONER", "start_char": 11010, "end_char": 11018, "source": "ner", "metadata": {"in_sentence": "In Kalyanji's(') case there were six appeals presented before the Judicial Committee by six partners of the firm of M/s.\n\nMoolji Sicka and Co., viz.,", "canonical_name": "Kalyanji"}}, {"text": "Moolji Sicka and Co.", "label": "ORG", "start_char": 11129, "end_char": 11149, "source": "ner", "metadata": {"in_sentence": "In Kalyanji's(') case there were six appeals presented before the Judicial Committee by six partners of the firm of M/s.\n\nMoolji Sicka and Co., viz.,"}}, {"text": "Moolji", "label": "PETITIONER", "start_char": 11157, "end_char": 11163, "source": "ner", "metadata": {"in_sentence": "Moolji, Purshottam, Kalyanji, Chalurbhuj, Kanji and Sewdas.", "canonical_name": "Moolji"}}, {"text": "Purshottam", "label": "PETITIONER", "start_char": 11165, "end_char": 11175, "source": "ner", "metadata": {"in_sentence": "Moolji, Purshottam, Kalyanji, Chalurbhuj, Kanji and Sewdas.", "canonical_name": "Purshottam"}}, {"text": "Chalurbhuj", "label": "OTHER_PERSON", "start_char": 11187, "end_char": 11197, "source": "ner", "metadata": {"in_sentence": "Moolji, Purshottam, Kalyanji, Chalurbhuj, Kanji and Sewdas.", "canonical_name": "Chaturbhuj Kanji"}}, {"text": "Kanji", "label": "PETITIONER", "start_char": 11199, "end_char": 11204, "source": "ner", "metadata": {"in_sentence": "Moolji, Purshottam, Kalyanji, Chalurbhuj, Kanji and Sewdas.", "canonical_name": "Kalyanji"}}, {"text": "Sewdas. Moolji", "label": "OTHER_PERSON", "start_char": 11209, "end_char": 11223, "source": "ner", "metadata": {"in_sentence": "Moolji, Purshottam, Kalyanji, Chalurbhuj, Kanji and Sewdas."}}, {"text": "Purshottam", "label": "PETITIONER", "start_char": 11225, "end_char": 11235, "source": "ner", "metadata": {"in_sentence": "Moolji, Purshottam and Kalyanji each had a son or sons from whom he was not divided.", "canonical_name": "Purshottam"}}, {"text": "Chaturbhuj", "label": "OTHER_PERSON", "start_char": 11608, "end_char": 11618, "source": "ner", "metadata": {"in_sentence": "Chaturbhuj had a wife and daughter but no son.", "canonical_name": "Chaturbhuj Kanji"}}, {"text": "Kanji", "label": "PETITIONER", "start_char": 11656, "end_char": 11661, "source": "ner", "metadata": {"in_sentence": "Kanji and Sewdas, sons of Moolji, were married men but neither had a son.", "canonical_name": "Kalyanji"}}, {"text": "Sewdas", "label": "OTHER_PERSON", "start_char": 11666, "end_char": 11672, "source": "ner", "metadata": {"in_sentence": "Kanji and Sewdas, sons of Moolji, were married men but neither had a son."}}, {"text": "Moolji", "label": "PETITIONER", "start_char": 11682, "end_char": 11688, "source": "ner", "metadata": {"in_sentence": "Kanji and Sewdas, sons of Moolji, were married men but neither had a son.", "canonical_name": "Moolji"}}, {"text": "Chaturbhuj Kanji", "label": "OTHER_PERSON", "start_char": 11774, "end_char": 11790, "source": "ner", "metadata": {"in_sentence": "It was found by the appellate tribunal that Chaturbhuj Kanji and Sewdas had\n\n(J) 51.T.R. 90\n\nreceived by gift from Moolji their respective share capital in the firm, that the share capital belonged to them in their individual capacities and was self acquired.", "canonical_name": "Chaturbhuj Kanji"}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 13191, "end_char": 13208, "source": "ner", "metadata": {"in_sentence": "On these facts, the Bombay High Court\n\nheld that the income received from the property was liable to super-tax as the income of the Hindu Undivided Family in the hands of the son who was the sole surviving male member of the Hindu Undivided Family in the year of assessment."}}, {"text": "Kalymii", "label": "OTHER_PERSON", "start_char": 13892, "end_char": 13899, "source": "ner", "metadata": {"in_sentence": "There was .a Yitai distinction between the facts of this case and the facts in Kalymii!"}}, {"text": "Gomeda", "label": "OTHER_PERSON", "start_char": 14134, "end_char": 14140, "source": "ner", "metadata": {"in_sentence": "Wh.-:n Gomeda/li's case(') was carried on appeal the Judicial Committee once again failed to notice the distinction and wrongly reversed the decision of the Bombay High Court holding that the facts of the case were not materially different from the facts in Kavanji's case(') [See the decisio, n of the Judicial Committee in Commissioner of lllcome Tax v. A. P. Swamy Gomedalli(')l.", "canonical_name": "Gomedalli"}}, {"text": "Kavanji", "label": "PETITIONER", "start_char": 14385, "end_char": 14392, "source": "ner", "metadata": {"in_sentence": "Wh.-:n Gomeda/li's case(') was carried on appeal the Judicial Committee once again failed to notice the distinction and wrongly reversed the decision of the Bombay High Court holding that the facts of the case were not materially different from the facts in Kavanji's case(') [See the decisio, n of the Judicial Committee in Commissioner of lllcome Tax v. A. P. Swamy Gomedalli(')l.", "canonical_name": "Kalyanji"}}, {"text": "Arunachalam-Nattukottai Chettiar", "label": "PETITIONER", "start_char": 14739, "end_char": 14771, "source": "ner", "metadata": {"in_sentence": "One Arunachalam-Nattukottai Chettiar-and his son constituted a joint family governed by the Mitakshara school of Hindu law."}}, {"text": "India", "label": "GPE", "start_char": 14896, "end_char": 14901, "source": "ner", "metadata": {"in_sentence": "The father and son were domiciled in India and had trading and other interests in India, Ceylon and Far Eastern countries."}}, {"text": "Ceylon", "label": "GPE", "start_char": 14948, "end_char": 14954, "source": "ner", "metadata": {"in_sentence": "The father and son were domiciled in India and had trading and other interests in India, Ceylon and Far Eastern countries."}}, {"text": "Arunachalam", "label": "OTHER_PERSON", "start_char": 15017, "end_char": 15028, "source": "ner", "metadata": {"in_sentence": "The undivided son died in 1934 and Arunachalam became the sole surviving coparcener in the Hindu Undivided Family to which a number of female members belonged."}}, {"text": "section 73", "label": "PROVISION", "start_char": 15252, "end_char": 15262, "source": "regex", "metadata": {"statute": null}}, {"text": "Gratiaen", "label": "JUDGE", "start_char": 16651, "end_char": 16659, "source": "ner", "metadata": {"in_sentence": "Once again their Lordships quote from the judgment of Gratiaen, J. (') \"To my mind it would make a mockery of the undivided family system if this temporary reduction of the coparcenary unit to a single individual were to convert what was previously joint property belonging to an undivided family into the separate property of the surviving coparcener\"."}}, {"text": "Gowali Buddanna", "label": "OTHER_PERSON", "start_char": 18527, "end_char": 18542, "source": "ner", "metadata": {"in_sentence": "The same principle was applied by this Court in Gowali Buddanna's(') case.", "canonical_name": "Gowali Buddanna"}}, {"text": "Buddappa", "label": "OTHER_PERSON", "start_char": 18572, "end_char": 18580, "source": "ner", "metadata": {"in_sentence": "In that case, one Buddappa; his wife, his two unmarried daughters and his unmarried son, Budanna, were members of a Hindu Undivided Family.", "canonical_name": "Buddappa"}}, {"text": "Budanna", "label": "OTHER_PERSON", "start_char": 18643, "end_char": 18650, "source": "ner", "metadata": {"in_sentence": "In that case, one Buddappa; his wife, his two unmarried daughters and his unmarried son, Budanna, were members of a Hindu Undivided Family.", "canonical_name": "Buddappa"}}, {"text": "Buddanna", "label": "OTHER_PERSON", "start_char": 18791, "end_char": 18799, "source": "ner", "metadata": {"in_sentence": "Buddappa died and after his death the question arose whether the income of the propenies held by Buddanna as 'the sole surviving coparcener was assessable as the individual income of Buddanna or as the income of the Hindu Undivided Family.", "canonical_name": "Buddappa"}}, {"text": "Shah", "label": "JUDGE", "start_char": 19269, "end_char": 19273, "source": "ner", "metadata": {"in_sentence": "In the course of the judgment Shah, J. speaking for the Court examined the decision of the Judicial Committee in Kalyanji's case(') and Gomedalli's(') and pointed out that there was a clear distinction between the two classes of cases :\n\n\"It may however be recalled that in Kalyanji Vithaldas's case(') the income assessed to tax belonged separately to four out of six partners; of the remaining two\n\n(I) (1966) 60 l.T.R. 293.", "canonical_name": "Shah"}}, {"text": "Gomedalli", "label": "OTHER_PERSON", "start_char": 19375, "end_char": 19384, "source": "ner", "metadata": {"in_sentence": "In the course of the judgment Shah, J. speaking for the Court examined the decision of the Judicial Committee in Kalyanji's case(') and Gomedalli's(') and pointed out that there was a clear distinction between the two classes of cases :\n\n\"It may however be recalled that in Kalyanji Vithaldas's case(') the income assessed to tax belonged separately to four out of six partners; of the remaining two\n\n(I) (1966) 60 l.T.R. 293.", "canonical_name": "Gomedalli"}}, {"text": "Kalyanji Vithaldas", "label": "OTHER_PERSON", "start_char": 19513, "end_char": 19531, "source": "ner", "metadata": {"in_sentence": "In the course of the judgment Shah, J. speaking for the Court examined the decision of the Judicial Committee in Kalyanji's case(') and Gomedalli's(') and pointed out that there was a clear distinction between the two classes of cases :\n\n\"It may however be recalled that in Kalyanji Vithaldas's case(') the income assessed to tax belonged separately to four out of six partners; of the remaining two\n\n(I) (1966) 60 l.T.R. 293."}}, {"text": "Gomeda//i Lakshminarayan", "label": "OTHER_PERSON", "start_char": 19944, "end_char": 19968, "source": "ner", "metadata": {"in_sentence": "In Gomeda//i Lakshminarayan's case('), the property 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."}}, {"text": "A. P. Swami Gomedalli", "label": "OTHER_PERSON", "start_char": 20408, "end_char": 20429, "source": "ner", "metadata": {"in_sentence": "This distinction, which had a vital bearin2 on the issue falling to be determined, was not given effect to by the Judicial Committee in A. P. Swami Gomedalli's case(')."}}, {"text": "Shah", "label": "JUDGE", "start_char": 20454, "end_char": 20458, "source": "ner", "metadata": {"in_sentence": "At page 302 Shah, J. referred to the decision of the Judicial Committee in A runacha/am's (') case and concluded as follows:-\n\n''Property of a joint family, therefore.", "canonical_name": "Shah"}}, {"text": "Budappa", "label": "OTHER_PERSON", "start_char": 20897, "end_char": 20904, "source": "ner", "metadata": {"in_sentence": "On the death of Budappa, the family which included a widow and females.", "canonical_name": "Buddappa"}}, {"text": "Gowa/i Buddanna", "label": "OTHER_PERSON", "start_char": 23990, "end_char": 24005, "source": "ner", "metadata": {"in_sentence": "It is clear that the present case fall> within the ratio of the decision of this Court in Gowa/i Buddanna's case(') and the Appellate Tribunal was right in holding that the status of the respondent was that of a Hindu Undivided Familv and not that of an individual.", "canonical_name": "Gowali Buddanna"}}, {"text": "11th Deci:mber, 1952", "label": "DATE", "start_char": 25693, "end_char": 25713, "source": "ner", "metadata": {"in_sentence": "1 lth December, 1952 and assessed the income till 11th Deci:mber, 1952 in the hands of the appellant as an individual."}}, {"text": "Assistant Commissioner", "label": "PETITIONER", "start_char": 25777, "end_char": 25799, "source": "ner", "metadata": {"in_sentence": "The Appellate Assistant Commissioner and the Tribunal upheld this view on appeal."}}, {"text": "T. S. Srinivasan", "label": "OTHER_PERSON", "start_char": 28212, "end_char": 28228, "source": "ner", "metadata": {"in_sentence": "The decision of T. S. Srinivasan's case(') has therefore no bearin1 on the question now presented for determination in the present case."}}]}
{"document_id": "1969_3_894_900_EN", "year": 1969, "text": "MOHAMMAD ISMAIL\n\nNANNEY LAL\n\nMarch 1, 1969\n\n[M. HIDAYATULLAH, C.J.,\n\nJ. C. SHAH,\n\nV. RAMASWAMI,\n\nG. K. MITTER AND A. N. GROVER, JJ.J\n\nU.P. (Temporary) Control of Rent & Eviction Act (U.P. 7 of 1941) s. 7-F-Suit for eviction filed after obtaining permission by ComniissioM; -Permission revoked by State Government-Whether suit incompetent.\n\nThe U.P. (Temporary) Control of Rent & Eviction Act, 1947, res- C tricts the rights of landlords to institute suits for eviction of their tenants to cases covered by s. 3(l)(a) to (g) except with the permission of the J?istri.ct Magistrate. The District Magistrate's order granting the permiss10n is expressly made subject to any order by the Commissioner under s. 3 (2) provided the aggreived party applies within 30 days to the Commissioner to revise the order. The Commissioner must ordinarily dispose of the application within six weeks. Section 7-F of the Act confers revisionary powers on the State Government in any case granting or refusing D to grant permission, and under s. 3 ( 4) the Order of the Commissioner under s. 3(3) is to be final subject to the order under s. 7-F. The respondent-landlord obtained permission of the District Magistrate to file a suit fdr eviction of the appellant-tenant under s.. 3 ( 1) of the Act. , The tenant applied to the Commissioner under s. 3(2) and the Commisioner\n\ndismissed the application. The tenant then filed a further revision application fo the State Government under s. 7-F. Before the disposal of the E last revision application, the landlord filed a suit for ejectment in pursuance of the permission given by the Commissioner. Thereafter the State Government set aside the order of the Commissioner and revoked the permission granted to the landlord.\n\nOn the question whether the suit filed, after obtaining the permission of the Commissioner became incompetent on the making of an order by the State Government unders. 7-F cancelling the permission to sue given by the Commissioner, this Court,\n\nHELD : The suit validly instituted after obtaining permission as re- .quired by s. 3 did not cease to be maintainable even if the State Government thereafter revoked the permission granted.\n\nUnder sub-s. (1) of s. 3 the maintainability of a suit on grounds other than those mentioned in els. (a) to (g) is made expressly subject to an order under sub-s. (3). The Legislature did not provide that the right to file a suit would be subject to or dependent upon an order under s. 7-F G in the same way as an order under s. 3(3). [898 A]\n\nWhen n landlord files a suit for eviction only with the permission of the District Magistrate, he is conscious of the fact that such permission may be revoked by the Commissioner at the instance of the tenant within tCn weeks of its institution. But so far as the revisional powers of the\n\nState Government are concerned. there is n6 time limit fixed either for application by an aggrieved party o'r for the disposal thereof .. It may b_e H made at anv time and the State Government 1s further authorised by this section (s. 7-F) to act suo 111otu. In such a state of affairs, it cannot be 'held that the landlord must wait indefinitely and find out whether the\n\nG '\n\npermission granted to him will be upheld by the State Government should the tenant make an application for revision of the ordelr of the Commissioner. [898 CJ\n\nApart from the above c; pnsideration, the words in s. 7-F indicate that the State Government can only exercise its. jurisdiction to revise the order of the Commissioner before the actual jnstitution of the suit.\n\nThe language of s. 7-F does not seem to be aimed at invalidating a suit already instituted and can only operate at a stage before the landlord launches his proceedings. There is nothing in sub-s. ( 4) of s. 3 read with s. 7-F to show that the landlord should wait till the powers of the revising authorities have been exhausted. If the Legislature had so intended, it could have used suitable words in sub-s. (!) of s. 3 to indicate that the grant of permission by the District Magistrate would also be subject to an crder under s. 7-F. [898 F]\n\nThe Legislature had provided for a decree for eviction of a tenant passed before the commencement of the Act liable to be rendered inexecutable unless it was based on any of the grounds mentioned in sub-s. ( 3). lbe Legislature might, if so advised, have provided for a similar result in a case where the_ State Government had revoked the permission to sue granted by the Commissioner. It would make a mockery of the judicial process if it were to be held on the language of the sections as they stood, that irrespective of a decree being passed by the trial coun being upheld in appeal by the High Coun or by this Court, the order of the State Government would nullify all proceedings.\n\nOnce the jurisdiction under s. 16 wa• properly exercised the Coun cannot examine the propriety of the order made thereunder. [899 B-D: 900 BJ\n\nBhcgwan Das v. Paras Nath, [1969) 2 S.C.R. 297, followed.\n\nShri Bhagwan v. Ram Chand [1965) 3 $.C.R. 218 and Bansi Ram v.\n\nManrri Lal, I.LR. [1965) 1 Allahabad 545, re'ferred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 263 of 1969.\n\nAppeal by special leave from the judgment and order dated December 13, 1968 of the Allahabad High Court in SecQ.nd Appeal No. 3474 of 1963.\n\nJ. P. Goyal, G. N. Wantoo and V. C. Parashar, for the appellant.\n\nK. P. Gupta, for the respondent.\n\nThe Judgment of the Court was delivered by Mitter, J, The question in this appeal by special leave is, whether a suit for evictiom of a tenant by a landlord, after obtaining the permission of the Commissioner under sub-s. (3) of s. 3 of the Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 194 7 becomes incompetent, on the making of an order by the State Government under s. 7 -F cancelling the permission to sue given by the Commissioner.\n\nThe relevant facts for disposal of this appeal are as follows.\n\nThe respondent-landlord obtained permission of the District\n\nMagistrate to file a suit for eviction against the appellant under s. 3(1) of the Act on May 29, 1961. The ten.ant went up to the Commissioner of Agra Divisi~ under s. 3 ( 2) of the Act.\n\nOn July 26, 1961 the Commissioner dismissed the revision application.\n\nThe tenant then filed a further revision application to the State Government under s. 7-F of the Act.\n\nBefore the disposal of the last revision application, the landlord filed a suit for ejectment on J ainuary 18, 1962 in the court of the Munsii, Etah in pursuance of the permission given by the Commissioner. On June 16, 1962 rhe State Government set aside the order of the Commissioner and revoked !he permission granted to the landlord.\n\nThe suit was dismissed by the Munsif of Etah on November 17, 1962. The Civil Judge of Etah allowed the appeal of the landlord on September 28, 1963.\n\nTh~ tenant went up in Second Appeal to the High Court. On December 13, 1968 a learned single Judge of the Allahabad High Court dismissed the tenant's appeal following a judgment of this Court in Bhagwan Das v.\n\nParas Nath(').\n\nLearned counsel for the appellant contended that some aspects of the question had not bee.n raised before and/ or considered by this Court on the prior occasion which might have induced the Court to come to a different conclusion. Having heard counsel at some length, we are convinced that there is no-merit in his submissions.\n\nWe respectfully agree with the decision in Bhogwan Das's case(') and are satisfied that counsel has not been able to show that any relevant aspect of the question was not considered on the former occasion.\n\nThere was no unanimity of opinion in the Allahabad High Court as regards the effect of run order passed by the State Government contrary to tlie Commissioner's order on the basis of whiGh a suit for eviction was filed in the subordinate courts. So far as the High Court was concerned, the matter was laid at rest by a Full Bench decision in the case of Bansi Ram v. Mantri Lal('). This Court while not concurring with all that was said in Bansi Ram's case(2) agreed with the Full Bench that a suit validly instituted after obtaining permission as required by s. 3 did not cease to be maintainable even if the State Government thereafter revoked the permission granted.\n\nSection 3 ( 1) of the Act restricts the rights of la.oolords to institute suits for eviction of tenants to cases covered by clauses\n\n(a) to (g) of that sub-section except with the permission of the District Magistrate. The words of this sub-section are imperative and show that no such suit can be filed without the permission of the said authority.\n\nUnder the Transfer of Property Act the only pre-requisite to the institution of a valid suit .for evictiOill of a monthly tenant is the service of a proper notice to quit. The\n\n(I) [1969] 2 S.C.R. 297.\n\n(2) I.L.R. [1965[ I Allahabad 545.\n\nG ,\n\nlandlord is not obliged to make out any ground for such eviction.\n\nWhere he seeks to eject a tenant and can make out a case which falls within any of the sub-clauses (a) to (g), he need not approach the Distrkt Magistrate for permission to sue. It follows that the District Magistrate must consider the justification for the institution of a suit in all other cases. His order is expressly made subject to any order under sub-s. ( 3) of the section.\n\nIn order that power under the latter sub-section can be exercised, it is necessary {or the aggrieved party to apply to the Commissioner to revise the order of the Magistrate by 111aht1g an application under sub-s. ( 2) of the section within 30 days from the date on which the order is communicated to him.\n\nSub-s. (3) enjoins upon the Commissioner to hear the application, as far may be, within six weeks from the date of making it and his powers in this regard are not subject to any limitation.\n\nA landlord may file a suit for eviction on getting the permission of the District Magistrate to do so bnt he runs the risk of such permission being revoked by the Commissioner in which case his suit will become infructuous as by the.express words of sub-s. (1) the permission of the District Magistrate is made subject to revision by the Commissioner. The question arises whether the same result will follow if the order of the Commissioner is in its turn upset by the State Government acting under s. 7-F and whether sub-s. (4) of s. 3 should be so construed.\n\nIn our opinion, an order under s. 7-F cannot affect a suit filed prior thereto if the landlord has obtained the necessary sanction from the Commissioner.\n\nThe relevant portion of the sections are quoted below* for facility of reference.\n\n*(3) Restrictions on eviction.-(1) Subject to any order passed under subsection (3) no suit shall, without the permission of the District Ma&:istrate, be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grounds :-\n\n(a) to (g)\n\n(2) Whee any application has been made to the District M; gi.strate for permission to sue a tenant for eviction from any accommodation and tbe. District Magistrate grants or refuses to grant the permission, the party aggrieved by his order mf:Y, within 30 days from the date on which the order is communi cated to him, apply to the Corn.missioner to revise the order.\n\n(3) The Commissioner shall hear the application made under ab-section (2), as far as may .be, within six weeks from the. date of mking it, and he may. if he is not satisfied as to the correctness. legality O! propriety of !he order passed by the District Magistrate or as to the regularity of proceed1ngs held before him alter or reverse his order, or make such other order as may be just and proper. ( 4) The order of the Commissioner under sub-section (3) shall, subject to any order passed by the State Government under section 7-F be final.\n\n7-F.-Revision to State Government-The State Government may call for the record of any case granting or refusing to grant permission for the filing of a suit for eviction referred to in Section 3 or requiring anv accommodation to be let or not to be let to any person under Section 7 or directing a person to vacate anv accommodation under Section 7-A and maiy make such order as appears to it. necessary for the ends of justice.\n\nUnder sub-s. ( l) the maintainability of a suit on grolllll!ds other than those mentioned in els. (a) to (g) is made expressly subject to an order under sub-s. ( 3). It will be noted that the Legislature has conferred various powers on the State Government besides the power to reverse orders under section 3. . For reasQDS of its own the Legislature did not provide that the right to file a suit would be subject to or dependent upon an order under s. 7-F in the same way as an order under section 3 ( 3 ) .\n\nVarious reasons were given by this Court in Bhagwan Das's case(') for coming to the conclusion thats. 7-F was not to be construed in the same way as s. 3 ( 3) and we are .in entire agi:eement therewith.\n\nWhen a landlord filed a suit for eviction only with the permission of the District Magistrate he knows that it would be open to the tenant to ask for revocation of the permission by an applicatiQl'.1 to the Commissioner within 30 days from the communication of the order of the District Magistrate to him.\n\nHe is also aware that the Commissioner must, except for unavoidable reasons, hear the application and dispose of it within six weeks thereafter.\n\nAt the most, therefore, he has to wait for about ten weeks from the order of the District Magistrate granting permission to find out whether he can safely institute a suit.\n\nBut so far as the revisional powers of the State Gover1DJIIlent are concerned, there is no time limit fixed either for application by an aggrieved party or tor the disposal thereof. It may be made at any time and the State Government is further authorised by this section (s. 7-F) to act suo motu.\n\nIn such a state of affairs, it would not be right to hold that the landlord must wait indefinitely and ljnd out whether the permission graimed to him will be upheld by the State Government should the tenant make an application for revision of the order of the Commissioner.\n\nApart from the above consideration, the words of s. 7-F in our opinion, indicate that the State Government cain only exercise its jurisdiction to revise the order of the Commissioner before the actual institution of the suit.. The language of s. 7-F shows that on the facts of the case before it the State Government must consider whether the grant of or refusal to grant permission for the filing of a suit should be upheld or not. The section does not seem to be aimed at invalidating a suit a\\ready instituted and can only operate at a stage before the landlord launches his proceeding.\n\nThere is nothing in sub-s. ( 4) of s. 3 read with s. 7-F to show that a lancllod should wait till the powers of the revising authorities have been exhausted. If the Legislature had so intended, it could have used words iini sub-s. ( 1) of s. 3 to indicate that the grant of permission by the District Magistrate would also be subject to an order under s. 7-F.\n\nThe same result might have been achieved by providing for the stay of a suit in case the State\n\n\nGovernment made an order under s. 7-F contrary to that of the\n\nCommisllioner.\n\nOnce a suit is validly instituted it must take its course and the decree passed therein must be givC\\11 effect to .unless the words of the statute render the decree inexecutable or liable to re-opening in a proper case on grounds mentioned in the statute. It was pointed out by this Court in Bhagwan Das's case(') that the Legislautre had provided for a decree for eviction of a tenant passed before the commencement of the Act liable to be rendered inexecutable unless it was based on any of the grounds mentioned in sub-s. (3). The Legislature might, if so advised, have provided for a similar result in a case where the State Government had revoked the permission to sue granted by the Commissioner.\n\nIt was also pointed out in Bhagwan Das's case(') that it would make a mockery of the jm:licial process if we were to hold on the language of the sections as they stand at present, that irrespective\n\nof a decree being passed by the trial court being upheld in appeal by the High Court or by this Court, the order of the State Government would nullify all progs.\n\nThere is nothing in the judgment of this Court in Shri Bhagwan\n\nv. Ram Chand(') read with secti!lll 16(3) of the Act which would incline us to come to any different conclusion.\n\nOn the strength of the decision in that case read iJli the light of s. 16, it\n\nwas argued that the order of the State Government being quasijudicial in nature s. 16 (inset) placed the order of the State Government beyond the pale of scrutiny by a court of law.\n\nWe cannot see any force in this argumCill't. The permission to sue given by the Commissione~ has no effect on the course of the trial of the issues involved in that suit. That permission is only a prerequisite to a suit as a notice under s. 80 of the Code of Civil Procedure.\n\nThe court trying the suit for eviction has to find out whether a proper notice to quit was given aind whether the tenancy was properly determined. It must also examine the grounds on the basis of which the landlord seeks to evict the tenant and decide for itself whether such grounds exist. Neither the District Magistrate nor the Commissioner nor the State Government is oblieed to disclose any reasons which may influence the said authorities in coming to their decision and the court is not called upon to examine whether the conclusion of any of the said authorities was\n\nproperly arrived at.\n\nLearned counsel for the appellant would have us hold that\n\n\nLil Sup ; Cl/69-8\n\n(2) (1965] 3 S.C.R. 218.\n\ns. 16• ousted the jurisdiction of the Court to consider the propriety of any order of the State Government.\n\nIn our view, that is not the effect of that section. The decision in Shri Bhagwan v. Ram Chand (supra) shows that the State Government must offer areasonable opportunity to both the parties while it exercises its jurisdiction under s. 7-F and an order which is J!lade in violation of the principles of natural justice may be quashed.\n\nOnce the jurisdiction under s. 16 is properly exercised the court cannot examine the propriety of the order made therell\\ll.der.\n\nIn the resu!t, the appeal fails and is dismissed with costs. Two is only exercisable at a point of time anterior to the filing of a suit and courts of law can therefore disregard any order under that section which is made after the filing of a suit.\n\nIn the result, the appeal fails and is dismissed with costs. Two months time granted from today for vacating subject to payment of rent and an undertaking given that the property would be handed over peacefuliy within that time.\n\nY.P.\n\nAppeal dismissed.\n\n•Section 16. Orders under the Act not to be questioned in any Court.- No order' made under this Act by the State Government or the District Magis. trate shall be called in question in any court.", "total_entities": 84, "entities": [{"text": "MOHAMMAD ISMAIL", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "MOHAMMAD ISMAIL", "offset_not_found": false}}, {"text": "NANNEY LAL", "label": "RESPONDENT", "start_char": 17, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "NANNEY LAL", "offset_not_found": false}}, {"text": "March 1, 1969", "label": "DATE", "start_char": 29, "end_char": 42, "source": "ner", "metadata": {"in_sentence": "MOHAMMAD ISMAIL\n\nNANNEY LAL\n\nMarch 1, 1969\n\n[M. HIDAYATULLAH, C.J.,\n\nJ. C. SHAH,\n\nV. RAMASWAMI,\n\nG. K. MITTER AND A. N. GROVER, JJ.J\n\nU.P. (Temporary) Control of Rent & Eviction Act (U.P. 7 of 1941) s. 7-F-Suit for eviction filed after obtaining permission by ComniissioM; -Permission revoked by State Government-Whether suit incompetent."}}, {"text": "M. HIDAYATULLAH, C.J.", "label": "JUDGE", "start_char": 45, "end_char": 66, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 72, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 82, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "G. K. MITTER", "label": "JUDGE", "start_char": 97, "end_char": 109, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER", "offset_not_found": false}}, {"text": "A. N. 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P. Goyal", "label": "JUDGE", "start_char": 5332, "end_char": 5343, "source": "ner", "metadata": {"in_sentence": "J. P. Goyal, G. N. Wantoo and V. C. Parashar, for the appellant."}}, {"text": "G. N. Wantoo", "label": "OTHER_PERSON", "start_char": 5345, "end_char": 5357, "source": "ner", "metadata": {"in_sentence": "J. P. Goyal, G. N. Wantoo and V. C. Parashar, for the appellant."}}, {"text": "V. C. Parashar", "label": "OTHER_PERSON", "start_char": 5362, "end_char": 5376, "source": "ner", "metadata": {"in_sentence": "J. P. Goyal, G. N. Wantoo and V. C. Parashar, for the appellant."}}, {"text": "K. P. Gupta", "label": "OTHER_PERSON", "start_char": 5398, "end_char": 5409, "source": "ner", "metadata": {"in_sentence": "K. P. Gupta, for the respondent."}}, {"text": "Mitter", "label": "JUDGE", "start_char": 5475, "end_char": 5481, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Mitter, J, The question in this appeal by special leave is, whether a suit for evictiom of a tenant by a landlord, after obtaining the permission of the Commissioner under sub-s. (3) of s. 3 of the Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 194 7 becomes incompetent, on the making of an order by the State Government under s. 7 -F cancelling the permission to sue given by the Commissioner."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 5661, "end_char": 5665, "source": "regex", "metadata": {"statute": null}}, {"text": "Control of Rent and Eviction Act", "label": "STATUTE", "start_char": 5699, "end_char": 5731, "source": "regex", "metadata": {}}, {"text": "s. 7", "label": "PROVISION", "start_char": 5816, "end_char": 5820, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act", "statute": "Control of Rent and Eviction Act"}}, {"text": "s. 3(1)", "label": "PROVISION", "start_char": 6077, "end_char": 6084, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act", "statute": "Control of Rent and Eviction Act"}}, {"text": "May 29, 1961", "label": "DATE", "start_char": 6099, "end_char": 6111, "source": "ner", "metadata": {"in_sentence": "The respondent-landlord obtained permission of the District\n\nMagistrate to file a suit for eviction against the appellant under s. 3(1) of the Act on May 29, 1961."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 6175, "end_char": 6179, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act", "statute": "Control of Rent and Eviction Act"}}, {"text": "July 26, 1961", "label": "DATE", "start_char": 6201, "end_char": 6214, "source": "ner", "metadata": {"in_sentence": "On July 26, 1961 the Commissioner dismissed the revision application."}}, {"text": "s. 7", "label": "PROVISION", "start_char": 6352, "end_char": 6356, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act", "statute": "Control of Rent and Eviction Act"}}, {"text": "J ainuary 18, 1962", "label": "DATE", "start_char": 6469, "end_char": 6487, "source": "ner", "metadata": {"in_sentence": "Before the disposal of the last revision application, the landlord filed a suit for ejectment on J ainuary 18, 1962 in the court of the Munsii, Etah in pursuance of the permission given by the Commissioner."}}, {"text": "June 16, 1962", "label": "DATE", "start_char": 6582, "end_char": 6595, "source": "ner", "metadata": {"in_sentence": "On June 16, 1962 rhe State Government set aside the order of the Commissioner and revoked !"}}, {"text": "Civil Judge of Etah", "label": "COURT", "start_char": 6781, "end_char": 6800, "source": "ner", "metadata": {"in_sentence": "The Civil Judge of Etah allowed the appeal of the landlord on September 28, 1963."}}, {"text": "December 13, 1968", "label": "DATE", "start_char": 6918, "end_char": 6935, "source": "ner", "metadata": {"in_sentence": "On December 13, 1968 a learned single Judge of the Allahabad High Court dismissed the tenant's appeal following a judgment of this Court in Bhagwan Das v.\n\nParas Nath(')."}}, {"text": "Bhogwan Das", "label": "OTHER_PERSON", "start_char": 7459, "end_char": 7470, "source": "ner", "metadata": {"in_sentence": "We respectfully agree with the decision in Bhogwan Das's case(') and are satisfied that counsel has not been able to show that any relevant aspect of the question was not considered on the former occasion."}}, {"text": "Bansi Ram", "label": "OTHER_PERSON", "start_char": 8062, "end_char": 8071, "source": "ner", "metadata": {"in_sentence": "This Court while not concurring with all that was said in Bansi Ram's case(2) agreed with the Full Bench that a suit validly instituted after obtaining permission as required by s. 3 did not cease to be maintainable even if the State Government thereafter revoked the permission granted."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 8182, "end_char": 8186, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 8293, "end_char": 8302, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 8654, "end_char": 8678, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "[1969] 2 S.C.R. 297", "label": "CASE_CITATION", "start_char": 8825, "end_char": 8844, "source": "regex", "metadata": {}}, {"text": "s. 7", "label": "PROVISION", "start_char": 10336, "end_char": 10340, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 10369, "end_char": 10373, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 10430, "end_char": 10434, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 11829, "end_char": 11838, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 12037, "end_char": 12046, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 12125, "end_char": 12134, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 12191, "end_char": 12200, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 12581, "end_char": 12590, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 12732, "end_char": 12736, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 12773, "end_char": 12782, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhagwan Das", "label": "OTHER_PERSON", "start_char": 12836, "end_char": 12847, "source": "ner", "metadata": {"in_sentence": "Various reasons were given by this Court in Bhagwan Das's case(') for coming to the conclusion thats. 7-F was not to be construed in the same way as s. 3 ( 3) and we are .in entire agi:eement therewith."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 12941, "end_char": 12945, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 13896, "end_char": 13900, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 14246, "end_char": 14250, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 14440, "end_char": 14444, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 14823, "end_char": 14827, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 14838, "end_char": 14842, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 15027, "end_char": 15031, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 15140, "end_char": 15144, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 15277, "end_char": 15281, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 16637, "end_char": 16642, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 16728, "end_char": 16733, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 80", "label": "PROVISION", "start_char": 17069, "end_char": 17074, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 17078, "end_char": 17105, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "(1965] 3 S.C.R. 218", "label": "CASE_CITATION", "start_char": 17789, "end_char": 17808, "source": "regex", "metadata": {}}, {"text": "s. 16", "label": "PROVISION", "start_char": 17811, "end_char": 17816, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 18152, "end_char": 18156, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 18283, "end_char": 18288, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16", "label": "PROVISION", "start_char": 18892, "end_char": 18902, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1969_3_901_907_EN", "year": 1969, "text": "MALOJIRAO NARASINGllRft.0 SHITOLE\n\nTHE STATE OF MADHYA PRADESH\n\nMarch 7, 1969\n\n[M. HIDAYATULLAH, C.J., V. RAMASWAMI AND G. K. MITTER, JJ.]\n\nMadhya Bharat Abolition of Jagirs Act 28 of 1951, s. 29-Appeal to Board of Revenue-No provision in Act for exclusion of time for obtaining copies or to condone de/ay-S. 30 of Act making Ryotwari Land Revenue and Tenancy Act Samwat 2007 applicable to proceedings under Act-Effect of ss. 34 ond s. 149(2) of Ryotwari Act-Construction of s. 149(2)-App/icability of s. 12 of Indian Limitation Act 1908.\n\nSection 29 of the Madhya Bharat Abolition of Jagirs Act 28 of 1951 provided for appeals against orders of the Jagir Commissioner to the Board of Revenue. The appeal was to be filed within 90 days of the communication of the decision to the party concerned. The Act did not in terms contain any provision for exclusion of time taken in obtaining copies or for <Pndonation of delay in filing the apJ?\"al However under s. 30 of the Act the procedure under the Ryotwan Land Revenue and Tenancy Act, Samwat 2007 was made applicable to the proceedings. Section 34 of the said Ryotwari Act provided for extension and computation of the period of limitation and s. 149(2) thereof was in the following terms : \"Excpt where it is otherwise ptovided\" in the general principles of law of Limitation for the time being in force in the United State regarding extension of the principles of limitation sha11 appJy to claims made under this Act before a Revenue Officer ...\n\n' The appellant was a Sardar and Jagirdar in the erstwhile Gwalior State.\n\nHis Jagir was resumed by the State on December 4, 1952 under the Madhya Bharat Abolition of Jagirs Act 1951.\n\nHe rec\\lived a memorandum from the Jagir Commissioner on February 23, 1958 regarding the compensation payable to him under s. 13 of the Act. On February 24, 1958 he applied to the Jagir Commissioner for a copy of the judgment as the memorandum supplied to him did not show how the compensation had been determined.\n\nThe application was returned to the appellant on March 11, 1958 with an endorsement that the copy could be had on payment of fees. The very next day the appellant complied with the demand and a copy of the judgment was given to him on March 18, 1958. The appellant preferred his appeal to the Board of Revenue on June 2, 1958 but the Board dismissed it as time barred under s. 29 of the Act. The High Court upheld the order df the BMrd.\n\nIn appeal to this Court,\n\nHELD : The High Court was not right in upholding the order of the Board of Revenue which ignored the provisions of ss. 34 and 149(2) of the Ryotwari Act and the relevant provisions of the Limitation Act. f907 B-C]\n\n(i) Uder s. 34 of .th7 yotwari .Act the Board must guide itself by the prov1s1ons of the L1m1tation Act in force for extension and computa tion of the period of limitation. It would appear that s. 149(2) was aimd at givig a similar guide line to the Revenue Officer. To give the said mterpretat1on to s. 149(2) it is necessary to read \"extension of the principles of limitation\" occurring therein as uextension of the period of limitation\" for otherwise the section would be devoid of any meaning.\n\nThe word 'principles' therein was inserted due to inept or careless drafting and what was meant was 'period' and not 'principles'. However,. even if the statute is read as it stands the principle of the Limitation Act is not only to dismiss a suit, appeal o'r application if filed beyond time but also to extend the time for filing an appeal if the delay is explained.\n\nThat principle was clearly capable of extension in the present case. [905 D; 906 El\n\n(ii) The general princ, lples of limitation are those contained in the Limitation Act of 1908 which was in .force at the date when the present appeal was filed before the Board of Revenue. Sections 3, 4, 5 and 29(2) of the Limitation Act 1908 show that unless excluded by the Jagirs Act or Ryotwari Act, s. 12 of the Limitation Act would be applicable to appeals filed before the Board of Revenue under any of those Acts.\n\n[905 E; 906 CJ\n\n(iii) In view of the applicability of ss. 34 and 149(2) of the Ryotwari Act to the case, the time spent in obtaining a copy of the judgment forming the basis or giving the ieasons of the decision should have been excluded in computing the period of 90 days under s. 29 of the Jagirs Act.\n\nThe appellant was not guilty of any !aches. If there was any delay in filing the appeal the Board of Revenue should have considered whether in the circumstances of the case the same should have been condoned.\n\nThe Board did not act judicially in throwin11 out the appeal. [906 F-907 Bl\n\nBriirajsingh v. The Board of Revenue and Another, Misc. Civil Case No. 22[1962 of the Madhya Pradesh Hiib Court decided on 18-3-63, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 302 of 1966. referred to.\n\nAppeal by special leave from the judgment 3(lld o; der dated E November 13, 1962 of the Madhya Prades_!i. High Court, Gwalior Bench in Misc. Civil Petition 64 of 1961.\n\nB. Sen, P. W. Sahasrabudhe, A. G. Ratnaparkhi and S. V.\n\nTambwekar, for the appellant. ·\n\nl. N. Shroff, for the respondent.\n\nJi'\n\nThe Judgment, of the Court was delivered by Mitter, J'. This is an appeal by special leave from an order of the Madhya Pradesh High Court under Art. 227 of the Constitution refusing to quash an order made by the Board of Revenue of the State throwing out the appeal of the appellant on the ground that it was barred by time. The facts are as follows.\n\nThe appellant was a Sardar and a Jagirdar in the former Gwalior State. His J agir known as Pohari Jagir was resumed by the State on December 4, 1952 under the Madhya Bharat Abolition of Jagirs Act, 28 of 1951., He received a memorandum from the Jagir Commissioner on February 23. 1958 regarding the compensation payable to him under s. 13 of the Act in respect of the resumption of his jagir. On February 24, 1958 he applied to the Jagir Commissioner for a copy of the\n\nMALOJJRAO v. M. P. STATE (Mitter, /.) 90 3\n\nA judgment.\n\nThe memorndum received by him gave the total amount of compensation detennined and the deductions to be made therefrom. It did not contain the data forming the basis of the calculations nor did it show how the authority disposed of the appellant's claim to compensation and made its o'\\Wl computation.\n\nAt the hearing, a copy of the judgment of the Jagir Commissioner 8 . running into twenty three pages was handed up to us giving full details of the claim and showing how the same were dealt with for fixing the amolJil]t payable to the appellant.\n\nIt appears that the application of the appe!lant for a copy of the judgment was returned to him on March 11, 1958 with an endorsement that the same could be had on payment of fees. On the very neii:t day the appellant applied for a copy of the judgment after paying the fees mentiqoed and a copy of the judgment was given to him on March 18, 1958. The appellant preferred his appeal to the Board of Revenue on June 2, 1958, As already stated, the Board did not go into the merits of the case holding the appeal to be barred by time under the provisions of s. 29 of the Act.\n\nIt is necessary to note a few of the provisions of the Madhya Bharat Abolition of .Jagirs Act, 1951 (hereinafter referred to as the 'Act') to find out whether the appeal to the Board of Revenue was out of time.\n\nUnder s. 3 of the Act the Government had to appoint a date for the resumption of an jagir }ands in the State, as soon as may be, after the commencement of the Act.\n\nThe consequences of the resumption of the jagir land are given i, n s. 4.\n\nBy the operation of that section the right, title and interest of every jagtrdar and ol every other person claiming through him in his jagir lands including forests, trees etc. whether being worked or oot, were to stand resumed to the State free of all encumbrances and certain other consequences were to follow. Section 5 of the Act however enabled the Jagirdar to continue to remain in possession of lands personally cultivated by him and of certain other items of property mentiqm:d .in cl. (b) of the said section.\n\nUnder s. 8 the Government was to be liable to pay to every jagirdar whose jagir land was resumed under s. 3 such compensation as would be determined in accordance with the principles laid down in Schedule I. Under s. 12 every Jagirdar whose jagir land had been resumed er s. 3 was to file in the prescribed fonn within two months from the date of. resumption, a statement ,<:J. claim for compensation before the Jagir Commissioner.\n\nSub-s.\n\n(2) of the section prescribed the particulars which such statement of claim had to furnish.\n\nOn receipt of a statement of claim under s. 12 or if no statement was received by him within the period fixed, it was the duty of the J agir CommissiQrier to determine (a) the amount of compensation payable to the Jagirdar\n\nunder s. 8, (b) the amount recoverable from him under cl. (e) of sub-s. ( 1) of s. 4, ( c) the amounts of the annual maintenance allowances payable to maintenance holders, if ainy, under s. 9; ( d) the amounts payable annua,!ly to the Zamindars of the J agirdar, if any under s. 10 and ( e) the amount payable to the cosharers of a Jagirdar, if any, under s. 11. The section casts a duty on the Jagir Commissioner to cornmlljilicate !tls decision to the Government, the Jagirdar, the maintenance holders, the co-sharers and the Zamindars, if any, as soon as may be practicable.\n\nUnder s. 29 the Government or any person aggrieved by the decision of the Jagir Commissio.ner under ss. 4, 10, 11, 13 or 14 had the right to appeal to the Board of Revenue within 90 days from the date of the communication of such decision to it or him and the decision of the Board of Revenue was to be final.\n\nFrom the above provisions of the Act, it is amply clear that neither the Government nor the Jagirdar nor any person aggrieved by the decision of the J agir Commissioner under s. 13 can file an appeal to the Board of Revenue to any purpose without a copy of the judgment showing how the decision under s. 13 was arrived at.\n\nIn this case, the memorandum of compensation merely showed that a sum exceeding Rs. 1 7 lakhs had been determined as the amount payable to the appellant. 'l'he memorandum did not show how the same was computed or how the claim for compeinsation preferred by the petitioner under various heads was dealt with.\n\nIn order that an appeal may be effective the appellant must be able to formulate his grounds for challenging the judgment which has gone against him.\n\nThe question there.fore arises as to whether the time taken in obtaining a copy of the judgment which forms the basis of the decision in determining the compensation can be excluded from the period of 90 days mentioned in s. 29 of the Jagirs Abolition Act. There is no provision in the Act which expressly empowers the Board of Revenue to entertain an appeal filed beyond the period of 90 days from the date of the communication of the decision under s. 13. Under s. 30 of the Act\n\n\"The Jagir Commissiqner, or any other officer conducting an enquiry under this Act, and the Board of Revenue and the Collector hearing appeals from the orders of the Jagir Commissioner or the Tahsildar, as the case may be, shall follow the procedure applicable to proceedings under the Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007, so far as may be and shall have the same powers, in relation to proceedings before them as a revenue officer has in reltion to original or appellate proceed-\n\nA ings, as the case may be, under the Act.\" (hereinafter referred to as the Ryotwari Act).\n\nSection 34 of the Ryotwari Act provides :\n\n\"Subject to the provisions of the Limitation Act in force for the time being regarding the extension and 8 computation of the period of !imitation :-\n\n( 1) no appeal to the Board shall be brought after the expiry of ninety days from the date of the decision or the order complained of;\n\n(2) \"\n\nSection 149(2) of the Ryotwari Act provides that\n\n\"Except where it is otherwise specially provided the general principles of law of Limitation for the time being in force in the United State regarding extensiOl)l of the principles of !imitation shall apply to claims made under this Act before a Revenue Officer.\"\n\nIt is clear from the language of s. 34 that in hearing an appeal under the Ryotwari .Act the Board must guide itself by the provisions of the Limitation Act ·~ force for extension and computation of the period of limitation.\n\nIt would appear thats. 149(2) was aimed at giving a similar guide .Jine to the Revenue Officer.\n\nTo give the said interpretation to s. 149(2) it is necessary to read \"extension of the principles of limitation\" occurring therein as \"extensiO\\Il of the period of limitation\" for otherwise the section would be devoid of any meaning. The general principles of limitation are those contained in the Limitation Act of 1908 which were in force at the date when the appeal was filed before the Board of Revenue. Section 3 of the Limitation Act, 1908 laid down that subject to the provisions c<Jilltained in ss. 4 to 25 (inclusive). every suit instituted, appeal preferred, and application made, after the period of litation prescribed therefor by the First Schedule was to be dismissed although limitation had not been set up as a defence.\n\nUnder s. 5 ol. the Limitation Act of 1908 an appeal could be admitted after the period of !imitation prescribed therefor when the appellant satisfied the court that he had sufficient cause for not preferring or making the application within such period.\n\nUnder s. 29(2) of the Limitation Act:\n\n\"Where any special or local law prescribes for any suit appeal or application ai period of !imitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule and for the purpose of determining any period of limitation\n\nprescribed for any suit, appeal or applicatiqn by the special or local Jaw-\n\n( a) the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local Jaw; and\n\n(b) the remaining provisiOlllS of this Act shaU not apply.\"\n\nThese sections go to show that unless excluded by the Jagirs Act or Ryotwari Act section 12 of the Limitation Act would be applicable to appeals filed before the Board of Revenue under any of those Acts.\n\nIt has been held by a Division Bench of the Madhya Pradesh High Court in Brijrajsingh v. The Board of Revenue and another(') that the expressiqn \"principles of limitation\" in s. 149(2) mentioned above should be construed as extension of the period of !imitation.\n\nFor the reasons given above, we are in agreement with the said conclusion of the Madhya Pradesh High Court. In our view, the word 'principle' therein was inserted due to inept or careless drafting aind what was meant was \"period\" and not 'principles'.\n\nEven if we were to read the Statute as it is, the principle of the Limitation Act is to dismiss a suit, appeal or applioation if filed beyond time but also to extend the time for filing an appeal if the delay is explained. That principle is clearly capable of extension in the present case.\n\nH sections 34 aind 149(2) were applical:ile to the facts of the\n\nase before the Board of Revenue and we hold to that effect, the time spent in obtaining a copy of the judgment forming the basis or giving the reasons of the decision should have been excluded in computing the period of 90 days under s. 29 of the Jagirs Act. The appellant was , not guilty of any !aches in his appeal to the Board of Revenue.. He applied for a copy of the judgment of the J agir Commissioner 9n the day next after communication to him of the order of the Jagir Commissioner.\n\nEven if the application was unaccompanied by any fees prescribed for the purpose, the Board of Revenue should have taken this fact into consideration before holding the appellant's appeal to be out of time. If the application for the copy of the judgment made on the 24th February was in order, the appeal was in time.\n\nEven if the time taken in obtaining the copy of the judgment be reckoned from the 12th March to 18th March, 1958, the appellaint was out by two days only in filing the appeal to the Board of Revenue. If the 1st of June 1958 which\n\n(I) Misc. Civil Case No. 22{1962 decided on 18-3-63.\n\nhappened to be a Sunday be left out of consideration, the appellant was out by one day only.\n\nAs appears from the order dated September 28, 19§1 the Board of Revenue refused to entertain the appeal on the ground of limitation without considering the question as to whether the appellant had made out a case for condonation of delay, if any. In our view, the Board of Revenue had not acted judicially in throwing out the appeal.\n\nThe High Coun: was therefore not right in upholding the order of the Board of Revenue which ignored the provisiOtllS of ss. 34 and 149(2) of the Ryotwari Act and the relevant provisions of the Limitation Act. A sounder view of the law was taken by another Division Bench of the same High Court in Brijrajsingh's case(') noted above.\n\nFor the reasons given the appeal is allowed, the order of the Board of Reveinue is quashed and the matter sent back to the Board for disposal of the appeal according to law and in the light of the observations made by us.\n\nThe appellant will have the costs of this appeal.\n\nG.C.\n\nAppeal allowed.\n\n(I) Misc. Civil case No. 22fl962 decided on !8·3-63 ..", "total_entities": 108, "entities": [{"text": "THE STATE OF MADHYA PRADESH", "label": "RESPONDENT", "start_char": 35, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF MADHYA PRADESH", "offset_not_found": false}}, {"text": "March 7, 1969", "label": "DATE", "start_char": 64, "end_char": 77, "source": "ner", "metadata": {"in_sentence": "MALOJIRAO NARASINGllRft.0 SHITOLE\n\nTHE STATE OF MADHYA PRADESH\n\nMarch 7, 1969\n\n[M. HIDAYATULLAH, C.J., V. RAMASWAMI AND G. K. MITTER, JJ.]"}}, {"text": "M. HIDAYATULLAH, C.J.", "label": "JUDGE", "start_char": 80, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 103, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "G. K. MITTER, JJ.", "label": "JUDGE", "start_char": 120, "end_char": 137, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER", "offset_not_found": false}}, {"text": "Madhya Bharat Abolition of Jagirs Act", "label": "STATUTE", "start_char": 140, "end_char": 177, "source": "regex", "metadata": {}}, {"text": "s. 29", "label": "PROVISION", "start_char": 190, "end_char": 195, "source": "regex", "metadata": {"linked_statute_text": "Madhya Bharat Abolition of Jagirs Act", "statute": "Madhya Bharat Abolition of Jagirs Act"}}, {"text": "Appeal to Board of Revenue-No provision in Act", "label": "STATUTE", "start_char": 196, "end_char": 242, "source": "regex", "metadata": {}}, {"text": "S. 30", "label": "PROVISION", "start_char": 306, "end_char": 311, "source": "regex", "metadata": {"linked_statute_text": "Appeal to Board of Revenue-No provision in Act", "statute": "Appeal to Board of Revenue-No provision in Act"}}, {"text": "Act making Ryotwari Land Revenue and Tenancy Act", "label": "STATUTE", "start_char": 315, "end_char": 363, "source": "regex", "metadata": {}}, {"text": "ss. 34", "label": "PROVISION", "start_char": 422, "end_char": 428, "source": "regex", "metadata": {"linked_statute_text": "Act making Ryotwari Land Revenue and Tenancy Act", "statute": "Act making Ryotwari Land Revenue and Tenancy Act"}}, {"text": "s. 149(2)", "label": "PROVISION", "start_char": 433, "end_char": 442, "source": "regex", "metadata": {"linked_statute_text": "Act making Ryotwari Land Revenue and Tenancy Act", "statute": "Act making Ryotwari Land Revenue and Tenancy Act"}}, {"text": "s. 149(2)", "label": "PROVISION", "start_char": 475, "end_char": 484, "source": "regex", "metadata": {"linked_statute_text": "Act making Ryotwari Land Revenue and Tenancy Act", "statute": "Act making Ryotwari Land Revenue and Tenancy Act"}}, {"text": "s. 12", "label": "PROVISION", "start_char": 502, "end_char": 507, "source": "regex", "metadata": {"linked_statute_text": "Act making Ryotwari Land Revenue and Tenancy Act", "statute": "Act making Ryotwari Land Revenue and Tenancy Act"}}, {"text": "Indian Limitation Act 1908", "label": "STATUTE", "start_char": 511, "end_char": 537, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 29", "label": "PROVISION", "start_char": 540, "end_char": 550, "source": "regex", "metadata": {"linked_statute_text": "Indian Limitation Act 1908", "statute": "Indian Limitation Act 1908"}}, {"text": "s. 30", "label": "PROVISION", "start_char": 956, "end_char": 961, "source": "regex", "metadata": {"linked_statute_text": "Indian Limitation Act 1908", "statute": "Indian Limitation Act 1908"}}, {"text": "Section 34", "label": "PROVISION", "start_char": 1087, "end_char": 1097, "source": "regex", "metadata": {"linked_statute_text": "Indian Limitation Act 1908", "statute": "Indian Limitation Act 1908"}}, {"text": "s. 149(2)", "label": "PROVISION", "start_char": 1194, "end_char": 1203, "source": "regex", "metadata": {"linked_statute_text": "Indian Limitation Act 1908", "statute": "Indian Limitation Act 1908"}}, {"text": "Gwalior", "label": "GPE", "start_char": 1558, "end_char": 1565, "source": "ner", "metadata": {"in_sentence": "Section 34 of the said Ryotwari Act provided for extension and computation of the period of limitation and s. 149(2) thereof was in the following terms : \"Excpt where it is otherwise ptovided\" in the general principles of law of Limitation for the time being in force in the United State regarding extension of the principles of limitation sha11 appJy to claims made under this Act before a Revenue Officer ...\n\n' The appellant was a Sardar and Jagirdar in the erstwhile Gwalior State."}}, {"text": "December 4, 1952", "label": "DATE", "start_char": 1612, "end_char": 1628, "source": "ner", "metadata": {"in_sentence": "His Jagir was resumed by the State on December 4, 1952 under the Madhya Bharat Abolition of Jagirs Act 1951."}}, {"text": "Madhya Bharat Abolition of Jagirs Act 1951", "label": "STATUTE", "start_char": 1639, "end_char": 1681, "source": "regex", "metadata": {}}, {"text": "s. 13", "label": "PROVISION", "start_char": 1807, "end_char": 1812, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Bharat Abolition of Jagirs Act 1951", "statute": "the Madhya Bharat Abolition of Jagirs Act 1951"}}, {"text": "March 11, 1958", "label": "DATE", "start_char": 2049, "end_char": 2063, "source": "ner", "metadata": {"in_sentence": "The application was returned to the appellant on March 11, 1958 with an endorsement that the copy could be had on payment of fees."}}, {"text": "March 18, 1958", "label": "DATE", "start_char": 2235, "end_char": 2249, "source": "ner", "metadata": {"in_sentence": "The very next day the appellant complied with the demand and a copy of the judgment was given to him on March 18, 1958."}}, {"text": "June 2, 1958", "label": "DATE", "start_char": 2313, "end_char": 2325, "source": "ner", "metadata": {"in_sentence": "The appellant preferred his appeal to the Board of Revenue on June 2, 1958 but the Board dismissed it as time barred under s. 29 of the Act."}}, {"text": "s. 29", "label": "PROVISION", "start_char": 2374, "end_char": 2379, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Bharat Abolition of Jagirs Act 1951", "statute": "the Madhya Bharat Abolition of Jagirs Act 1951"}}, {"text": "ss. 34 and 149(2)", "label": "PROVISION", "start_char": 2579, "end_char": 2596, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Bharat Abolition of Jagirs Act 1951", "statute": "the Madhya Bharat Abolition of Jagirs Act 1951"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 2652, "end_char": 2666, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 34", "label": "PROVISION", "start_char": 2688, "end_char": 2693, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 149(2)", "label": "PROVISION", "start_char": 2873, "end_char": 2882, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 149(2)", "label": "PROVISION", "start_char": 2980, "end_char": 2989, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 3381, "end_char": 3395, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 3704, "end_char": 3718, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sections 3, 4, 5 and 29(2)", "label": "PROVISION", "start_char": 3822, "end_char": 3848, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act 1908", "label": "STATUTE", "start_char": 3856, "end_char": 3875, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 12", "label": "PROVISION", "start_char": 3937, "end_char": 3942, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act 1908", "statute": "the Limitation Act 1908"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 3950, "end_char": 3964, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 34 and 149(2)", "label": "PROVISION", "start_char": 4110, "end_char": 4127, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act 1908", "statute": "the Limitation Act 1908"}}, {"text": "s. 29", "label": "PROVISION", "start_char": 4335, "end_char": 4340, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act 1908", "statute": "the Limitation Act 1908"}}, {"text": "18-3-63", "label": "DATE", "start_char": 4771, "end_char": 4778, "source": "ner", "metadata": {"in_sentence": "22[1962 of the Madhya Pradesh Hiib Court decided on 18-3-63, referred to."}}, {"text": "B. Sen", "label": "LAWYER", "start_char": 5038, "end_char": 5044, "source": "ner", "metadata": {"in_sentence": "B. Sen, P. W. Sahasrabudhe, A. G. Ratnaparkhi and S. V.\n\nTambwekar, for the appellant. ·"}}, {"text": "P. W. Sahasrabudhe", "label": "LAWYER", "start_char": 5046, "end_char": 5064, "source": "ner", "metadata": {"in_sentence": "B. Sen, P. W. Sahasrabudhe, A. G. Ratnaparkhi and S. V.\n\nTambwekar, for the appellant. ·"}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 5066, "end_char": 5083, "source": "ner", "metadata": {"in_sentence": "B. Sen, P. W. Sahasrabudhe, A. G. Ratnaparkhi and S. V.\n\nTambwekar, for the appellant. ·"}}, {"text": "S. V.\n\nTambwekar", "label": "LAWYER", "start_char": 5088, "end_char": 5104, "source": "ner", "metadata": {"in_sentence": "B. Sen, P. W. Sahasrabudhe, A. G. Ratnaparkhi and S. V.\n\nTambwekar, for the appellant. ·"}}, {"text": "N. Shroff", "label": "LAWYER", "start_char": 5131, "end_char": 5140, "source": "ner", "metadata": {"in_sentence": "l. N. Shroff, for the respondent."}}, {"text": "Mitter", "label": "JUDGE", "start_char": 5212, "end_char": 5218, "source": "ner", "metadata": {"in_sentence": "Ji'\n\nThe Judgment, of the Court was delivered by Mitter, J'."}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 5280, "end_char": 5305, "source": "ner", "metadata": {"in_sentence": "This is an appeal by special leave from an order of the Madhya Pradesh High Court under Art."}}, {"text": "Art. 227", "label": "PROVISION", "start_char": 5312, "end_char": 5320, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 5853, "end_char": 5858, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 7153, "end_char": 7158, "source": "regex", "metadata": {"statute": null}}, {"text": "Jagirs Act, 1951", "label": "STATUTE", "start_char": 7255, "end_char": 7271, "source": "regex", "metadata": {}}, {"text": "s. 3", "label": "PROVISION", "start_char": 7390, "end_char": 7394, "source": "regex", "metadata": {"linked_statute_text": "Jagirs Act, 1951", "statute": "Jagirs Act, 1951"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 7617, "end_char": 7621, "source": "regex", "metadata": {"linked_statute_text": "Jagirs Act, 1951", "statute": "Jagirs Act, 1951"}}, {"text": "Section 5", "label": "PROVISION", "start_char": 7937, "end_char": 7946, "source": "regex", "metadata": {"linked_statute_text": "Jagirs Act, 1951", "statute": "Jagirs Act, 1951"}}, {"text": "s. 8", "label": "PROVISION", "start_char": 8150, "end_char": 8154, "source": "regex", "metadata": {"linked_statute_text": "Jagirs Act, 1951", "statute": "Jagirs Act, 1951"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 8247, "end_char": 8251, "source": "regex", "metadata": {"linked_statute_text": "Jagirs Act, 1951", "statute": "Jagirs Act, 1951"}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 8340, "end_char": 8350, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 8358, "end_char": 8363, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 8416, "end_char": 8420, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 8719, "end_char": 8724, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 8908, "end_char": 8912, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 8982, "end_char": 8986, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 9089, "end_char": 9093, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 9178, "end_char": 9183, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 9258, "end_char": 9263, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 9487, "end_char": 9492, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 4, 10, 11, 13", "label": "PROVISION", "start_char": 9581, "end_char": 9598, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 9967, "end_char": 9972, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 10093, "end_char": 10098, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 10799, "end_char": 10804, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 11028, "end_char": 11033, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 11041, "end_char": 11046, "source": "regex", "metadata": {"statute": null}}, {"text": "Jagir Commissiqner", "label": "PETITIONER", "start_char": 11064, "end_char": 11082, "source": "ner", "metadata": {"in_sentence": "Under s. 30 of the Act\n\n\"The Jagir Commissiqner, or any other officer conducting an enquiry under this Act, and the Board of Revenue and the Collector hearing appeals from the orders of the Jagir Commissioner or the Tahsildar, as the case may be, shall follow the procedure applicable to proceedings under the Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007, so far as may be and shall have the same powers, in relation to proceedings before them as a revenue officer has in reltion to original or appellate proceed-\n\nA ings, as the case may be, under the Act.\" ("}}, {"text": "Section 34", "label": "PROVISION", "start_char": 11675, "end_char": 11685, "source": "regex", "metadata": {"statute": null}}, {"text": "Subject to the provisions of the Limitation Act", "label": "STATUTE", "start_char": 11719, "end_char": 11766, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 149(2)", "label": "PROVISION", "start_char": 12012, "end_char": 12026, "source": "regex", "metadata": {"linked_statute_text": "Subject to the provisions of the Limitation Act", "statute": "Subject to the provisions of the Limitation Act"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 12360, "end_char": 12365, "source": "regex", "metadata": {"linked_statute_text": "Subject to the provisions of the Limitation Act", "statute": "Subject to the provisions of the Limitation Act"}}, {"text": "Act the Board must guide itself by the provisions of the Limitation Act", "label": "STATUTE", "start_char": 12412, "end_char": 12483, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 149(2)", "label": "PROVISION", "start_char": 12685, "end_char": 12694, "source": "regex", "metadata": {"linked_statute_text": "Act the Board must guide itself by the provisions of the Limitation Act", "statute": "Act the Board must guide itself by the provisions of the Limitation Act"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 12948, "end_char": 12962, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 3", "label": "PROVISION", "start_char": 13058, "end_char": 13067, "source": "regex", "metadata": {"linked_statute_text": "Act the Board must guide itself by the provisions of the Limitation Act", "statute": "Act the Board must guide itself by the provisions of the Limitation Act"}}, {"text": "Limitation Act, 1908", "label": "STATUTE", "start_char": 13075, "end_char": 13095, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 4 to 25", "label": "PROVISION", "start_char": 13153, "end_char": 13164, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act, 1908", "statute": "the Limitation Act, 1908"}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 13297, "end_char": 13311, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act, 1908", "statute": "the Limitation Act, 1908"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 13393, "end_char": 13397, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act, 1908", "statute": "the Limitation Act, 1908"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 13406, "end_char": 13420, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 29(2)", "label": "PROVISION", "start_char": 13648, "end_char": 13656, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act, 1908", "statute": "the Limitation Act, 1908"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 13664, "end_char": 13678, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 13836, "end_char": 13850, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act, 1908", "statute": "the Limitation Act, 1908"}}, {"text": "section 3", "label": "PROVISION", "start_char": 13870, "end_char": 13879, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act, 1908", "statute": "the Limitation Act, 1908"}}, {"text": "section 4", "label": "PROVISION", "start_char": 14124, "end_char": 14133, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 9 to 18", "label": "PROVISION", "start_char": 14135, "end_char": 14151, "source": "regex", "metadata": {"statute": null}}, {"text": "section 22", "label": "PROVISION", "start_char": 14156, "end_char": 14166, "source": "regex", "metadata": {"statute": null}}, {"text": "These sections go to show that unless excluded by the Jagirs Act or Ryotwari Act", "label": "STATUTE", "start_char": 14354, "end_char": 14434, "source": "regex", "metadata": {}}, {"text": "section 12", "label": "PROVISION", "start_char": 14435, "end_char": 14445, "source": "regex", "metadata": {"linked_statute_text": "These sections go to show that unless excluded by the Jagirs Act or Ryotwari Act", "statute": "These sections go to show that unless excluded by the Jagirs Act or Ryotwari Act"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 14453, "end_char": 14467, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 149(2)", "label": "PROVISION", "start_char": 14734, "end_char": 14743, "source": "regex", "metadata": {"linked_statute_text": "These sections go to show that unless excluded by the Jagirs Act or Ryotwari Act", "statute": "These sections go to show that unless excluded by the Jagirs Act or Ryotwari Act"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 15143, "end_char": 15157, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "sections 34", "label": "PROVISION", "start_char": 15370, "end_char": 15381, "source": "regex", "metadata": {"linked_statute_text": "These sections go to show that unless excluded by the Jagirs Act or Ryotwari Act", "statute": "These sections go to show that unless excluded by the Jagirs Act or Ryotwari Act"}}, {"text": "s. 29", "label": "PROVISION", "start_char": 15667, "end_char": 15672, "source": "regex", "metadata": {"statute": null}}, {"text": "12th March to 18th March, 1958", "label": "DATE", "start_char": 16328, "end_char": 16358, "source": "ner", "metadata": {"in_sentence": "Even if the time taken in obtaining the copy of the judgment be reckoned from the 12th March to 18th March, 1958, the appellaint was out by two days only in filing the appeal to the Board of Revenue."}}, {"text": "1st of June 1958", "label": "DATE", "start_char": 16453, "end_char": 16469, "source": "ner", "metadata": {"in_sentence": "If the 1st of June 1958 which\n\n(I) Misc."}}, {"text": "September 28, 19§1", "label": "DATE", "start_char": 16657, "end_char": 16675, "source": "ner", "metadata": {"in_sentence": "As appears from the order dated September 28, 19§1 the Board of Revenue refused to entertain the appeal on the ground of limitation without considering the question as to whether the appellant had made out a case for condonation of delay, if any."}}, {"text": "ss. 34 and 149(2)", "label": "PROVISION", "start_char": 17080, "end_char": 17097, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 17153, "end_char": 17167, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Brijrajsingh", "label": "OTHER_PERSON", "start_char": 17257, "end_char": 17269, "source": "ner", "metadata": {"in_sentence": "A sounder view of the law was taken by another Division Bench of the same High Court in Brijrajsingh's case(') noted above."}}, {"text": "!8·3-63", "label": "DATE", "start_char": 17635, "end_char": 17642, "source": "ner", "metadata": {"in_sentence": "22fl962 decided on !"}}]}
{"document_id": "1969_3_908_916_EN", "year": 1969, "text": "SHIV ASHANKAR PRASAD SHAH & ORS.\n\nBAIKUNTII NATH SINGH & ORS.\n\nMarch 7, 1969\n\n[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.] B\n\nCode of Civil Procedure-Re.sJudicata--Objection against execution proceeding, when barred.\n\nBihar Land Reforms Act, ss. 3, 4 & 6-Mortgaged Estate-Final Decree obtained-Effect of.\n\nAfter a preliminary decree was obtained by the appellants (mortgagees of an Estate including both Bakasht lands and other lands), the Bihar Land Reforms Act, 1950 came into force.\n\nThe appellant filed petition for passing final decree. The Estate mortgaged vested in the State as a result of a notification issued under s. 3(1) of the Act, and later a final decree was passed in the mortgage suit. Thereafter the appellants applied under s. 14 of the Act and got determined the compensation to which they were entitled under the Act. But yet they filed an execution petition to execute the mortage decree against the Bakasht land. The respondents resisted that execution by filing an application under s. 47, Civil Pro cedure Code contending that. the execution was barred under s. 4(d) of the Acjt.\n\nThat application was dismissed for default of the respondents.\n\nA second application raising, the same ground was filed by the respondents but this, too, was dismissed for their default. A third application raising the same ground was filed by the respondents and in this, the execution court overruled the objection raised by the respondents on the grounds (i) that the objection was barred by the principles of res judicata and (ii) that the bar of s. 4(d) pleaded was not tenable. This decision was affirmed in appeal, but reversed in second appeal by the High Court.\n\nDismissing the appeal this Court;\n\nHELD ; ( i) The objection was not barred by the principles of res iudicata. Before a plea can be held to be barred by res judicata that plea must have been heard and determined by the court. Only a decision by a court <lould be res judicata, whether it be statutory under s. 11, Civil Procedure Code or constructive as a matter of public policy on which the entire doctrine rests. An execution petition having been dismissed for the default of the decreeholder though by the time that petition came to be dismissed. the judgment debtor bad resisted the execution on one or more grounds, docs not bar the further execution of the decree in pu'r suance of fresh execution petitions filed in accordance with law.\n\nEven the dismissal for default of objections raised under s. 47, Civil Procedure Code does not operate as res judicata when the same objections are raised again in the course df the execution. [911 B-HJ\n\nMaharaja Radha Parshad Sinf!h v. Lal Sahab Rai & Ors. L.R. 17 I.A. 150 Pulvarthi Venkata Subba Rao v.\n\nVelluri lagannadha Rao & Ors. [196\"4] 2 S.C.R. 310, Lakshmibai Anant Kondkar v. Ravji Bhikaji Kond kar, XXXI B.L.R. 400, Bahir Das Pal cl: Anr. v. Girirh Chandra Pal, A.l.R. 1923 Cal. 287, Bhagwati Prasad Sah v. Radha Kishun Sah & Or~. A.I.R. 1950 Pat. 354, lethmal & Ors. v. Mst. Sakina. A.l.R. 1961 Ra1. 1959 Bishwannth Kundu v. Smt. Subala Dassi, A.l.R. 1962 Cal. 272, referred to.\n\nA Ramnarain v. Basudeo, I.LR. XXV Pat. 595, disapproved.\n\n(ii) Proceedings under s. 4(d) of the Bihar Land Reforms Act, 1950 included execution proceedings and the execution could not be proceeded with. The only remedy open to the appellants was to get compensation under Chapter IV of the Act. [913 G, Hl\n\nReading ss. 3, 4 and 6 together, it followed that all Estates notified under s. 3 vested in the State free of all encumbrances.\n\nThe quondum proprietors and tenure holders of those Estates lost all interests in those Estates.\n\nAs proprietors they retained no intere\"t in respect of them whatsoever.\n\nBut in respect of the lands enumerated in s. 6 the State settled on them the rights of raiyats. Though in fact the vesting of the Estates and the deemed settlements of raiyat rights in respect of certain classes of lands included in the Estates took place simultaneously. in law the two must be treated as different transactions; first there was a vesting of the Estates in the State absolutely, free of all encumbrances. Then followed the deemed settlement bv the State of raiyat's rights on the quondum proprietors.\n\nTherefore in law it would not be correct to say that what vested in the State were only those interests not coming within s. 6. [913 C-E]\n\nSection 4 ( d) provided that \"no suit shall lie in any civil court for the recovery of any money due from such proprietor (proprietor whose estate has vested in the State) or tenure holder the payment of which is secured by a mortgage of, or is a charge on, such estate or tenure and all suits and proceedings for the recpvery of any such money which may be pending on the date of vesting shall be dropped\".\n\nProceedings in this section undoubtedly included execution proceedin!l!. [913 Fl\n\nRGmnarain v. Basudeo I.LR. XXV Pat. 595, Raj Kishore v.\n\nRam Pratap, A.1.R. 1967 S.C. 801; [1967] ! S.C.R. 56, Rana Sheo Ambar Singh v. Allahabad Bank Ltd .. Al/a/what!, [1962] 2 S.C.R. 441 and Krishna Prasad &: Ors. v. Gauri Kumari Devi. [1962] Supp. 3 S.C.R. 564, referred to.\n\nSidh<shwar Prasad Singh v. Rem Saroop Singh, 1963 B.L.J.R. 802, majority view disapproved.\n\nCIVIL. APPELLATE JURISDICTION: Civil Appeal No. 368 of 1966.\n\nAppeal by special leave from the judgment and order dated February 3, 1964 of the Patna High Coun in Appeal from Appellate Order No. 99 of 1963.\n\nSarjoo Prasad and R. C. Prasad, for the appellants.\n\nK. K. Sinha allld S. K. Bisaria, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nHegde, 1. This appeal against the judgment of the Patiia High Court dated the 3rd F~ruary, 1964 in its Appellate Order No. 99 of 1963 was file.d obtammg special leave from this Court.\n\nIt arises from a proceeding under s. 47, Civil Procedure Code: In execution of a mortgage decree, the decree-holders sough~ to proceed against\n\nBakasht Ja.nds of the judgment debtors. The judgment debtors objected to the same on the ground that the execution was barred under s. 4(d) of the Bihar Land Reforms Act, 1950 (to be hereinafter referred to as the Act).\n\nBut that objection was overruled by the executing court on two different grounds namely (1) that the objection in question is barred by the principles of res judicata and (2) the bar of s. 4{d) pleaded is lllOt tenable. The decision of the execution court was affirmed in appeal but reversed in second appeal by the High Court.\n\nThe two questions that arise for decision in this appeal are ( 1) whether the objection as regards the executability of the decree pleaded by the judgment debtors is barred by the principles of res judicata and ( 2) whether the mortgage decree has become unexecutable in view of the provisions of the Act.\n\nWe shall now briefly set out the material facts of the case.\n\nThe mortgages, the appellants ijll this appeal obtained a preliminary decree on June 26, 194 7 on the basis of a mortgage. The property mortgaged was an Estate within the meaning of the Act.\n\nThat property included both Bakasht lands as well as other lands.\n\nThe Act came into force after the passing of the aforementioned preliminary decree. The decree-holders filed petition for passing a final decree on September 19, 1955.\n\nThe Estate mortgaged vested in the State of Bihar on January l, 1956 as a result of a notification issued under s. 3 ( 1) of the Act. A final decree was passed in the mortgage suit on October 1, 1956. Thereafter the mortgagees applied under s. 14 of the Act and got determined the compensation to which they were eintitled under the Act. It is said that they did not proceed any further in that proceeding but on the other hand filed on June 18, 1958 an execution petition to execute the mortgage decree against the 8akasht lands. The judgment debtors resisted that execution by filing an application under s. 4 7, Civil Procedure Code (Misc. Case No. 94 of 1959) on the ground that the decree cannot be executed in view of the provisions of the Act.\n\nThat application was dismissed ior the default of the judgmentdebtors on SepteJ?.1ber 12, 1959. A second application raising the same J?round (Misc. Case No. 110of1959) was filed by the judgment debto~ is barred on the principles of res ; udicata and further on July 23, 1960 •or default of the jud!!lllent debtors.\n\nA third application raising the same ground of objection (Misc. Case No. 91 of 1960) was filed by the judgment debtors on September 12.\n\n1960. That application was dismissed on January 4, 1962 after examining the conkltltions of. the parties.\n\nTherein the execution court came to the conclusion that the objection raised by the judgment de, btors is barred on the principls of res judicata and further that the same has no merits. This decision as mentioned earlier was affirmed by the appellate court but reversed by the High Court.\n\nWe shall first take up the conrention that the objection taken\n\nby the judgment debtors is harried by principles of res judicata.\n\nThough at one stage, learned Coll)lseJ for the appellants-decree holders attempted to bring the case within Explanation 5, s. 11, Civil Procedure Code, he did not pursue that line of argument but tried to support his contention on the broader principles of res judicata.\n\nThe real question for decision in this case is whether the dismissal of Misc. cases Nos. 94 and 110 of 1959 for default of the judgment debtors can be said to be a final decision of the court after hearing the parties.\n\nBefore a plea can be held to be barred by the principles of res judicata, it must be shown that the plea in question had not O\\llly been pleaded but it had been heard and finally decided by the court. . A dismissal of a suit for default of the plaintiff, we think, would not operate as res judicata against a plaintiff in a subsequent suit on the same cause Of action. If it was otherwise there was no need for the legislature to enact rule 9, Order 9, Civil Procedure Code which in specific term say that where a suit is wholly or partly dismissed under rule 8, the plaintiff shal! be precluded from bringing a fresh suit in respect of the samecause of action. The contention that the dismissal of a previous suit for default of the plaintiffs operates as res judicata in a subsequent suit in respect of the same claim was repelled by the Judicial Committee of the Privy Council in Maharaja Radha Parshad Singh\n\nv. Lal Sahab Roi and Ors.('). Therein the Judicial Committee observed thus:\n\n\"None of the questions, either of fact or law raised by the pleadings of the parties, was heard or detrmined by the Judge of the Shahabad Court in 1881; and his decree dismissing the suit does not constitute res judicata within the mea, ning of the Civil Procedure Code It must fall within ~:me or other of the sections of Cbapte~ VII f the <; ode; m the preseQt case it is immaterial to\n\nC?ns:der h1ch, the severest penalty attached to such dISmtssa! 1~ any case being at the plaintiff cannot bring another suit for the same relief.\"\n\nh From this decision it is clear that the Judicial Cotnm'tt , __ ,, t at before a plea can be held to be b . 1 op\"\"\"\" plea must have been heard and Elet . a~~ by res 1ud1cata that decision by a court could be . e Y the court. Only a under s 11 cvi1 p d res JU lcata, whether it be statutory • • ' I roce ure Code or 0 1 ti' public policy on which the entire do t .c ns rue ve as a matter of decision can be considered as e . J: nne ests. Before an earlier heard and finally decided r st\" 1\n\n1cath .t e same must have been Velluri Jaga11(1adha Rao ;;:ee0 \"(,.,,)art 1 Venkata Subba Rao v. , rs. .\n\nThe courts in India have ge al! ak execution petition which has been ndes 'f edt n tthhe view that an 1 miss 1or e default of the\n\n(1) L.R. 17 J.A. ISO.\n\n(2) [19641 2 S.C.R. JIO\n\nder, ree-holder though by the time that petition came to be dismissed, the judgment debtor had resisted the executiqn on one or more grounds, does not bar the further execution of the decree in pursuanoe of fresh execution petition filed in accordance with lawsee Lakshmibai Anant Kondkar v.\n\nRavji Bhikaji Kondkar(').\n\nEven the dismissal for default of objections raised under s. 47, Civil Procedure Code does lllKlt operate as res judicata when the same objections are raised again in the course of the executionsee Bahir Das Pal and Anr. v. Girish Chandra Pa/(2 ); Bhagawati Prasad Sah v. Radha Kishun Sah and Ors.(8 ); Jethma/ and Ors. v.\n\nMst. Sakina(4); Bishwanath Kundu v. Sm. Suba/a Dassi('). We dq not think that the decision in Ramnarain v. Basudeo(6 } on which the learned Counsel for the appellant placed great deal of reliance is correctly decided.\n\nHence we agree with the High Court that the plea of res judicata advanced by the appellant is unsustainable.\n\nThe next question is whether the execution is barred under the provisions of. the Act. The contention of the judgment debtors is that it is so barred whereas according to the appellants as the Bakasht lands which form part of the mortgaged property had not vted in the State, the execution can proceed against those lands.\n\nTherefore we have to see whether the entire mortgaed property had vested in the State in pursuance of the notification under s. 3 or ootly the mortgaged property minus the Bakasht lands.\n\nThere is no dispute that the property mortgaged was an Estate within the meaning of s. 2(i) and the notification issued under s. 3 covered the entirety of the Estate.\n\nBut what was urged on behalf of the appellants is that what had vested in the State was the nqn-bakasht lands as well as the proprietory interest in the Bakasht lands and hence the Bakasht lands do not have the protectiOJ! of s. 4 ( d) ; Consequently it is not necessary for them to exclusively proceed under s. 14.\n\nThe consequences of the vesting of an Estate is set out iJli s. 4.\n\nSection 4 (a) provides that once an Estate vests in the State the various rights in respect of that Estate enumerated therein shall also vest in the State, absolutely free from all encumbrances.\n\nAmong the rights enumerated therei.n undoubtedly includes the right of possession.\n\nIn view of s. 4 (a) there is hardly any doubt that the proprietor loses all his rights in the estate in .question.\n\nAfter settina out the various interests lost by the proprietor that section proeeds to say \"such proprietor or tenure holder shall ----· (ll xxxr, B.L.R. <IQO.\n\n(3) A l.R. !950 Pat. 354.\n\n(5) Al.R. 1962 Cal. 272.\n\n(2). A.I.R. 1923 Cal. 287.\n\n(4) A.1 .1961 Raj. 59.\n\n(6) U •. R. XXV pat. 595.\n\ncease to have any interests in such estate br tenure, other than the interests expressly saved by or under the provisions of this Act\"· In order to find out the implication of the clause extracted above we have to go to s. 6 which provides that on and from the date of vesting all lands used for agricuJture or horticultural purposes which were in khas possession of ain intermediary on the date ol. vesting (including certain classes of land specified in that section) shall subject to the provisions of ss. 7 A and B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat uinder the State having occupancy rights in respect of such !ands, subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner.\n\nReading ss. 3, 4 and 6 together, it follows that all Estates notified 111n<ler s. 3 vest in the State free of all encumbrances. The quondum proprietors and tenure-holders of those Estates lose all interests in those Estates. As proprietors they retain no interest in respect of them whatsoever.\n\nBut in respect of the lands enumerated in s. 6 the State settled on them the rights of raiyats,\n\nThough in act the vesting of the Estates and the deemed settlement of raiyats rights in respect of certain classes of lands included in the Estates took place simultaneously, in law the two must be treated as different transactions; first there was a vesting of the Estates in the State absolutely, and free of all encumbrllplces.\n\nThen followed the deemed settlement by the State of raiyat's rights on the quondum proprietors.\n\nTherefore in law it would not be correct to say that what vested in the State are only those interests not coming within s. 6.\n\nSection 4 ( d) provides that \"no suit shall lie in any Civil Court\n\nfo~ the recovery of any moner, due from such proprietor (propnetor whose estate has vested m the State) or tQn\\lre holder the payment of which is secured by a mortgage of, or is a charge on, such estate or tenure d all swts and pings for the recovery of any such money which may be pendmg on the date of vesting\n\n.hall be drop~\"· Procings in this section undoubtedly\n\n1Jllclude execution pr<;>ceedmgs.\n\nThis is not a case where only a pan of the moi:igaged prope~ has vested in the State and as such the te laid down by this Co~ in Raj Kishore v. Ram Pratap (1) is not attracted. As mentioned earlier the entire Estate mortgaged had vested though some interest in respect of a portion of the mortgaged property had been settled by the State on the mortgagors.\n\nUnder the circumstances the only remedy open to the decreeholders is that provided in Chap. IV of the Act i.e. a claim under\n\n(I) (1967] 2 s.c.R. S6; A.I.R.. 1967 s.c. 801.\n\ns. 14 be.fore the Claims Officer for \"determining the amount of debt legally and justly payable to each creditor in respect of his claim\".\n\nThe procedure to be followed in such a proceedii!lg is prescribed in ss. 15 to 18. Provisions relating to the assessment and payment of compensation payable to the quondum proprietors and tenure-holders are found in Chap. V of the Act (ss. 19 to 31.) Section 24(5) provides that \"in the case where the interest of a proprietor or tenure-holder is subject to a mortgage or charge, the compensation shall be first payable to the creditor holding such mortgage or charge and the balance, if any, shall be payable to the proprietor or tenure-holder concerned ... \" That subsection further prescribes the maximum amount that can be paid to such a creditor.\n\nIn view of what has been stated above it follows that under the circumstances of this case it is not OMIL to the appellants to proceed with the execution.\n\nTheir only remedy is to get compensation under the Act.\n\nOur conclusion receives strong support from some of the decisions of this court. In Rana Shea Ambar Singh v. Allahabad Bank Ltd., Allahabad('), a question identical to the QOO before us, but arising under the U.P. Zamindari Abolition and Land Reforms Act, came up for consideration by this Court. One of the questions that arose for--Decision in that case was whether the Bhurnidari right settled by the State on a previous proprietor whose estate had vested in the State was liable to be proceeded agai, tlst in execution of a mortgage decree against the Estate that had vested in the State. This Court held that it was not liable to be proceeded against.\n\nTherein it was ruled that the intention of the U.P. Zamindari Abolition and Land Reforms Act was to vest the proprietary rights in the Sir and Khudkasht lnid and grove land in the State and resettle on intermediary not as compensation but by virtue of his cultivatory possession of lands comprised therein 'and on a new tenure aind confer upon the intermediary a new and special right of Bhumidari, whlch he never had before by s. 18 of the Act. The provisions in that Act relating to vesting and settlement of Bhumidari rights are in a!l essential particulars similar\"to those in the Act relating to vesting and settlement of Bakasht lands.\n\nThis Court further ruled in that casi: that the mortgagee could only enforce his rights against the mortgor in the manner as provided ins. 6{h) .of the U.P. Act read withs. 73 of the Transfer of Property Act and follow the compensation money under the Act.\n\nIn Krishna Prasad and Ors. v. Gauri Kumari Devi(2 ) the question that arose for decision by the Court was whether a mortgage decree-holder could proceed against the properties of the mortga-\n\n--ol[1.962J 2, s.c.R. 441.\n\n(2) (1962] Supp. 3 S.C.R. 564.\n\n...\n\ngor other than those mortgaged in enforcement of the personal 'ovenant when the property mortgaged had vested in the State under the provisions of the Act.\n\nThat question was answered ip the negative.\n\nIn the course of the judgment Gajendragadkar, J. (as he then was) who spoke for the Court observed that there is no doubt \"that the scheme of the Act postulates that where the provisions of the Act apply, claims of the creditors have to be submitted before the Claim Officer, the claimants have to follow the procedure prescribed by the Act and cannot avail of any remedy ,1utside the Act by institutiing suit or any other proceeding in the court of ordinary civil jurisdiction.\" Proceeding further he observed:\n\n\"It is in the light of this scheme of the Act that we must revert to section 4 (b) and determine what its true scope and effect are. . Mr. Jha contends that in construing the words of Section 4 ( d) it would be necessary to bear in mi.nd the object of the Act which was merely to provide for the transference to the State of the interests of the proprietors and tenure-holders in land and of the mortgagees and lessees of such interests. It was not the object of the Act, says Mr. Jha, to extinguish debts due by the proprietors or tenure-holders and so, it would be reasonable to confine the operation of s. 4 ( d) only to the claims made against the estates which have vested in the State and no others. In our opinion, this argument proceeds on an imperfect view of the aim and object of the Act. It is true that one of the objects of the Act was to provide for the transference to the State of the estates as specified.\n\nBut as we have already seen, the provisioms contained in section 16 in regard to the scaling down of the debts due by the proprietors and tcnureholders clearly indicate that another object which the Act wanted to achieve was to give some redress to the debtors whose estates have been taken away frQIII them by the notifications issued under section 3. Therefore in construing s. 4(d), it would not be right to assum~ that the interests of the debtors affected by the provisiOillS of the Act do not fall within the protection of the Act\" and again at page 578 :\n\n\"Having regard to the said scheme it is difficult to confine the application of s. 4(d) oniy to execution proceedings in which the decree-holder seeks to proceed against the estate of the debtor. In fact, an executiQn proceeding to recover the decretal amount from the. estate which has already vested in the State, would be mcompetent because the said estate no longer belong to the judgment-debtor.\" l Sup Ci-69-9\n\nSummarising the effect of the aforementioned decisions thts A is what this Court observed in Raj Kishore's case(' )-a case aris ing under \\)le Act :\n\n\"From the principles laid down by this Court in the above two decisi<>ins, it follows that where the whole of the property mortgaged is an est'llte, there can be no doubt that the procedure prescpbed by Chapter IV has to be followed, in order that the amount due to the ere ditor should be determined by the claims officer and the decision of the claims officer or the Board has been made final by the Act.\"\n\nFor the reasons mentioned earlier we are of the opinion that the decision of the majority of the judges in the Full BtW:h decision in Sidheshwar Prasad Singh v. Ram Saroop Singh(') is not correct.\n\nThe true effect of the decisions of this Court in Rana Sheo Ambar Singh's case(8 ) and Krishna Prasad's case(') is as explained by Kamla Sahai, J. in that case.\n\nIn the result this appeal fails and it is dismissed with costs.\n\nY.P.\n\n(I) (1967]2 s.c.R. 56 A.l.R. 1967 s.c. 801.\n\n\nAppeal dismissed\n\n12) 1963 B.L.J.R. 802.\n\n(4) [196~] Supp. 3 S.C.R. 564", "total_entities": 99, "entities": [{"text": "SHIV ASHANKAR PRASAD SHAH & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "SHIVASHANKAR PRASAD SHAH & ORS", "offset_not_found": false}}, {"text": "BAIKUNTII NATH SINGH & ORS", "label": "RESPONDENT", "start_char": 34, "end_char": 60, "source": "metadata", "metadata": {"canonical_name": "BAIKUNTH NATH SINGH & ORS", "offset_not_found": false}}, {"text": "March 7, 1969", "label": "DATE", "start_char": 63, "end_char": 76, "source": "ner", "metadata": {"in_sentence": "March 7, 1969\n\n[S. 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APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 5252, "end_char": 5281, "source": "ner", "metadata": {"in_sentence": "CIVIL."}}, {"text": "Sarjoo Prasad", "label": "LAWYER", "start_char": 5460, "end_char": 5473, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad and R. C. Prasad, for the appellants."}}, {"text": "R. C. Prasad", "label": "LAWYER", "start_char": 5478, "end_char": 5490, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad and R. C. Prasad, for the appellants."}}, {"text": "K. K. Sinha", "label": "LAWYER", "start_char": 5513, "end_char": 5524, "source": "ner", "metadata": {"in_sentence": "K. K. Sinha allld S. K. Bisaria, for the respondents."}}, {"text": "S. K. Bisaria", "label": "LAWYER", "start_char": 5531, "end_char": 5544, "source": "ner", "metadata": {"in_sentence": "K. K. Sinha allld S. K. Bisaria, for the respondents."}}, {"text": "Patiia High Court", "label": "COURT", "start_char": 5662, "end_char": 5679, "source": "ner", "metadata": {"in_sentence": "This appeal against the judgment of the Patiia High Court dated the 3rd F~ruary, 1964 in its Appellate Order No."}}, {"text": "s. 47", "label": "PROVISION", "start_char": 5831, "end_char": 5836, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 5838, "end_char": 5858, "source": "regex", "metadata": {}}, {"text": "s. 4(d)", "label": "PROVISION", "start_char": 6073, "end_char": 6080, "source": "regex", "metadata": {"linked_statute_text": "Civil Procedure Code", "statute": "Civil Procedure Code"}}, {"text": "Bihar Land Reforms Act, 1950", "label": "STATUTE", "start_char": 6088, "end_char": 6116, "source": "regex", "metadata": {}}, {"text": "s. 4", "label": "PROVISION", "start_char": 6348, "end_char": 6352, "source": "regex", "metadata": {"linked_statute_text": "the Bihar Land Reforms Act, 1950", "statute": "the Bihar Land Reforms Act, 1950"}}, {"text": "June 26, 194 7", "label": "DATE", "start_char": 6940, "end_char": 6954, "source": "ner", "metadata": {"in_sentence": "The mortgages, the appellants ijll this appeal obtained a preliminary decree on June 26, 194 7 on the basis of a mortgage."}}, {"text": "September 19, 1955", "label": "DATE", "start_char": 7267, "end_char": 7285, "source": "ner", "metadata": {"in_sentence": "The decree-holders filed petition for passing a final decree on September 19, 1955."}}, {"text": "Bihar", "label": "GPE", "start_char": 7332, "end_char": 7337, "source": "ner", "metadata": {"in_sentence": "The Estate mortgaged vested in the State of Bihar on January l, 1956 as a result of a notification issued under s. 3 ( 1) of the Act."}}, {"text": "January l, 1956", "label": "DATE", "start_char": 7341, "end_char": 7356, "source": "ner", "metadata": {"in_sentence": "The Estate mortgaged vested in the State of Bihar on January l, 1956 as a result of a notification issued under s. 3 ( 1) of the Act."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 7400, "end_char": 7404, "source": "regex", "metadata": {"statute": null}}, {"text": "October 1, 1956", "label": "DATE", "start_char": 7472, "end_char": 7487, "source": "ner", "metadata": {"in_sentence": "A final decree was passed in the mortgage suit on October 1, 1956."}}, {"text": "s. 14", "label": "PROVISION", "start_char": 7529, "end_char": 7534, "source": "regex", "metadata": {"statute": null}}, {"text": "June 18, 1958", "label": "DATE", "start_char": 7725, "end_char": 7738, "source": "ner", "metadata": {"in_sentence": "It is said that they did not proceed any further in that proceeding but on the other hand filed on June 18, 1958 an execution petition to execute the mortgage decree against the 8akasht lands."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 7895, "end_char": 7899, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 7903, "end_char": 7923, "source": "regex", "metadata": {}}, {"text": "January 4, 1962", "label": "DATE", "start_char": 8534, "end_char": 8549, "source": "ner", "metadata": {"in_sentence": "That application was dismissed on January 4, 1962 after examining the conkltltions of."}}, {"text": "s. 11", "label": "PROVISION", "start_char": 9146, "end_char": 9151, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 9153, "end_char": 9173, "source": "regex", "metadata": {}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 9968, "end_char": 9988, "source": "regex", "metadata": {}}, {"text": "Shahabad Court", "label": "COURT", "start_char": 10634, "end_char": 10648, "source": "ner", "metadata": {"in_sentence": "Therein the Judicial Committee observed thus:\n\n\"None of the questions, either of fact or law raised by the pleadings of the parties, was heard or detrmined by the Judge of the Shahabad Court in 1881; and his decree dismissing the suit does not constitute res judicata within the mea, ning of the Civil Procedure Code It must fall within ~:me or other of the sections of Cbapte~ VII f the <; ode; m the preseQt case it is immaterial to\n\nC?ns:der h1ch, the severest penalty attached to such dISmtssa!"}}, {"text": "s 11", "label": "PROVISION", "start_char": 11280, "end_char": 11284, "source": "regex", "metadata": {"statute": null}}, {"text": "art 1", "label": "PROVISION", "start_char": 11602, "end_char": 11607, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 11652, "end_char": 11657, "source": "ner", "metadata": {"in_sentence": "The courts in India have ge al!"}}, {"text": "s. 47", "label": "PROVISION", "start_char": 12195, "end_char": 12200, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 12202, "end_char": 12222, "source": "regex", "metadata": {}}, {"text": "s. 3", "label": "PROVISION", "start_char": 13239, "end_char": 13243, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(i)", "label": "PROVISION", "start_char": 13386, "end_char": 13393, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 13428, "end_char": 13432, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 13696, "end_char": 13700, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 13779, "end_char": 13784, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 13848, "end_char": 13852, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 13855, "end_char": 13864, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 14146, "end_char": 14150, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 14764, "end_char": 14768, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 7", "label": "PROVISION", "start_char": 15049, "end_char": 15054, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 3, 4 and 6", "label": "PROVISION", "start_char": 15398, "end_char": 15412, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 15469, "end_char": 15473, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 15728, "end_char": 15732, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 16333, "end_char": 16337, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 16340, "end_char": 16349, "source": "regex", "metadata": {"statute": null}}, {"text": "S6", "label": "PROVISION", "start_char": 17315, "end_char": 17317, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 17343, "end_char": 17348, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 15 to 18", "label": "PROVISION", "start_char": 17552, "end_char": 17564, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 19 to 31", "label": "PROVISION", "start_char": 17719, "end_char": 17731, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 24(5)", "label": "PROVISION", "start_char": 17734, "end_char": 17747, "source": "regex", "metadata": {"statute": null}}, {"text": "Zamindari Abolition and Land Reforms Act", "label": "STATUTE", "start_char": 18563, "end_char": 18603, "source": "regex", "metadata": {}}, {"text": "Zamindari Abolition and Land Reforms Act", "label": "STATUTE", "start_char": 19059, "end_char": 19099, "source": "regex", "metadata": {}}, {"text": "Bhumidari", "label": "OTHER_PERSON", "start_char": 19395, "end_char": 19404, "source": "ner", "metadata": {"in_sentence": "Therein it was ruled that the intention of the U.P. Zamindari Abolition and Land Reforms Act was to vest the proprietary rights in the Sir and Khudkasht lnid and grove land in the State and resettle on intermediary not as compensation but by virtue of his cultivatory possession of lands comprised therein 'and on a new tenure aind confer upon the intermediary a new and special right of Bhumidari, whlch he never had before by s. 18 of the Act."}}, {"text": "s. 18", "label": "PROVISION", "start_char": 19435, "end_char": 19440, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act", "statute": "Zamindari Abolition and Land Reforms Act"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 19833, "end_char": 19857, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 20397, "end_char": 20411, "source": "ner", "metadata": {"in_sentence": "In the course of the judgment Gajendragadkar, J. (as he then was) who spoke for the Court observed that there is no doubt \"that the scheme of the Act postulates that where the provisions of the Act apply, claims of the creditors have to be submitted before the Claim Officer, the claimants have to follow the procedure prescribed by the Act and cannot avail of any remedy ,1utside the Act by institutiing suit or any other proceeding in the court of ordinary civil jurisdiction.\""}}, {"text": "section 4", "label": "PROVISION", "start_char": 20949, "end_char": 20958, "source": "regex", "metadata": {"statute": null}}, {"text": "Jha", "label": "OTHER_PERSON", "start_char": 21019, "end_char": 21022, "source": "ner", "metadata": {"in_sentence": "Mr. Jha contends that in construing the words of Section 4 ( d) it would be necessary to bear in mi.nd the object of the Act which was merely to provide for the transference to the State of the interests of the proprietors and tenure-holders in land and of the mortgagees and lessees of such interests."}}, {"text": "Section 4", "label": "PROVISION", "start_char": 21064, "end_char": 21073, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 21486, "end_char": 21490, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16", "label": "PROVISION", "start_char": 21862, "end_char": 21872, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 22147, "end_char": 22156, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(d)", "label": "PROVISION", "start_char": 22182, "end_char": 22189, "source": "regex", "metadata": {"statute": null}}, {"text": "OillS of the Act do not fall within the protection of the Act", "label": "STATUTE", "start_char": 22280, "end_char": 22341, "source": "regex", "metadata": {}}, {"text": "s. 4(d)", "label": "PROVISION", "start_char": 22448, "end_char": 22455, "source": "regex", "metadata": {"linked_statute_text": "OillS of the Act do not fall within the protection of the Act", "statute": "OillS of the Act do not fall within the protection of the Act"}}, {"text": "Raj Kishore", "label": "OTHER_PERSON", "start_char": 22878, "end_char": 22889, "source": "ner", "metadata": {"in_sentence": "l Sup Ci-69-9\n\nSummarising the effect of the aforementioned decisions thts A is what this Court observed in Raj Kishore's case(' )-a case aris ing under \\)le Act :\n\n\"From the principles laid down by this Court in the above two decisi<>ins, it follows that where the whole of the property mortgaged is an est'llte, there can be no doubt that the procedure prescpbed by Chapter IV has to be followed, in order that the amount due to the ere ditor should be determined by the claims officer and the decision of the claims officer or the Board has been made final by the Act.\""}}, {"text": "Rana Sheo Ambar Singh", "label": "OTHER_PERSON", "start_char": 23592, "end_char": 23613, "source": "ner", "metadata": {"in_sentence": "The true effect of the decisions of this Court in Rana Sheo Ambar Singh's case(8 ) and Krishna Prasad's case(') is as explained by Kamla Sahai, J. in that case."}}, {"text": "Krishna Prasad", "label": "OTHER_PERSON", "start_char": 23629, "end_char": 23643, "source": "ner", "metadata": {"in_sentence": "The true effect of the decisions of this Court in Rana Sheo Ambar Singh's case(8 ) and Krishna Prasad's case(') is as explained by Kamla Sahai, J. in that case."}}, {"text": "Kamla Sahai", "label": "JUDGE", "start_char": 23673, "end_char": 23684, "source": "ner", "metadata": {"in_sentence": "The true effect of the decisions of this Court in Rana Sheo Ambar Singh's case(8 ) and Krishna Prasad's case(') is as explained by Kamla Sahai, J. in that case."}}]}
{"document_id": "1969_3_917_925_EN", "year": 1969, "text": "STATE OF MAHARASHTRA\n\n11.\n\nBAISHANKAR AVALRAM JOSm & ANOTIIER\n\nMarch 10, 1969\n\n[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.]\n\nComtitution of India Art. 311 (2)-reasonable opportunity-whether r<quires supply of copy of Enquiry Officer's report-Bombay Reorganisation Act, 1960, ss. 60 and 61-whether liability to PG'Y arrears of salary iJ arising out of contract under s. 61 or in respect of 'actionable wrong other than breach of contrac( under s. 61.\n\nThe first respondent while he was holding the post of a Senior Jailor in March, 1954, was suspended on the allegations that he had committed certain a$ of misappropriation and maltreatment of prisoner>.\n\nAfter an enqui'ry into the allegations, the Enquiry Officer made a report in January, 1955.\n\nA show cause notice was then issued to him to which he replied by a written statement. The respondent was dismissed by an order of Inspector General of Prisons in February, 1955. The respondent filed a suit for a declaration that enquiry report was never supplied to him and consequently he had not been given reasonable opportunity within the meaning of Art. 311 of the Constitution.\n\nHe also prayed for a decree for arreal$ of pay from April, 1954 to May, 1960. His suit was dismissed by the !rial court but he succeeded in the fint appeal where the order of dismissal was declared illegal and void.\n\nAn appeal by the responde:nt to the High Court claiming arrears of salary was allowed.\n\nAs the State of Bombay had, in the meantime, been reorganised, the High Court also directed that the liability for arrears of salary upto the date of suit would be that of the State of Maharashtra and the liability arising out of the declaration that the apl)ellant was in Government service would be the liability of the State of Gujarat. A Letters Patent appeal filed by the State of Maharashtra was dismissed.\n\nIn appeal to this Court, it was contended, inter alia, on behalf of the appellant that the liability to pay arrears of pay was not a liability arising out of a contract within the meanin& of section 60 of the Bombay Reorganisation Act of 1960 but it was a liability in respect of an actionable wrong other than a breach of contract within the meaning of section 61 of the Act.\n\nHELD : (I) The High Court had ritly found that the failure on the part of the competent authdrity to proVJde the respondent with a copy of the. repon of the Enquiry Officer amounted to denial of reasonable opportumty contemlated by Art. 311(2) of the Constitution. The Inspector eneral f Prisons had the report before him and the tentative conclusons amyed at . 1?v the Enquiry Officer were bound to influence him and. m depnvm~ the plaintiff of a copy of the report he was handicapped m not. knowm~ what material was influencing the Inspector General of Prisons. [920 F]\n\nUnion of India v. ff. C. Goel, [1964) 4 S.C.R. 718, 728, referred to.\n\nIt is true that the question whether reasonable opportunity has or has not been afforded to the Government servant must depend on the facts\n\nof each case, but it would be in very rare cases indeed in which it could be .rua that the Government servant is not prejudiced by the non-supply of the report of the Enquiry Officer. [921 BJ\n\n( 2) The decree of the High Court decreeing payment of arrears of salary is truly a liability in proceedings relating to a contract within s. 60(2)(a) of the Act. Although the words 'actionable wrong' other than breach of contract in this context are wide words and include something more than torts, but even so where a suit is brought by a Government servant for arrears of salary, the decree more properly falls under s. 60 of the Act rather than under s. 61. [925 Bl\n\nState of Tripura v. The Province of East Bengal, [1951] S.C.R. I, 44, State of Bihar v. Abdul Maiid, [1954] S.C.R. 786, Owner of S. S. Raphael\n\nv. Brandy, [1911] A.C. 413-14, Inland Revenue Commissioner v. Hambrook, [1956] 1 All E.R. 807, 811-12. Reilly v. R., [1934] A.C. 176, 179; Terrell v. Secretary of State for the Colonies, [1953] 2 Q.B. 482, 499; R. v. Doultre, [1884] 9 A.C. 745 and Bushe v. R., (May 29, 1869, The\n\nllIDes), considered.\n\nCIVIL APPELLATE JURISDICTION ; Civil Appeal No. 647 of 1966.\n\nAppeal by special leave from the judgment and decree dated June 19, 24, 1963 of the Gujarat High Court in Appeal No. 704 of 1960 from Appellate Decree.\n\nP. K. Chatterjee and S. P. Nayar, for the appellant.\n\nI. N. Shroff, for respondent No. 1.\n\nS. K. Dholakia and Vineet Kumar, for respondent No. 2.\n\nThe Judgment of the Court was delivered by Sikri, J.\n\nThis appeal by special leave arises out of the suit filed by Bhaishankar A valram Joshi, hereinafter referred to as the plaintiff, for a declaration that the order of dismissal, dated February 2/4, 1955, passed by the Inspector General of Prisons, Saurashtra, was illegal and void on the ground that it contraven ed the provisions of Art. 311 (2) of the Constitution. The plaintiff also prayed for a decree for Rs. 2,690 being arrears of his pay from April 1, 1954 to May 7, 1956.\n\nThe plaintiff failed before the Civil Judge, Rajkot, but on appeal succeeded before the District Judge, Central Saurashlra, inasmuch as he declared order dated February 2/ 4, 1955, illegal and void. The plaintiff appealed to the High Court claiming arrears\n\nof salary and the State of Bombay filed cross-objections praying that the suit be dismissed. The second appeal was heard by the High Court of Gujarat (Miabhoy, J.) who directed that the decree passed by the lower appellate court \"be varied so as to show that the appellant (plaintiff) continued to be in Government service till the date of the suit only and there will be a decree for Rs. 2,690\n\nMAHARASHTRA V, BAISHANKAR,(Sikri,' J.) 919\n\nbeing arrears of pay due to the appellant (plaintiff) upto the date of the suit. There will be a further provision in the decree that the liability arising out of the declaration that the appellant is iB Government service is the liability of the State of Gujarat and that the liability for the payment of the arrears of pay is the liability o{ the State of Maharashtra\". The State of Maharashtra fil~ an application for .Jeave to appeal under the Letters Patent but this was dismissed. The appeal is now before us.\n\nThe learned counsel for the appellant, the State of Maharashtra, contends, first, that the High Court erred in holding that there had been a breach of Art. 311 (2) of the Constitution, as, according to him, there was no duty to supply a copy of the report of the enquiry held against the plaintiff.\n\nSecondly, he contends that the High Court erred in fastening the liability in respect of the arrears . of pay on the State of Maharashtra.\n\nBefore we deal with 'the above points we may give a few facts.\n\nThe plaintiff entered service in the Gonda! State in 1927 as a jailor. 'IJle Gonda! State merged with the United States of Saurashtra. On March 6, 1953, the plaintiff was appointed senior jailor, Surendranagar District Jail.\n\nOn March 25, 1954, he was suspended, and at that time he was acting as Accountant at Rajkot Central Jail. On March 7, 1954, he was served with a charge sheet. In substance the charges were that while he was serving at Surendranagar he had committed certain acts of misappropriation of food stuffs meant for prisoners, maltreatment of pn.soners and acceptance of illegal gratification from them. The\n\nplainiff filed a written statement on September 4, 1954, and an enqmry was held by Mr. Gangopadhyay. The plaintiff appeared b\".fore tat officer and cross-examined witnesses.\n\nHe also exanuned hunself and some witnesses.\n\nHe was also allowed to apper through an Advocate in the enquiry proceedings. The Enqwry fficer _made a _repOrt and_ on or _about January 7, 1955, the followmg notice was issue~ t<? him callmg upon him to show cause why he should not be d1sm1ssed from service : ,.\n\n\"To\n\nShri Bhaishanker A. Joshi, Accountant, Rajkot Central Prison (Under suspension)\n\nCharges framed agnstyou under this office No. Cl 14 dated ~7-3,54 ad m yarticular the charge of having accepted tllegal at1ficat10n from prisoner Ratilal Jivan have been established to the satisfaction of Government you _are. hereby asked to show cause why the punishment of d1sm1ssal from service should not be inflicted upo yoo, I\n\nYou should please submit your reply to this office, A through the Superintendent, Rajkot Central Prison, within a week from the date of receipt of this letter without fail.\n\nSd/- M. J. BHAIT\n\nInspector General of Prisons, Government of Saurashtra.''\n\nThe plaintiff filed a written statement. He was dismissed by the\n\nInspector General of Prisons by his order dated February 2/ 4,\n\n1955. This order was amended on February 9, 1955, in which it was stated that \"the aforesaid order should be read so as to show that the plaintiff was dismissed from service on account of charge of accepting illegal gratification from prisoner Ratilal Jivan having been conclusively proved against him in the departmental inquiries conducted against him by the Government\".\n\nIn the plaint the plaintiff alleged that copy of the enquiry report was never supplied to him, and consequently he had not been given reasonable opportunity within the meaning of Art. 311 of the Constitution. The State of Bombay admitted that the plaintiff was not-supplied with a copy of the report of the Enquiry Officer, but pleaded that the plaintiff had not asked for copy of the report and had not been prejudiced by the non-supply of the copy of the report.\n\nThe High Court held that the failure on the part of the competent authority to prnvide the plaintiff with a copy of the report of the Enquiry Officer amounted to denial of reasonable opportunity contemplated by Art. 311 ( 2) of the Constitution.\n\nIt 1e1115 to us tliat the High Court came to a correct conclusion.\n\nThe plaintiff was not aware whether the Enquiry Officer reported in his favour or against him. If the report was in his favour, in his representation to the Government he would have utilised its reasoning to dissuade the Inspector General from coming to a contrary conclusion, and if the report was against him he would have put such arguments or material as he could to dissuade the Inspector General from accepting the report of the Enquiry Officer.\n\nMoreover, as pointed out by the High Court, the Inspector General of Prisons had the report before im and the tentative conclusions arrived at by the Enquiry Officer were bound to influence him, and in depriving the plaintiff of a copy of the report he was handicapped is not knowing what material was influencing the Inspector General of Prisons.\n\nMAHARASHTRA V. BA!SHANKAR (Sikri, J.) 921\n\nAs observed by Gajendragadkar, J., as he then was, in Union of !,, Pia v. H. C. Goel('), \"the enquiry report along with the evidence recorded constitute the material on which the Government has ultimately to act. That is the only purpose of the enquiry held by competent officer and the report he makes as a result of the said enquiry\".\n\nIt is true that the question whether reasonable opportunity has or has not been afforded to the Government servant must depend on the facts of each case, but it would be in very rare cases indeed in which it could be said that the Government servant is not prejudiced by the non-supply of the report of the Enquiry Officer.\n\nIn rl1e result we must over-rule the first contention urged on behalf of the appellant, the State of Maharashtra.\n\nThe plaintiff is not concerned with the second contention but it is a dispute between the State of Maharashtra and the State of Gujarat. As is well-known, the State of Bombay was re-organised into the above two States and the Bombay Reorganisation Act,\n\n1960, contained various provisions for the apportionment of assets and liabilities betwen the two States.\n\nWe are here concerned with ss. 60 and 61 of the Bombay Reorganisation Act,\n\n1960. which read thus :\n\n\"60. (I) Where, before the appointed day, the State of Bombay has made any contract in the exercise of its executive power for any purposes of the State, that contract shall be dmed to have been made in the exercise of the executive power,-\n\n(a) if such purposes are, as from that day exclusively purposes of either the State of Maharashtr~ or the State of Gujarat, of that State; and\n\n(b)' in any other case, of the State of Maharashtra;\n\nand all rights and liabilities which have accrued, or may accrue, under any such contract shall, to the extent to which they would have been rights or liabilities of the State of Bombay, be rights or liabilities of the State of Maharashtra or the State of Gujarat, as the case may be;\n\nProvided that in any such case as is referred to in clause (b), !he initial .allocation of right$ and liabilities made y this su.b-sect10n shall be subject to such finan- . cm! ad1ustment as may be agreed upon between the State\n\nii) [1964] 4 S.C.R. 718. 728.\n\nvf Maharashtra and the State of Gujarat, or, in default of such agreement, as the Central Governmenf may by order direct.\n\n(2) For the purposes of this section there shall be deemed to be included in the liabilities which have accrued or may accrue under any contract-\n\n(a) any liability to satisfy an order or award made by any court or other tribunal in proceedings relating to the contract; and\n\n(b) any liability in respect of expenses incurred in or in connection with any such proceedings.\n\n(3) This section shall have effect subject to the other provisions of this Part relating to the apportionment of liabilities in respect of loans, guarantees and other financial obligations; and bank balances and securities shall, notwithstanding that they partake of the nature of contractual rights, be dealt with under those provisions.\n\n61. Where, immediately before the appointed day .. the State of Bombay is subject to any liability in respect of any actionable wrong other than breach of contract, that liability shall,-\n\n(a) if the cause of action arose wholly within the territories which, as from that day, are the territories of the State of Maharashtra or the State of Gujarat, be a\n\nliability of that State; and\n\n(b) in any other case, be initially a liability of the State of Maharashtra but subject to such financial adjustment as may be agreed upon between the States of Maharashtra and Gujarat or, in default of such agreement, as the Central Government may by order direct.\" The learned counsel for the State of Maharashtra contends that the liability to pay arrears of pay was not a liability arising out of a contract but was a liability in respect of an actiona hie wrong other than a breach of contract.\n\nThis Court in State of Bihar v. Abdul Majid(1) held \"that the rule of English Law that a civil servant cannot maintain a suit again>t the Crown for the recovery of arrears of salary does not prevail in India and it has been negatived by the provisions of the statute law in India''. Mahajan. C.J., speaking for the Court. ob, ervcd at p. 802:\n\n\"As regard torts of its servants in exercise of sovereign powers, the company was not, and the Crown in --·---- -------------\n\n(1) [195\"] S.C.R. 786.\n\nIndia wa• not, liable unless the act has been ordered or ratified by it. Be that as it may, that rule has no application to the case of arrears of salary earned by a public servant for the period that he was actually in office.\n\nThe present claim is not based on tort but is based on quantum meruit or contract and the c0un is entitled to give relief to him.\" It may be that these observations are not conclusi.ve on the point under consideration. It seems to us, however, that some clements of relationship between a public servant and Government are based on contract within the meaning of s. 60 of the Bombay Reorganisation Act, 1960. ln particular, the liability to pay salary, when it has been fixed, arises out of a contract to pay salary. Authority is not lacking even in England where a 'pecial relationship exists between the Crown and its public servants.\n\nIn Owner or S. S. Raphael v. Brandy(') the head-note reads :\n\n\"'A stoker on board a merchant ship, who was entitled to wages from the shipowners, and also as a stoker in the Royal Naval Reserve to 6 £ a year as a retainer, was injured by an accident on the ship which disabled him from continuing to serve in the Royal Naval Reserve:-\n\nHeld. that the stoker was entitled under the Workmen's Compensation Act, 1906, to compensation from the shipowners :not only in respect of his wages but also of the retamer, which must be taken into account as earnings unde: a concurrent contract of service.\"\n\nThe Lord Chancellor in the course of the speech observed :\n\n\"A point wa' made before your Lordships which does not appear to have been made in the Court below that there ':\".as n? contract with the Crown at all here'.\n\nThe athonties cited_ go no further than to say that when there IS an engagement betwen the Crown and a military o~ naal officer the Crown is always entitled to determme it at pleasure, and that no obligation contrary to that would be recognized or valid in law.\n\nIt was then said that there were not here concurrent\n\n~, otract,.. f a)Sfee with Fletcher Moulton L.J. that this th lmoskt a typical cae of concurrent contracts because e wor man was bemg paid w f h' ' board a merchant shi d as or IS. services on earnina h' 6£ P. an at e same time he wa' the Cr'.Ow~· a year by yi:tue of his engagement with\n\n-;-;;;=-::--;:;-'.'_a::.:n::.:dh:.:_e was givmg an equivalent for that\n\n(I) [1911] A.C. 413-14. . •\n\nbecause he was keeping himself fit and doing the work which he stipulated to do.\"\n\nIt is true that Lord Goddard, C.J., in Inland Revenue Comnissioners v. Hambroo/i( ') observed :\n\n\"If I may be bold enough to express a conclusion on a matter on which the Judicial Committee hesitated in Reilly v. R('), it is that a11 established civil servant is appointed to an office and is a public officer, remunerated by moneys provided by Parliament, so that his employment depends not on a contract with the Crown but on appointment by the Crown, though there may be as indicated in Reilly v. R. (') exceptional cases, as for instance an engagement for a definite period where there is a contractual element in or collateral to his employn1ent.\"\n\nBut in the Court of Appeal nothing was said about these observations.\n\nIt will be remembered that the Privy Council had said in Reilly v. R( 2 ) that \"their Lordships are not prepared to accede to this view of the contract, if contract there be. If the terms of the appointment definitely prescribe a term and expressly provide for a power to determine \"for cause\" it appears necessarily to follow that any implication of a power to dismiss at pleasure is excluded.\"\n\nEven Lord Goddard, C.J., in Terrel/ v. Secretary of State for the Colonies(') observed that \"the case (Reilly v. R.)(2 ) shows that there may be contractual. rights existing before determination of a contract at will which are not inconsistent with a power to\n\ndetermine,\" and he stuck to this in Hambrook's case(') by statftlg:\n\n\"Although it is clear that no action for wrongful dismissal can be brought by a discharged civil servant, I may be allowed to say that I adhere to the opinion which I expressed in Terrell v. Secretary of State for the Colonies(') that he could recover his salary for the time during which he has served. He would claim on a quantum mersuit and I am fortified in this view by Reilly v. R. (2 ), bv R. v. Doultre(4) and bv Bushe v. R(') referred to in Robertson's book at p. 338.\"\n\n(1) ,1956] 1 All E.R. 807, 811-12.\n\n(3) [1!153] 2 Q.B. 482, 499. (S) (hlay 29, 1869, The Times)\n\n(2) [1934] A.C. 176; 179.\n\n(4) (J 884) 9 A.C. 145.\n\nA We are here concerned with a choice between s. 60 and s. 61, ; vhich lay down two broad categories.\n\nIt seems to us that the decree of the High Court decreeing payi:nent of arrears of salary\n\nis truly a liability in proceedings relating to a contract within ' 60(2)(a) of the Act. It is true, as held by this Court in the State of Tripura v. Th/ Province of East Bengal('), that the words B 'actionable wrone other than breach of contract' in this context are wide words and include something more than torts, but even so where a suit is brought by a Government servant for arrears of salary, the decree more properly falls under s. 60 of the Act rather than under s. 61.\n\nIn the result the appeal fail~ and is dismissed with costs to -C the respondent, Baishankar Avalram Joshi. The State of Gujarat will bear its own costs in this appeal.\n\nR.K.P.S.\n\nAppeal dismissed.\n\n(l) 119s11 s.c.R. 1,44.", "total_entities": 90, "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": "BAISHANKAR AVALRAM JOSm & ANOTIIER", "label": "RESPONDENT", "start_char": 27, "end_char": 61, "source": "metadata", "metadata": {"canonical_name": "BAISHANKAR AVALRAM JOSm & ANOTIIER", "offset_not_found": false}}, {"text": "March 10, 1969", "label": "DATE", "start_char": 63, "end_char": 77, "source": "ner", "metadata": {"in_sentence": "BAISHANKAR AVALRAM JOSm & ANOTIIER\n\nMarch 10, 1969\n\n[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.]"}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 80, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 93, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "K. S. HEGDE, JJ.", "label": "JUDGE", "start_char": 112, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE", "offset_not_found": false}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 152, "end_char": 160, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Reorganisation Act, 1960", "label": "STATUTE", "start_char": 248, "end_char": 279, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 60 and 61", "label": "PROVISION", "start_char": 281, "end_char": 294, "source": "regex", "metadata": {"linked_statute_text": "Bombay Reorganisation Act, 1960", "statute": "Bombay Reorganisation Act, 1960"}}, {"text": "s. 61", "label": "PROVISION", "start_char": 372, "end_char": 377, "source": "regex", "metadata": {"linked_statute_text": "Bombay Reorganisation Act, 1960", "statute": "Bombay Reorganisation Act, 1960"}}, {"text": "s. 61", "label": "PROVISION", "start_char": 449, "end_char": 454, "source": "regex", "metadata": {"linked_statute_text": "Bombay Reorganisation Act, 1960", "statute": "Bombay Reorganisation Act, 1960"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 1109, "end_char": 1117, "source": "regex", "metadata": {"linked_statute_text": "Bombay Reorganisation Act, 1960", "statute": "Bombay Reorganisation Act, 1960"}}, {"text": "State of Bombay", "label": "ORG", "start_char": 1452, "end_char": 1467, "source": "ner", "metadata": {"in_sentence": "As the State of Bombay had, in the meantime, been reorganised, the High Court also directed that the liability for arrears of salary upto the date of suit would be that of the State of Maharashtra and the liability arising out of the declaration that the apl)ellant was in Government service would be the liability of the State of Gujarat."}}, {"text": "Maharashtra", "label": "GPE", "start_char": 1630, "end_char": 1641, "source": "ner", "metadata": {"in_sentence": "As the State of Bombay had, in the meantime, been reorganised, the High Court also directed that the liability for arrears of salary upto the date of suit would be that of the State of Maharashtra and the liability arising out of the declaration that the apl)ellant was in Government service would be the liability of the State of Gujarat."}}, {"text": "State of Gujarat", "label": "ORG", "start_char": 1767, "end_char": 1783, "source": "ner", "metadata": {"in_sentence": "As the State of Bombay had, in the meantime, been reorganised, the High Court also directed that the liability for arrears of salary upto the date of suit would be that of the State of Maharashtra and the liability arising out of the declaration that the apl)ellant was in Government service would be the liability of the State of Gujarat."}}, {"text": "State of Maharashtra", "label": "ORG", "start_char": 1822, "end_char": 1842, "source": "ner", "metadata": {"in_sentence": "A Letters Patent appeal filed by the State of Maharashtra was dismissed."}}, {"text": "section 60", "label": "PROVISION", "start_char": 2050, "end_char": 2060, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Reorganisation Act", "label": "STATUTE", "start_char": 2068, "end_char": 2093, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 61", "label": "PROVISION", "start_char": 2213, "end_char": 2223, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 2469, "end_char": 2480, "source": "regex", "metadata": {"statute": null}}, {"text": "[1964) 4 S.C.R. 718", "label": "CASE_CITATION", "start_char": 2841, "end_char": 2860, "source": "regex", "metadata": {}}, {"text": "s. 60(2)(a)", "label": "PROVISION", "start_char": 3354, "end_char": 3365, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 60", "label": "PROVISION", "start_char": 3636, "end_char": 3641, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 61", "label": "PROVISION", "start_char": 3671, "end_char": 3676, "source": "regex", "metadata": {"statute": null}}, {"text": "P. K. Chatterjee", "label": "LAWYER", "start_char": 4349, "end_char": 4365, "source": "ner", "metadata": {"in_sentence": "P. K. Chatterjee and S. P. Nayar, for the appellant."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 4370, "end_char": 4381, "source": "ner", "metadata": {"in_sentence": "P. K. Chatterjee and S. P. Nayar, for the appellant."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 4403, "end_char": 4415, "source": "ner", "metadata": {"in_sentence": "I. N. Shroff, for respondent No."}}, {"text": "S. K. Dholakia", "label": "LAWYER", "start_char": 4440, "end_char": 4454, "source": "ner", "metadata": {"in_sentence": "S. K. Dholakia and Vineet Kumar, for respondent No."}}, {"text": "Vineet Kumar", "label": "LAWYER", "start_char": 4459, "end_char": 4471, "source": "ner", "metadata": {"in_sentence": "S. K. Dholakia and Vineet Kumar, for respondent No."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 4539, "end_char": 4544, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sikri, J.\n\nThis appeal by special leave arises out of the suit filed by Bhaishankar A valram Joshi, hereinafter referred to as the plaintiff, for a declaration that the order of dismissal, dated February 2/4, 1955, passed by the Inspector General of Prisons, Saurashtra, was illegal and void on the ground that it contraven ed the provisions of Art."}}, {"text": "Bhaishankar A valram Joshi", "label": "RESPONDENT", "start_char": 4611, "end_char": 4637, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sikri, J.\n\nThis appeal by special leave arises out of the suit filed by Bhaishankar A valram Joshi, hereinafter referred to as the plaintiff, for a declaration that the order of dismissal, dated February 2/4, 1955, passed by the Inspector General of Prisons, Saurashtra, was illegal and void on the ground that it contraven ed the provisions of Art.", "canonical_name": "BAISHANKAR AVALRAM JOSm & ANOTIIER"}}, {"text": "February 2/4, 1955", "label": "DATE", "start_char": 4734, "end_char": 4752, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sikri, J.\n\nThis appeal by special leave arises out of the suit filed by Bhaishankar A valram Joshi, hereinafter referred to as the plaintiff, for a declaration that the order of dismissal, dated February 2/4, 1955, passed by the Inspector General of Prisons, Saurashtra, was illegal and void on the ground that it contraven ed the provisions of Art."}}, {"text": "Saurashtra", "label": "GPE", "start_char": 4798, "end_char": 4808, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sikri, J.\n\nThis appeal by special leave arises out of the suit filed by Bhaishankar A valram Joshi, hereinafter referred to as the plaintiff, for a declaration that the order of dismissal, dated February 2/4, 1955, passed by the Inspector General of Prisons, Saurashtra, was illegal and void on the ground that it contraven ed the provisions of Art."}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 4884, "end_char": 4892, "source": "regex", "metadata": {"statute": null}}, {"text": "April 1, 1954", "label": "DATE", "start_char": 5001, "end_char": 5014, "source": "ner", "metadata": {"in_sentence": "2,690 being arrears of his pay from April 1, 1954 to May 7, 1956."}}, {"text": "May 7, 1956", "label": "DATE", "start_char": 5018, "end_char": 5029, "source": "ner", "metadata": {"in_sentence": "2,690 being arrears of his pay from April 1, 1954 to May 7, 1956."}}, {"text": "Civil Judge, Rajkot", "label": "COURT", "start_char": 5064, "end_char": 5083, "source": "ner", "metadata": {"in_sentence": "The plaintiff failed before the Civil Judge, Rajkot, but on appeal succeeded before the District Judge, Central Saurashlra, inasmuch as he declared order dated February 2/ 4, 1955, illegal and void."}}, {"text": "District Judge, Central Saurashlra", "label": "COURT", "start_char": 5120, "end_char": 5154, "source": "ner", "metadata": {"in_sentence": "The plaintiff failed before the Civil Judge, Rajkot, but on appeal succeeded before the District Judge, Central Saurashlra, inasmuch as he declared order dated February 2/ 4, 1955, illegal and void."}}, {"text": "February 2/ 4, 1955", "label": "DATE", "start_char": 5192, "end_char": 5211, "source": "ner", "metadata": {"in_sentence": "The plaintiff failed before the Civil Judge, Rajkot, but on appeal succeeded before the District Judge, Central Saurashlra, inasmuch as he declared order dated February 2/ 4, 1955, illegal and void."}}, {"text": "High Court of Gujarat", "label": "COURT", "start_char": 5418, "end_char": 5439, "source": "ner", "metadata": {"in_sentence": "The second appeal was heard by the High Court of Gujarat (Miabhoy, J.) who directed that the decree passed by the lower appellate court \"be varied so as to show that the appellant (plaintiff) continued to be in Government service till the date of the suit only and there will be a decree for Rs."}}, {"text": "Miabhoy", "label": "JUDGE", "start_char": 5441, "end_char": 5448, "source": "ner", "metadata": {"in_sentence": "The second appeal was heard by the High Court of Gujarat (Miabhoy, J.) who directed that the decree passed by the lower appellate court \"be varied so as to show that the appellant (plaintiff) continued to be in Government service till the date of the suit only and there will be a decree for Rs."}}, {"text": "MAHARASHTRA V, BAISHANKAR,(Sikri", "label": "JUDGE", "start_char": 5686, "end_char": 5718, "source": "ner", "metadata": {"in_sentence": "2,690\n\nMAHARASHTRA V, BAISHANKAR,(Sikri,' J.) 919\n\nbeing arrears of pay due to the appellant (plaintiff) upto the date of the suit.", "canonical_name": "MAHARASHTRA V, BAISHANKAR,(Sikri"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 6398, "end_char": 6406, "source": "regex", "metadata": {"statute": null}}, {"text": "IJle Gonda! State", "label": "ORG", "start_char": 6823, "end_char": 6840, "source": "ner", "metadata": {"in_sentence": "IJle Gonda!"}}, {"text": "United States of Saurashtra", "label": "ORG", "start_char": 6857, "end_char": 6884, "source": "ner", "metadata": {"in_sentence": "State merged with the United States of Saurashtra."}}, {"text": "March 6, 1953", "label": "DATE", "start_char": 6889, "end_char": 6902, "source": "ner", "metadata": {"in_sentence": "On March 6, 1953, the plaintiff was appointed senior jailor, Surendranagar District Jail."}}, {"text": "25, 1954", "label": "DATE", "start_char": 6986, "end_char": 6994, "source": "ner", "metadata": {"in_sentence": "On March 25, 1954, he was suspended, and at that time he was acting as Accountant at Rajkot Central Jail."}}, {"text": "Rajkot Central Jail", "label": "ORG", "start_char": 7062, "end_char": 7081, "source": "ner", "metadata": {"in_sentence": "On March 25, 1954, he was suspended, and at that time he was acting as Accountant at Rajkot Central Jail."}}, {"text": "March 7, 1954", "label": "DATE", "start_char": 7086, "end_char": 7099, "source": "ner", "metadata": {"in_sentence": "On March 7, 1954, he was served with a charge sheet."}}, {"text": "Surendranagar", "label": "GPE", "start_char": 7195, "end_char": 7208, "source": "ner", "metadata": {"in_sentence": "In substance the charges were that while he was serving at Surendranagar he had committed certain acts of misappropriation of food stuffs meant for prisoners, maltreatment of pn.soners and acceptance of illegal gratification from them."}}, {"text": "September 4, 1954", "label": "DATE", "start_char": 7415, "end_char": 7432, "source": "ner", "metadata": {"in_sentence": "The\n\nplainiff filed a written statement on September 4, 1954, and an enqmry was held by Mr. Gangopadhyay."}}, {"text": "Gangopadhyay", "label": "OTHER_PERSON", "start_char": 7464, "end_char": 7476, "source": "ner", "metadata": {"in_sentence": "The\n\nplainiff filed a written statement on September 4, 1954, and an enqmry was held by Mr. Gangopadhyay."}}, {"text": "January 7, 1955", "label": "DATE", "start_char": 7727, "end_char": 7742, "source": "ner", "metadata": {"in_sentence": "The Enqwry fficer made a repOrt and on or about January 7, 1955, the followmg notice was issue~ t<?"}}, {"text": "Bhaishanker A. Joshi", "label": "LAWYER", "start_char": 7873, "end_char": 7893, "source": "ner", "metadata": {"in_sentence": "\"To\n\nShri Bhaishanker A. Joshi, Accountant, Rajkot Central Prison (Under suspension)\n\nCharges framed agnstyou under this office No.", "canonical_name": "BAISHANKAR AVALRAM JOSm & ANOTIIER"}}, {"text": "Cl 14", "label": "PROVISION", "start_char": 7995, "end_char": 8000, "source": "regex", "metadata": {"statute": null}}, {"text": "Ratilal Jivan", "label": "OTHER_PERSON", "start_char": 8095, "end_char": 8108, "source": "ner", "metadata": {"in_sentence": "Cl 14 dated ~7-3,54 ad m yarticular the charge of having accepted tllegal at1ficat10n from prisoner Ratilal Jivan have been established to the satisfaction of Government you _are."}}, {"text": "2/ 4,", "label": "DATE", "start_char": 8657, "end_char": 8662, "source": "ner", "metadata": {"in_sentence": "He was dismissed by the\n\nInspector General of Prisons by his order dated February 2/ 4,\n\n1955."}}, {"text": "February 9, 1955", "label": "DATE", "start_char": 8696, "end_char": 8712, "source": "ner", "metadata": {"in_sentence": "This order was amended on February 9, 1955, in which it was stated that \"the aforesaid order should be read so as to show that the plaintiff was dismissed from service on account of charge of accepting illegal gratification from prisoner Ratilal Jivan having been conclusively proved against him in the departmental inquiries conducted against him by the Government\"."}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 9218, "end_char": 9226, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 9716, "end_char": 9724, "source": "regex", "metadata": {"statute": null}}, {"text": "MAHARASHTRA V. BA!SHANKAR", "label": "JUDGE", "start_char": 10622, "end_char": 10647, "source": "ner", "metadata": {"in_sentence": "MAHARASHTRA V. BA!SHANKAR (Sikri, J.) 921\n\nAs observed by Gajendragadkar, J., as he then was, in Union of !,,", "canonical_name": "MAHARASHTRA V, BAISHANKAR,(Sikri"}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 10680, "end_char": 10694, "source": "ner", "metadata": {"in_sentence": "MAHARASHTRA V. BA!SHANKAR (Sikri, J.) 921\n\nAs observed by Gajendragadkar, J., as he then was, in Union of !,,"}}, {"text": "Gujarat", "label": "GPE", "start_char": 11571, "end_char": 11578, "source": "ner", "metadata": {"in_sentence": "The plaintiff is not concerned with the second contention but it is a dispute between the State of Maharashtra and the State of Gujarat."}}, {"text": "State of Bombay was re-organised into the above two States and the Bombay Reorganisation Act", "label": "STATUTE", "start_char": 11602, "end_char": 11694, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 60 and 61", "label": "PROVISION", "start_char": 11831, "end_char": 11844, "source": "regex", "metadata": {"linked_statute_text": "the State of Bombay was re-organised into the above two States and the Bombay Reorganisation Act,\n\n1960", "statute": "the State of Bombay was re-organised into the above two States and the Bombay Reorganisation Act,\n\n1960"}}, {"text": "Bombay Reorganisation Act", "label": "STATUTE", "start_char": 11852, "end_char": 11877, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "State of Maharashtr~", "label": "ORG", "start_char": 12225, "end_char": 12245, "source": "ner", "metadata": {"in_sentence": "I) Where, before the appointed day, the State of Bombay has made any contract in the exercise of its executive power for any purposes of the State, that contract shall be dmed to have been made in the exercise of the executive power,-\n\n(a) if such purposes are, as from that day exclusively purposes of either the State of Maharashtr~ or the State of Gujarat, of that State; and\n\n(b)' in any other case, of the State of Maharashtra;\n\nand all rights and liabilities which have accrued, or may accrue, under any such contract shall, to the extent to which they would have been rights or liabilities of the State of Bombay, be rights or liabilities of the State of Maharashtra or the State of Gujarat, as the case may be;\n\nProvided that in any such case as is referred to in clause (b), !"}}, {"text": "State of Gujarat", "label": "GPE", "start_char": 12253, "end_char": 12269, "source": "ner", "metadata": {"in_sentence": "I) Where, before the appointed day, the State of Bombay has made any contract in the exercise of its executive power for any purposes of the State, that contract shall be dmed to have been made in the exercise of the executive power,-\n\n(a) if such purposes are, as from that day exclusively purposes of either the State of Maharashtr~ or the State of Gujarat, of that State; and\n\n(b)' in any other case, of the State of Maharashtra;\n\nand all rights and liabilities which have accrued, or may accrue, under any such contract shall, to the extent to which they would have been rights or liabilities of the State of Bombay, be rights or liabilities of the State of Maharashtra or the State of Gujarat, as the case may be;\n\nProvided that in any such case as is referred to in clause (b), !"}}, {"text": "State of Maharashtra", "label": "GPE", "start_char": 12322, "end_char": 12342, "source": "ner", "metadata": {"in_sentence": "I) Where, before the appointed day, the State of Bombay has made any contract in the exercise of its executive power for any purposes of the State, that contract shall be dmed to have been made in the exercise of the executive power,-\n\n(a) if such purposes are, as from that day exclusively purposes of either the State of Maharashtr~ or the State of Gujarat, of that State; and\n\n(b)' in any other case, of the State of Maharashtra;\n\nand all rights and liabilities which have accrued, or may accrue, under any such contract shall, to the extent to which they would have been rights or liabilities of the State of Bombay, be rights or liabilities of the State of Maharashtra or the State of Gujarat, as the case may be;\n\nProvided that in any such case as is referred to in clause (b), !"}}, {"text": "[1964] 4 S.C.R. 718", "label": "CASE_CITATION", "start_char": 12864, "end_char": 12883, "source": "regex", "metadata": {}}, {"text": "vf Maharashtra", "label": "PETITIONER", "start_char": 12891, "end_char": 12905, "source": "ner", "metadata": {"in_sentence": "vf Maharashtra and the State of Gujarat, or, in default of such agreement, as the Central Governmenf may by order direct."}}, {"text": "State of Gujarat", "label": "RESPONDENT", "start_char": 12914, "end_char": 12930, "source": "ner", "metadata": {"in_sentence": "vf Maharashtra and the State of Gujarat, or, in default of such agreement, as the Central Governmenf may by order direct."}}, {"text": "Central Government", "label": "ORG", "start_char": 14340, "end_char": 14358, "source": "ner", "metadata": {"in_sentence": "Where, immediately before the appointed day .. the State of Bombay is subject to any liability in respect of any actionable wrong other than breach of contract, that liability shall,-\n\n(a) if the cause of action arose wholly within the territories which, as from that day, are the territories of the State of Maharashtra or the State of Gujarat, be a\n\nliability of that State; and\n\n(b) in any other case, be initially a liability of the State of Maharashtra but subject to such financial adjustment as may be agreed upon between the States of Maharashtra and Gujarat or, in default of such agreement, as the Central Government may by order direct.\""}}, {"text": "India", "label": "GPE", "start_char": 14817, "end_char": 14822, "source": "ner", "metadata": {"in_sentence": "This Court in State of Bihar v. Abdul Majid(1) held \"that the rule of English Law that a civil servant cannot maintain a suit again>t the Crown for the recovery of arrears of salary does not prevail in India and it has been negatived by the provisions of the statute law in India''."}}, {"text": "Mahajan", "label": "JUDGE", "start_char": 14898, "end_char": 14905, "source": "ner", "metadata": {"in_sentence": "Mahajan."}}, {"text": "s. 60", "label": "PROVISION", "start_char": 15702, "end_char": 15707, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Reorganisation Act, 1960", "label": "STATUTE", "start_char": 15715, "end_char": 15746, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "England", "label": "GPE", "start_char": 15889, "end_char": 15896, "source": "ner", "metadata": {"in_sentence": "Authority is not lacking even in England where a 'pecial relationship exists between the Crown and its public servants."}}, {"text": "Compensation Act, 1906", "label": "STATUTE", "start_char": 16368, "end_char": 16390, "source": "regex", "metadata": {}}, {"text": "Fletcher Moulton", "label": "JUDGE", "start_char": 17137, "end_char": 17153, "source": "ner", "metadata": {"in_sentence": "It was then said that there were not here concurrent\n\n~, otract,.. f a)Sfee with Fletcher Moulton L.J. that this th lmoskt a typical cae of concurrent contracts because e wor man was bemg paid w f h' ' board a merchant shi d as or IS."}}, {"text": "Goddard", "label": "JUDGE", "start_char": 17604, "end_char": 17611, "source": "ner", "metadata": {"in_sentence": "It is true that Lord Goddard, C.J., in Inland Revenue Comnissioners v. Hambroo/i( ') observed :\n\n\"If I may be bold enough to express a conclusion on a matter on which the Judicial Committee hesitated in Reilly v. R('), it is that a11 established civil servant is appointed to an office and is a public officer, remunerated by moneys provided by Parliament, so that his employment depends not on a contract with the Crown but on appointment by the Crown, though there may be as indicated in Reilly v. R. (') exceptional cases, as for instance an engagement for a definite period where there is a contractual element in or collateral to his employn1ent.\"", "canonical_name": "Goddard"}}, {"text": "Parliament", "label": "ORG", "start_char": 17928, "end_char": 17938, "source": "ner", "metadata": {"in_sentence": "It is true that Lord Goddard, C.J., in Inland Revenue Comnissioners v. Hambroo/i( ') observed :\n\n\"If I may be bold enough to express a conclusion on a matter on which the Judicial Committee hesitated in Reilly v. R('), it is that a11 established civil servant is appointed to an office and is a public officer, remunerated by moneys provided by Parliament, so that his employment depends not on a contract with the Crown but on appointment by the Crown, though there may be as indicated in Reilly v. R. (') exceptional cases, as for instance an engagement for a definite period where there is a contractual element in or collateral to his employn1ent.\""}}, {"text": "Goddard", "label": "JUDGE", "start_char": 18715, "end_char": 18722, "source": "ner", "metadata": {"in_sentence": "Even Lord Goddard, C.J., in Terrel/ v. Secretary of State for the Colonies(') observed that \"the case (Reilly v. R.)(2 ) shows that there may be contractual.", "canonical_name": "Goddard"}}, {"text": "Hambrook", "label": "OTHER_PERSON", "start_char": 19002, "end_char": 19010, "source": "ner", "metadata": {"in_sentence": "rights existing before determination of a contract at will which are not inconsistent with a power to\n\ndetermine,\" and he stuck to this in Hambrook's case(') by statftlg:\n\n\"Although it is clear that no action for wrongful dismissal can be brought by a discharged civil servant, I may be allowed to say that I adhere to the opinion which I expressed in Terrell v. Secretary of State for the Colonies(') that he could recover his salary for the time during which he has served."}}, {"text": "Robertson", "label": "OTHER_PERSON", "start_char": 19485, "end_char": 19494, "source": "ner", "metadata": {"in_sentence": "He would claim on a quantum mersuit and I am fortified in this view by Reilly v. R. (2 ), bv R. v. Doultre(4) and bv Bushe v. R(') referred to in Robertson's book at p. 338.\""}}, {"text": "s. 60", "label": "PROVISION", "start_char": 19710, "end_char": 19715, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 61", "label": "PROVISION", "start_char": 19720, "end_char": 19725, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 60", "label": "PROVISION", "start_char": 20296, "end_char": 20301, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 61", "label": "PROVISION", "start_char": 20331, "end_char": 20336, "source": "regex", "metadata": {"statute": null}}, {"text": "Baishankar Avalram Joshi", "label": "RESPONDENT", "start_char": 20420, "end_char": 20444, "source": "ner", "metadata": {"in_sentence": "In the result the appeal fail~ and is dismissed with costs to -C the respondent, Baishankar Avalram Joshi.", "canonical_name": "BAISHANKAR AVALRAM JOSm & ANOTIIER"}}]}
{"document_id": "1969_3_926_943_EN", "year": 1969, "text": "ARATIPAUL\n\nTHE REGISTRAR, ORIGINAL SIDE, HIGH COURT\n\nCALCUTTA & ORS.\n\nMarch 10, 1969\n\n[J. M. SHELAT AND V. BHARGAVA, JJ.]\n\nPractice & Procedure-Judge seized of suit-Parties agreeing to refer nWlters in dispute to arbitration of Judge-Decision and decree by Judge -Whether award or judg1nent of court.\n\nWhen a partition suit and connected testamentary suit were pending before a Judge on the original side of the High Court of Calcutta, the parties filed an agreement before the Judge and got it recorded that the matters in dispute in both the suits were to be referred to the sole arbitration of that Judge.\n\nThe parties agreed to abide by any decision that might be given by the Judge and that no evidence need be taken except to the extent that the Judge may desire and that the evidence need not be recorded in any !annal manner. It was also agreed that the Judge was to have all summary powers including the power to divide and partition the properties.\n\nAt '!he same time the parties added that the Judge was to make such decrees as he thought fit and proper and for the purpose of partition, if necessary, he could engage or appoint surveyors and commissioners.\n\nThe Judge thereafter gave a decision passing a preliminary dectec in tlie partition suit and it was filed on the record of the suit\n\nas a judgment. A preliminary decree was d'rawn up in terms of that order but before it was signed, the plaintiff presented a petition under An. 226 of the Constitution for the issue of a writ of marrdamus directing the Registrar of the High Court to recall, cancel and withdraw the .order and take it off the record .of the panition suit as it was not a judgment in the suit but was only an award. The writ petition was dismissed by the High Coun.\n\nlo appeal to this Court,\n\nHELD : Where an arbitration agreement envisages that the Presiding\n\nJude of the Cpurt should himself act as an arbitrator he will occupy_ a dual capacity.\n\nHe will be both an arbitrator to decide the matters re ferred to him by the agreement of the parties and a court, before which the suit continues to remain pending, with jurisdiction to deal with the suit in accordance with the provisions Of the Arbitration Act (942 F]\n\nIn the present case the powers, conferred by the agreement on the Judge already seized of the partition suit, were intended to enable him to function as an arbitrator so as not to be bound by the rules of proce <lure applicable to him as a court. If such a refe'rence to arbitration by a Presiding Judge before whom the suit was pending dould not be competently made under the Arbitration Act, then the order by the JL?dge must be held to be a preliminary decree passed by him as a court seized of the partition suit.\n\nIf there was a competent 'reference, then, after deciding the matters referred to him as an arbitrator, the Ju.dg~ proceeded to deal with the suit himself as a court and to pass a preliminary decree in it.\n\nSuch a course was contemplated by the parties themselves when they stat•d that the Judge could make such decrees as he thought fit. A\n\ndecree could only be passed by the Judgein his capacity of a c.ourt seized of the suit, because, an arbitrator could not pass a decree.\n\nThe actual order passed by the Judge also made it clear that, in passing it, he purported to act as a court deciding the suit and not as an arbitrator to whom some matters in dispute were referred by the parties.\n\nTherefore, the order of the Judge \\\\'us a judgment and not an award.\n\nSince it was a judgment of the Court, the Registrar of the High Court, under the Rules of the Calcutta High Court on the original side, was bound to file it on the record and retain it there and the appellant \\a.:as not entitled to the relief claimed. [942 AD, F-H; 943 A-Fl\n\nBickett v. Morris, (1866) L.R. 1 H.L. Sc. 47, White v. Buccleuch (Duke) (1866) L.R. 1 H.L. Sc. 70, Robert Murrv Burgess v. AnYlrew Morton, [18961 A.C. (H.L.) 136, Wyndham v. Jackson, [19371 3 All E.R. 677, Wyndham v. Jackson, [1938] 2 All E.R. 109, Sayad Zain v. Kalabhai Lo//ubhai, I.LR. 23 Born. 752, Raoji Trimbak Nagarkar v. Govind Vinayak Nagarkar, (1897)\n\nP.J. 413, Baikanta Nath Goswami v. Sita Nath Goswami, I.L.R. 38 Cal. 421, Nidamarthi Mukkanti v. Thammana Ramayya, I.L.R. 26 Mad. 76, Chinna Venkatasami Naicken v. Venkata sami Naicken & Anr. I.L.R. 42 Mad. 625, Noti Venkata Somaya; ulu Garu v. Adusmilli Venkanna, l.L.R. 58 Mad. 31, K. P. Dalal v. R. S.\n\nJamadar, A.LR. 1945 Born. 478, Baijnarh v. Dhani Ram, !.L.R. 51 All. 903, Edappalli Kottamma v. Nallapaneni Mangcmma & Ors. A.I.R. 1967\n\nA.P. 700, Pisani v. Attorney-General of Gibraltar,\n\n(1874) 5 P.C. 516 (B), Russel on The Law of Arbitration, 11th Edn. p. 117 & Ha/sbury'.<\n\nLaws of England, 3rd Edn. Vol. 2 p. 8 para 15, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 745 of 1966.\n\nAppeal by special leave from the judgment and order dated February 18, 1965 of the Calcutta High Court ; n Appeal from Original Order No. 226 of 1964.\n\nM. C. Chagla, D. N. Mukherjee and P. K. Sen, for the appellant.\n\nB. Sen, S. C. Mazumdar, G. S. Chatterjee for Sukumar Bou, for respondents Nos. 1 and 2.\n\nN. N. Goswari and S. N. Mukherjee, for respondents Nos. 3 and 4.\n\nThe Judgment of the Court was delivered by Bhargava, J.\n\nThis appeal, by special leave, is directed against a judgment of the Appellate Bench of the High Court of Calcutta dated 18th February, 1965, dismissing an appeal against an order of a single Judge by which he dismissed a petition under Art. 226 of the Constitution on 26th August, 1964. The fact! leading up to this litigation are that one Shrish Chandra Paul died in the year 1930, leaving behind his widow Pramila Sundar~, his daughter Arati, and 4 sons Balai, Kanai, Netai and Gour.\n\nIn the year 1945, Netai died leaving his mother Pramila Sundari\n\nas his sole heiress. On 27th September 1946, a deed of gift in respect of two premises Nos. 60/11 and 60/12 in Gouri Beria\n\nLane was executed by Pramila Sundari in favour of her three sons Balai, Kanai and Gour. On 18th March, 1952, there was an agreement for partition between Pramila Sundari and her three sons Balai, Kanai and Gour, by which the joint estate left by Shrish Chandra Paul was partitioned into four lots and a small portion of the property was left joint. On 13th Jll(lle 1957, Pramila Sundari instituted Suit No. 1045 of 1957 against Balai, Kanai and Gour for a declaration that the deed of gift and the agreement of partition were void and inoperative, and for a fresh declaration of the shares of the parties and partition of the joint properties.\n\nIn this suit, Arati was also impleaded as a defendant.\n\nOn 26th August, 1957, Pramila Sundari executed a will bequeathing her entire estate absolutely to Arati Paul and Gour in equal shares.\n\nOn 13th January, 1958, Pramila Sundari died, and, consequently on 12th December, 1958, an order was made in Suit No. 1045 of 1957 transposing Arati Paul as the plaintiff. On 3rd February, 1960, Arati Paul applied in the Calcutta High Court for grant of Letters of Administration, with a copy of the will of Pramila Sundari annexed.\n\nThis testamentary proceeding was contested and was marked in the year 1962 as Testamentary Suit No. 12 of 1962.\n\nOn 17th December, 1962, the Testamentary Suit No. 12/ 1962 and the Partition Suit No. 1045/1957 appeared in the peremptory list of Mallick, J., and the Testamentary Suit was partly heard. On 2nd and 3rd January, 1963, there was further hearing in the testamentary suit.\n\nOn 4th January, 1963, an agreement was put fol\"Ward before Mallick, J. referring the dispute in both the suits to the sole arbitration of Mallick, J. extra cursum curiae.\n\nSince this reference is of importance, we may quote it in full:-\n\n\"t is recorded that all the parties consent to this Testa. Suit as well as the partition Suit bell.lg Suit No. 1045 of 1957 and all the disputes involved in these two matter be settled and referred to the sole arbitratio.n of the Hon'ble Mr. Justice P. C. Mallick and the parties agreed to abide by any decision that will be trlven and no evidence need be taken except or to what his Lordship might desire and the evidence need not recorded in any formal manner. Parties agree that his Lordship would have all the summary powers including the power to divide and partition the properties and to make such decrees as his Lordship thinks fit and proper and for the purpose of partition if necessary to engage or appoint Surveyors & Commissioners as his Lordship thinks best.\n\nIt is recorded that all the parties have referred this matter to the Learned Judge in what is known as Extra Cursum Curiae jurisdiction of this Court.\n\nA It is further recorded that all parties agree that they will not prefer any appeal from or against the decree or order that may be passed by his Lordship the Hon'ble Mr. Justice Mallick.\"\n\nWhen this note was recorded, all the parties to the two proceedings were represented. through their counsel. ; ln ursuance of this agreement, Mallick, J. passed an order. m Suit No. 104~/\n\n1957 on !st April, 1963. lt may be mentioned that the mam dispute in the present case is whether this or?er of M'.\"lick, !·\n\nin this partition suit amounts to an award or a 1udgment m a suit.\n\nOn the. same day, by a separate order, he also granted Letters of Administration in the Testamentary Suit. On 5th April, 1963, Arati Paul filed an objection to the recording of this order as a judgment. On 4th May, 1963, drafts of decree& drawn up in terms of that order were issued. On 13th May 1963 Arati Paul applied for change of her Attorney in the partition Suit No. 1045/\n\n1957. On 17th May, 1963, the order of Mallick, J. dated 1st\n\nApril 1963 was filed on the record oi Suit No. 1045/1957 as a judgment. On 24th July, 1963, the application of Arati Paul for change of Attorney was allowed. Thereafter, on 20th August,\n\n1963, Arati Paul preented a Letter of Demand to the Registrar of the Original Side of the High Court to recall, cancel and withdraw the filing of the order of Mallick, J. dated 1st April, 1963 from the record of the suit and to take it off the file of that suit.\n\nFailing to get any response, Ara ti Paul, on 4th September, !963, presented a petition Ui1lder Art. 226 of the Constitution .praying for issue of a writ in the nature of mandamus directing\n\nthe Registrar of the High . Court on the Original Side to forth- -.vith recall, cancel and withdraw the filing of the said pretended F Award (that is how the order of Mallick, J. was described in this petition) dated 1st April, 1963 as a judgment in the said Suit No, 1045/1957 as part of the records of the said suit, and another writ of mandamus directing the Registrar of the High Court to forth with take off the said pretended A ward dated 1st April.,\n\n1963 from the file and/or records of the said Suit No. 1045/1§57.\n\nG In this petition, apart from the Registrar of the High Court on .. the Original Side, Balai, Kanai and Gour were also imp leaded as opposite parties. This petition under Art. 226 of the Constitution was numbered as Matter No. 366 of 1963 and was summarily rejected by Banerjee, J. on 5th September, 1963. On 16th Septe'; llb.er, 1963, Appeal No. 228 of 1963 was entertained against H this judgment u:°der. the. f:etter~ Patent, ~t an application presented for an mter1m m1unction restrammg the Registrar from taking any steps pursuant to the judgment of Mallick J. dated !st April, 1963 pending disposal of the appeal was ; ejected. On\n\n27th November, 1963, Arati Paul obtained special leave to ap peal from this Court against the refusal of the interim injunction by the interlocutory order -dated 16th September, 1963. While this appeal was still pending in this Court, the Appellate Bench of the High Court, on 28th April, 1964, allowed Appeal No. 228 of 1963, directed issue of a Rule in Matter No. 366 of 1963. and ordered stay of all proceedings pursuant to the order of Mal lick, J. dated 1st April, 1963, till the final disposal of the Rule.\n\nSince the appeal in this Court had become in fructuous, it was not prosecuted and as dismissed for non-prosecution on 29th April, 1964. On 10th June, 1964, two of the parties Kanai and Balai took out a notice of motion for revocation \"of Letters of Administration which had been granted to Arati Paul by the order of Mallick, J. dated !st April, 1963 in the Testamentary Suit.\n\nThis notice was returnable on 15th June, 1964. Matter No. 366 of 1963, having been remanded by the Appellate Bench, appeared for final hearing before Sinha, J., on 15th July, 1964, but it was directed to go out of the list as an objection was taken on behalf of Kanai and Balai to the matter being taken up by him on the ground that he was a member of the.Appellate Bench which had directed issue of the Rule in that Matter. On 16th July, 1964, this Matter No .. 366/1963 was mentioned before the Chief Justice for being assigned to some other Judge, when a direction was made by the Chief Justice that a letter should be written by the party concerned to his Secretary.\n\nOn 27th July, 1964, the Notice of Motion taken out by Kanai and Balai for revocation of Letters of Administration was partly heard by Mallick, J. who recorded the following minutes :-\n\n\"Part Heard. The Rule issued by the Appeal Court in Matter No. 366/63 in the matter of Arati Paul vs.\n\nRegistrar, O.S., appears to be intimately connected with the application that is now pe, nding before me. I direct that this matter with the said Matter No. 366 be placed before the Hon'ble C.J. for proper determination:ut this matter along with the matters appear day after tomorrow when I shall giye directions. Interim Order to continue except that Arati Paul will collect rent.\" It appears that, simultaneously with these proceedings, an appli cation for taking proceedings for Contempt of Court were also pending before him in this connection. Hearing in Matter No. 366/1963 was concluded on 12th August, 1964, and then an order was made that this Matter as well as the proceedings relating to Notice of Motion for revocation of the Letters of Admi nistration and the application for taking proceedings for contempt should appear in the list for judgment one after the other. On 26th August, 1964 Mallick, J. passed an order discharging the Rule in Matter No. 366/1963 as well as dismis, ing the other two\n\nARATI v. REOISTRAR (Bhargava, !.)\n\n93J\n\napplications.\n\nSubsequently, on 1st September, 1964, the re liminary decree drawn up on the basis of the order of Malltck, J. dated 1st April, 1963 in Partition Suit No. 1045/1957 was signed by him, and on 3rd September, 1964, the decree was filed.\n\nOn 21st September 1964, Arati Paul filed Appeal No. 226 of 1964 challenging the order dated 26th August, 1964 passed by Mallick, J. dismissing Matter No. 366 of 19.63. The appeal was dismissed by the Appellate Bench of the High Court on 18th February, 1965 and the order of the High Court in the appeal was filed on 16th March, 1965. Arati Paul then applied for a certificate under Art. 133(1) of the Constitution for leave to appeal to this Court. That having been refused, she obtained special leave from this Court and has now come up in this appeal challenging the confirmation by the Appellate Bench of the order of dismissal of Matter No. 366 of 1963.\n\nThe prayer in the writ petition (Matter No. 366/190:1) has been pressed before us by Mr. Chagla on behalf of the appellant on the sole ground that the order of Mallick, J. dated lst April,. 1963 was in the nature of an award made by an arbitrator and not a judgment in the partition suit, so that the appellant was entitled to obtain a Writ for its recall, cancellation and withdrawal and for taking it off the record of the suit. Being a mere award of an arbitrator, it could not be treated as a judgment in the suit, nor could a decree be drawn up on its basis.\n\nOn behalf of the respondents, other than the Registrar of the High Court on the Original Side, Mr. Goswami has argued that, even .hough under the agreement dated 4th January 1963, Mallick, J. was requested to act extra cursum curiae and the suit was left to his arbitration, he, in fact, when passing the order dated l st April, 1963, acted as a Court and passed a preliminary decree.\n\nAccording to him, a preliminary decree in a suit for partition can only be passed by a Court and not by an arbitrator when giving an award in the dispute referred to him. He has, therefore, urged that the Registrar was right in filing that order on the record of Suit No. 1045 of 1957 as a judgmetn, and no writ of mandamus can be issued to him to recall, cancel or withdraw it or take it off the record. Learned counsel for the Registrar also urged that all that the Registrar did was to file the order of Mallick, J. in accordance with the Rules of Court, because it was a judgment passing a preliminary decree in the suit, so that the appellant was not entitled to the writ of mandamus sought in Matter No. 366 of 1963.\n\nMr .. C:hagla, in suport of his argument, relied primarily on H two dec1S1ons of Courts m England and on the principle enunciated. by Russel in his book on \"The Law of Arbitration\" 17th Edn.\n\nIn this book at p. 117, Russel has enunciated the principle as. follows:- llSup:CI/69-tO\n\n\"The subject-matter of an action may be referred to\n\nd judge as arbitrntor. The judge in such a case will, if such, is the intention of the parties, be merely an arbitrator and have no special powers by virtue of the fact that he is a judge, and his award will not be subject to appeal.\"\n\nAfter laying down this principle, Russell goes on to elaborate it in the subsequent notes with reference to some decisions, and one of these principles enunciated is:\n\n\"When, with the consent of bc;>th parties, a judge deviates from the regular course of procedu.re of the court, he ceases to act judicially and becomes an arbitrator, whose decision is subject to no appeal.\"\n\nIn support of this last proposition, Russell has quoted the decisions ill. Bickett v. Morris(') and White v. Buccleuch (Duke)(').\n\nWe examined the decisions in these two cases, but could not find any specific statement in them that the decisi~ given by a Judge on deviation from the regular course of procedure of the Court has to be held to be an award, though it was held in both cases that it would not be subject to an appeal.\n\nThe principal case on which reliance is placed on behalf of the appellant is the decision of the House of Lords in Robert Murray Burgess v. Andrew Morton(').\n\nIn that case, a suit was first brought for recovery for a certain amount and the cause was set down for trial before the Lord Chief Justice, when there being no likelihood of its being reached, the parties, with the consent of the learned judge, agreed to withdraw it from trial, and to state a special case for the decision of the court. It was held by the House of Lords that the special case so stated did not raise directly any question of law and its decision only depended on questions of fact, so that the statement of the special case did not confer jurisdiction on the Court to deal with it as such.\n\nThe learned Judges of the Divisional Court seized of the special case pointed out the incompetency and inexpediency of trying such a question by means of a special case, but expressed their willingness to do the best they could to decide it, if the parties desired them to do so; and on that footing, they heard the case and gave judgment. On appeal, the Court of Appeal reversed that judgment.\n\nThis judgment of the Court of Appeal was brought up before the House of Lords which had to consider the nature of the judgment given by the Divisional Court.\n\nLord Watson in his speech held:-\n\n(1) (1866) LR. I H.L. Sc. 47.\n\n(2) (1866) L.R. 1 H.L. Sc. 70.\n\n(3) 18961 A.C. (H.L.) 136.\n\n\"There are several decisions of this House, in cases coming from Scotland, which appear to me to affirm that the judgment of a court below, prononced extra cursum curiae, is in the nature of an arbiter's award, and that, as a general rule at least, no appeal from _it will lie. An appeal was held, on that ground, to be incompetent in Craig v. Duffus('); Dudgeon v. Thomson(') and Magistrates of Benfrew v. Hoby( 3 ).\"\n\nLord Shand also expressed a similar view, taking note of tlie fact that, as soon as it became apparent to the learned Judges ?f the Divisional Court that the special case raised only a questmn of fact for their determination they would have been warranted in\n\ndeclining to give judgment on it. It was apparent that the learnec judges yielded to the entreaties of both parties in entertaining an< disposing of the case; and, on this basis, expressed his opinion a follows:-\n\n\"I agree in thinking that the proceeding was extra cursum curiae, and that the decision of the dispute between the parties was of the nature of an award by arbiters, as, indeed, the learned judges of the Divisional Court seem themselves to have thought, as appears not only from the terms of Wills, J.'s judgment, but from the observations of both judges when the defendant proposed to appeal.\"\n\nReliance was also placed on the decision of Goddard, J. in Wyndham v. Jackson('). The facts of that case were that the plaintiff issued a writ in the Chancery Division claiming an account and payment of all sums due to her under a contract entered into by the plaintiff with the defendant.\n\nAn order was made in the action by conse, nt directing an account and the master, who dealt with that order, extended the ambit of his enquiry be}'&nd the terms of the order at the invitation of both parties, gave \\I decision on a matter which was not covered by the Judge's order for an account, and issued a certificate to the effect that a certain sum was due from the defendant to the plaintiff.\n\nThe question that was raised before Goddard, J. by the plaintiff was that she was entitled to recover the amount certified by the master,. on the ground that' the certificate was equivalent to an award haV!ng been made pursuant to an ol'lll submission by counsel, who asked him to deal with all matters in dispute, though not technica!ly covered by the order directing an account. It was also submitted on her behalf that the minute in the master's book indicatig n order that he was prepared to make on the plintiff's application for an order for payment, was also an award entitling\n\n(I) 6 Bell's Ap, JOS.\n\n(2) I Macq. 714.\n\n(3) 2 Macq. 478.\n\n(4) [1937] 3 All E.R. 677.\n\nher, not only to the amount mentioned, but also to the costs of the A Chancery proceedings. After considering the views expressed in a number of cases, Goddard, J. held:-\n\n\"! must take it that it has been finally decided, in a matter between the parties, that the certificate was given ex cursum curiae. Then, as I find it was the result of a hearing which both parties requested, and to which they assented, I think it falls within the line of cases on which the plaintiff relies, and can be enforced as an award.\"\n\nThis case went up in. appeal before the Court of Appeal whose decision is reported in Wyndham v. Jackson('). That Court differed from Goddard, J. on the nature of the order made by the master and held that the determination by the master was not a final determination and was never intended to be treated as a final arrangement between the parties.\n\nThat 111atter was still to go before the Judge who had made the order for account and the master's certificate could not be binding until It had been confirmed by the Judge. The position of the master was held to be exactly analogous to the position of an arbitrator to whom the court may have referred a matter to make a report to the court in order that the court may give a final decision between the parties.\n\nOn this view, the Appeal Court did not go into the question whether the.decision given by_ the master amounted to a decision given extra cursum curiae and whether it was enforceable as an award.\n\nThe award of the master, being tre:ited as provisional and subject to confirmation by the Judge, could obviously not be enforced as such. Thus, the view expressed by Goddard, J. that the decision of the master could be enforced as !Ill award, if it had been final, was neither affirmed nor set aside.\n\nThe cases in India relied upon are two dei; isions of the Bombay and Calcutta High Courts.\n\nIn Sayad Zain v. Kalabhai Lallubhai (°), before the case came to a regular hearing before the Court of the First Class Subordinate Judge, Surat, the parties as 'well as their pleaders signed an application which ran as follows :-\n\n\"We have decided that the Court should make a settlement of the dispute between us according to Chapter XXXVIII of the Civil Procedure Code, and we will abide by whatever decision the Court may give.\n\nWe hve specially decided that the Court should have ful.J authority to obtain information from the parties in H whatever way the Court may think proper, but the parties\n\n(1)(19381 2 All E.R. 109.\n\n(2) I.L.R. 23 Born. 752.\n\nare not to produce any evidence except documentary records.\"\n\nThe Subordinate Judge, in pursuance of this agreement, proceeded to deal with the case and ordered defendant to pay plaintiff a certain sum, having dispensed with the requirement of going through the formal procedure of rejecting the suit and registering their application as a fresh suit, ..because the parties referred him to the decision in R.aoji Trimbak Nagarkar v. Govind Vinayak Nagarkar(').\n\nAn appeal against this decision was taken to the High Court of Bombay which noted the fact that the Subordinate Judge had referred to the case mentioned above and helo:-\n\n\"The very mention of that case shows that the parties must have intended that the decision of the Subordinate Judge as arbitrator should be final. In that case, as in this, the parties solemnly agreed by themselves and by their pleaders to abide by the decision of the Court to be made in a particular way. They cannot, therefore, appeal from it.\"\n\nThe Court further expressed the opinion that:\n\n\"The fact that the express provisions of Chapter XXXVIII of the Civil Procedure Code were knowingly disregarded, shows that' the_ proceedings were extra cursum curiae, and thus the judgment of the Subordinate Judge was in the nature of an arbitrator's award, against which an appeal cannot be entertained if the competency of the appellate Court is objected to by the party holding the judgment.\n\nThe fact that the Subordinate Judge gave his award in the form of a decree will not make it a decree from which a regular appeal can lie.\"\n\nIn Baikanta Nath Goswami v. Sita Nath Goswami('), after the hearing of a suit in a Munsif Court had commenced and some evidence had been recorded, the parties agreed to leave the questions in dispute between them to the determination of the Munsif after he had inspected the locality, and also agreed not to raise any objection to the decision so arrived at by the Munsif and to hold themselves bound by the decision of the Munsif. It was specifically stated in the -agreement that neither of the parties shall be competent to raise any objection to the decision or to prefer an appeal.\n\nActing on this submission, the Munsif made a local inspection and passed an order with which the plaintiffs were not content, so that they applied to the Munsif under section 623 of the Civil Procedure Code, 1882, for a review. The Munsif granted the review and passed a second order in modification of his\n\n(I) [1897[ P.J. 413.\n\n(2) l.L.R. 38 cal. 421.\n\nfirst order, and again embodied the order in what purported to be a decree in the suit. Against this decree, an appeal was filed by the defendants be.fore the District Judge wlio entertained he appeal and made an order of remand. On second appeal, the High Court of Calcutta held that the first judgment of the Munsif was in the nature of an award and that it did not lose that character because he embodied the operative part of that judgment in what purported to be a decree in the suit. He was in fact an arbitrator by the submissin of the parties and his decision was an award.\n\nIt was not open to him to alter that award when made or to review his decision.\n\nIt was further held that no appeal, consequently, lay to the District Judge against that decision. It is on the basis of these cases that it was argtied that, in the present case also, the order made by Mallick, J. should be held by us to be in the nature of an award made by an arbitrator, so that it cannot be treated as a decree and filed as such in the partition suit which was pending before him.\n\nAs against these cases cited on behalf of the appellant, our attention has been drawn on behalf of the respondents to the views in Halsbury's Laws of England, and to certain decisions of Courts in India. In Halsbury's Laws of England, Third Edn., Vol. 2, at p.8 in para. 15, it is stated:-\n\n\"An arbitration agreement must be an agreement to refer disputes to some person or persons other than a court of competent jurisdiction. . In principle, a judge sitting extra cursum curiae may sit as arbitrator under an arbitration agreement and a reference to a foreign court has been treated as an arbitration agreement for the purpose of exercising the jurisdiction to grant a stay of proceedings arising out of the same subject-matter. An agreement that the decision of a judge sitting in court should be unappealable is however, despite the language of some of the decisions cited, not an arbitration agreement; the decision, when given, is a judgment, not an award, and the judge is not placed in the position of an arbitrator.\"\n\nReliance is placed particularly on the last sentence of the above extract from Halsbury's Laws of England.\n\nIn Nidamarthi Mukkanti v. Thammana Ramayya('), parties in a suit pending before the District Munsif presented a petition undertaking that both parties would abide by the decision of the Court that may be passed, as it thinks just, after perusing te documents filed by both parties and all the records in the said suit, and after measuring the sites and inspecting the marks, etc.,\n\n(l) I.L.R. 26 Mad. 76.\n\nwhich are thereon.\n\nThe District Munsif ordered accordingly, inspected the site, and found in favour of the plaintiff and pro nounced judgment giving him the order claimed, and granted the injunction. It was held by the Madras High Court qn appeal that the District Munsif acted as arbitrator by consent of parlies and that, consequently, no appeal lay from his decision which must be looked on as an award. It was, however, added that, as no attempt had been made to attack that award on any of the grounds specified in section 521 of the Civil Procedure Code, the Court must look on the decree of the District Munsif as one passed in accordance with the award and uphold it as such.\n\nIn Chinna Venkatasami Naicken v. Venkatasami Naicke11 and Another('), in a suit for money due upon a mortgage bond, after the examination of some witnesses, parties agreed to refer the questions of law and fact arising in the case to the decision of three persons, viz .. the Subordinate Judge and two friends of the parties. An award was made by the majority. Thereupon, an application was presented by the defendants to set aside the award on various grolllllds.\n\nThe Subordinate Judge over-ruled the objections and passed a decree in accordance with the award. In the Revision before the Madras High Court, the main ground taken was that the reference to the Subordinate Judge as one of the arbitrators was illegal and 'that whole award was vitiated thereby.\n\nSeshagiri Ayyar, J., in confirming the decree of the Subordinate Judge, held:-\n\n\"In my opinion, therefore, although the procedure adopted by the Subordinate Judge in dealing with the matter as if it was a reference under the second schedule and as if the provisions of the Code applied was wrong, inasmuch as a decree was passed in terms of the award, the defendant as a party to the reference is not entitled to contest its finality and to request that the case should be heard again.\"\n\nWallis, C.J., said:-\n\n\"! think a reference of the suit to the presiding judge must be held to be altogether extra cursum curiae and not the less so when two others are joined with him and that the decree passed in accordance with their deision must be regarded as a consent decree, and as not subject to the prnvisions of the second schedule.\" . !ti. fl(oti f'.ekata Somayajulu Garu v. Adusumil/i Venkanna('). m a suit clamung an easement of necessity in respect of certain lands, the District Munsif, at the request of the defendant, made\n\n(l) LL.R. 42 Mlld. 625.\n\n(2) I.L.R. SB Mad. Ji.\n\na local inspection of the site, whereafter the plaintiff was examined-in-chief and some documents were filed.\n\nThereafter, the parties requested the Court to give a decision on the evidence already on the record and intimated that they proposed to adduce no further evidence. The Munsif gave his decision partly in favour of the plaintiff and partly against him. The plaintiff appealed to the Subordinate Judge who dismissed the appeal, holding it to be barred by reason of the joint statement. given by the parties before the Munsif.\n\nOn further appeal, the High Court of Madras held that, although the proceeding was not extra cursum curiae, the right o, f appeal was nevertheless barred by reason of the special agreement.\n\nIn K. P. Da/alv. R. S. Jamadar('), in an application registered C as a suit for e jectment from a premises, the Judge trying the suit, at the first hearing of the suit, after . pleadings of parties had been put in, enuired of the advocates of the parties as to whether they wanted a formal trial or whether they were prepared to leave the matter to him to be summarily decided as an arbitrator after hearing the respective advocates and inspecting the premises.\n\nBoth the advocates agreed to the learned Judge hearing the facts from them and after inspection of the premises by the Court to submit to his decision as suggested.\n\nTherea.fter, the Judge inspected the premises and ultimately, on a further agreement by both parties that the matters in dispute should be decided by the Judge as an arbitrator, he gave his decision.\n\nWhen the case came up in revision before the Bombay High Conrt, the learned Judge of that Court refetred to the quotations from Halsbury's Laws of England and Russell on Arbitration which we have noticed earlier, and expressed his opinion that he did not think that those observations necessarily meant that the Judge ceased to be a Judge and became a pure arbitrator in the sense that he could refer the dispute to himself and also remit the award to himself.\n\nThe order of the trial Judge dismissing the application and making\n\nno order as to costs was upheld on the view that the trial Judge had not lost his capacity as a Judge and had not beconfe a pure arbitrator governed by the Arbitration Act and, therefore, the provisions of that Act would not apply to him, so that the order passed by the trial Judge was correct.\n\nG In Baijnath v. Dhani Ram( 2), a suit for declaration, removal of certain encroachments, and a perpetual injunction came for trial hefore the Munsif where the parties agreed that the Munsif should decide the case on inspection of the documents filed by the parties and on inspection of the locality. They further agreed to accept the decision of the Munsif. The Munsif wrote a judg- H ment and decreed the suit in part. There was an appeal to the\n\n(I) A.1.R. 1945 Born. 478.\n\n(2) !.L.R. 51 All. 9-03.\n\nARAT! v. REGISTRAR (Bhargava, !.) 939\n\nDistrict Judge which was dismissed and the second appeal came before the High Court of Allahabad which was also dismiss~.\n\nWhile the appeal before the District Judge was pending, an application for review of judgment was also presented efore the Munsif.\n\nIn disposing of this application, the Munsif held that he was an arbitrator and that his decision was binding on the parties, so that an application for review did not lie as there was o sufficient cause for review.\n\nThis order was again taken up m Revision before the High Court, and the question rose whether the Munsif could not entertain the application for review because he was an arbitrator. The Court held:-\n\n\"The Munsif, in accepting the position of an arl:>itrator, had a two-fold t:apacity. He was an arbitrator, but he was also the court. If the arbitrator left anything undecided, the parties would be entitled to go to the court and to ask the court to remit the award to the arbitrator.\n\nThe fact that the two capacities were consitu, ted in the same person should not deprive a party of his right of having matters set right.\" On this view, the Court Was of the opinion that an application for reveiw lay against the judgment of the Munsif, allowed the revision and directed the Munsif to take up the application for review afresh and consider it on the merits.\n\nIn Edapalli Kotamma v. Nallapaneni Mangamma and Others('), in a suit for mandatory injunction directing the defendants to remove certain constructions and for a permanent injunction restraining them from obstructing the flow of surplus water from plaintiff's land, the parties, after a Commissioner appointed to inspect the locality had prepared certain plans and submitted his reports, signed and filed a memorandum before the District Munsif in the fol!owing terms:-\n\n\"Both parties agreed to abide by the decision of the Hon'ble Court after personal inpection. The parties are not adducing oral evidence. Documentary evidence can be received.\" The District Munsif inspected the locality, placed on record a detailed. note of the phyic.al fetures of the locality, etc., and, on the basis. of the. Comnuss10ner s plans and reports and his own personal mspeclton, gave a judgment for the plaintiffs. A decree was also drawn up in the usual course. The first defendant preferred an appeal which was rejected by the first appellate court on the ground tha_t it was incompetent. In second appeal before the Andhra Pradesh High Court, the question arose whether the first appellate Court was right in holding that no appeal lay to rt from the decree of the trial Court. A learned single Judge of\n\n('. A.I.R.1967 A.P. 700,\n\nthe Andhra Pradesh High Court differed from the view expressed in Nidammarthi Mukkanti's case( 1) and held that there could not be a reference to arbitration by the Judge to himself.\n\nHe expressed the view by saying :\n\n\"It would be fantastic to say that in a case like the present, the Court made a reference to itself, fixed the time for the making of the award, stayed its hand till the expiry of the time fixed for the submission of the award, received the award, gave time for objections to the award, heard the objections and, finding no grounds for setting aside the award, pronounced judgment in accordance therewith.\"\n\nHe went on to hold:- 'The Arbitration Act of 1940 makes it clear that a reference to :irbitration could be made only in accordance with the Act and the procedure prescribed by the Act should have been followed before ss. 17 and 39 of the Act barring appeals from decrees on awards, could be invoked.\n\nConsequently, the decision of the trial Court could not be treated as the award of an arbitrator and the decree that followed, could not be held to be a decree on an award and therefore not open to appeal.\"\n\nHe then proceeded to examine the question whether, there being no statutory provisions barring a right of appeal in that case, there was any principle of law which deprived the parties of the right of appeal. He noted the fact that, in that case, there was no express agreement not to appeal; but the controversy turned on the question whether, by their conduct, the parties should be deemed to have given up their right of appeal and whether the waiver of the right of appeal should be implied from the terms of the agreement between the parties. The learned Judge held that there had been no waiver, of the right of appeal, so that the appeal before the first appellate Court was competent.\n\nThe order dismissing that appeal was set aside and the case was remanded for a decision of the appeal on merits.\n\nReference may also be made to ir decision of the Privy Council in Pisani v. Attorney-General of Gibraltar('). In that case, the Crown claimed certain lands as escheated for want of heirs of the deceased owner. The defendants to the action were a purchaser from that owner, a person who claimed that the purchaser was only a trustee for him, and certain legatees and beneficiaries under a will of the deceased. During the course of frial, it bcame evident that the title of the Crown by' escheat was unsustainable, but, instead of dismissing the suit, the Court, with the consent of the\n\n(I) 1.L.R. 26 Mad. 76.\n\n(2) (1874) 5 P.C 516. (E).\n\nparties, allowed an amendment of the pleadings by the addition of a prayer that the rights of the several defendants might be ascertained and declared by the decree of the Court. The Court the.n enquired into the rival claims of the defendants and declared their respective rights. One of the defendants preferred an appeal from the judgment to the Privy Council and a preliminary objection was taken to the competency of the appeal. The Judicial Com' mittee of the Privy Council_ held that, though the amendment of the pleadings in the Court below could not have been made except by consent of parties and though the Court below had been invi ted by the rival claimants to adjudicate upon their rights inter-se there was no stipulation that the right of appeal should be given up. The parties did not contemplate that the Judge was to hear the cause otherwise than as a Judge or that the litigatibn was not to go on subject to all the incidents of a cause regularly heard in Court, including an appeal to the Judicial Committee. There was nothing in the proceedings suggesting that the parties waived their right of appeal.\n\nIt was in this context that the Judicial Committee made the following observations:-\n\n\"lt is true that there was a deviation from the cursum curiae, but the Court had jurisdiction over the subject and the assumption ol the duty of another tribunal is not involved in the question.\n\nDepartures from ordinary practice by consent are of everyday occurrence; but unless there is an attempt to give the Court jurisdiction which it does not possess, or something occurs which is such a violent strain upon its procedure that it puts its entirely out of its course, so that a Court of appeal cannot properly review the decision such departures have never been held to deprive either of the parties of the right of appeal.\"\n\nThe Privy Council added that it was wrong to regard the decision of the Court as an award of an arbitrator or to attribute an intention to the parties that the decision should not be open to appeal.\n\nA review of all these decisions shows that the question as to the nature of an order made in circumstances similar to those with which we !ire o.nci:rned has been considered both in England and m In~1a prmanly for the purpose of deciding whether such an order 1s sub1ect to an appel like an ordinary judgment of a Court from wh1c~ an appeal hes.\n\nIn some cases, the right of appeal was negatived on the ground that such a decision was in the nature of an arbitrator's award.\n\nIn other cases, it has been\n\nteated as a judgment amounting to a decision by consent of parties.\n\nIn the case before us, the position is different. No appeal was ever sought to be filed against the order of Mallick, J. dated\n\n1st April, 1963. Further, the language of the agreement of the parties, on the basis of which Mallick, J. proceeded to make that order was different from that considered in these various decisions. At the first stage, the parties got it recorded that the matters were to be settled and referred to the sole arbiration of Mallick:, J.\n\nThe parties agreed to abide by any decision that might be given by him and that no evidence need be taken except or to whatever extent Mallick, J. might desire. .The evidence need not be recorded in any formal manner. Mallick, J. was to have all the summary powers including the power to divide and partition the properties. The conferment of these powers on Mallick, J., who was already seized of the partition suit, was clearly intended to enable him to function as an arbitrator so as not to be bouni:I by the rules of procedure applicable to him as a Court.\n\nAt the same time, the parties added that Mallick, J. was to make such decrees as he thought fit and proper and, for the purpose of . partition, ii necessary, he could engage or appoint surveyors ani:I\n\nCommissioners as he thought best.\n\nOn the face of it, an arbitrator could not pass any decree. The decree could only be passei:I by Mallick, J. in his capacity of Court seized of the suit. Even if it be held that the first part of the agreement hai:I the effect of bringing about a reference to him in his capacity as arbitrator, he did not cease to be seized of the partition suit as a Court. Even under the Arbitration Act, if a reference is made to an arbitrator in a suit pending in a Court, the Court does not cease to have jurisdiction over the suit. All that is required by the provisions of the Arbitration Act is that no further proceedings are to be taken by the Court, except in accordance with the other proviions of that Act.\n\nThe suit continues to remain pep.ding before the Court. In a case like the present, where the arbitration. agreement envisages that the Presiding Officer of the Court should himself act as an arbitrator, he, in such circumstances, will obviously occupy a dual capacity. He will be both an arbitrator to decide the matters referred to him by the agreement of the parties, and a Court before which the suit contihues to remain pending having jurisdiction to deal with the suit in accordance with the provisions of the Arbitration Act. It is a question whether' a reference to arbitration by a Presiding Judge, before whom a suit is pending, can be competently made under the Arbitration Act; but that is a point on which we need express no opinion, because, if it be held that there was no reference to arbitration in the present case. the order passed by Mallick, J. must be held to be a preliminary decree passed by him as a Court seized of the partition suit.\n\nOn the other hand, even if it be held that there was a competent reference, it is clear that, after deciding the matters 'left to his decision as an arbitrator by the parties, Mallick, J. pro-\n\n; eeded further to deal with the suit himself as a Court and to pass\n\ni preliminary decree in it which course being adopted by him\n\nA was envisaged by the parties themselves when they stated that he could make such decrees in the suit as he thought fit. The actual order passed by Mallick, J. also makes it clear that, in passing that order, he purported to act as the Court deciding the suit and not as the arbitrator to whom some matters in dispute were referred by the parties. At the beginning of the order, Mallick, J.\n\nB described himself as \"the Court\".\n\nWhen making the operative order, he used the following language:-\n\n\"In the result, for the present, I will pass a preliminary decree as under :-\n\nOn the face of it whe.ti he passed this order he acted as a Judge seized of the suit who alone was competent to pass the preliminary decree in the suit. Consequently, we cannot accept the submission made by Mr. Chagla that the order made by Mallick, J. should !Je held to be an award of an arbitrator pure and simple and not a decree by a Court.\n\nWe are not concerned in this appeal with the question whether it was appropriate for .Mallick, J. to have dealt with the suit in this manner, nor whether the actual order made by him passing the preliminary decree was correct or was liable to be set aside on the ground of the incorrect procedure adopted by him.\n\nAs we have mentioned earlier, the sole relief claimed before the High Court was the issue of a writ of mandamus directing the Registrar on the Original Side to recall, cancel and withdraw this order and to tiilce it off the record, on the ground that it was an award and not a judgment of the Court. Since we have held' that it was a judgment of the Court, the Registrar on the Original Side, underthe Rules of the Calcutta High Court, was bound to file it on the record and retain it there. Tlie appellant could have sought appropriate remedy for having that judgment .vacated arid, if such a remedy had been sought against that judgment directly, the question whether it was a good judgment and should be retained on the record or not could have been appropriately decided.\n\nThe remedy sought by the appellant of seeking a writ to restrain the Registrar on the Original Side from keeping the judgment on the record of the suit could not possibly be allowed, while the judgment stood and was not vacated.\n\nIn. the result, we have to hold that the order of the High Court dismissing the petition filed by the appellant was correct and justified. The appeal is dismissed, but, in view of the specia1 circumstances of this case, we direct parties to bear their own costs.\n\nV.P.S.\n\nAppeal dismissed;", "total_entities": 103, "entities": [{"text": "ARATIPAUL", "label": "PETITIONER", "start_char": 0, "end_char": 9, "source": "metadata", "metadata": {"canonical_name": "Ara ti Paul", "offset_not_found": false}}, {"text": "THE REGISTRAR, ORIGINAL SIDE, HIGH COURT\n\nCALCUTTA & ORS", "label": "RESPONDENT", "start_char": 11, "end_char": 67, "source": "metadata", "metadata": {"canonical_name": "THE REGISTRAR, ORIGINAL SIDE, HIGH COURT CALCUTTA & ORS", "offset_not_found": false}}, {"text": "March 10, 1969", "label": "DATE", "start_char": 70, "end_char": 84, "source": "ner", "metadata": {"in_sentence": "March 10, 1969\n\n[J. M. SHELAT AND V. BHARGAVA, JJ.]"}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 90, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT*", "offset_not_found": false}}, {"text": "V. BHARGAVA, JJ.", "label": "JUDGE", "start_char": 104, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "VISHISHTHA BHARGAVA", "offset_not_found": false}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 3581, "end_char": 3600, "source": "ner", "metadata": {"in_sentence": "Since it was a judgment of the Court, the Registrar of the High Court, under the Rules of the Calcutta High Court on the original side, was bound to file it on the record and retain it there and the appellant \\a.:as not entitled to the relief claimed. ["}}, {"text": "Noti Venkata Somaya", "label": "OTHER_PERSON", "start_char": 4337, "end_char": 4356, "source": "ner", "metadata": {"in_sentence": "625, Noti Venkata Somaya; ulu Garu v. Adusmilli Venkanna, l.L.R. 58 Mad."}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 4770, "end_char": 4798, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "M. C. Chagla", "label": "LAWYER", "start_char": 4984, "end_char": 4996, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, D. N. Mukherjee and P. K. Sen, for the appellant."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 4998, "end_char": 5013, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, D. N. Mukherjee and P. K. Sen, for the appellant.", "canonical_name": "D. N. Mukherjee"}}, {"text": "P. K. Sen", "label": "LAWYER", "start_char": 5018, "end_char": 5027, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, D. N. Mukherjee and P. K. Sen, for the appellant."}}, {"text": "B. Sen", "label": "LAWYER", "start_char": 5049, "end_char": 5055, "source": "ner", "metadata": {"in_sentence": "B. Sen, S. C. Mazumdar, G. S. Chatterjee for Sukumar Bou, for respondents Nos."}}, {"text": "S. C. Mazumdar", "label": "LAWYER", "start_char": 5057, "end_char": 5071, "source": "ner", "metadata": {"in_sentence": "B. Sen, S. C. Mazumdar, G. S. Chatterjee for Sukumar Bou, for respondents Nos."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 5073, "end_char": 5089, "source": "ner", "metadata": {"in_sentence": "B. Sen, S. C. Mazumdar, G. S. Chatterjee for Sukumar Bou, for respondents Nos."}}, {"text": "Sukumar Bou", "label": "OTHER_PERSON", "start_char": 5094, "end_char": 5105, "source": "ner", "metadata": {"in_sentence": "B. Sen, S. C. Mazumdar, G. S. Chatterjee for Sukumar Bou, for respondents Nos."}}, {"text": "N. N. Goswari", "label": "LAWYER", "start_char": 5138, "end_char": 5151, "source": "ner", "metadata": {"in_sentence": "N. N. Goswari and S. N. Mukherjee, for respondents Nos."}}, {"text": "S. N. 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Mukherjee"}}, {"text": "Bhargava", "label": "JUDGE", "start_char": 5247, "end_char": 5255, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Bhargava, J.\n\nThis appeal, by special leave, is directed against a judgment of the Appellate Bench of the High Court of Calcutta dated 18th February, 1965, dismissing an appeal against an order of a single Judge by which he dismissed a petition under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 5498, "end_char": 5506, "source": "regex", "metadata": {"statute": null}}, {"text": "26th August, 1964", "label": "DATE", "start_char": 5530, "end_char": 5547, "source": "ner", "metadata": {"in_sentence": "226 of the Constitution on 26th August, 1964."}}, {"text": "Shrish Chandra Paul", "label": "OTHER_PERSON", "start_char": 5602, "end_char": 5621, "source": "ner", "metadata": {"in_sentence": "leading up to this litigation are that one Shrish Chandra Paul died in the year 1930, leaving behind his 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Paul died in the year 1930, leaving behind his widow Pramila Sundar~, his daughter Arati, and 4 sons Balai, Kanai, Netai and Gour.", "canonical_name": "Gour"}}, {"text": "Pramila Sundari", "label": "OTHER_PERSON", "start_char": 5959, "end_char": 5974, "source": "ner", "metadata": {"in_sentence": "60/11 and 60/12 in Gouri Beria\n\nLane was executed by Pramila Sundari in favour of her three sons Balai, Kanai and Gour.", "canonical_name": "Pramila Sundar~"}}, {"text": "Balai", "label": "PETITIONER", "start_char": 6003, "end_char": 6008, "source": "ner", "metadata": {"in_sentence": "60/11 and 60/12 in Gouri Beria\n\nLane was executed by Pramila Sundari in favour of her three sons Balai, Kanai and Gour.", "canonical_name": "Balai"}}, {"text": "Kanai", "label": "PETITIONER", "start_char": 6010, "end_char": 6015, "source": "ner", "metadata": {"in_sentence": "60/11 and 60/12 in Gouri Beria\n\nLane was executed by Pramila Sundari in favour of her three sons Balai, Kanai and Gour.", "canonical_name": "Kanai"}}, {"text": "Gour", "label": "PETITIONER", "start_char": 6020, "end_char": 6024, "source": "ner", "metadata": {"in_sentence": "60/11 and 60/12 in Gouri Beria\n\nLane was executed by Pramila Sundari in favour of her three sons Balai, Kanai and Gour.", "canonical_name": "Gour"}}, {"text": "18th March, 1952", "label": "DATE", "start_char": 6029, "end_char": 6045, "source": "ner", "metadata": {"in_sentence": "On 18th March, 1952, there was an agreement for partition between Pramila Sundari and her three sons Balai, Kanai and Gour, by which the joint estate left by Shrish Chandra Paul was partitioned into four lots and a small portion of the property was left joint."}}, {"text": "13th Jll(lle 1957", "label": "DATE", "start_char": 6290, "end_char": 6307, "source": "ner", "metadata": {"in_sentence": "On 13th Jll(lle 1957, Pramila Sundari instituted Suit No."}}, {"text": "26th August, 1957", "label": "DATE", "start_char": 6642, "end_char": 6659, "source": "ner", "metadata": {"in_sentence": "On 26th August, 1957, Pramila Sundari executed a will bequeathing her entire estate absolutely to Arati Paul and Gour in equal shares."}}, {"text": "Arati Paul", "label": "PETITIONER", "start_char": 6737, "end_char": 6747, "source": "ner", "metadata": {"in_sentence": "On 26th August, 1957, Pramila Sundari executed a will bequeathing her entire estate absolutely to Arati Paul and Gour in equal shares.", "canonical_name": "Ara ti Paul"}}, {"text": "13th January, 1958", "label": "DATE", "start_char": 6778, "end_char": 6796, "source": "ner", "metadata": {"in_sentence": "On 13th January, 1958, Pramila Sundari died, and, consequently on 12th December, 1958, an order was made in Suit No."}}, {"text": "12th December, 1958", "label": "DATE", "start_char": 6841, "end_char": 6860, "source": "ner", "metadata": {"in_sentence": "On 13th January, 1958, Pramila Sundari died, and, consequently on 12th December, 1958, an order was made in Suit No."}}, {"text": "3rd February, 1960", "label": "DATE", "start_char": 6949, "end_char": 6967, "source": "ner", "metadata": {"in_sentence": "On 3rd February, 1960, Arati Paul applied in the Calcutta High Court for grant of Letters of Administration, with a copy of the will of Pramila Sundari annexed."}}, {"text": "17th December, 1962", "label": "DATE", "start_char": 7224, "end_char": 7243, "source": "ner", "metadata": {"in_sentence": "On 17th December, 1962, the Testamentary Suit No."}}, {"text": "Mallick", "label": "JUDGE", "start_char": 7352, "end_char": 7359, "source": "ner", "metadata": {"in_sentence": "1045/1957 appeared in the peremptory list of Mallick, J., and the Testamentary Suit was partly heard.", "canonical_name": ".Mallick"}}, {"text": "2nd and 3rd January, 1963", "label": "DATE", "start_char": 7412, "end_char": 7437, "source": "ner", "metadata": {"in_sentence": "On 2nd and 3rd January, 1963, there was further hearing in the testamentary suit."}}, {"text": "4th January, 1963", "label": "DATE", "start_char": 7495, "end_char": 7512, "source": "ner", "metadata": {"in_sentence": "On 4th January, 1963, an agreement was put fol\"Ward before Mallick, J. referring the dispute in both the suits to the sole arbitration of Mallick, J. extra cursum curiae."}}, {"text": "Mallick", "label": "JUDGE", "start_char": 7551, "end_char": 7558, "source": "ner", "metadata": {"in_sentence": "On 4th January, 1963, an agreement was put fol\"Ward before Mallick, J. referring the dispute in both the suits to the sole arbitration of Mallick, J. extra cursum curiae.", "canonical_name": ".Mallick"}}, {"text": "P. C. Mallick", "label": "JUDGE", "start_char": 7980, "end_char": 7993, "source": "ner", "metadata": {"in_sentence": "1045 of 1957 and all the disputes involved in these two matter be settled and referred to the sole arbitratio.n of the Hon'ble Mr. Justice P. C. Mallick and the parties agreed to abide by any decision that will be trlven and no evidence need be taken except or to what his Lordship might desire and the evidence need not recorded in any formal manner."}}, {"text": "13th May 1963", "label": "DATE", "start_char": 9516, "end_char": 9529, "source": "ner", "metadata": {"in_sentence": "On 13th May 1963 Arati Paul applied for change of her Attorney in the partition Suit No."}}, {"text": "Ara ti Paul", "label": "PETITIONER", "start_char": 10150, "end_char": 10161, "source": "ner", "metadata": {"in_sentence": "Failing to get any response, Ara ti Paul, on 4th September, !", "canonical_name": "Ara ti Paul"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 10216, "end_char": 10224, "source": "regex", "metadata": {"statute": null}}, {"text": "1st April.,\n\n1963", "label": "DATE", "start_char": 10756, "end_char": 10773, "source": "ner", "metadata": {"in_sentence": "Court on the Original Side to forth- -.vith recall, cancel and withdraw the filing of the said pretended F Award (that is how the order of Mallick, J. was described in this petition) dated 1st April, 1963 as a judgment in the said Suit No, 1045/1957 as part of the records of the said suit, and another writ of mandamus directing the Registrar of the High Court to forth with take off the said pretended A ward dated 1st April.,"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 11008, "end_char": 11016, "source": "regex", "metadata": {"statute": null}}, {"text": "Banerjee", "label": "JUDGE", "start_char": 11106, "end_char": 11114, "source": "ner", "metadata": {"in_sentence": "366 of 1963 and was summarily rejected by Banerjee, J. on 5th September, 1963."}}, {"text": "Mal", "label": "JUDGE", "start_char": 11915, "end_char": 11918, "source": "ner", "metadata": {"in_sentence": "and ordered stay of all proceedings pursuant to the order of Mal lick, J. dated 1st April, 1963, till the final disposal of the Rule."}}, {"text": "lick", "label": "JUDGE", "start_char": 11919, "end_char": 11923, "source": "ner", "metadata": {"in_sentence": "and ordered stay of all proceedings pursuant to the order of Mal lick, J. dated 1st April, 1963, till the final disposal of the Rule."}}, {"text": "1st April, 1963", "label": "DATE", "start_char": 11934, "end_char": 11949, "source": "ner", "metadata": {"in_sentence": "and ordered stay of all proceedings pursuant to the order of Mal lick, J. dated 1st April, 1963, till the final disposal of the Rule."}}, {"text": "10th June, 1964", "label": "DATE", "start_char": 12128, "end_char": 12143, "source": "ner", "metadata": {"in_sentence": "On 10th June, 1964, two of the parties Kanai and Balai took out a notice of motion for revocation \"of Letters of Administration which had been granted to Arati Paul by the order of Mallick, J. dated !"}}, {"text": "Arati Paul", "label": "JUDGE", "start_char": 12279, "end_char": 12289, "source": "ner", "metadata": {"in_sentence": "On 10th June, 1964, two of the parties Kanai and Balai took out a notice of motion for revocation \"of Letters of Administration which had been granted to Arati Paul by the order of Mallick, J. dated !", "canonical_name": "Ara ti Paul"}}, {"text": "Sinha", "label": "JUDGE", "start_char": 12517, "end_char": 12522, "source": "ner", "metadata": {"in_sentence": "366 of 1963, having been remanded by the Appellate Bench, appeared for final hearing before Sinha, J., on 15th July, 1964, but it was directed to go out of the list as an objection was taken on behalf of Kanai and Balai to the matter being taken up by him on the ground that he was a member of the."}}, {"text": "15th July, 1964", "label": "DATE", "start_char": 12531, "end_char": 12546, "source": "ner", "metadata": {"in_sentence": "366 of 1963, having been remanded by the Appellate Bench, appeared for final hearing before Sinha, J., on 15th July, 1964, but it was directed to go out of the list as an objection was taken on behalf of Kanai and Balai to the matter being taken up by him on the ground that he was a member of the."}}, {"text": "Appellate Bench which had directed issue of the Rule", "label": "STATUTE", "start_char": 12723, "end_char": 12775, "source": "regex", "metadata": {}}, {"text": "16th July, 1964", "label": "DATE", "start_char": 12795, "end_char": 12810, "source": "ner", "metadata": {"in_sentence": "On 16th July, 1964, this Matter No .. 366/1963 was mentioned before the Chief Justice for being assigned to some other Judge, when a direction was made by the Chief Justice that a letter should be written by the party concerned to his Secretary."}}, {"text": "27th July, 1964", "label": "DATE", "start_char": 13042, "end_char": 13057, "source": "ner", "metadata": {"in_sentence": "On 27th July, 1964, the Notice of Motion taken out by Kanai and Balai for revocation of Letters of Administration was partly heard by Mallick, J. who recorded the following minutes :-\n\n\"Part Heard."}}, {"text": "12th August, 1964", "label": "DATE", "start_char": 13924, "end_char": 13941, "source": "ner", "metadata": {"in_sentence": "366/1963 was concluded on 12th August, 1964, and then an order was made that this Matter as well as the proceedings relating to Notice of Motion for revocation of the Letters of Admi nistration and the application for taking proceedings for contempt should appear in the list for judgment one after the other."}}, {"text": "Malltck", "label": "JUDGE", "start_char": 14493, "end_char": 14500, "source": "ner", "metadata": {"in_sentence": "Subsequently, on 1st September, 1964, the re liminary decree drawn up on the basis of the order of Malltck, J. dated 1st April, 1963 in Partition Suit No.", "canonical_name": ".Mallick"}}, {"text": "3rd September, 1964", "label": "DATE", "start_char": 14585, "end_char": 14604, "source": "ner", "metadata": {"in_sentence": "1045/1957 was signed by him, and on 3rd September, 1964, the decree was filed."}}, {"text": "21st September 1964", "label": "DATE", "start_char": 14632, "end_char": 14651, "source": "ner", "metadata": {"in_sentence": "On 21st September 1964, Arati Paul filed Appeal No."}}, {"text": "Arati Paul", "label": "PETITIONER", "start_char": 14653, "end_char": 14663, "source": "ner", "metadata": {"in_sentence": "On 21st September 1964, Arati Paul filed Appeal No.", "canonical_name": "Ara ti Paul"}}, {"text": "18th February, 1965", "label": "DATE", "start_char": 14866, "end_char": 14885, "source": "ner", "metadata": {"in_sentence": "The appeal was dismissed by the Appellate Bench of the High Court on 18th February, 1965 and the order of the High Court in the appeal was filed on 16th March, 1965."}}, {"text": "16th March, 1965", "label": "DATE", "start_char": 14945, "end_char": 14961, "source": "ner", "metadata": {"in_sentence": "The appeal was dismissed by the Appellate Bench of the High Court on 18th February, 1965 and the order of the High Court in the appeal was filed on 16th March, 1965."}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 15011, "end_char": 15022, "source": "regex", "metadata": {"statute": null}}, {"text": "Chagla", "label": "PETITIONER", "start_char": 15377, "end_char": 15383, "source": "ner", "metadata": {"in_sentence": "366/190:1) has been pressed before us by Mr. Chagla on behalf of the appellant on the sole ground that the order of Mallick, J. dated lst April,.", "canonical_name": "Chagla"}}, {"text": "lst April,. 1963", "label": "DATE", "start_char": 15466, "end_char": 15482, "source": "ner", "metadata": {"in_sentence": "366/190:1) has been pressed before us by Mr. Chagla on behalf of the appellant on the sole ground that the order of Mallick, J. dated lst April,."}}, {"text": "Goswami", "label": "OTHER_PERSON", "start_char": 15952, "end_char": 15959, "source": "ner", "metadata": {"in_sentence": "On behalf of the respondents, other than the Registrar of the High Court on the Original Side, Mr. Goswami has argued that, even .hough under the agreement dated 4th January 1963, Mallick, J. was requested to act extra cursum curiae and the suit was left to his arbitration, he, in fact, when passing the order dated l st April, 1963, acted as a Court and passed a preliminary decree."}}, {"text": "4th January 1963", "label": "DATE", "start_char": 16015, "end_char": 16031, "source": "ner", "metadata": {"in_sentence": "On behalf of the respondents, other than the Registrar of the High Court on the Original Side, Mr. Goswami has argued that, even .hough under the agreement dated 4th January 1963, Mallick, J. was requested to act extra cursum curiae and the suit was left to his arbitration, he, in fact, when passing the order dated l st April, 1963, acted as a Court and passed a preliminary decree."}}, {"text": "l st April, 1963", "label": "DATE", "start_char": 16170, "end_char": 16186, "source": "ner", "metadata": {"in_sentence": "On behalf of the respondents, other than the Registrar of the High Court on the Original Side, Mr. Goswami has argued that, even .hough under the agreement dated 4th January 1963, Mallick, J. was requested to act extra cursum curiae and the suit was left to his arbitration, he, in fact, when passing the order dated l st April, 1963, acted as a Court and passed a preliminary decree."}}, {"text": "hagla", "label": "PETITIONER", "start_char": 16971, "end_char": 16976, "source": "ner", "metadata": {"in_sentence": "Mr .. C:hagla, in suport of his argument, relied primarily on H two dec1S1ons of Courts m England and on the principle enunciated.", "canonical_name": "Chagla"}}, {"text": "Russel", "label": "OTHER_PERSON", "start_char": 17097, "end_char": 17103, "source": "ner", "metadata": {"in_sentence": "by Russel in his book on \"The Law of Arbitration\" 17th Edn.", "canonical_name": "Russell"}}, {"text": "Russell", "label": "OTHER_PERSON", "start_char": 17568, "end_char": 17575, "source": "ner", "metadata": {"in_sentence": "After laying down this principle, Russell goes on to elaborate it in the subsequent notes with reference to some decisions, and one of these principles enunciated is:\n\n\"When, with the consent of bc;>th parties, a judge deviates from the regular course of procedu.re of the court, he ceases to act judicially and becomes an arbitrator, whose decision is subject to no appeal.\"", "canonical_name": "Russell"}}, {"text": "Watson", "label": "OTHER_PERSON", "start_char": 19672, "end_char": 19678, "source": "ner", "metadata": {"in_sentence": "Lord Watson in his speech held:-\n\n(1) (1866) LR."}}, {"text": "Scotland", "label": "GPE", "start_char": 19857, "end_char": 19865, "source": "ner", "metadata": {"in_sentence": "\"There are several decisions of this House, in cases coming from Scotland, which appear to me to affirm that the judgment of a court below, prononced extra cursum curiae, is in the nature of an arbiter's award, and that, as a general rule at least, no appeal from _it will lie."}}, {"text": "Shand", "label": "OTHER_PERSON", "start_char": 20217, "end_char": 20222, "source": "ner", "metadata": {"in_sentence": "Lord Shand also expressed a similar view, taking note of tlie fact that, as soon as it became apparent to the learned Judges ?"}}, {"text": "Goddard", "label": "JUDGE", "start_char": 21126, "end_char": 21133, "source": "ner", "metadata": {"in_sentence": "Reliance was also placed on the decision of Goddard, J. in Wyndham v. Jackson(')."}}, {"text": "India", "label": "GPE", "start_char": 24239, "end_char": 24244, "source": "ner", "metadata": {"in_sentence": "The cases in India relied upon are two dei; isions of the Bombay and Calcutta High Courts."}}, {"text": "Bombay and Calcutta High Courts", "label": "COURT", "start_char": 24284, "end_char": 24315, "source": "ner", "metadata": {"in_sentence": "The cases in India relied upon are two dei; isions of the Bombay and Calcutta High Courts."}}, {"text": "Court of the First Class Subordinate Judge, Surat", "label": "COURT", "start_char": 24412, "end_char": 24461, "source": "ner", "metadata": {"in_sentence": "In Sayad Zain v. Kalabhai Lallubhai (°), before the case came to a regular hearing before the Court of the First Class Subordinate Judge, Surat, the parties as 'well as their pleaders signed an application which ran as follows :-\n\n\"We have decided that the Court should make a settlement of the dispute between us according to Chapter XXXVIII of the Civil Procedure Code, and we will abide by whatever decision the Court may give."}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 25484, "end_char": 25504, "source": "ner", "metadata": {"in_sentence": "An appeal against this decision was taken to the High Court of Bombay which noted the fact that the Subordinate Judge had referred to the case mentioned above and helo:-\n\n\"The very mention of that case shows that the parties must have intended that the decision of the Subordinate Judge as arbitrator should be final."}}, {"text": "section 623", "label": "PROVISION", "start_char": 27294, "end_char": 27305, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Procedure Code, 1882", "label": "STATUTE", "start_char": 27313, "end_char": 27339, "source": "regex", "metadata": {}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 27734, "end_char": 27756, "source": "ner", "metadata": {"in_sentence": "On second appeal, the High Court of Calcutta held that the first judgment of the Munsif was in the nature of an award and that it did not lose that character because he embodied the operative part of that judgment in what purported to be a decree in the suit."}}, {"text": "England", "label": "GPE", "start_char": 28699, "end_char": 28706, "source": "ner", "metadata": {"in_sentence": "As against these cases cited on behalf of the appellant, our attention has been drawn on behalf of the respondents to the views in Halsbury's Laws of England, and to certain decisions of Courts in India."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 30310, "end_char": 30327, "source": "ner", "metadata": {"in_sentence": "It was held by the Madras High Court qn appeal that the District Munsif acted as arbitrator by consent of parlies and that, consequently, no appeal lay from his decision which must be looked on as an award."}}, {"text": "section 521", "label": "PROVISION", "start_char": 30611, "end_char": 30622, "source": "regex", "metadata": {"statute": null}}, {"text": "Seshagiri Ayyar", "label": "JUDGE", "start_char": 31539, "end_char": 31554, "source": "ner", "metadata": {"in_sentence": "Seshagiri Ayyar, J., in confirming the decree of the Subordinate Judge, held:-\n\n\"In my opinion, therefore, although the procedure adopted by the Subordinate Judge in dealing with the matter as if it was a reference under the second schedule and as if the provisions of the Code applied was wrong, inasmuch as a decree was passed in terms of the award, the defendant as a party to the reference is not entitled to contest its finality and to request that the case should be heard again.\""}}, {"text": "Wallis", "label": "JUDGE", "start_char": 32027, "end_char": 32033, "source": "ner", "metadata": {"in_sentence": "Wallis, C.J., said:-\n\n\"!"}}, {"text": "I.L.R. SB Mad. Ji", "label": "RESPONDENT", "start_char": 32597, "end_char": 32614, "source": "ner", "metadata": {"in_sentence": "(2) I.L.R. SB Mad."}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 33176, "end_char": 33196, "source": "ner", "metadata": {"in_sentence": "On further appeal, the High Court of Madras held that, although the proceeding was not extra cursum curiae, the right o, f appeal was nevertheless barred by reason of the special agreement."}}, {"text": "Bombay High Conrt", "label": "COURT", "start_char": 34219, "end_char": 34236, "source": "ner", "metadata": {"in_sentence": "When the case came up in revision before the Bombay High Conrt, the learned Judge of that Court refetred to the quotations from Halsbury's Laws of England and Russell on Arbitration which we have noticed earlier, and expressed his opinion that he did not think that those observations necessarily meant that the Judge ceased to be a Judge and became a pure arbitrator in the sense that he could refer the dispute to himself and also remit the award to himself."}}, {"text": "High Court of Allahabad", "label": "COURT", "start_char": 35616, "end_char": 35639, "source": "ner", "metadata": {"in_sentence": "939\n\nDistrict Judge which was dismissed and the second appeal came before the High Court of Allahabad which was also dismiss~.\n\nWhile the appeal before the District Judge was pending, an application for review of judgment was also presented efore the Munsif."}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 37980, "end_char": 38005, "source": "ner", "metadata": {"in_sentence": "In second appeal before the Andhra Pradesh High Court, the question arose whether the first appellate Court was right in holding that no appeal lay to rt from the decree of the trial Court."}}, {"text": "Nidammarthi Mukkanti", "label": "OTHER_PERSON", "start_char": 38261, "end_char": 38281, "source": "ner", "metadata": {"in_sentence": "A.I.R.1967 A.P. 700,\n\nthe Andhra Pradesh High Court differed from the view expressed in Nidammarthi Mukkanti's case( 1) and held that there could not be a reference to arbitration by the Judge to himself."}}, {"text": "ss. 17 and 39", "label": "PROVISION", "start_char": 39039, "end_char": 39052, "source": "regex", "metadata": {"statute": null}}, {"text": "Even under the Arbitration Act", "label": "STATUTE", "start_char": 45017, "end_char": 45047, "source": "regex", "metadata": {}}, {"text": "All that is required by the provisions of the Arbitration Act", "label": "STATUTE", "start_char": 45180, "end_char": 45241, "source": "regex", "metadata": {}}, {"text": "Chagla", "label": "JUDGE", "start_char": 47438, "end_char": 47444, "source": "ner", "metadata": {"in_sentence": "Consequently, we cannot accept the submission made by Mr. Chagla that the order made by Mallick, J. should !", "canonical_name": "Chagla"}}, {"text": ".Mallick", "label": "JUDGE", "start_char": 47659, "end_char": 47667, "source": "ner", "metadata": {"in_sentence": "We are not concerned in this appeal with the question whether it was appropriate for .Mallick, J. to have dealt with the suit in this manner, nor whether the actual order made by him passing the preliminary decree was correct or was liable to be set aside on the ground of the incorrect procedure adopted by him.", "canonical_name": ".Mallick"}}]}
{"document_id": "1969_3_944_949_EN", "year": 1969, "text": "GIANI RAM & ORS.\n\nRAMJI LAL & ORS.\n\nMarch 11, 1969\n\n[J. C. SHAH AND A. N. GROVER, JJ.]\n\nPunjab Customs-Female heirs not entitled to challenge sale b, v male owner-Father selling property in 1916 without legal necessity-Son filing\n\nsuit in 1920 and obtaining declaration that. alienation not to enure beyond father's life time-Hindu Succession Act 1956 giving equal rights to\n\nfemale heirs-Father dying in 1959-Right of female heirs to sue for possession of alienated property on basis of declaratory decree whether C barred by Punjab Custom (Pol\"er to Contest) Act of 1920.\n\nCode of Civil Procedure 0. 41, r. 33-Power of Appellate Court to grant relief to parties to suit who have not app't!aled or filed crossobjections\n\nJ, a Hindu Jat governed by the Punjab Customary Laws, sold without D legal necessity, in 1916, a fourth share of his ancestral land to one S.\n\nUnder the Punjab Customary Laws females could not challenge a sale o'f ancestral property by a male owner. J's son G, in suit No. 75 of 1920 obtained a declaratory decree to the effect ihat the sale to S would not enure beyond the life-time of J. When J died in 1959 the Hindu Succession Act, 1956 had come into force and his three sons, daughters and widow inherited his estate in equal shares.\n\nThe three sons, the widow .and the daughters then filed a suit for possession of the aforesaid alieilat- E ed land on the basis of the decree in suit No. 75 of 1920. Under s. 8 of the Punjab Custom (Power to Contest) Act 1 of 1920 only those competent to contest an alienation c\\>uld take advantage of a decree obtained by a reversioner. The trial court passed a decree for a half share of the suit property in favour of the sons only, holding that the female heirs of J were not entitled to take advantag~ of the decree in suit No. 75 of 1920.\n\nThe District Court modified the decree by decreeing the suit in respect of the whole property in favour of the sons. In second appeal the High F Court restored the decree of the trial court holding that the claim of the female heirs of .J could not be upheld, firstly because of the Punjab customary law and s. 8 of Act 1 of 1920, and secondly because they had not filed anv appeals aainst the orders of the lower courts.\n\nIn appeals by special leave before this Court, HELD : (i) The preliminary objections raised by the alienees that the suit in its entirety should have been dismissed, because by the enactment G of the Hindu Succession Act J was to be deemed a full owner and notwithstanding the decree of 1920 his sons had after that Act no subsisting reve'rsionary interest in the property, must stand rejected. There is nothing in the Hindu Succession Act which retrospectively enlarges the power of a holder of ancestral land or nullifies a decree passed before the Act.\n\n[947 B-CJ\n\n(ii) Under the customary law of the Punjab the wife and the H daughters of a holder of ancestral property qould not sue to obtain a declaration that the alienation of ancestr11l property will not bind the reversioners after t~ death of the aliener. But a declaratory decree\n\nA obtained in a suit instituted by a reversioner competent to sue has the effect of restoring the. property alienated to the estate of the alienor. f947 GJ\n\nThe \"effect of the declaratory decree in the suit filed by G in 1920 was merely to declare that by the sale, the interest conveyed to the alienee was to enure durin~ the life time of the alienor.\n\nThe conclusion was therefore inevitable that the property alienated reverted to the estate of J at the point of his death and all persons who would, but for the alienation have taken the estate were entitled to inherit the same. If J had died before the Hindu Succession Act 1956 was enacted, the three sons would have taken the estate to the exclusion of the widow and the .two daughters. After the enactment of the Hindu Succession Act the estate devolved, by virtue of ss. 2 and 4(1) of the Hindu Succession Act 1956, upon the three sons, the widow and the two daughters. [947 H-948 Bl\n\nThe High Court was therefore in error in holding that because in the year 1920 the wife and daughters of J were incompetent to challenge the alienation of ancestral property by J, they could not, after the enactment of the Hindu. Succession Act inherit his estate when succession opened after. that Act came into force. [948 B-C]\n\n(iii) The High Court was equally in error in holding that because the widow and daughters had not filed an appeal or cross-objections against the decree of the lower courts, they were not entitled to any relief. The sons, the daughters and the widow of J had filed the suit for a decree for possession of the entire property and their claim was that the alienee had no subsisting interest.\n\nThe District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated. If the alienees were unable to convince the court that they had any subsisting interest in the property in dispute after the death of J, the court was c)>mpetent under 0. 41 r. 33 of the Code of Civil Procedure to adjust the rights between the sons, the daughters, and the widow of J in that property. [948 E-G; 949 DJ\n\nIn 0. 41 r. 33 the expression 'which ought to have been passed' means 'what ought in law to have been passed'. If the Appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the subordinate court. it may µass o'r make such further or other decree or order as the justice of the case may require .. [949 BJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal :No. 438 of 1966.\n\nAppeal by special leave from the judgment and decree dated November 18, 1963 of the Punjab High Court in Civil Regular Second Appeal No. 254 of 1962.\n\nMohan Behari Lal, for the appellants.\n\nl. M. Lall and M. L. Agarwal, for the respondents.\n\nThe Judgment of the Court was delivered by Sbilh, J.\n\nIn 1916 Jawala-a Hindu fat-governed by the customary faw of the Punjab sold to one Shadi, without legal necessity, a fourth share in 891 bighas 3 biswas, which was ancestral in his hands. Giani Ram son of Jwala instituted Suit No. 75\n\nof 1920 in the Court of the Senior Subordinate Judge, Hissar, for a declaration that the sale of ancestral lands of Jwala in favour of Shadi was null and void and was ineffective against his reversionary rights. The suit was decreed by the Senior Subordinate Judge, Hissar. The effect of the declaratory decree was that the alienations could not enure beyond the life time of Jwala.\n\nJwala died on October 16, 1959, leaving his surviving three sons-Giani Ram, Manphool and Chandgi-his wife Rajni, and two daughters Phulwati and Chhanno. Under the Hindu Succession Act, 1956 which came into force on June 17, 1956, the estate of Jwala devolved up<m his widow, his sons and his daughters in equal shares. In an action filed by the three sons of Jwala, his daughters and widow against the legal representatives of Shadi for a decree for possession of the lands alienated by Jwala the Senior .Subordinate Judge, Hissar decreed the suit for a half share in property claimed by the plaintiffs. The learned Judge was of the view that ocly the sons of Jwala could claim the benefit of the decree in Suit No. 75 of 1920 and since their shafe in the estate of Jwala was in the aggregate only a half, the remaining half having devolved upon the widow and the two daughters, a decree for a half share in tile lands alienated could issue against the alienees.\n\nIn appeal by the plaintiffs to the District Court, Hissar, the decree was modified. The learned 'District Judge decreed the claim in its entirety, but only in favour of the three sons. In his view the sons were entitled to the ancestral property alienated by Jwala and the widow and the two daughters had no interest thereinthe provisions of the Hillldu Succession Act notwithstanding.\n\nAgainst that decree a second appeal was preferred by the heirs of Shadi. The High Coun of Punjab set aside the decree passed by the District Court and restored the decree of the Trial Court. In the view of the High Court, under the Hindu Succession Act, 1956, the two daughters and widow of Jwala could inherit a share in the estate of Jwala, but since by s. 8 of the Punjab Custom (Power to Contest) Act I of 1920 only those persons could take the beinefit of the declaratory decree obtained by any one of the reversioners, who could contest the alienation by the vendor, and it was a \"settled rule of custom that a female heir cannot contest the sale\" by a male owner, a half share in the estate of Jwa!a which devolved upon the sons could .be claimed by them, and the widow and the daughters could not obtain bemefit of the decree.\n\nThe High Court also held that the suit filed by the widow and the two daughters had been dismissed by the Trial Court and the District Court and as they had l!IOt filed an appeal in the High Court or even cross objections, the order of dismissal qua them had become final, and no decree could be passed in their\n\nfavour for possessiQn of any par~ of. the estate. With special leave the appellants have appealed to this Court.\n\nA preliminary objection raised by counsel for the respondents that the suit in its entirety should have been dismissed, because by the enactment of the Hindu Succesion Act Jwala was to J?e deemed a full owner and notwithstandjing the decree passed Ill Suit No. 75 of 1920 his sOillS had after that Act no subsisting reversionary interest in the property, must stand rejected.\n\nThe High Court has granted a decree in favour of the three sons for a half share in the property, and the decree is not challenged in an appeal by the respondents. The respondents cannot now be permitted to challenge that part of the decree. In any event there is nothing in the Hindu Succession Act which retrospectively enlarges the power of a holder of ancestral land or nullifies a decree passed before the Act.\n\nThe Punjab Custom (Power to Contest) Act 1 of 1920 wa, enacted to restrict the rights excercisable by members of the family to contest alienations made by a holder of ancestral property.\n\nBy virtue of s. 6 of the Act no person is entitled to contest an alienation of ancestral immovable property 1lillless he is descended in the male line from the great-great-grand-father of the alienor. Under the customary law in force in the Punjab a declaratory decree obtained by the reversionary heir in an action to set aside the alieiiiation of ancestral property enured in favour of all persons who ultimately took the estate on the death of the alienor for the object of a declaratory suit.filed by a reversionary heir impeaching an alienation of ancestral estate was to remove a c0mmon apprehended injury, in the interest of the reversioners. The decree did not make the alienation a nullity-it removed the obstacle to the right of the reversioner entitled to succeed when the succession opened. By the decree passed in suit No. 75 of 1920 filed by Giani Ram it was declared that the alienations by Jwala were not binding after his life time, and the property will revert to his estate.\n\nIt is true that under the customary faw the wife arid the daughters of !I holder of ancestral property could not sue to obtain a declaration that the alienation of ancestral property will not bind the reversioners after the death of the alienor. But a declaratory decree obtained in a suit instituted by a reversioner competent to sue has e effect of restoring the property alienated to the estate of the ahenor.\n\nThe effect of the declaratory decree in suit No. 7 5 of 1920 was merly to declare that by the sale interest conveyed in .favour u of the al1enee was to enure during the Jife time of the alienor.\n\nThe conclusion is therefore inevitable that the property alienated reverted to the estate of Jwala at the point of his death and all persons who would, but for the alienatiOill, have taken the estate Lli Sup. C.1./69-11 •\n\nwill be entitled to inherit the same.\n\nIf Jwala had died before the Hindu Succession Act, 1956 was e; nacted the three sons would have taken the estate to the exclusion of the widow and the two daughters. After the enactment of the Hindu Succession Act the estate devolved, by virtue of ss. 2 and 4(1) of the Hindu Succession Act, 1956, upon the three sons, the widow and the two daughters. We are unable to agree with the High Court that because in the year 1920 the wife and the daughters of Jwala were i, Deompetent to challenge the alienation of ancestral property by Jwala, they could not, after the enactment of the Hindu Succession Act, inherit his estate when succession opened after that Act came into force.\n\nThe second ground on which the lear, ned Judge has founded his judgment also does not appeal to us. The three sons, the two daughters and the widow of Jwala had filed the suit claiming possession of the entire property from the alienee. That suit was decreed by the Trial Court in favour of the sons only to the extent df a half share in the property alienated. The Court held that the widow and the daughters were not entitled to a share because \"only those persons can bring a suit for possession on the death of J wala who had the right to challenge the alienation made by Jwala\". In appeal the District Court granted a decree for possession of the entire property on the view that the alieuJee had no subsisting interest after the death of Jwala. But the District Court granted a decree for possession of the entire property alienated only in favour of the three sons, because in the view of the Court the daughters and the widow of Jwala were not entitled to any share n the property. According to the High Court if the widow and the daughters were entitJ!ed to the share in the property. they had disentitled themselves to that right, because they had not preferred an appeal or filed cross objections to the decree appealed from. The sons, daughters and widow of Jwala filed a suit for a decree for possession of the entire property and their primary claim was that the alienee had no subsisting interest. The District Court accepted that claim al!l<I granted a decree in favour of the three sons for the entire property which was alienated. If the alienes are unable to convince the Court that they had any subsisting interest in the property in dispute after the death of Jwala the Court will be competent to adjust the rights between the sons, the daughters and the widow of Jwala in that property.\n\nOrder 41, r. 33 of the Code of Civil Procedure was enacted to meet a situation of the nature arising in this case.\n\nIn so far as it is material, the rule provides :\n\n\"The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or\n\nA other decree or order as the case may require, and this power may be exercised by the Court notwithstandiing that the appeal is as to part only of the decree and may be exercised in favour of all or any ol the respondents or parties, although sach respondents or parties may not have filed any appeal or objection\".\n\nB The expression \"which ought to have been passed\" means \"which ought in law to have beqii passed''. If the Appellate Court is of the view that any decree which ought in law to have been passed, but was in fact not passed by the subordinate court, it may pass or make such further or other decree or order as the justice ol the c case may require If the claim of the respondents to retain any part of the property after the death of Jwala is negatived, it would, be perpetrating gave injustice to deny to the wodow and the two daughters their share ijtl the property to which they are in law entitled. In our view, the case was one in which the power under 0. 41, r. 33, Code ol Civil Procedure ought to have been exercised and the D claim not only of the three sons but also of the widow and the tw0> daughters ought to have been decreed.\n\nThe appeal is allowed and the decree passed by the High Court is modified. There will be a decree for possession of the lands in suit in favour of the three sons, the widow the two' daughters of Jwala. The interest of the three sons is one-half in E the tands in suit and the interest of the widow and the twO daughters is the other half in the lands, The plaintiffs will be entitled to mesne tm>fits from the date of the suit under 0. 20, r. 12, Code of Civtl Procedure. The appeal will be allowed with costs throughout.\n\nI' G.C.\n\nAppeal allowed.", "total_entities": 48, "entities": [{"text": "GIANI RAM & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "GIANI RAM & ORS", "offset_not_found": false}}, {"text": "RAMJI LAL & ORS", "label": "RESPONDENT", "start_char": 18, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "RAMJI LAL & ORS", "offset_not_found": false}}, {"text": "March 11, 1969", "label": "DATE", "start_char": 36, "end_char": 50, "source": "ner", "metadata": {"in_sentence": "March 11, 1969\n\n[J. C. SHAH AND A. N. GROVER, JJ.]"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 56, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 68, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Hindu Succession Act 1956", "label": "STATUTE", "start_char": 326, "end_char": 351, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 575, "end_char": 598, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 1136, "end_char": 1162, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 8", "label": "PROVISION", "start_char": 1434, "end_char": 1438, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Succession Act, 1956", "statute": "the Hindu Succession Act, 1956"}}, {"text": "s. 8", "label": "PROVISION", "start_char": 2116, "end_char": 2120, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Succession Act, 1956", "statute": "the Hindu Succession Act, 1956"}}, {"text": "Hindu Succession Act", "label": "STATUTE", "start_char": 2431, "end_char": 2451, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Hindu Succession Act", "label": "STATUTE", "start_char": 2650, "end_char": 2670, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "If J had died before the Hindu Succession Act 1956", "label": "STATUTE", "start_char": 3657, "end_char": 3707, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "After the enactment of the Hindu Succession Act", "label": "STATUTE", "start_char": 3818, "end_char": 3865, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 2 and 4(1)", "label": "PROVISION", "start_char": 3900, "end_char": 3914, "source": "regex", "metadata": {"linked_statute_text": "After the enactment of the Hindu Succession Act", "statute": "After the enactment of the Hindu Succession Act"}}, {"text": "Hindu Succession Act 1956", "label": "STATUTE", "start_char": 3922, "end_char": 3947, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 5056, "end_char": 5083, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 5703, "end_char": 5720, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and decree dated November 18, 1963 of the Punjab High Court in Civil Regular Second Appeal No."}}, {"text": "Mohan Behari Lal", "label": "LAWYER", "start_char": 5770, "end_char": 5786, "source": "ner", "metadata": {"in_sentence": "Mohan Behari Lal, for the appellants."}}, {"text": "M. Lall", "label": "LAWYER", "start_char": 5812, "end_char": 5819, "source": "ner", "metadata": {"in_sentence": "l. M. Lall and M. L. Agarwal, for the respondents."}}, {"text": "M. L. Agarwal", "label": "LAWYER", "start_char": 5824, "end_char": 5837, "source": "ner", "metadata": {"in_sentence": "l. M. Lall and M. L. Agarwal, for the respondents."}}, {"text": "Sbilh", "label": "JUDGE", "start_char": 5904, "end_char": 5909, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sbilh, J.\n\nIn 1916 Jawala-a Hindu fat-governed by the customary faw of the Punjab sold to one Shadi, without legal necessity, a fourth share in 891 bighas 3 biswas, which was ancestral in his hands."}}, {"text": "Jawala", "label": "PETITIONER", "start_char": 5923, "end_char": 5929, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sbilh, J.\n\nIn 1916 Jawala-a Hindu fat-governed by the customary faw of the Punjab sold to one Shadi, without legal necessity, a fourth share in 891 bighas 3 biswas, which was ancestral in his hands."}}, {"text": "Giani Ram", "label": "PETITIONER", "start_char": 6103, "end_char": 6112, "source": "ner", "metadata": {"in_sentence": "Giani Ram son of Jwala instituted Suit No.", "canonical_name": "GIANI RAM & ORS"}}, {"text": "Jwala", "label": "OTHER_PERSON", "start_char": 6120, "end_char": 6125, "source": "ner", "metadata": {"in_sentence": "Giani Ram son of Jwala instituted Suit No."}}, {"text": "Court of the Senior Subordinate Judge, Hissar", "label": "COURT", "start_char": 6165, "end_char": 6210, "source": "ner", "metadata": {"in_sentence": "75\n\nof 1920 in the Court of the Senior Subordinate Judge, Hissar, for a declaration that the sale of ancestral lands of Jwala in favour of Shadi was null and void and was ineffective against his reversionary rights."}}, {"text": "Shadi", "label": "OTHER_PERSON", "start_char": 6285, "end_char": 6290, "source": "ner", "metadata": {"in_sentence": "75\n\nof 1920 in the Court of the Senior Subordinate Judge, Hissar, for a declaration that the sale of ancestral lands of Jwala in favour of Shadi was null and void and was ineffective against his reversionary rights."}}, {"text": "October 16, 1959", "label": "DATE", "start_char": 6548, "end_char": 6564, "source": "ner", "metadata": {"in_sentence": "Jwala died on October 16, 1959, leaving his surviving three sons-Giani Ram, Manphool and Chandgi-his wife Rajni, and two daughters Phulwati and Chhanno."}}, {"text": "Manphool", "label": "OTHER_PERSON", "start_char": 6610, "end_char": 6618, "source": "ner", "metadata": {"in_sentence": "Jwala died on October 16, 1959, leaving his surviving three sons-Giani Ram, Manphool and Chandgi-his wife Rajni, and two daughters Phulwati and Chhanno."}}, {"text": "Chandgi", "label": "OTHER_PERSON", "start_char": 6623, "end_char": 6630, "source": "ner", "metadata": {"in_sentence": "Jwala died on October 16, 1959, leaving his surviving three sons-Giani Ram, Manphool and Chandgi-his wife Rajni, and two daughters Phulwati and Chhanno."}}, {"text": "Rajni", "label": "OTHER_PERSON", "start_char": 6640, "end_char": 6645, "source": "ner", "metadata": {"in_sentence": "Jwala died on October 16, 1959, leaving his surviving three sons-Giani Ram, Manphool and Chandgi-his wife Rajni, 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Jwala devolved up<m his widow, his sons and his daughters in equal shares."}}, {"text": "District Court, Hissar", "label": "COURT", "start_char": 7533, "end_char": 7555, "source": "ner", "metadata": {"in_sentence": "In appeal by the plaintiffs to the District Court, Hissar, the decree was modified."}}, {"text": "High Coun of Punjab", "label": "COURT", "start_char": 7962, "end_char": 7981, "source": "ner", "metadata": {"in_sentence": "The High Coun of Punjab set aside the decree passed by the District Court and restored the decree of the Trial Court."}}, {"text": "Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 8117, "end_char": 8143, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 8", "label": "PROVISION", "start_char": 8241, "end_char": 8245, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Succession Act, 1956", "statute": "the Hindu Succession Act, 1956"}}, {"text": "Hindu Succession Act", "label": "STATUTE", "start_char": 9804, "end_char": 9824, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 6", "label": "PROVISION", "start_char": 10143, "end_char": 10147, "source": "regex", "metadata": {"statute": null}}, {"text": "Punjab", "label": "GPE", "start_char": 10371, "end_char": 10377, "source": "ner", "metadata": {"in_sentence": "Under the customary law in force in the Punjab a declaratory decree obtained by the reversionary heir in an action to set aside the alieiiiation of ancestral property enured in favour of all persons who ultimately took the estate on the death of the alienor for the object of a declaratory suit.filed by a reversionary heir impeaching an alienation of ancestral estate was to remove a c0mmon apprehended injury, in the interest of the reversioners."}}, {"text": "If Jwala had died before the Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 11997, "end_char": 12052, "source": "regex", "metadata": 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{"document_id": "1969_3_950_954_EN", "year": 1969, "text": "PRADUMAN KUMAR\n\nVIRENDRA GOYAL (DEAD) BY L. RS.\n\nMarch ll, 1969\n\n[J. c. SHAH AND A. N. GROVER, JJ.]\n\nTransfer of Property A.ct (4 of. 1882) s. 114-Relief against forfeiture-Opportunity given-Trial Court-Failure to avaU-Appellate Courfs Jurisdiction.\n\nIn a lease of land, it was covenanted that in the event of default of payment of rent for two consecutive years, the tenancy rights will stand fol'feited. As the rent remain due and in arrears for two years, the landlord filed a suit for the eviction of the tenants and for payment of the arrears of rent and compensation.\n\nThe tenants claimed relief against forfeiture of their tenancy rights under s. 114 of the Transfer of Property Act and deposited in Court an amount Jess than the amount due. The Trial Court decreed the suit holding that the conditions relating to deposit in Court of rent in arrear, interest thereon, and costs of the suit were not complied with.\n\nThe tenants appealed and offered to pay balance of rent due together with costs of the suit and the appeal and interest, and deposited an amount much larger than due.\n\nThe appellate court allowed the appeal holding that the tenants were entitled to the benefit of s. 114 when they we're willing and ready to pay more than what was due, and there were valuable constructions on the plots and the respondent's dispossession would put them to a great Joss.\n\nThe High Court dismissed the appeal against this decision. In appeal before this Court, the landlord contended that the jurisdiction under s. 114 to relieve against forfeiture could only be e>:ercised by the Court of First Instance; that the tenants having failed to avail of the opportunity given by the Trial Court to pay the amount due with interests and cbsts, the appellate court had no jurisdiction to grant another opportunity; and that the discretion was not properly exercised in this case.\n\nRepelling the contentions, this Court :-\n\nHELD : The covenant of forfeiture of tenancy for non-payment of rent is regarded by the Courts as merely a clause for securing payment of rent. and unless the tenant has by his conduct disentitled himself to equitable relief the Courts grant relief against forefeiture of tenancy on the tenant paying the rent due, interest thereon and costs of the suit.\n\nJurisdiction to relieve against forefeiture for non-payment of rent may be exercised by the Court if the tenant in a suit in ejectment at th~ hearing of the suit pays the arrears of rent tOllOther with interest thereon and full costs of the suit. In terms s. 114 makes payment of rent at the hearing of the suit in ejectment a condition of the exerdjse of the Court's jurisdicw tion but an appeal being a rehearing of the suit, in appropriate cases, it is open to the Appellate Court at the hearing of tho appeal to relieve the tenant in default aaainst forfeiture.\n\nPassin2 of a decree in ejectment against the tenant by the Court of First Instance does not take away the\n\njurisdiction of the Appellate Court to grant equitable relief. [953 CJ\n\nFailure to avail themselves of the opportunity does not operate as a bar to the jurisdiction of the Appellate Court. The Appellate Court may, having regard to the conduct of the tenant, decline to exercise its discretion to grant him relief against forfeiture. (954 Al ·\n\nPRADUMAN KUMAR v. VIRENDRA GOYAL (Shah,/,) 951\n\nChilukuri Tripura Sundaramma v. Chilukuri Venkates-Warlu alias Ramchandram and Others, A.I.R. 1949 Mad. 841; Jenab Ve/lathi and othm v. Smt. K. Kadervel Thayammal, A.I.R. 1958 Mad. 23l; Shrikishan\n\nla/ and Others v. Ramnath Jankiprasad Ahir and others, I.L.R. 1944 Nag. 877; Budhi Ballabh and other> v. Jai Klshen Kandpal, 1963 A.LJ. 132, Bhagwant Rambhau Khese v. Ramchandra Kesho Pathak,\n\nA.I.R. 1953 Born. 129; Namdeo Lokman Lodhi v. Narmadabai and others, [1953] S.C.R. 1009, 1025, referred to.\n\nHaving regard to the circumstances that valuable constructions were put up on the land and that the tenants had deposited much larger amount than due, the discretion was rightly exercised in favour of the tenant.\n\nIn an appeal with special leave, this Court will not ordinarily inte'rfere with an order made in exercise of the discretion of the Courts below, specially when there was evidence that the tenants were guilty of conduct disentitling them to relief against forfeiture for non-payment of rent. [954 El\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 648 of 1966.\n\nAppeal by special leave from the order dated December 4, 1964 of the Allahabad High Court in Second Appeal No. 3310 of 1964.\n\nSarjoo Prasad and J. P. Goyal, for the appellant.\n\nR. K. Garg and A. N. Gayal, for respo.ndent No. 1.\n\nR. K. Garg, D. P. Singh, S. C. Aganvala, Uma Dutt and E S. Chakravarti, for respondent No. 2.\n\nThe Judgment of the Court was delivered by Shah, J. Under a deed dated October 28, 1949, Virendra Goyal, the first respondf1!lt herein, obtained permanent tenancy rights in 28 plots of land of the ownership of Lala Praduman Kumar.\n\nThe tenant agreed to pay Rs. 250/- per annum as advance rent on the first day of January of each year, and in default of payment of rent for two cqnsecutive years the tenancy rights were to stand forfeited.\n\nGoyaJ transferred his tenancy rights to Lala Hukam Chand.\n\nPursuant to the lease severa1 tenements were raised on the land demised.\n\nThe tenant failed to pay the rent accrued due for two years. fhe appellant then srve~ a notice on January 4, 1960, terminat mg te tenancy and mst1!uted !In action in the Court of the City Muns1ff, Saharanpur, agamst Vlfendra Goyal and Lala Hukam Chand for a decree in ejectment and for an order for payment of Rs. 545/11/- as rent and compensation.\n\nSeveral contentions ere .raised in their written statement by the defendants one of .which one is. material. The tenants prayed at they should be given rehef agat forfeiture of their tenancy nghts under s. 114 of the Transfer of Property Act. In the Trial\n\nCourt the tenants deposited an amount of Rs. 1,099.34. The Trial Judge held that the conditions relating .to deposit in Coun of rent in arrear interest thereon, and costs of the suit were not compiled with and decreed the plaintiff's claim. In appeal to the District Court the tenant offered to pay the balance of the amount of the rent due together with costs of the suit and appeal and interest at the rate of 6% per annum or such other rate as the Coun may direct and deposit in Court Rs. 2,082.50 in the aggregate.\n\nThe ·]earned District Judge was of the view that the amount paid by the tenants was in excess of the amount due by them and obServed:\n\n\" .... the appellants have deposited much more amount than is due to the respondent as arrears of rent the costs of the suit and of th.e appeal and the interest.\n\nTb.ere is no reason why benefit of section 114 of the Transfer of Property Act be not given to the appellants when they are ready and willing to pay much more amount than is actually due to the respondent.\n\nThe fact is that there are valuable constructiO!DS over the plot and defendants dispossession would put them to a great loss. It is for this reason that they are prepared to pay the amount that may be demanded from them. I, therefore, find that the appellants are entitled to the benefit of section 114 of the Transfer of Property Act and are relieved against the forfeiture\".\n\nThe second appeal against this decision was summarily dismissed by the High Court of Allahabad.\n\nIn appeal to this Court counsel for the appellant contends :\n\n(I) that jurisdiction under s. 114 of the Transfer of Property Act to relieve against forfeiture for non-payment of rent may only be exercised by the Court of First Instance and not by the Coun of Appeal;\n\n( 2) that the Trial Court gave an opportunity to the tenants to pay the amount of rent due together with interest and costs, but the tenants failed to avail themselves of the opportunity. In the circumstances the appellate Court had no jurisdiction to grant another opportunity to the tenants to make the requisite payment and grant relief against forfeiture of the tenancy;\n\n( 3) that in any event, discretion was, in the circumstances, not properly exercised by the District Court.\n\nt~ '\n\nPRADUMAN KUMAR V. VJRENDRA GOYAL/ (Shah, J.) 953\n\nIn our view, there is no substance in any of the contentions.\n\nSection 114 of the Transfer of Property Act provides :-\n\n\"Where a lease of immovable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear., together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred\".\n\nThe covenant of forfeiture of tenancy for non-payment of rent is regarded by the Courts as merely a clause for securing payment of rent, and unless the tenant has by his conduct disentitled himself to equitable relief the Courts grant relief against forfeiture of tenancy un the tenant paying the rent due, interest thereon and costs of the suit.\n\nJurisdiction to relieve against forfeiture for non-payment of rent may be exercised by the Court if the tenant in a suit in ejectment at the hearing of the suit pays the arrears of rent together with interest there<¥! and full costs of the suit. In terms s. 114 makes payment of rent at the hearing of the suit in ejectment a condition of the exercise of the Courts' jurisdiction but an appeal being a rehearing of the suit, in appropriate cases it is open to the appellate Court at the hearing of the appeal to relieve the tenant in default against forfeiture.\n\nPassing of a decree in ejectment against the tenant by the Court of First Instance does not take away the jurisdiction of the appellate Court to grant equitable relief. This is the view taken by the High Courts in India : see . Chilukuri Tripura Sundaramma v.\n\nChilkuri Venketes-War/u alias Ramchandram and others(') lanab Vellathi and others v. Smt. K. Kadervel Thayamma/( 2 ); Shrikishanlal and others v.\n\nRamnath Jankiprasad Ahir and others('); Budhi Ba//abh and others v. /ai Kishen Kandpal(').\n\nThe High Court of Bombay in cases arising under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, has also expressed the same opinion in Bhagwant Rambhau Khesc v.\n\nRaml:handra Kesho Pathak('). . \"!f e do not think that there is any bar to the exercise of jurisd1ct1on by the appellate court merely because in the Court of First Instance relief against forfeiture was claimed by the tenants and they failed to avail themselves of the opportunity of paying the amount of rent together with interest thereon and costs of the suit.\n\n(I) A.I.R. 1949 Mad. 841.\n\n(3) l.L.R. 1944 Nag. 877.\n\n(5) A.LR. 1953 Born. 129.\n\n(2) A.l:R. i 958 Mad. 2,2.\n\n(4) 1963 A.L.J. 132.\n\nFailure to avail themselves of the opportunity does not operate A as a bar to the jurisdiction of the Appellate Court. The Appellate Court may, having regard to the conduct of the tenant, decline to exercise its discretion to grant him relief against forfeiture.\n\nThe questiQil is not one of jurisdiction but of discretion.\n\nThis Court in Namdeo Lokman Lodhi v. Narmadabai and others(') has observed at p. 1025 : B\n\n\" ...... in exercising the discretion (under s. 114 of the Transfer of Property Act), each case must be judged by itself, the delay, the conduct of the parties and the difficulties to which the landlord has been put should be weighed against the tenant . .\n\nIt is a maxim of equity that a person who comes in equity C must do equity and must come with clean hands and if the conduct of the tenant is such that it disentitles him to relief in equity. then the court's hands are not tied to exercise it in his favour\".\n\nThe District Court has observed that valuable constructions had beein put up on the land leased and the tenants had deposited D an amount very much larger than the amount due to the landlord.\n\nHaving regard to the circumstances the District Court was Jf the view that discretion should be exercised in favour of the tenants.\n\nThe High Court summarily dismissed the appeal. The High Court must be taken to have confirmed the view of the District Court.\n\nIn an appeal with special leave, this Court will not ordinarily\n\nJ!! interfere with an order made in exercise of the discretion of the Courts below. specially when ther1; i is no evidence that the tenants were guilty of conduct disentitling them to relief against forfeiture for non-payment 0f rent.\n\nThe appeal therefore fails and is dismissed with costs.\n\nY.P.\n\nAppeal dismissed.\n\n(t) [1953] S.C.R. 1009, 1025.", "total_entities": 45, "entities": [{"text": "PRADUMAN KUMAR", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "PRADUMAN KUMAR", "offset_not_found": false}}, {"text": "VIRENDRA GOYAL (DEAD) BY L. RS", "label": "RESPONDENT", "start_char": 16, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "VIRENDRA GOYAL (DEAD) BY L. 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GROVER", "offset_not_found": false}}, {"text": "s. 114", "label": "PROVISION", "start_char": 140, "end_char": 146, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 114", "label": "PROVISION", "start_char": 651, "end_char": 657, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 665, "end_char": 689, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 114", "label": "PROVISION", "start_char": 1187, "end_char": 1193, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 114", "label": "PROVISION", "start_char": 1517, "end_char": 1523, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 114", "label": "PROVISION", "start_char": 2533, "end_char": 2539, "source": "regex", "metadata": {"statute": null}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 4488, "end_char": 4508, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the order dated December 4, 1964 of the Allahabad High Court in Second Appeal No."}}, {"text": "Sarjoo Prasad", "label": "LAWYER", "start_char": 4545, "end_char": 4558, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad and J. P. Goyal, for the appellant."}}, {"text": "J. P. Goyal", "label": "LAWYER", "start_char": 4563, "end_char": 4574, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad and J. P. Goyal, for the appellant."}}, {"text": "R. K. Garg", "label": "LAWYER", "start_char": 4596, "end_char": 4606, "source": "ner", "metadata": {"in_sentence": "R. K. Garg and A. N. Gayal, for respo.ndent No."}}, {"text": "A. N. Gayal", "label": "LAWYER", "start_char": 4611, "end_char": 4622, "source": "ner", "metadata": {"in_sentence": "R. K. Garg and A. N. Gayal, for respo.ndent No."}}, {"text": "D. P. Singh", "label": "LAWYER", "start_char": 4660, "end_char": 4671, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, D. P. Singh, S. C. Aganvala, Uma Dutt and E S. Chakravarti, for respondent No."}}, {"text": "S. C. Aganvala", "label": "LAWYER", "start_char": 4673, "end_char": 4687, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, D. P. Singh, S. C. Aganvala, Uma Dutt and E S. Chakravarti, for respondent No."}}, {"text": "Uma Dutt", "label": "LAWYER", "start_char": 4689, "end_char": 4697, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, D. P. Singh, S. C. Aganvala, Uma Dutt and E S. Chakravarti, for respondent No."}}, {"text": "E S. Chakravarti", "label": "LAWYER", "start_char": 4702, "end_char": 4718, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, D. P. Singh, S. C. Aganvala, Uma Dutt and E S. Chakravarti, for respondent No."}}, {"text": "Shah", "label": "JUDGE", "start_char": 4786, "end_char": 4790, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J. Under a deed dated October 28, 1949, Virendra Goyal, the first respondf1!lt herein, obtained permanent tenancy rights in 28 plots of land of the ownership of Lala Praduman Kumar."}}, {"text": "Virendra Goyal", "label": "PETITIONER", "start_char": 4832, "end_char": 4846, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J. Under a deed dated October 28, 1949, Virendra Goyal, the first respondf1!lt herein, obtained permanent tenancy rights in 28 plots of land of the ownership of Lala Praduman Kumar.", "canonical_name": "VIRENDRA GOYAL"}}, {"text": "Lala Praduman Kumar", "label": "OTHER_PERSON", "start_char": 4953, "end_char": 4972, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J. Under a deed dated October 28, 1949, Virendra Goyal, the first respondf1!lt herein, obtained permanent tenancy rights in 28 plots of land of the ownership of Lala Praduman Kumar."}}, {"text": "GoyaJ", "label": "OTHER_PERSON", "start_char": 5183, "end_char": 5188, "source": "ner", "metadata": {"in_sentence": "GoyaJ transferred his tenancy rights to Lala Hukam Chand."}}, {"text": "Lala Hukam Chand", "label": "OTHER_PERSON", "start_char": 5223, "end_char": 5239, "source": "ner", "metadata": {"in_sentence": "GoyaJ transferred his tenancy rights to Lala Hukam Chand."}}, {"text": "January 4, 1960", "label": "DATE", "start_char": 5414, "end_char": 5429, "source": "ner", "metadata": {"in_sentence": "fhe appellant then srve~ a notice on January 4, 1960, terminat mg te tenancy and mst1!uted !"}}, {"text": "Court of the City Muns1ff, Saharanpur", "label": "COURT", "start_char": 5486, "end_char": 5523, "source": "ner", "metadata": {"in_sentence": "In action in the Court of the City Muns1ff, Saharanpur, agamst Vlfendra Goyal and Lala Hukam Chand for a decree in ejectment and for an order for payment of Rs."}}, {"text": "Vlfendra Goyal", "label": "OTHER_PERSON", "start_char": 5532, "end_char": 5546, "source": "ner", "metadata": {"in_sentence": "In action in the Court of the City Muns1ff, Saharanpur, agamst Vlfendra Goyal and Lala Hukam Chand for a decree in ejectment and for an order for payment of Rs."}}, {"text": "s. 114", "label": "PROVISION", "start_char": 5869, "end_char": 5875, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 5883, "end_char": 5907, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 114", "label": "PROVISION", "start_char": 6776, "end_char": 6787, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 6795, "end_char": 6819, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 114", "label": "PROVISION", "start_char": 7239, "end_char": 7250, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 7258, "end_char": 7282, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "High Court of Allahabad", "label": "COURT", "start_char": 7397, "end_char": 7420, "source": "ner", "metadata": {"in_sentence": "The second appeal against this decision was summarily dismissed by the High Court of Allahabad."}}, {"text": "s. 114", "label": "PROVISION", "start_char": 7513, "end_char": 7519, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 7527, "end_char": 7551, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 114", "label": "PROVISION", "start_char": 8295, "end_char": 8306, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 8314, "end_char": 8338, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 114", "label": "PROVISION", "start_char": 9556, "end_char": 9562, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 10078, "end_char": 10083, "source": "ner", "metadata": {"in_sentence": "This is the view taken by the High Courts in India : see ."}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 10368, "end_char": 10388, "source": "ner", "metadata": {"in_sentence": "The High Court of Bombay in cases arising under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, has also expressed the same opinion in Bhagwant Rambhau Khesc v.\n\nRaml:handra Kesho Pathak('). . \"!"}}, {"text": "Hotel and Lodging House Rates Control Act, 1947", "label": "STATUTE", "start_char": 10430, "end_char": 10477, "source": "regex", "metadata": {}}, {"text": "s. 114", "label": "PROVISION", "start_char": 11502, "end_char": 11508, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 11516, "end_char": 11540, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1969_3_955_965_EN", "year": 1969, "text": "BEOHAR RAJENDRA SINHA & ORS.\n\nSTATE OF M.P. & ORS.\n\nMarch 11, 1969\n\n[M. HIDAYATULLAH, C.J., V. RAMASWAMI AND G. K. MITTER, JJ.]\n\nCivil Procedure Code 1908, S. 80-Karta of Hindu Joint fomily giving notice of suit under section SO-Thereafter members of family dividing on partition-Divided n1e1nbers joining as plaintiffs in suit- Whether fresh notice necessary by divided n1e111bers or previous notice of Karta was in representative capacity.\n\nThe appellant, who was at the time the Karta of a Hindu Joint Family, gave notice in January, 1954, to the respondent State under section 80 of the Civil Procedure Code. Thereafter a suit was filed in July, 1954, by \\\\'bich time a partition had taken place in the family.\n\nIn view of this the appellant's three grandsons were joined as plaintiffs in the suit; the plaintiffs sought a declaration that th'rec nazul plots in suit had been in the possession of the plaintiffs and their ancestors from time immemorial and their status was that of Raiyat Sarkar; so that an order of the State Government in the Survey and Settlement Department refusing to recognise their possession ove'r the plots was wrong and ultra vires. Apart from contesting the suit on themerits, the respondent State contended that plaintiffs 2, 3 and 4 i.e. the appellant's grand-sons had no right to institute a suit because no notice under SC9tion 80 C.P.C. was given on their behalf. The trial court dismissed the suit. In an appeal, the High Court held that the appellant had lost the right to represent the joint family as karta at the time of institution of the suit because their had been sevetence of joint status and the notic1c served by him could not enure to the benefit of other plaintiffs.\n\nOn the merits the High Court found that the plaintiffs had shown their possession for the statutory period of 6 years.\n\nOn appeal to this Court,\n\nHELD: (1) The notice given hy the apellant in January, 1954, was sufficient in law to sustain a suit brought by all the divided coparceners who must be deemed to be as much the -nuthorsof the notice as the Karta who was the actual signatory of the notice.\n\nThc'rc was suhstantial identity bet\\vcen the person givingthe notice and the persons bringing the suit in the present case. r959 Bl\n\nAt the time of giving notice the appellt\\nt was admittedly the eldest n1cmber of the joint family and being a Karla he \\Vas entitled to reprc- -; cnt the joint family in all its affairs. The cause of action had accrued at the time qf giving of the notice and it was not necessary to give a sccbnd notice merely because there \\vas a severence of the joint family. before 20th July, 1954, when the suit was actuallv imtituted. [958 G-H]\n\nAlthough the terms of section 80 C.P.C. must be strictly complied ... vith, that docs not mean that the terms of the notice should he scrutinised in an artificial or pedantic manner. [960 Al\n\nDhian SinRh Sabha Singh & Anr. v. The Union of India, [1958) S.C.R. 781, referred to.\n\n:>late of Andhra Pradesh v. Gundugo/a Venkata Suryanarayan Garu, A !1964] 4 S.C.R. 945; Ve//ayan Chettiar & Ors. v. Government of the Province of Madras and Anr., A.l.R. 1947, P.C. 197; Government of the Province of Bombay v. Peslonji Ardeshir W adia & Ors., 76 I.A. 85, distinguished. ·\n\n(2) On the merits, the appellants had failed to produce reliable oral or documentary evidence to prove that their ancestors had possession over the disputed land for many years. On the contrary this land was always B recognised as Milkiat Sarkar and the respondent State Government was justified in holding it as such.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 386 and 387 of 1966.\n\nAppeal by special leave from the judgment and_ decree dated c April 16, 1963 of the Madhya Pradesh High Court in First Appeal No. 217 of 1959.\n\nS. V. Gupte, P. C. Bhartari and J. B. Dadachanji, for the appellants (in C.A. No. 386 of 1966) and the respondents (in C.A. No. 387 of 1966).\n\nI. N. Shroff a!lld Rama Gupta, for the State of Madhya Pradesh.\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J.\n\nThese appeals are brought by special leave from the judgment of the High Court of Madhya Pradesh dated 16th April, 1963 in First Appeal No. 217 of 1959, whereby the High Court modified partly the judgment of the first Additional District Judge, Jabalpur dismissing Civil Suit No. 10-A of 1954.\n\nThe suit was instituted against the State of Madhya Pradeshby Beohar Raghubir Singh and his three grand-sons.\n\nBeohar Raghubir Singh's son, Beohar Rajendra Sinha, was a pro-forma defendant.\n\nA notice under section 80 of Civil Procedure Code had been given by Raghubir Singh on 11th January, 1954. Plaintiffs 2, 3 and 4, his grand-sons were joined as plaintiffs because in a partition made subsequent to the giving of the notice, they were each entitled to 1 /5th share along with the firSt plaintiff.\n\nBeohar Rajendra Sinha was joined as a defendant because he did not choose to join as the plaintiff. The plaintiffs sought a declaration (1) that the three nazul plots in sujt had been in possession of the plaintiffs and their predecessors in their own right from time immemorial and their status was that of Raiyat Sarkar; and\n\n(2) that the order of the State Government in the Survey and Settlement Department refusing to recognise their possession over the plots was wrong a, nd ultra vires.\n\nThe dispute relates to Phoota Ta! a tank situated within the town of.Jabalpur. It was plot No. 282 in the settlement of 1863 A.D.\n\nIts area then was\n\n5.24 acres.\n\nIt was recorded as Malkiat Sarkar and in the last column there was an entry showing possession of Aman Singh Thakur Prasad.\n\nThe next settlement took place in 1890-91.\n\nThe survey number of Phoota Tai was changed to plot No. 325.\n\nIts area remained the same, it was recorded\n\n1as \"water (pani)\" and in the last column, the entry showed the possession of Beohar Narpatsingh Raghubir Singh.\n\nThe third settlement took place in 1909-10.\n\nThe plot number of Phoota Tai was then changed to 327. Its area remained t)Ie same, it was still recorded as 'water\", but there was no entry in favour of any one showing possession.\n\nThe nazul settlement took place in 1922-23. In this settlement, the tank was given numbers 33, 34, 35, 36, 37 and 171. Its area was recorded as 5 .24 acres. In this settlement about 2 acres of land was found to be occupied by the Municipal Committee, Jabalpur.\n\nThe land so found to be occupied was recorded in the possession of the Municipal Committee, Jabalpur and the remaining land was again recorded as \"Milkiat Sarkar\".\n\nThere was no entry regarding possession in the remarks column so far as the remaining land was concerned. The plaintiffs alleged that Thakur Prasad and Aman Singh were their ancestors, that they had been in continuous possession of the disputed land and the omission to record their possession in the last two settlements of 1909-10 and 1922-23 was due to some oversight. In 1948 the first plaintiff made an application for correction to the Deputy Commissioner, Jabalpur who made an order in his favour E\" Ex. P-5.. The order of the Deputy Commissioner was however set aside by the State Government on 28th May, 1953 and it was held that the plaintiffs had no title to the disputed land.\n\nThe plaintiff therefore prayed for a declaration of the title to the disputed plots and for the correction of the entry in the settlement record showing the status of the plaintiff as that of \"Raiyat Sarkar\". The suit was contested by the State of Madhya Pradesh.\n\nIt was urged that the plaintiff had no possession over the disputed land and the order of the State Government dated 28th May,\n\n1953 wa:i corrt. . It was contended that plaintiffs 2, 3 and 4 had no nght to mstitute the suit because no notice under section 8~ of the Civil Procedure Code was given on their behalf. The Sl!It was not. contested by the second defendant Beohar Rajendra Sinha. By its judgment dated 24th January 1959 the trial court held that there was no documentary evidenc~ from 1891 to 1932 support the possession. of the ancestors of the plaintiffs regardmg Phoot!l Tai.\n\nThe tnal court also held that in all the settlement ;, nt~1e~, the land,, was recorded as belonging to the Government Milk1at arkar . In any event, between 1891 to 1932\n\nthee .was no ~VIdence regarding the user of the property by the plamts and m .the subsequent years a part of the property was found 1~ P.ossessmn of the Municipal Committee. The trial court d1snnssed the suit. Against the judgment of. the trial court\n\nthe plaintiffs preferred an appeal to the High Court. The High Court held in the first place the notice Ex. P-8 was not in conformity with section 80 of the Civil Procedure Code. The High Court held that Beohar Raghubir Singh had lost the right to represent the joint family as karta at the time of institution of the suit because there had been a severence of joint status and the notice served by Beohar Raghubir Singh could not ensure to the benefit of the other plaintiffs. On the merits of the case, the High Court found that the plaintiffs had established their possession for the statutory period of 60 years. The High Court held that the plaintiffs had acquired the right of Raiyat Sarkar and that the order of the State Government refusing to correct the revenue record was illegal.\n\nOn these findings the High Court modified the judgment of the trial court to the extent that there was a declaration in favour of the plaintiffs that they were entitled to I/5th share of the property in dispute and the claim regarding the 4/5th share was dismissed. The order of the State Government dated 28th May, 1953 refusing to recognise the possession of the plaintiffs was held to be wrong and illegal.\n\nThe first question to be considered in these appeals is whether the High Court was right in holding that the notice given under section 80 of the Civil Procedure Code by the first plaintiff was effective only with regard to Raghubir Singh and the notice was ineffective with regard to the other plaintiffs and therefore Raghubir Singh alone was entitled to a declaration as regards the I/5th share of the dispute plot. On behalf of defendant No. 1 it was contended by Mr. Shroff that at the time of giving notice the plaintiffs and the second defendant were joint and plaintiff No. 1 Raghubir Singh was karta of the joint family. The notice was given on 11th January, 1954 and the suit was instituted 011 20th July, 1954. It was admitted that between these two dates there was a disruption of the joint family of which Raghubir Singh was a karta. It was argued that the right of the first plaintiff to represent the family had come to an end before the institution of the suit, and hence plaintiffs 2, 3 and 4 had to comply individually with the provisions of section 80 of the Civil Procedure Code before appearing as plaintiffs in the suit.\n\nIn our opir1icn, there is no justification for this argument. We consider that thrc is substantial identity between the person giving the notice and the persons filing the suit in the present case.\n\nAt the time of giving notice the first plaintiff Beohar Raghubir Singh was admittedly the eldest member cif the joint family and being a karta he was entitled to represent the joint family in all its affairs. The cause of action had accrued at the time of giving of the notice and i, t was not necessary to give a second notice merely because there was a severence of the joint family, before 20th\n\nJuly, 1954 when the suit was actually instituted. It is obvious\n\nthat the notice was given by Beohar Raghubir Singh as a reprc:sn tative of the joint family and in view of the subsequent partition the suit had to be instituted by: ail the divided members of the joint family.\n\nWe are of the opinion that the notice given by Beohar Raghubir Singh on 11th January, 1954 was sufficient in law to sustain a suit brought by ail the divided coparceners who must be deemed to be as much the authors of the notice as the karta who was the actual signatQIY of the notice.. There is substantial identity between the person giving the notice and the persons bringing the suit in the present case and the argument of defendant No. 1 on this point must be rejected.\n\nThe object of the notice under section 80, Civil Procedure Code is to give to the Government or the public servant Goncerned\n\nan opportunity to reconsider its or his legal position and if that CQ.UrSe is justified to make amends or settle the claim out of court.\n\nThe section is no doubt imperative; failure to serve notice complying with the requirements of the statute will entail dismissal of the suit.\n\nBut the notice raust be reasonably construed.\n\nAny unimportant error or defect cannot be permitted to be treated as an excuse for defeating a just claim. In considering whet11er the provisions of the statute are complied with, the Court must take into account the following matters in each case (1) whether • the name, description and residence of the plaintiff are given so as to enable the authorities to identify the person serving the notice; (2) whether the cause of action and the relief which the plaintiff claims are set out with sufficient particularity; ( 3) whether a notice in writing has been delivered to or left at the office of the 1ppropriate authority mentioned in the section; and ( 4) whether the suit is instituted after the expiration of two months next after notice has been served, and the plaint contains a statement that\n\nsue~ a notice has been so-delivered or left. In construing the nott17 the Court cannot ignore the object of the legislature, viz., to give to the Government or the public servant concerned an\n\nopportuniy to reconsider its or his legal position. If on a reasonble reamg of. the notice the plaintiff is shown to have given the information which the statute requires him to give any incidental defects or irregularities should be ignored. '\n\nIn the present case, the notice was served on 11th January 19~4 by ~7oh~ Raghubir Singh. The notice stated the cause of aetion ansmg m avour of the joint family.\n\nThe requirements as !O .cause of action: the !lame, description and residence of the Pl3!11tiff were complied with and the reliefs which the plaintiff\n\nclaimed. we dul)'. set out in the notice. It is true that Beohar Raghubll'; Smgh did not expressly describe himself as the karta. ut reag the contents of the notice Ex. P-8 in a reasonable manner 1t appears to us that the claim of Beohar Raghubir Singh\n\nwas made on behalf of the joint family. It is true that the term of section 80 of the Civil Procedure Code must be strictly complied but that does not mean that the terms of the notice should be scrutinised in an artificial or pedantic manner. In Dhian Singh Sobha Singh & Anr. v. The Union of India & Anr.(1) Bhagwati, J. observed in the course of his judgment :-\n\n\"We are constrained to observe that the approach of the High Court to this question was not well-founded. The Privy Council no doubt laid dOWlll in Bhagchand Dagadusa v.\n\nSecretary of State(') that the terms of this section should be strictly complied with.\n\nThat does not however mean that the terms of the notice should be scrutinised in a pedantic manner or in a manner completely divorced from common sense.\n\nAs was stated by Pollock C. B. in Jones v. Nicholls(') 'We must import a little common sense into notices oi this kind'. Beaumonth, C.J., also observed in Chandu Lal Vadilal v. Government of Lombay(') \"One must construe section 80 with some regard to common sense and to the object with which it appears to have been d \" passe ..... .\n\nAs already pointed out, the suit was instituted in the present case by the divided members of Hindu joint family on 20th July,\n\n1954. The notice had been given Cl!Jl 11th January, 1954 by Beohar Raghubir Singh who was the karta of the undivided joint family. In our opinion, there was identity between the person giving a notice and the persons filiJng the suit because it must be deemed in law that each of the plaintiffs had given the notice under s. 80 of the Civil Procedure Code through the karta Beohar Raghubir Singh. It is not disputed that the cause of action set out in the notice remained unchanged in the suit. It is also not said that the relief set out in the plaint is different from the relief set out in the notice. We are accordingly of the opiinion that the notice given by the karta was sufficient to sustain the suit brought by the divided coparceners and the decision of the High Court on this point must be over-ruled. ' The view that we have expressed is borne out by the judgment of this Court in State of Andhra Pradesh v. Gundugo/a Venkata Suryanarayan Garu('). In that case, the Government of Madras app.Jied the provisi ans of the Madras Estates Rent Reduction Act, 194 7 to the lands in the village Mallindhapuram on the ground that the grant was o.f the whole village and hence an estate within the meaning of s. 3(2) (d) of the Madras Estates\n\n(1) [1958] S.C.R. 781. (Ji [1844J 13 .'Vf & W 361. 363: 153 E.R. 149. 150.\n\n(5) [1964] 4 S.C.R. 945.\n\n(2) [1927] L.R. 541.A . ..; JJS.\n\n(4) l.L.R. [1943] llom. 128.\n\nLand Act, 1908. The respQ!lldent and another person served a notice under s. 80 of the Code of Civil Procedure upon the Government of the State of Madras in which they challenged the above mentioned notification and asked the Government not to act upqn it.\n\nOut of the two persons who gave the notice, the respondent alone filed the suit. The trial court held that tqe original grant was not of the entire vi1!age and was not so confirmed or recognised by the Government of Madras and as it was not an \"Estate\" withip the meaning of s. 3(2)(d) of the Madras Estates Land Act, the Madras Rent Reduction Act, 1947 did not apply to it. But the suit was dismissed on the ground that , although two persons had given notice under s. 80 of the Code of Civil Procedure, only one person had filed the suit. The High Court agreed with the trial court that the grant was not of an entire village but it also held that the notice was not defective and the suit was maintainable as it was a representative suit and the permission of the Court under 0.1, r. 8 had been obtained in this case.\n\nThe High Court granted the respoodent the relief prayed for by him.\n\nAgainst the order of the High Court the appellant appealed to this Court which dismissed the appeal holding that in the circumstances of the case there was no illegality even though the notice was given by two persons and the suit was filed by only one. If the Court grants permission to one person to institute a representative suit and if the person had served the notice under s. 80, the circumstance that another person had joined him in serving the notice but did not join him in the suit. was not a sufficient ground for regarding the suit as defective. At page 953 of the Report Shah, J. observed as follows:-\n\n\"The notice in the present suit was served by the plaintiff and Yegneswara Sastri.\n\nThey raised a grievance about the notification issued by the Government of Madras on May 16, 1950; it was not an individual grievance of the two persons who served the notice but of all the Inamdars or agrahamdars. The relief for which the suit was intended to be filed was also not restricted to their personal claim, The notice slated the cause of action arising in favour of all the Inamdars, and it is not disputed that the notice set out the relief which would be claimable by all the Inamdars or on their behalf in default of compliance with the requisition. The plaintiff it is true alone filed the suit, but he was permitted to sue for and on behalf of all the Inamdars by an order of the Court unuder 0. 1, r. 8 of the Code of Civil Procedure. The requirements as to the cause of action. the name, description and place of residence of the plaintiff was therefore\n\nco1:1plied with and the relief which the plaintiff claimed was duly set out in the notice. The only departure from the notice was that two persons served a notice under s. 80 infotmiing the Government that proceedings would be started, in default of compliance with the requisition, for violation of the rights of the Inamdars, and one person only out of the two instituted the suit. That in our judgment is not a defect which brings the case within the terms of s. 80\".\n\nOn behalf of respondent No. 1 reference was made to the two decisions of the Judicial Committee in Vellayan Chettiar & Ors. v. Government of the Province of Madras and Anr.(') and Government of the Provinpe of Bombay v. Pestonji Ardeshir Wadia & Ors.( 2 ) But the principle of these decisions has no bearing on the question presented for determination in the present case.\n\nIn Vellayan Chettiar's case(') a notice was given by one \"plaintiff stating the cause of action, his name, description and .place of his residence and the relief which he claimed although the suit was instituted by him and another. It was observed by the Judicial Committee :\n\n\"The section according to its plaijn meaning requires that there should be in the language of the High Court of Madras 'identity of the person who issues the notice with the person who brings the suit' : See Venkata R.angiah Appa Rao v. Secretary of State( 8 ) and on appeal Venkata Rangiah Appa Rao v.\n\nSecretary of State('). To hold otherwise would be to admit an implicatiQ!l or exception for which there is no jurisdiction\".\n\nTwo persons had sued for a declaration that certain lands belonged to them, and for an order setting aside the decision of the Appellate Survey Officer in regard to those lands. It was found that one alone out , of the two persons had served the notice. The relief claimed by the two persons was personal to them and the right thereto arose out of their title to the land claimed by them.\n\nIt was held by the Judicial Committee that without a proper notice under s. 80 the suit could not be instituted for to hold otherwise would be to admit an implication or exception for which there was no justification. In the other case, in Pestonji Ardeshir Wadia's case(2 ) two trustees of a trust served a notice in October; 1933 upon the Government of Bombay under s. 80 intimating that the trustees intended to institute a suit against the Government on the cause of action and for the relief set out\n\n(l) A.I.R.1947 P.C.197.\n\n(3) J.L.R. Mad 416.\n\n(2) 76 I.A. 85.\n\n(4) A.J.R. 1935 Mad. 389.\n\nB. R. SINHA v. M. P. STATE (kamaswami, J.) 903\n\nA therein. One of the trustees died before the plaint was lodged in court, and two more trustees were appointed in the place of the deceased trustee. Thereafter the two new trustees and the surviving trustee filed the suit out of which the appeal arose which was decided by the Judicial Committee. No notice was served on the Government on behalf of the two new trustees.\n\nThe Judicial li Committee accepted the view of the High Court that where there were three plaintiffs, the names and addresses of all of them must be given in the notice. Their Lordships observed that :\n\n\"the provisions of s. 80 of the Code are imperative and should be strictly complied with before it can be said that a notice valid in law has been served on the c Government. In the present case it is not contended that any notice on behalf of plaintiffs 2 and 3 was served on the Government before the filirig of the suit\".\n\nIt is clear that the principle of these two decisions of the Judicial Committee has no application in the present case because the material facts are different.\n\nD We proceed to consider the next question arising in these appeals viz., whether the High Court was right in holding that the plaintiffs had established their title as raiyat sarkar with regard to l/5th share in nazul plots Nos. 34/3, 33 and 171/l mentioned in the .Deputy Commissioner's order dated 7th May, 1948 in Revenue Case No. 9 / 45-46. It was argued on behalf of E defendant No. 1 that there was no evidence to show that the plaintiffs were in possession of the land from 1909 to 1932, and the plaintiffs had not established their title by prescription for the statutory period of 60 years.\n\nIt was contended that the High Court had no justification for holding that the plaintiffs had es!ablished the title of \"Raiyat Sarkar\" and the finding of the High Court was not based upon any evidence. In our opinion, F the argument put forward on behalf of defendant No. 1 is wellfounded and must be accepted as correct. In the settlement of 1863-64 Ex. P-1 the names of Amansingh and Thakurprasad were not~ in. the rearks column. But the column regarding tenancy nght 1s defirutely blank.\n\nThe owner is shown in the Khasra as.the State \"M_ilkiat Sarkar\". In the settlement of 1890- G 91 Amansmgh Narpatsmgh is again shown in the remarks column o_f th~ kha1'.1 But the column regarding any kind of tenancy nght is agam blank. It is clear that in the settlements of 1860 and 1890-91 the ownership of the land is recorded as that of the Government. The.possession of the plaintiffs or of their ancestors could not be attributed to ownership or tenancy right of the H property. In the settlement of 1909-10, Ex.P3 there is no entry m the earks column showing the possession of the ancestors Gf the plamtiffs. It was said on behlf of the plaintiffs that no\n\n(I) 7o I.A. 85.\n\nLil Sup. C.l.{69-12\n\n964 SUl'REME COURT REPORTS [1969] 3 s.c.R.\n\nnotice was given to them of the proceedings of the settlement of\n\n1909-10. Even assuming that this allegation is correct, the entries of the khasra P-3 cannot be treated to be a nullity and of no effect. In any event, it was open to the plaintiffs to adduce other reliable evidence to prove their possession between the years 1909 to 1932. But the plaintiffs have failed to produce any such evidence. In the nazul settlement of 1922-23 the tank was given new plot numbers 33, 34, 35, 36, 37 and 171 and its area was recorded as 5.24 acres.\n\nIn this settlement about 2 acres of land was found to be occupied by the Municipal Committee, Jabalpur. The land so found to be occupied was recorded in the possession of the Municipal Committee, J abalpur and the remaining land was again recorded as\n\n\"Milkiat Sarkar\". There is no entry as regards the remaining land recording anybody's possession in the remarks column.\n\nActually proclamations were made during this settlement and objections were invited as per f:x.ID-14.\n\nA date was fixed upto 31-8-1924 but no one came forward.\n\nThe proclamation clearly recited that the vacant sites which were not in possession of anybody were not recognised as belonging to any person. It is impossible to believe that the plaintiffs or their ancestors were unaware of such a proclamation. Had they been in possession they would not have failed to make a claim. For the. period after 1933-34 the plaintiffs produced account books to show that they exercised certain rights.\n\nCertain receipts were also proved but they also relate to a period after 1939. We have gone through the oral evidence produced by the plaintiffs and it appears to be unreliable. The result is that for the period 1891 till 1932 there is no reliable oral or documentary evidence to prove that the plaintiffs or their ancestors had any possession over the disputed land. On the contrary the disputed land i.e. Phoota Tai was always recognised as Milkiat Sarkar and the SJate Government was justified in holding that the order of the Deputy Commissioner dated 7th May, 1948 should be set aside.\n\nIn the course of the argument reference was made by Mr.\n\nGupte to the following passage in the Central Provinces Settlement Instructions (Reprint of 1953) page 213 :\n\n\"In dealing with proposed method of the settlement of titles it will be convenient in order to remove all causes for misapprehension among residents, to lay emphasis on the policy of Government in making these settlements.\n\nThat policy was defined in the Chief Commissioner's Resolution No. 502-B-X dated the 19th October, 1917, in the Revenue & Scarcity Department, but its maiJl principles will bear repetition.\n\nA' it is 1wt the intcntiun of Gowrnmnt in making the settlement to disturb long possession, but only to\n\nobtain an accurate record of the lands which are its property and to secure its right to any land revenue to which it may be entitled, long possession, even without clear proof of a definite grant from Government will be recognised as entitled the holder to possession. In deciding what constitutes long possession in any individual town, regard will be had to the special circumstances of the place, and while this point will .be dealt with more particularly in the Deputy Commissioner's report, the following general principles will ordinarily be observed : (I) all .occupants who are able to prove possession to any land prior to 1891 or such later date as may be fixed for each town, either by themselves or by a valid title from a previous holder, and all occupants who can prove a definite grant or lease from Government will be recorded as entitled to hold such land as against Government (paragraph 6 of the Resolution)\".\n\nOn the basis of this passage it was argued that it was the duty of the settlement officer to treat tl1e plaintiffs as having established their title because they were shown to be in possession in the settlement of the year 1890-91.\n\nWe are unable to accept this argument as correct. The passage quoted above only applies to a case where the ownership of the land was unknown i.e. where possession is proved for a long time, but its original title could not be traced, and not to a case where the land is recorded as Government land.\n\nFor the reasons expressed, we hold that the suit brought by the plaintiffs being Civil Suit No. 10-A of 1954 should be dismissed. Civil Appeal 386 of 1966 is accordingly dismissed and Civil Appeal 3&7 of 1966 is allowed with costs in favour of defendant No. I i.e. State of Madhya Pradesh. There will be one hearing. fee.\n\nR.K.P.S.\n\nCivil Appeal 386/66 dismissed.\n\nCivil Appeal 387 /66 allowed.", "total_entities": 99, "entities": [{"text": "BEOHAR RAJENDRA SINHA & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "BEOHAR RAJENDRA SINHA & ORS", "offset_not_found": false}}, {"text": "STATE OF M.P. & ORS", "label": "RESPONDENT", "start_char": 30, "end_char": 49, "source": "metadata", "metadata": {"canonical_name": "STATE OF M.P. & ORS", "offset_not_found": false}}, {"text": "March 11, 1969", "label": "DATE", "start_char": 52, "end_char": 66, "source": "ner", "metadata": {"in_sentence": "March 11, 1969\n\n[M. HIDAYATULLAH, C.J., V. RAMASWAMI AND G. K. MITTER, JJ.]"}}, {"text": "M. HIDAYATULLAH, C.J.", "label": "JUDGE", "start_char": 69, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 92, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "G. K. MITTER, JJ.", "label": "JUDGE", "start_char": 109, "end_char": 126, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER", "offset_not_found": false}}, {"text": "Civil Procedure Code 1908", "label": "STATUTE", "start_char": 129, "end_char": 154, "source": "regex", "metadata": {}}, {"text": "S. 80", "label": "PROVISION", "start_char": 156, "end_char": 161, "source": "regex", "metadata": {"linked_statute_text": "Civil Procedure Code 1908", "statute": "Civil Procedure Code 1908"}}, {"text": "section 80", "label": "PROVISION", "start_char": 573, "end_char": 583, "source": "regex", "metadata": {"linked_statute_text": "Civil Procedure Code 1908", "statute": "Civil Procedure Code 1908"}}, {"text": "Raiyat Sarkar", "label": "OTHER_PERSON", "start_char": 986, "end_char": 999, "source": "ner", "metadata": {"in_sentence": "In view of this the appellant's three grandsons were joined as plaintiffs in the suit; the plaintiffs sought a declaration that th'rec nazul plots in suit had been in the possession of the plaintiffs and their ancestors from time immemorial and their status was that of Raiyat Sarkar; so that an order of the State Government in the Survey and Settlement Department refusing to recognise their possession ove'r the plots was wrong and ultra vires."}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 1367, "end_char": 1372, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "20th July, 1954", "label": "DATE", "start_char": 2625, "end_char": 2640, "source": "ner", "metadata": {"in_sentence": "before 20th July, 1954, when the suit was actuallv imtituted. ["}}, {"text": "section 80", "label": "PROVISION", "start_char": 2713, "end_char": 2723, "source": "regex", "metadata": {"statute": null}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 2724, "end_char": 2729, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "1964] 4 S.C.R. 945", "label": "CASE_CITATION", "start_char": 3038, "end_char": 3056, "source": "regex", "metadata": {}}, {"text": "April 16, 1963", "label": "DATE", "start_char": 3713, "end_char": 3727, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and_ decree dated c April 16, 1963 of the Madhya Pradesh High Court in First Appeal No."}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 3735, "end_char": 3760, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and_ decree dated c April 16, 1963 of the Madhya Pradesh High Court in First Appeal No."}}, {"text": "S. V. Gupte", "label": "JUDGE", "start_char": 3795, "end_char": 3806, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, P. C. Bhartari and J. B. Dadachanji, for the appellants (in C.A. No."}}, {"text": "P. C. Bhartari", "label": "JUDGE", "start_char": 3808, "end_char": 3822, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, P. C. Bhartari and J. B. Dadachanji, for the appellants (in C.A. No."}}, {"text": "J. B. Dadachanji", "label": "OTHER_PERSON", "start_char": 3827, "end_char": 3843, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, P. C. Bhartari and J. B. Dadachanji, for the appellants (in C.A. No."}}, {"text": "I. N. Shroff", "label": "JUDGE", "start_char": 3938, "end_char": 3950, "source": "ner", "metadata": {"in_sentence": "I. N. Shroff a!lld Rama Gupta, for the State of Madhya Pradesh."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 4047, "end_char": 4056, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J.\n\nThese appeals are brought by special leave from the judgment of the High Court of Madhya Pradesh dated 16th April, 1963 in First Appeal No.", "canonical_name": "V. RAMASWAMI"}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 4130, "end_char": 4158, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J.\n\nThese appeals are brought by special leave from the judgment of the High Court of Madhya Pradesh dated 16th April, 1963 in First Appeal No."}}, {"text": "State of Madhya Pradeshby", "label": "ORG", "start_char": 4393, "end_char": 4418, "source": "ner", "metadata": {"in_sentence": "The suit was instituted against the State of Madhya Pradeshby Beohar Raghubir Singh and his three grand-sons."}}, {"text": "Beohar Raghubir Singh", "label": "PETITIONER", "start_char": 4419, "end_char": 4440, "source": "ner", "metadata": {"in_sentence": "The suit was instituted against the State of Madhya Pradeshby Beohar Raghubir Singh and his three grand-sons.", "canonical_name": "Beohar Raghubir Singh"}}, {"text": "Beohar Raghubir Singh", "label": "PETITIONER", "start_char": 4468, "end_char": 4489, "source": "ner", "metadata": {"in_sentence": "Beohar Raghubir Singh's son, Beohar Rajendra Sinha, was a pro-forma defendant.", "canonical_name": "Beohar Raghubir Singh"}}, {"text": "Beohar Rajendra Sinha", "label": "PETITIONER", "start_char": 4497, "end_char": 4518, "source": "ner", "metadata": {"in_sentence": "Beohar Raghubir Singh's son, Beohar Rajendra Sinha, was a pro-forma defendant.", "canonical_name": "BEOHAR RAJENDRA SINHA & ORS"}}, {"text": "section 80", "label": "PROVISION", "start_char": 4563, "end_char": 4573, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 4577, "end_char": 4597, "source": "regex", "metadata": {}}, {"text": "Raghubir Singh", "label": "PETITIONER", "start_char": 4616, "end_char": 4630, "source": "ner", "metadata": {"in_sentence": "A notice under section 80 of Civil Procedure Code had been given by Raghubir Singh on 11th January, 1954.", "canonical_name": "Raghubir Singh"}}, {"text": "11th January, 1954", "label": "DATE", "start_char": 4634, "end_char": 4652, "source": "ner", "metadata": {"in_sentence": "A notice under section 80 of Civil Procedure Code had been given by Raghubir Singh on 11th January, 1954."}}, {"text": "Beohar Rajendra Sinha", "label": "PETITIONER", "start_char": 4859, "end_char": 4880, "source": "ner", "metadata": {"in_sentence": "Beohar Rajendra Sinha was joined as a defendant because he did not choose to join as the plaintiff.", "canonical_name": "BEOHAR RAJENDRA SINHA & ORS"}}, {"text": "Jabalpur", "label": "GPE", "start_char": 5423, "end_char": 5431, "source": "ner", "metadata": {"in_sentence": "Jabalpur."}}, {"text": "Aman Singh Thakur Prasad", "label": "OTHER_PERSON", "start_char": 5615, "end_char": 5639, "source": "ner", "metadata": {"in_sentence": "It was recorded as Malkiat Sarkar and in the last column there was an entry showing possession of Aman Singh Thakur Prasad."}}, {"text": "Beohar Narpatsingh Raghubir Singh", "label": "OTHER_PERSON", "start_char": 5871, "end_char": 5904, "source": "ner", "metadata": {"in_sentence": "Its area remained the same, it was recorded\n\n1as \"water (pani)\" and in the last column, the entry showed the possession of Beohar Narpatsingh Raghubir Singh."}}, {"text": "Municipal Committee,", "label": "ORG", "start_char": 6365, "end_char": 6385, "source": "ner", "metadata": {"in_sentence": "In this settlement about 2 acres of land was found to be occupied by the Municipal Committee, Jabalpur."}}, {"text": "Municipal Committee, Jabalpur", "label": "ORG", "start_char": 6468, "end_char": 6497, "source": "ner", "metadata": {"in_sentence": "The land so found to be occupied was recorded in the possession of the Municipal Committee, Jabalpur and the remaining land was again recorded as \"Milkiat Sarkar\"."}}, {"text": "Thakur Prasad", "label": "OTHER_PERSON", "start_char": 6696, "end_char": 6709, "source": "ner", "metadata": {"in_sentence": "The plaintiffs alleged that Thakur Prasad and Aman Singh were their ancestors, that they had been in continuous possession of the disputed land and the omission to record their possession in the last two settlements of 1909-10 and 1922-23 was due to some oversight.", "canonical_name": "Thakur Prasad"}}, {"text": "Aman Singh", "label": "OTHER_PERSON", "start_char": 6714, "end_char": 6724, "source": "ner", "metadata": {"in_sentence": "The plaintiffs alleged that Thakur Prasad and Aman Singh were their ancestors, that they had been in continuous possession of the disputed land and the omission to record their possession in the last two settlements of 1909-10 and 1922-23 was due to some oversight.", "canonical_name": "Aman Singh"}}, {"text": "28th May, 1953", "label": "DATE", "start_char": 7165, "end_char": 7179, "source": "ner", "metadata": {"in_sentence": "P-5.. The order of the Deputy Commissioner was however set aside by the State Government on 28th May, 1953 and it was held that the plaintiffs had no title to the disputed land."}}, {"text": "State of Madhya Pradesh", "label": "ORG", "start_char": 7491, "end_char": 7514, "source": "ner", "metadata": {"in_sentence": "The suit was contested by the State of Madhya Pradesh."}}, {"text": "28th May,\n\n1953", "label": "DATE", "start_char": 7634, "end_char": 7649, "source": "ner", "metadata": {"in_sentence": "It was urged that the plaintiff had no possession over the disputed land and the order of the State Government dated 28th May,\n\n1953 wa:i corrt. ."}}, {"text": "section 8", "label": "PROVISION", "start_char": 7765, "end_char": 7774, "source": "regex", "metadata": {"statute": null}}, {"text": "Beohar Rajendra Sinha", "label": "RESPONDENT", "start_char": 7884, "end_char": 7905, "source": "ner", "metadata": {"in_sentence": "contested by the second defendant Beohar Rajendra Sinha.", "canonical_name": "BEOHAR RAJENDRA SINHA & ORS"}}, {"text": "24th January 1959", "label": "DATE", "start_char": 7929, "end_char": 7946, "source": "ner", "metadata": {"in_sentence": "By its judgment dated 24th January 1959 the trial court held that there was no documentary evidenc~ from 1891 to 1932 support the possession."}}, {"text": "section 80", "label": "PROVISION", "start_char": 8668, "end_char": 8678, "source": "regex", "metadata": {"statute": null}}, {"text": "section 80", "label": "PROVISION", "start_char": 9861, "end_char": 9871, "source": "regex", "metadata": {"statute": null}}, {"text": "Shroff", "label": "OTHER_PERSON", "start_char": 10205, "end_char": 10211, "source": "ner", "metadata": {"in_sentence": "1 it was contended by Mr. Shroff that at the time of giving notice the plaintiffs and the second defendant were joint and plaintiff No."}}, {"text": "Raghubir Singh", "label": "PETITIONER", "start_char": 10317, "end_char": 10331, "source": "ner", "metadata": {"in_sentence": "1 Raghubir Singh was karta of the joint family.", "canonical_name": "Raghubir Singh"}}, {"text": "011 20th July, 1954", "label": "DATE", "start_char": 10434, "end_char": 10453, "source": "ner", "metadata": {"in_sentence": "The notice was given on 11th January, 1954 and the suit was instituted 011 20th July, 1954."}}, {"text": "section 80", "label": "PROVISION", "start_char": 10793, "end_char": 10803, "source": "regex", "metadata": {"statute": null}}, {"text": "20th\n\nJuly, 1954", "label": "DATE", "start_char": 11469, "end_char": 11485, "source": "ner", "metadata": {"in_sentence": "The cause of action had accrued at the time of giving of the notice and i, t was not necessary to give a second notice merely because there was a severence of the joint family, before 20th\n\nJuly, 1954 when the suit was actually instituted."}}, {"text": "section 80", "label": "PROVISION", "start_char": 12260, "end_char": 12270, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 12272, "end_char": 12292, "source": "regex", "metadata": {}}, {"text": "11th January 19~4 by", "label": "DATE", "start_char": 13969, "end_char": 13989, "source": "ner", "metadata": {"in_sentence": "In the present case, the notice was served on 11th January 19~4 by ~7oh~ Raghubir Singh."}}, {"text": "Beohar Raghubll", "label": "OTHER_PERSON", "start_char": 14296, "end_char": 14311, "source": "ner", "metadata": {"in_sentence": "It is true that Beohar Raghubll'; Smgh did not expressly describe himself as the karta."}}, {"text": "section 80", "label": "PROVISION", "start_char": 14560, "end_char": 14570, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 14802, "end_char": 14810, "source": "ner", "metadata": {"in_sentence": "v. The Union of India & Anr.(1) Bhagwati, J. observed in the course of his judgment :-\n\n\"We are constrained to observe that the approach of the High Court to this question was not well-founded."}}, {"text": "Pollock", "label": "JUDGE", "start_char": 15288, "end_char": 15295, "source": "ner", "metadata": {"in_sentence": "As was stated by Pollock C. B. in Jones v. Nicholls(') 'We must import a little common sense into notices oi this kind'."}}, {"text": "Beaumonth", "label": "JUDGE", "start_char": 15392, "end_char": 15401, "source": "ner", "metadata": {"in_sentence": "Beaumonth, C.J., also observed in Chandu Lal Vadilal v. Government of Lombay(') \"One must construe section 80 with some regard to common sense and to the object with which it appears to have been d \" passe ..... ."}}, {"text": "section 80", "label": "PROVISION", "start_char": 15491, "end_char": 15501, "source": "regex", "metadata": {"statute": null}}, {"text": "20th July,\n\n1954", "label": "DATE", "start_char": 15723, "end_char": 15739, "source": "ner", "metadata": {"in_sentence": "As already pointed out, the suit was instituted in the present case by the divided members of Hindu joint family on 20th July,\n\n1954."}}, {"text": "s. 80", "label": "PROVISION", "start_char": 16057, "end_char": 16062, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of Madras", "label": "ORG", "start_char": 16714, "end_char": 16734, "source": "ner", "metadata": {"in_sentence": "In that case, the Government of Madras app."}}, {"text": "Jied the provisi ans of the Madras Estates Rent Reduction Act", "label": "STATUTE", "start_char": 16739, "end_char": 16800, "source": "regex", "metadata": {}}, {"text": "Mallindhapuram", "label": "GPE", "start_char": 16836, "end_char": 16850, "source": "ner", "metadata": {"in_sentence": "Jied the provisi ans of the Madras Estates Rent Reduction Act, 194 7 to the lands in the village Mallindhapuram on the ground that the grant was o.f the whole village and hence an estate within the meaning of s. 3(2) (d) of the Madras Estates\n\n(1) [1958] S.C.R. 781. ("}}, {"text": "s. 3(2)", "label": "PROVISION", "start_char": 16948, "end_char": 16955, "source": "regex", "metadata": {"linked_statute_text": "Jied the provisi ans of the Madras Estates Rent Reduction Act", "statute": "Jied the provisi ans of the Madras Estates Rent Reduction Act"}}, {"text": "[1964] 4 S.C.R. 945", "label": "CASE_CITATION", "start_char": 17063, "end_char": 17082, "source": "regex", "metadata": {}}, {"text": "Land Act, 1908", "label": "STATUTE", "start_char": 17149, "end_char": 17163, "source": "regex", "metadata": {}}, {"text": "s. 80", "label": "PROVISION", "start_char": 17223, "end_char": 17228, "source": "regex", "metadata": {"linked_statute_text": "Land Act, 1908", "statute": "Land Act, 1908"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 17232, "end_char": 17259, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3(2)(d)", "label": "PROVISION", "start_char": 17682, "end_char": 17692, "source": "regex", "metadata": {"linked_statute_text": "Land Act, 1908", "statute": "Land Act, 1908"}}, {"text": "Madras Rent Reduction Act, 1947", "label": "STATUTE", "start_char": 17729, "end_char": 17760, "source": "regex", "metadata": {}}, {"text": "s. 80", "label": "PROVISION", "start_char": 17874, "end_char": 17879, "source": "regex", "metadata": {"linked_statute_text": "the Madras Rent Reduction Act, 1947", "statute": "the Madras Rent Reduction Act, 1947"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 17883, "end_char": 17910, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 80", "label": "PROVISION", "start_char": 18678, "end_char": 18683, "source": "regex", "metadata": {"linked_statute_text": "the Madras Rent Reduction Act, 1947", "statute": "the Madras Rent Reduction Act, 1947"}}, {"text": "Shah", "label": "JUDGE", "start_char": 18884, "end_char": 18888, "source": "ner", "metadata": {"in_sentence": "At page 953 of the Report Shah, J. observed as follows:-\n\n\"The notice in the present suit was served by the plaintiff and Yegneswara Sastri."}}, {"text": "Yegneswara Sastri", "label": "OTHER_PERSON", "start_char": 18980, "end_char": 18997, "source": "ner", "metadata": {"in_sentence": "At page 953 of the Report Shah, J. observed as follows:-\n\n\"The notice in the present suit was served by the plaintiff and Yegneswara Sastri."}}, {"text": "May 16, 1950", "label": "DATE", "start_char": 19085, "end_char": 19097, "source": "ner", "metadata": {"in_sentence": "They raised a grievance about the notification issued by the Government of Madras on May 16, 1950; it was not an individual grievance of the two persons who served the notice but of all the Inamdars or agrahamdars."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 19724, "end_char": 19751, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 80", "label": "PROVISION", "start_char": 20043, "end_char": 20048, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 80", "label": "PROVISION", "start_char": 20337, "end_char": 20342, "source": "regex", "metadata": {"statute": null}}, {"text": "Vellayan Chettiar", "label": "OTHER_PERSON", "start_char": 20723, "end_char": 20740, "source": "ner", "metadata": {"in_sentence": "In Vellayan Chettiar's case(') a notice was given by one \"plaintiff stating the cause of action, his name, description and .place of his residence and the relief which he claimed although the suit was instituted by him and another."}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 21095, "end_char": 21115, "source": "ner", "metadata": {"in_sentence": "It was observed by the Judicial Committee :\n\n\"The section according to its plaijn meaning requires that there should be in the language of the High Court of Madras 'identity of the person who issues the notice with the person who brings the suit' : See Venkata R.angiah Appa Rao v. Secretary of State( 8 ) and on appeal Venkata Rangiah Appa Rao v.\n\nSecretary of State(')."}}, {"text": "s. 80", "label": "PROVISION", "start_char": 21890, "end_char": 21895, "source": "regex", "metadata": {"statute": null}}, {"text": "Pestonji Ardeshir Wadia", "label": "OTHER_PERSON", "start_char": 22057, "end_char": 22080, "source": "ner", "metadata": {"in_sentence": "In the other case, in Pestonji Ardeshir Wadia's case(2 ) two trustees of a trust served a notice in October; 1933 upon the Government of Bombay under s. 80 intimating that the trustees intended to institute a suit against the Government on the cause of action and for the relief set out\n\n(l) A.I.R.1947 P.C.197."}}, {"text": "Government of Bombay", "label": "ORG", "start_char": 22158, "end_char": 22178, "source": "ner", "metadata": {"in_sentence": "In the other case, in Pestonji Ardeshir Wadia's case(2 ) two trustees of a trust served a notice in October; 1933 upon the Government of Bombay under s. 80 intimating that the trustees intended to institute a suit against the Government on the cause of action and for the relief set out\n\n(l) A.I.R.1947 P.C.197."}}, {"text": "s. 80", "label": "PROVISION", "start_char": 22185, "end_char": 22190, "source": "regex", "metadata": {"statute": null}}, {"text": "kamaswami", "label": "JUDGE", "start_char": 22441, "end_char": 22450, "source": "ner", "metadata": {"in_sentence": "B. R. SINHA v. M. P. STATE (kamaswami, J.) 903\n\nA therein.", "canonical_name": "V. RAMASWAMI"}}, {"text": "s. 80", "label": "PROVISION", "start_char": 23056, "end_char": 23061, "source": "regex", "metadata": {"statute": null}}, {"text": "7th May, 1948", "label": "DATE", "start_char": 23826, "end_char": 23839, "source": "ner", "metadata": {"in_sentence": "34/3, 33 and 171/l mentioned in the .Deputy Commissioner's order dated 7th May, 1948 in Revenue Case No."}}, {"text": "Amansingh", "label": "OTHER_PERSON", "start_char": 24499, "end_char": 24508, "source": "ner", "metadata": {"in_sentence": "P-1 the names of Amansingh and Thakurprasad were not~ in.", "canonical_name": "Aman Singh"}}, {"text": "Thakurprasad", "label": "OTHER_PERSON", "start_char": 24513, "end_char": 24525, "source": "ner", "metadata": {"in_sentence": "P-1 the names of Amansingh and Thakurprasad were not~ in.", "canonical_name": "Thakur Prasad"}}, {"text": "Municipal Committee, J abalpur", "label": "ORG", "start_char": 26080, "end_char": 26110, "source": "ner", "metadata": {"in_sentence": "The land so found to be occupied was recorded in the possession of the Municipal Committee, J abalpur and the remaining land was again recorded as\n\n\"Milkiat Sarkar\"."}}, {"text": "31-8-1924", "label": "DATE", "start_char": 26403, "end_char": 26412, "source": "ner", "metadata": {"in_sentence": "A date was fixed upto 31-8-1924 but no one came forward."}}, {"text": "Phoota Tai", "label": "OTHER_PERSON", "start_char": 27278, "end_char": 27288, "source": "ner", "metadata": {"in_sentence": "On the contrary the disputed land i.e. Phoota Tai was always recognised as Milkiat Sarkar and the SJate Government was justified in holding that the order of the Deputy Commissioner dated 7th May, 1948 should be set aside."}}, {"text": "Milkiat Sarkar", "label": "OTHER_PERSON", "start_char": 27314, "end_char": 27328, "source": "ner", "metadata": {"in_sentence": "On the contrary the disputed land i.e. Phoota Tai was always recognised as Milkiat Sarkar and the SJate Government was justified in holding that the order of the Deputy Commissioner dated 7th May, 1948 should be set aside."}}, {"text": "Gupte", "label": "LAWYER", "start_char": 27520, "end_char": 27525, "source": "ner", "metadata": {"in_sentence": "In the course of the argument reference was made by Mr.\n\nGupte to the following passage in the Central Provinces Settlement Instructions (Reprint of 1953) page 213 :\n\n\"In dealing with proposed method of the settlement of titles it will be convenient in order to remove all causes for misapprehension among residents, to lay emphasis on the policy of Government in making these settlements."}}, {"text": "State of Madhya Pradesh", "label": "RESPONDENT", "start_char": 29880, "end_char": 29903, "source": "ner", "metadata": {"in_sentence": "I i.e. State of Madhya Pradesh."}}]}
{"document_id": "1969_3_966_975_EN", "year": 1969, "text": "SHAIK MOHAMMAD UMAR SAHEB v.\n\nKALASKAR BASHAM KARIMSAB & ORS.\n\nMarch 11, 1969\n\n[M. HIDAYATULLAH, C.J. AND G. K. MITTER, J.J\n\nElection petition-Maharashtra Municipalities Act 1965, s. 21(1)- Trial Court rejecting application to summon peti1ioner's witnesses-1'hereafter summoning them as court witnesses-Whether empo.wered lo do &o- Cour1 not framing separate clear cut issue for each charge-Whether trial vitiated.\n\nConstitution of India Arts. 226 and 221-Jurisdiction of High Court-\n\nWhether can reappreciate evidence.\n\nThe first respondent challenged the appellant's election to the Sangli City Municipality held in June 1967 under the Maharashtra Municipalities Act, 1965. lt was alleged that the respondent had published and circulated pamphlets contaming defamatory statements against the respondent and in particular instigating Muslim voters to vote against him by arousing their religious sentrments.\n\nAt the trial of the petition the respondents applied to have two witnesses examined but the Trial Judge re- D jected the application.\n\nLater, however, the same two witnesses were called by the trial jud.e as court witnesses. The Trial Court allowed the petition and disqualified the appellant from being a member of a Municipality for five years.\n\nA petition under Arts. 226 and 227 of the Constitution by the appellant was rejected in limine by the High Court. ·\n\nIn appeal to this Court it was contended inter alia by the appellant (i) that the trial court was wrong in callin2 as court wjtnesses the same two witnesses who h.i.d been cited as the resPondent's witnesses and having earlier rejected the respondent's application to call them;\n\n(ii) on the evidence the trial court's findina was not justifiable; (iii) that the result of the election was published in the Gazette on the 8th June as well as 15th June but the limitation of JO days ran from 8th June and the petition was therefore time-barred; (iv) the first issue which was decided against the appellant was confusing and misleading whereby the appellant had been denied a fair trial; (v) the order of the Judge disqualifying the appellant for a period of five years was unduly harsh.\n\nHELD : Dismissing the appeal : (i) Although the trial court's earlier order refusing to issue summons to the two witnesses was not justifiable, under s. 21(7) of the Maharashtra Municipalities Act, 1965, the Trial Judge is given pov.:ers wider than those given by the Code of Civil Procedure under Order 16, Rule 14, as the section does not prescribe any pre-requisite to the examination of a person as a. court witness as envisaged by the Code of Civil Procedure .. The trial Judge thereto.re had jurisdiction to call the two persons as witnesses under the prov1s1ons uf\n\nthe Act. [972 DJ R. M. Seshadri v. G. Vasanta Pai, [1969] 2 S.C.R. 1019, referred to.\n\n(ii) On the evidence, no exception could be taken to. the trial Judge deciding the issue against the appellant on the facts and ctrcumstaces of the case.\n\nIt could not be said that there \\vas no evidence on which the Judge could have come to that conclusion. \\Vb.en the trial Judge accepted\n\nUMAR SAHEB v. KAR!MSAB !Mitter, ]. ) 967\n\nthe evidence with regard to the distribution of the pamphlets by the appellant, the High Court, which was not hearing an appeal, could not be expected to take a different view in exercising jurisdidtion under Arts. 226 and 227 of the Constitution and there was no reason shown to this Court to interfere with the order of the High Court. [975 A]\n\n(iii) The appellant could have set up the first Gazette publication as the one fixing the period of limitation in \\vhich ca!'ie the trial Judge would have been required to go into the matter. But the appellant had precluded himself from doing so by his unconditional acceotance of the statement in the petition that the result was published on 15th June, 1967.\n\nThere was no error apparent on the face of the record before the qigh Court and consequently the jurisdiction under Art. 226 of the Constitution could not have heen exercised on the facts of the dase by the issue o'f a writ of certiorari. Neither could the High Court set aside the order of the trial court under Art. 227 of the Constitution under which the High Court's power of superintendence is confined to seeing that the. trial court had not transgressed the limits imposed by the Act.\n\nOn the facts of the case the Hih Court was not called upon to go into this question. f974 C-DJ\n\n(iv) It could. not be concluded that because of the want of preciseness in the issues framed the whole trial was vitiated.\n\nThe appellant knew the points he had to meet.\n\nAlthough the evidenc~ about the distribution of the pamphlets was not beyond reproach, it was not for the High Court to take the view that the order ought to be quashed on the ground that there was no evidence. [974 Fl\n\n(v) The allegations of corrupt practices against the appellant were of a serious nature and if he was found guilty, the period of five years' disqualification could not be considered inapprop'riate.\n\nCivIL APPELLATE JURISDICTION : Civil Appeal No. 2322 of . 1968.\n\nAppeal by special leave from the order dated October 4, 1968 of the Bombay High Court in Special Civil Application, No. 2053 of 1968.\n\nN. N. Keswani, for the appellant.\n\nR. B. Datar and S. N. Prasad, for respondent No. l,\n\nS. P. Nayar, for respondents Nos. 2 to 4.\n\nThe Judgment of the Court was delivered by Mitter, J. This is an appeal by special leave from an order of the Bombay High Court dismissing in limine an application under Arts; 226 and 227 of the Constitution and refusing to quash the Judgment and order of the Assistant Judge at Sang!i rendered in Election Petition No. 10 of 1967. The facts are as follows.\n\n\\>~ Ju_ne 3, 1967 election of councillors to the Sangli City Mumc1pahty was held under the Maharashtra Municipalities Act, 1965 (hereinafter referred to as the 'Act'). The countin~\n\nSUPREME COURT REPORTS\n\n\n of votes took place with regard to Ward No. 25 on June 4, l967.\n\nAccording to the election petition, the results were published in\n\nthe Official Gazette on June 15, 1967 and the petition was filed on June 24, 1967. The petitioner who was himself a candidate for election from the said ward challenged the election of the appellant before us on several grounds setforth in paragraph 3 of the petition. The first of these was to the effect that the app.l Iant had, with the help of his supporters, published an undated pamphlet and circulated the same on a large scale among the voters in \\Yard No. 25 and that the said pamphlet contained untrue, false and defamatory statements about the petitioner thereby prejudicing the voters generally against him and in particular instigating the Muslim voters to vote against him by arousing their religious sentiments.\n\nAnother similar ground based on a defamatory pamphlet dated 30th May 1967 was urged in the petition .. Charges of terrorising voters and securing _votes by false personation were also levelled therein.\n\nStatements were made\n\nin the petition that the appellant's name as councillor had been declared in the Official Gazette on June 15, 1967 and the peti- . tioner's cause of action had arisen on that date. The first of these - D was expressly accepted as correct in the written statement of the appellant and the second remained unchallenged.\n\nThe appellant however repelled the charges mentioned above and denied that he was responsible for the publication of any of the impugned pamphlets.\n\nOf the four issues framed at the hearing of the petition, the first was : ·\n\n''whether the petitioner proved that opponent No. 1 wlio was elected as Municipal Councillor for Ward No. 25 had used malpractices at the time at the election by arousing religious sentiments of the voters and making defamatory statements against the petitioner by publishing pamphlets?\".\n\nThe petitioner gave evidence himself about the allegations in the . petition fo substantiate the charges raised by him.\n\nThe appeJ-. !ant examined himself to contradict the said evidence.\n\nIt appears that the petitioner had in the list of witnesses filed bv him, G mentioned the name of two persons, Hakim Abdul Rahiman Shaikh and Gopal Chintaman Ghugare and that these two persons had attended the court on certain days when they were not examined.\n\nOn August 21, 1968 the petitioner made an application b.efore the Judge for issuing summons on these two persons as his witnesses, but the learned Judge rejected that appli- H cation.\n\nThe appellant's case was closed on the same day and tbe arguments started on August 22, 1968. On that date the court adjoqmed the hearing of the case to August ~4, 1968 for\n\nUMAR SAHEB v. KARJMSAB (Mitter,).) 969\n\nrecording the evidence of these two witnesses in respect of whom an application had been made by the election petitioner on the previous day.\n\nThe order Ex. 36 dated August 22, 1968 tends to show that the learned Judge was persuaded to do so by the mere fact that they were Government servants. He however recorded that the ends of justice required that these witnesses should be examined.\n\nHe fixed August 24, 1968 for further hearing of the matter and directed the issue of summonses to these two persons.\n\nThese two persons were examined on the 24th August as court witnesses and thereafter the argent of counsel was resumed and concluded.\n\nBy judgment delivered on August 30, 1968 the learned Judge allowed the election petition holding in favour of the petitioner on the first issue.\n\nThe ippellant before us presented an application . to the High Court under Arts. 226 and 227 of the Constitution for quashing the order of the Judge; but the High Court dismissed the writ petition in limine on October 4, 1968 and the appellant .has now come up before this Court by special leave.\n\nLearned counsel for the appellant raised five points before us.\n\nThe first point was that the procedure adopted by the trial court was wrong in that the two witnesses who were examined as court witnesses had been cited by the election petitioner earlier and the learned Jµdge had in the exercise of jurisdiction vested in him refused to issue summonses to them when he w&s asked to do so on August 21, 1968. It was urged that having rejected this application, it was not open to the Judge to examine these two persons as court witnesses and this was a serious irregularity which the High Court should have set right by quashing the order of the Judge based on the evidence of these witnesses.\n\nThe second point was that the election petition was filed beyond the period prescribed by the Act and as such it was not maintainable. The third point was that the first issue which was decided against the appellant was so confusing and misleading that there was no fair trial of the petition to the prejudice of the appellant.\n\nThe fourth point was that in any event there was no evidence of corruot practice of which the appellant could be found guilty.\n\nThe fifth point was that the order of the Judge disqualifying the appellant for a period of five year.s was unduly harsh and ought to be set aside.\n\nWith regard to the first point it is to be noted that the case of the election petitioner was that the appellant was guilty of publication of two pamphlets which cast serious aspersions on his character and conduct and prejudiced him materially in the eyes of the voters as a result whereof he lost the election and that the first of these also aroused the religious sentiments of the Muslim voters to his detriment. The appellant was found guilty of publication of tbe first pamphlet onl:r.\n\nTiiis was signed by\n\n\n(1969] 3 S.C.R.\n\nsix persons.\n\nThere was no evidence as to where it was printed or who got it printed.\n\nThe evidence adduced by the election petitioner was that the appellant had published all the phmphlets mentioned in the petition and distributed the same amongst the voters and the petitioner had come across the first pamphlet during the process of distribution. There can be no two opinions about the contents of the pamphlet being defamatory of the election petitio:ier's character.\n\nThe pamphlet read : \"H. K. Kadlaskar, who contests tne zlection from Ward No. 25 is an independent cand'.d.tte, has been ostracized from the Muslim community and he has no support of the Muslim community and therefore nobody should vote for him.\"\n\nWhile Kadlaskar was in charge of the management of the Kabarasthan, he was extracting Rs. 12 for allowing the members of Muslim community to bury their dead and had prohibited the burial of the dead bodies of dancing girls and had extracted hundreds of rupees from the persons whose dead were buried there.\n\nHe turned the Kabarasthan into a brothel and was trading in illicit liquor for which he was convicted. Recently he got published a pamphlet in the name of his mistress Noorjahan Bapulal Kavathekar to defame Mohamad Umar Shaikh and he is making some imputations against the private. character of Mohmad Umar and Moulana Innan and nobody should vote for this mean-minded and anti-social person.\n\nIn a meetinl! of the Muslim workers held on 29-4-1967 in _the Madina Masjid HaU under the presidentship of M. G. Shaikh it was resolved unanimously that in the place of Shaikh Usman Abdul Bidiwale the Congress ticket should be given to Umar Shaikh, who had the backing of Muslim community and that he did great public service in the past. So all the voters should cast vote in favour of Mohammad Umar Shaikh whose symbol is a pair of buUocks.\n\n(I) Ramjan Mohiddin Jamadar (Hundekari), Chairman Idgah Committee.\n\n(2) Shaik Abdul Sattar Rahimanbhai Bidi wale, Treasurer; Idgah Fund Committee. (3) Moulana Hannn. manager of Madrasa-e, Hidayatul Islam. and member of Madma Masjid ( 4) Kamalsaheb Babasaheb Shiledar, Chairman of Madina Masjid and member of Idgah Committee (5) Sayyed Amin, member of Madrasa-e-Hidayatul Islam and ldgah Committee. ( 6) Jalaloddin Allabus Sayyad. B.A.LLB., member of Madrasa-e-Hidayatul Islam.\" The appeUant who led evidence on hi~ on J; iehalf . denie~ the publication of the pamphlet and the d1stnbut10n of 1t by rm. as\n\naUeged by the petitioner. Nothing came out in cross-examma11on of the appeUant to substantiate the election petitioner's averment\n\nUMAR SAHEB v. KAR!MSAB (Mitter, /.) 971\n\nthat he was responsible for its distribution. Of the two witnesses who were examined as court witnesses by the Judge, the witness Gopal Chintaman Ghugare did not say anything material on the point of distribution by the appellant.\n\nHe merely said that he had seen people reading the pamphlet but h.~ did not know who had distributed it.\n\nThe other witness Hakim Abdul Rahiman Shaikh stated categorically that he had received a copy of the pamphlet on the day previous to the municipal election, that is to say, on June 2, 1967 and he gave full particulars as to bow he came to receive it.\n\nHe stated that he had attended a prayer meeting at a mosque on the 2nd June and after the Namaj was over the appellllflt had read over the pamphlet and one Moulana Hannan lent support to the appellant.\n\nIn cross-examination it was elicited from him that although he had occasion to see the distribution of other pamphlets, he could give no details thereof i.e. either about the person who distributed them or the dates when that was done. In cross-examination of this witness serious accusations were made against bis character and probably no exception could have been taken if the Judge bearing the matter had refused to believe him.\n\nHowever that may be, the learned Judge accepted his testimony and came to the conclusion that the appellant had been personally responsible for the distribution of the first pamphlet and as such found him guilty of a corrupt practice and made an order disqualifying him under the Act from taking part in municipal elections for the next five years.\n\nIt was strenuously argued by learned counsel for the appellant that the recepition of evidence of the two witnesses called as court witnesses vitiated the whole trial and therefore the High Court was not right in refusing to quash the order.\n\nOu~ attention was drawn to the provisions of 0. XVI r. 14 of the Code of Civil Procedure and particularly to the conditions under which the court may examine any person other than a party to the suit and not called as a witness by a party to the suit but of its own motion to give evidence therein. It was argued that after having turned down the application of the election petitioner on the 21st Auirnst for issue of summons to these two persons, the learned Judge clearly went wrong in allowing them to be called as court witnesses. In this connection we may note the provisions of s. 21 sub-s. 7 of the Maharashtra Municipalities Act, 1965.\n\nIt provides as follows :\n\n1 (7) For the trial of such petition, the Judge shall have all the powers of a civil court including power in respect of the following matters :-\n\n(a) discovery and inspection;\n\nSUPREME COURT.REPORTS\n\n(1969] 3 S.C.R.\n\n(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;\n\n(c) compelling the production. of documents; ( d) examining witnesses on oath; ( e) granting adjournments; ( f) reception of evidence on affidavit; and \\g) issuing commissions for the examination of witnesses; and the Judge may summon suo motu any person whose evidence appears to him to be material.\n\nThe Judge\n\nshall be deemed to be a Civil Court, within the meanc ing of sections 480 and 482 of the Code of Criminal Procedure, 1898.\" It appears that under this section, the Judge is given powers wider than those given by the Code of Civil Procedure undr\n\n0. 16 r. 14 inasmuch as the section does not prescribe any prerequisite to the examination of a person as court witness as en- D visaged by the Code of Civil Procedure. In our view, the learned Jud)!e had iurisdiction to call these two persons as witnesses under the provisions of the Act. We may note that even under the Representation of the People Act, 1951 which does not contain a similar provision it has been held by this Court that :\n\n\"although. . . . . . . . the trial court should be at E arms length and the court should not really enter into the dispute as a third party, but it is not to be understood that the Court never has the power to summon a witness or to call for a document which would throw light upon the matter. particularly of corrupt practice which is alleged and is being sought to be proved. If F the Court was satisfied that a corrupt practice has in act.been perpetrated, may be by one side or the other, it was absolutely necessary to find out who was the author of thftt corruot practice.\" (see R. M. Seshadri v. G.\n\nVasanta ai(l).\n\nIn that case, the corrupt practice with which the appellant was G charged was having used a large number of motor vehicles for the free co11veyance of vnters ai an election.\n\nThe trial Judge examined two witnesses as court witnesses and it is quite clear that but for the evidence of these two oersons, it would have been verv difficult. if not imoossible for the Judge to have come to the conclmion he did and find the aopellant j!Uilty of corrupt H nractice.\n\nA !though one of the two witnesses so examined had been cited earlier as a witness, by one of the parties, he was not\n\n(1) [1969]2 S, C.R. 1019.\n\nL'MAR MHEB \\'. KARIMSAB (Mitter, J.) 973\n\nexamined but during the course of the evidence led before the trial court, it became quite clear that the two persons who were called as court witnesses were fully conversant with the engagement of the motor vehicles and the court therefore examined them as court witnesses and on the basis of their evidence, found the appellant guilty of a corrupt practice. There, this Court had to deal with the provisions of O. 16 r. 14 and the quotation from that judgment shows that the powers of the court in this respect are of wide amplitude, specially when investigation is being made into allegations about the commission of a corrupt practice. It may be that in the instant case. if the two persons had not been examined, the Judge might well have decided the issue the other way.\n\nBut the Act certninly gave him the power to do so and no exception can be taken to the course adopted by the Judge although it must be recorded that his earlier order refusing to issue summonses to them in the first instance when asked to do so on the 21st August was hardly justifiable. Probably the learned Judge realised that his order of the 21st August needed recalling.\n\nThe appellant would have had a real cam'e for grievance if he had asked for an opportunitv to rebut the evidence of these two witnesses and had been denied the same but this has nowhere been alleged.\n\nOn the evidence no exception can be taken to the course adopt.d by the Judge in deciding the issue against the aopellant on the facts and circumstances of this case.\n\nIt mav be that the evidence which was adduced was not so immaculate that another learned Judge deciding the petition might not have taken a different view. But it cannot be said that there was no evidence on which the Judge could have come to the conclusion he did. The first point therefore fails.\n\nWith regard to the second point. the learned counsel argued by reference to two publications in the Maharashtra Gazette, the one of .Tune 8. 1967 and the other of June 15, 1967 that the first publication havino taken place on the 8th June the time-limit of ten davs fixed under s. 21 sub-s. (I) of the Act began to run from\n\nthnt clnte \"\"d the oetition which was filed on the 24th June was bevonrl time and should not have been entertained.\n\nIt is difficult for us to see whv two Gazette notifications had become necessary.\n\nOne seems to be the verbatim reprint of the other.\n\nThe first nublic8tion dated Rth June is he8de<l \"Maharnshtra Government Ga7ette-F, trnordinarv-Official Publication\" wliile the other is headed \"Maharashtra Government Gazette-Official Publication\". The first bears the date 8th June and the second bears the date 15th .Tune and both start with the sentence \"in accordance with s. 19(1) of the Maharashtra Municipalities Act. 1965 it is declarerl that in respect of the Sanli Municil'al Council General Elections held on 3rd June 1967, the below mentionM candidates are elected from the below mentioned\n\nSUPREME COU&T &EPO&TS\n\n\nwards for the seats mentioned as against their names\".\n\nAs a matter of fact, it does not appear that there is any difI.erence between the two Gazettes with regard to the names of the successful councillors.\n\nThe appellant might have, if so minded, set up the first Gazette publication as the one fixing the period of limitation in which case the trial Judg.e would have been required to go into the matter.\n\nBut the appellant precluded himself from doing so by his unconditional acceptance of the statements in paragraphs 1 and 2 of the petition. If the point had been canvassed before the learned trial Judge, he would certainly have gone into the matter and found out why there were two Gazette Publications and which was the publication to be taken into account for computation of the period of limitation prescribed by s. 21 (I ) of the Act. There was no error apparent on the face of the record before the High Court and consequently the jurisdiction under Art. 226 of the Constitution could not have been exercised on the facts of the case by the issue of a writ of certiorari. Neither could the High Court have set aside the order of the trial court under Art. 227 of the Constitution under which the High Court's power of superintendence is confined to seeing that the trial court had not transgressed the limits imposed by the Act. On the facts of the case the High Court was not called upon to go into this question.\n\nThere is certainly some substance in the grievance raised on behalf of the appellant that the first issue was rather confusing and misleading. Instead of framing a separate issue with regard to each charge of corrupt practice raised in the petition, the learned Judge framed the issue in a manner which leaves much t() be desired. For instance he should have framed separate issue with regard to each of the pamphlets. The issues should further have specified the different heads of corrupt practice .committed in respect of each of the pamphlets. We cannot, however, come to the conclusion that because of the unsatisfactory nature of the issues framed, the whole trial is vitiated.\n\nThe appellant knew exactly what points he had to meet. Evidence was adduced about the publication and distribution of the pamphlets by the election petitioner and contradicted by the appellant.\n\nAs we have already stated, although the evidence about the distribution of the pamphlet was meagre and not beyond reproach. it was not for the High Court to take the view that the order ought to be quashed on the ground that there was no evidence. It was urged by learned counsel for the appellant that there was enough material for the court to come to the conclusion that Hakim Abdul Rahiman Shaik was not a person whose veracity could not be depended upon. There is much that can be said aiminst him but this does not mean that everything deposed to by him should be rejected and when the trial Judge accepted the evidence with regard to the distribution of the pamphlet by the appellant the }iigh Court\n\nUMAR SAHEB v. KARIMSAB (Mitter, J.) 975\n\nwhich was not hearing an appeal could not be expected to take a different view in exercising jurisdiction umler Arts. 226 and 227 of the Constitution and for ourselves, we see no reason to interfere with the order of the High Court.\n\nThe fourth point too is not one of substance. 1f the distribution of the pamphlet be accepted, there can be no doubt that the appellant was guilty of trying to arouse religious sentiments of the voters of the particular ward a majority of whom were Muslims. The pamphlet starts off by describing the election petitioner as a person ostracised from the Muslim community. If this statement was true, naturally any right-thinking Muslim would think twice before casting his vote in favour of such a person.\n\nThere was also a charge in that pamphlet that he had turned the Kabarasthan into a brothel and was trading in illicit liquor for which was alleged to have been convicted.\n\nIn our view, there is no merit in this point raised by the learned counsel.\n\nAs regards the last point, it was for the learned Judge to have come to his own conclusion as to the period of disqualification.\n\nThe maximum penalty which the Act allowed him to impose was disqualification for six years and we see no reason to take any exception to the disqualification actually imposed.\n\nAs noted above, the allegations of corrupt practice were of a serious nature and if the appellant was found guilty of the commission thereof, the period of five years' disqualification would certainly not be inappropriate.\n\nIn the result, therefore, the appeal fails; but in the circumstances of this case, we make no order as to costs.\n\nR.K.P.S.\n\nAppeal dismissed.", "total_entities": 78, "entities": [{"text": "SHAIK MOHAMMAD UMAR SAHEB", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "SHAIK MOHAMMAD UMAR SAHEB", "offset_not_found": false}}, {"text": "KALASKAR BASHAM KARIMSAB & ORS", "label": "RESPONDENT", "start_char": 30, "end_char": 60, "source": "metadata", "metadata": {"canonical_name": "KALASKAR HASHAM KARIMSAB & ORS", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH, C.J.", "label": "JUDGE", "start_char": 80, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH*", "offset_not_found": false}}, {"text": "G. K. MITTER, J.J", "label": "JUDGE", "start_char": 106, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "G.K. MITTER", "offset_not_found": false}}, {"text": "Election petition-Maharashtra Municipalities Act 1965", "label": "STATUTE", "start_char": 125, "end_char": 178, "source": "regex", "metadata": {}}, {"text": "s. 21(1)", "label": "PROVISION", "start_char": 180, "end_char": 188, "source": "regex", "metadata": {"linked_statute_text": "Election petition-Maharashtra Municipalities Act 1965", "statute": "Election petition-Maharashtra Municipalities Act 1965"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 416, "end_char": 437, "source": "regex", "metadata": {}}, {"text": "Arts. 226 and 221", "label": "PROVISION", "start_char": 438, "end_char": 455, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Maharashtra Municipalities Act, 1965", "label": "STATUTE", "start_char": 638, "end_char": 674, "source": "regex", "metadata": {}}, {"text": "Arts. 226 and 227", "label": "PROVISION", "start_char": 1275, "end_char": 1292, "source": "regex", "metadata": {"linked_statute_text": "the Maharashtra Municipalities Act, 1965", "statute": "the Maharashtra Municipalities Act, 1965"}}, {"text": "s. 21(7)", "label": "PROVISION", "start_char": 2312, "end_char": 2320, "source": "regex", "metadata": {"statute": null}}, {"text": "Maharashtra Municipalities Act, 1965", "label": "STATUTE", "start_char": 2328, "end_char": 2364, "source": "regex", "metadata": {}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 2426, "end_char": 2453, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Order 16, Rule 14", "label": "PROVISION", "start_char": 2460, "end_char": 2477, "source": "regex", "metadata": {"linked_statute_text": "the Maharashtra Municipalities Act, 1965", "statute": "the Maharashtra Municipalities Act, 1965"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 2598, "end_char": 2625, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "[1969] 2 S.C.R. 1019", "label": "CASE_CITATION", "start_char": 2786, "end_char": 2806, "source": "regex", "metadata": {}}, {"text": "Arts. 226 and 227", "label": "PROVISION", "start_char": 3365, "end_char": 3382, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "15th June, 1967", "label": "DATE", "start_char": 3847, "end_char": 3862, "source": "ner", "metadata": {"in_sentence": "But the appellant had precluded himself from doing so by his unconditional acceotance of the statement in the petition that the result was published on 15th June, 1967."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 3981, "end_char": 3989, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 227", "label": "PROVISION", "start_char": 4178, "end_char": 4186, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "R. B. Datar", "label": "LAWYER", "start_char": 5280, "end_char": 5291, "source": "ner", "metadata": {"in_sentence": "R. B. Datar and S. N. Prasad, for respondent No."}}, {"text": "S. N. Prasad", "label": "LAWYER", "start_char": 5296, "end_char": 5308, "source": "ner", "metadata": {"in_sentence": "R. B. Datar and S. N. Prasad, for respondent No."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 5333, "end_char": 5344, "source": "ner", "metadata": {"in_sentence": "l,\n\nS. P. Nayar, for respondents Nos."}}, {"text": "Mitter", "label": "JUDGE", "start_char": 5419, "end_char": 5425, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Mitter, J. This is an appeal by special leave from an order of the Bombay High Court dismissing in limine an application under Arts; 226 and 227 of the Constitution and refusing to quash the Judgment and order of the Assistant Judge at Sang!i rendered in Election Petition No."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 5486, "end_char": 5503, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Mitter, J. This is an appeal by special leave from an order of the Bombay High Court dismissing in limine an application under Arts; 226 and 227 of the Constitution and refusing to quash the Judgment and order of the Assistant Judge at Sang!i rendered in Election Petition No."}}, {"text": "Maharashtra Municipalities Act, 1965", "label": "STATUTE", "start_char": 5826, "end_char": 5862, "source": "regex", "metadata": {}}, {"text": "June 4, l967", "label": "DATE", "start_char": 5992, "end_char": 6004, "source": "ner", "metadata": {"in_sentence": "25 on June 4, l967."}}, {"text": "30th May 1967", "label": "DATE", "start_char": 6862, "end_char": 6875, "source": "ner", "metadata": {"in_sentence": "Another similar ground based on a defamatory pamphlet dated 30th May 1967 was urged in the petition .. Charges of terrorising voters and securing _votes by false personation were also levelled therein."}}, {"text": "Hakim Abdul Rahiman Shaikh", "label": "OTHER_PERSON", "start_char": 8162, "end_char": 8188, "source": "ner", "metadata": {"in_sentence": "It appears that the petitioner had in the list of witnesses filed bv him, G mentioned the name of two persons, Hakim Abdul Rahiman Shaikh and Gopal Chintaman Ghugare and that these two persons had attended the court on certain days when they were not examined.", "canonical_name": "Hakim Abdul Rahiman Shaikh"}}, {"text": "Gopal Chintaman Ghugare", "label": "OTHER_PERSON", "start_char": 8193, "end_char": 8216, "source": "ner", "metadata": {"in_sentence": "It appears that the petitioner had in the list of witnesses filed bv him, G mentioned the name of two persons, Hakim Abdul Rahiman Shaikh and Gopal Chintaman Ghugare and that these two persons had attended the court on certain days when they were not examined."}}, {"text": "August 21, 1968", "label": "DATE", "start_char": 8316, "end_char": 8331, "source": "ner", "metadata": {"in_sentence": "On August 21, 1968 the petitioner made an application b.efore the Judge for issuing summons on these two persons as his witnesses, but the learned Judge rejected that appli- H cation."}}, {"text": "August 22, 1968", "label": "DATE", "start_char": 8575, "end_char": 8590, "source": "ner", "metadata": {"in_sentence": "The appellant's case was closed on the same day and tbe arguments started on August 22, 1968."}}, {"text": "August 24, 1968", "label": "DATE", "start_char": 9112, "end_char": 9127, "source": "ner", "metadata": {"in_sentence": "He fixed August 24, 1968 for further hearing of the matter and directed the issue of summonses to these two persons."}}, {"text": "August 30, 1968", "label": "DATE", "start_char": 9381, "end_char": 9396, "source": "ner", "metadata": {"in_sentence": "By judgment delivered on August 30, 1968 the learned Judge allowed the election petition holding in favour of the petitioner on the first issue."}}, {"text": "Arts. 226 and 227", "label": "PROVISION", "start_char": 9577, "end_char": 9594, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "October 4, 1968", "label": "DATE", "start_char": 9712, "end_char": 9727, "source": "ner", "metadata": {"in_sentence": "226 and 227 of the Constitution for quashing the order of the Judge; but the High Court dismissed the writ petition in limine on October 4, 1968 and the appellant .has now come up before this Court by special leave."}}, {"text": "H. K. Kadlaskar", "label": "OTHER_PERSON", "start_char": 12126, "end_char": 12141, "source": "ner", "metadata": {"in_sentence": "The pamphlet read : \"H. K. Kadlaskar, who contests tne zlection from Ward No."}}, {"text": "Kadlaskar", "label": "OTHER_PERSON", "start_char": 12359, "end_char": 12368, "source": "ner", "metadata": {"in_sentence": "While Kadlaskar was in charge of the management of the Kabarasthan, he was extracting Rs."}}, {"text": "Noorjahan Bapulal Kavathekar", "label": "OTHER_PERSON", "start_char": 12829, "end_char": 12857, "source": "ner", "metadata": {"in_sentence": "Recently he got published a pamphlet in the name of his mistress Noorjahan Bapulal Kavathekar to defame Mohamad Umar Shaikh and he is making some imputations against the private."}}, {"text": "Mohamad Umar Shaikh", "label": "OTHER_PERSON", "start_char": 12868, "end_char": 12887, "source": "ner", "metadata": {"in_sentence": "Recently he got published a pamphlet in the name of his mistress Noorjahan Bapulal Kavathekar to defame Mohamad Umar Shaikh and he is making some imputations against the private.", "canonical_name": "Mohammad Umar Shaikh"}}, {"text": "Mohmad Umar", "label": "OTHER_PERSON", "start_char": 12956, "end_char": 12967, "source": "ner", "metadata": {"in_sentence": "character of Mohmad Umar and Moulana Innan and nobody should vote for this mean-minded and anti-social person."}}, {"text": "Moulana Innan", "label": "RESPONDENT", "start_char": 12972, "end_char": 12985, "source": "ner", "metadata": {"in_sentence": "character of Mohmad Umar and Moulana Innan and nobody should vote for this mean-minded and anti-social person.", "canonical_name": "Moulana Hannan"}}, {"text": "29-4-1967", "label": "DATE", "start_char": 13099, "end_char": 13108, "source": "ner", "metadata": {"in_sentence": "of the Muslim workers held on 29-4-1967 in _the Madina Masjid HaU under the presidentship of M. G. Shaikh it was resolved unanimously that in the place of Shaikh Usman Abdul Bidiwale the Congress ticket should be given to Umar Shaikh, who had the backing of Muslim community and that he did great public service in the past."}}, {"text": "M. G. Shaikh", "label": "OTHER_PERSON", "start_char": 13162, "end_char": 13174, "source": "ner", "metadata": {"in_sentence": "of the Muslim workers held on 29-4-1967 in _the Madina Masjid HaU under the presidentship of M. G. Shaikh it was resolved unanimously that in the place of Shaikh Usman Abdul Bidiwale the Congress ticket should be given to Umar Shaikh, who had the backing of Muslim community and that he did great public service in the past."}}, {"text": "Shaikh Usman Abdul Bidiwale", "label": "OTHER_PERSON", "start_char": 13224, "end_char": 13251, "source": "ner", "metadata": {"in_sentence": "of the Muslim workers held on 29-4-1967 in _the Madina Masjid HaU under the presidentship of M. G. Shaikh it was resolved unanimously that in the place of Shaikh Usman Abdul Bidiwale the Congress ticket should be given to Umar Shaikh, who had the backing of Muslim community and that he did great public service in the past."}}, {"text": "Umar Shaikh", "label": "OTHER_PERSON", "start_char": 13291, "end_char": 13302, "source": "ner", "metadata": {"in_sentence": "of the Muslim workers held on 29-4-1967 in _the Madina Masjid HaU under the presidentship of M. G. Shaikh it was resolved unanimously that in the place of Shaikh Usman Abdul Bidiwale the Congress ticket should be given to Umar Shaikh, who had the backing of Muslim community and that he did great public service in the past."}}, {"text": "Mohammad Umar Shaikh", "label": "OTHER_PERSON", "start_char": 13442, "end_char": 13462, "source": "ner", "metadata": {"in_sentence": "So all the voters should cast vote in favour of Mohammad Umar Shaikh whose symbol is a pair of buUocks.", "canonical_name": "Mohammad Umar Shaikh"}}, {"text": "Ramjan Mohiddin Jamadar", "label": "OTHER_PERSON", "start_char": 13503, "end_char": 13526, "source": "ner", "metadata": {"in_sentence": "(I) Ramjan Mohiddin Jamadar (Hundekari), Chairman Idgah Committee."}}, {"text": "Shaik Abdul Sattar Rahimanbhai Bidi", "label": "RESPONDENT", "start_char": 13571, "end_char": 13606, "source": "ner", "metadata": {"in_sentence": "(2) Shaik Abdul Sattar Rahimanbhai Bidi wale, Treasurer; Idgah Fund Committee. ("}}, {"text": "Moulana Hannn", "label": "RESPONDENT", "start_char": 13650, "end_char": 13663, "source": "ner", "metadata": {"in_sentence": "3) Moulana Hannn.", "canonical_name": "Moulana Hannan"}}, {"text": "Kamalsaheb Babasaheb Shiledar", "label": "RESPONDENT", "start_char": 13736, "end_char": 13765, "source": "ner", "metadata": {"in_sentence": "and member of Madma Masjid ( 4) Kamalsaheb Babasaheb Shiledar, Chairman of Madina Masjid and member of Idgah Committee (5) Sayyed Amin, member of Madrasa-e-Hidayatul Islam and ldgah Committee. ("}}, {"text": "Sayyed Amin", "label": "RESPONDENT", "start_char": 13827, "end_char": 13838, "source": "ner", "metadata": {"in_sentence": "and member of Madma Masjid ( 4) Kamalsaheb Babasaheb Shiledar, Chairman of Madina Masjid and member of Idgah Committee (5) Sayyed Amin, member of Madrasa-e-Hidayatul Islam and ldgah Committee. ("}}, {"text": "Jalaloddin Allabus Sayyad", "label": "RESPONDENT", "start_char": 13902, "end_char": 13927, "source": "ner", "metadata": {"in_sentence": "6) Jalaloddin Allabus Sayyad."}}, {"text": "Gopal Chintaman Ghugare", "label": "WITNESS", "start_char": 14407, "end_char": 14430, "source": "ner", "metadata": {"in_sentence": "Of the two witnesses who were examined as court witnesses by the Judge, the witness Gopal Chintaman Ghugare did not say anything material on the point of distribution by the appellant."}}, {"text": "Hakim Abdul Rahiman Shaikh", "label": "WITNESS", "start_char": 14633, "end_char": 14659, "source": "ner", "metadata": {"in_sentence": "The other witness Hakim Abdul Rahiman Shaikh stated categorically that he had received a copy of the pamphlet on the day previous to the municipal election, that is to say, on June 2, 1967 and he gave full particulars as to bow he came to receive it."}}, {"text": "June 2, 1967", "label": "DATE", "start_char": 14791, "end_char": 14803, "source": "ner", "metadata": {"in_sentence": "The other witness Hakim Abdul Rahiman Shaikh stated categorically that he had received a copy of the pamphlet on the day previous to the municipal election, that is to say, on June 2, 1967 and he gave full particulars as to bow he came to receive it."}}, {"text": "Moulana Hannan", "label": "RESPONDENT", "start_char": 15023, "end_char": 15037, "source": "ner", "metadata": {"in_sentence": "He stated that he had attended a prayer meeting at a mosque on the 2nd June and after the Namaj was over the appellllflt had read over the pamphlet and one Moulana Hannan lent support to the appellant.", "canonical_name": "Moulana Hannan"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 16158, "end_char": 16185, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 21", "label": "PROVISION", "start_char": 16682, "end_char": 16687, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 16692, "end_char": 16696, "source": "regex", "metadata": {"statute": null}}, {"text": "Maharashtra Municipalities Act, 1965", "label": "STATUTE", "start_char": 16704, "end_char": 16740, "source": "regex", "metadata": {}}, {"text": "sections 480 and 482", "label": "PROVISION", "start_char": 17449, "end_char": 17469, "source": "regex", "metadata": {"linked_statute_text": "the Maharashtra Municipalities Act, 1965", "statute": "the Maharashtra Municipalities Act, 1965"}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 17477, "end_char": 17509, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 17600, "end_char": 17627, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 17774, "end_char": 17801, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "may note that even under the Representation of the People Act, 1951", "label": "STATUTE", "start_char": 17927, "end_char": 17994, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "L'MAR MHEB", "label": "JUDGE", "start_char": 19308, "end_char": 19318, "source": "ner", "metadata": {"in_sentence": "L'MAR MHEB \\'."}}, {"text": "KARIMSAB", "label": "JUDGE", "start_char": 19323, "end_char": 19331, "source": "ner", "metadata": {"in_sentence": "KARIMSAB (Mitter, J.) 973\n\nexamined but during the course of the evidence led before the trial court, it became quite clear that the two persons who were called as court witnesses were fully conversant with the engagement of the motor vehicles and the court therefore examined them as court witnesses and on the basis of their evidence, found the appellant guilty of a corrupt practice."}}, {"text": ".Tune 8. 1967", "label": "DATE", "start_char": 21305, "end_char": 21318, "source": "ner", "metadata": {"in_sentence": "the learned counsel argued by reference to two publications in the Maharashtra Gazette, the one of .Tune 8."}}, {"text": "June 15, 1967", "label": "DATE", "start_char": 21336, "end_char": 21349, "source": "ner", "metadata": {"in_sentence": "1967 and the other of June 15, 1967 that the first publication havino taken place on the 8th June the time-limit of ten davs fixed under s. 21 sub-s. (I) of the Act began to run from\n\nthnt clnte \"\"d the oetition which was filed on the 24th June was bevonrl time and should not have been entertained."}}, {"text": "s. 21", "label": "PROVISION", "start_char": 21451, "end_char": 21456, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19(1)", "label": "PROVISION", "start_char": 22077, "end_char": 22085, "source": "regex", "metadata": {"statute": null}}, {"text": "Sanli Municil'al Council", "label": "ORG", "start_char": 22169, "end_char": 22193, "source": "ner", "metadata": {"in_sentence": "1965 it is declarerl that in respect of the Sanli Municil'al Council General Elections held on 3rd June 1967, the below mentionM candidates are elected from the below mentioned\n\nSUPREME COU&T &EPO&TS\n\nwards for the seats mentioned as against their names\"."}}, {"text": "s. 21", "label": "PROVISION", "start_char": 23150, "end_char": 23155, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 23289, "end_char": 23297, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 227", "label": "PROVISION", "start_char": 23490, "end_char": 23498, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Hakim Abdul Rahiman Shaik", "label": "OTHER_PERSON", "start_char": 25009, "end_char": 25034, "source": "ner", "metadata": {"in_sentence": "It was urged by learned counsel for the appellant that there was enough material for the court to come to the conclusion that Hakim Abdul Rahiman Shaik was not a person whose veracity could not be depended upon.", "canonical_name": "Hakim Abdul Rahiman Shaikh"}}, {"text": "Arts. 226 and 227", "label": "PROVISION", "start_char": 25496, "end_char": 25513, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}]}
{"document_id": "1969_3_976_982_EN", "year": 1969, "text": "SWARAN LATA GHOSH\n\nH. K. BANERJEE AND ANR.\n\nMarch 12, 1969\n\n(J. C. SHAH AND A. N. GROVER, JJ.)\n\nPractice and Procedure-Chartered High Court-Judgment-Duty to give reasons.\n\nAfter the death of the appellant's husband who was an attorney-atlaw, the first respondent filed a suit on the original side of the Calcutta High Court against the appellant and her minor son, for a decree for Rs. 15,000 and interest claiming that the amount was deposited with the appellant's husband for the purpose of investing it and that the appellant's husband agreed to pay interest at certain rates.\n\nThe appellant filed a written statement denying the claim in its entirety. The first respondent produced extracts of bank accpunts to show that the money had passed but there was no documentary evidence supporting the case relating to the agreement between him and the appellant's husband.\n\nTo prove his case and the terms of the deposit which according to him were orally agreed upon, the first respondent examined himself and three other wit~ nesses.\n\nThe appellant appeared by counsel and the cross-examination on behalf of the appellant was elaborate and showed that the claim wa, s contested fully and that the defence was not confined to the extent of the appellant's liability.\n\nThe trial Judge gave a pe'rsonal decree against the appellant but did not frame any issues or record any reasons in support of his conclusion.\n\nIn appeal under the Letters Patent, thou2h several grounds on the merits were raised in the memorandum of appeal, the appellate Bench also did not give any reasons but merely modified the decree by limiting it to the estate inherited by the appellant.\n\nIn appeal to this Court,\n\nHELD: Under 0. XLIX, r. 3(5), Civil Procedure Code, rr. 1 to' 8 of O. XX do not apply to a Chartered High Court in the exercise of its ordinary or extraordinary original jurisdiction, and hence, a Judge of a Chartered High Court is not obliged to record a judgment giving reasons in accordance withthe provisions of 0. XX, rr. 4(2) and s.· But the High Court must exercise judicial discretion in exercising that powe'r, be\n\ncause, the recording of reasons is intended to ensure that the decision was not the result of a whim or fancy but of a judicjal approach, that the adjudication was according to law and procedure established by law, and that when the judgment is subject to appeal, the .Appellate Court may have adequate material on which it may determine whethe~ the fac~ \\~:ee properly ascertained and te law has been corectly apphd esulting ID a just decision.\n\nThe privilege of not recording reasons IS mtended to apply where the action is undefended, wher~ the parties are not at isse on any substantial auer.~ in a summary trial were. leav~ to efend is not granted, in making interlocutory orders or m disposing of formal proceedings. [979 F-H; 980 F-Hl\n\nIn the present case, since there \\Vas a contes~ _on m.erits, in the absenef of any documentary evidence in the hand-wntmg of the appellants husband, the burden of proving hi• claim lay on the J!rst respondent, and the oral testimony adduced by him had to be exammed m the context\n\nSWARAN LATA V, H. K. BANERJEE (Shah, J,) 977\n\nof : (a) absence of correspondence relating to the transactions between the first respondent and the appellant's husband; (b) absence of books of account in support of the transaction; (c) improbability of such a transaction between an attorney and his tjlient; (d) absence of previous business o:r professional relationship between the first respondent and appellant's husband; (e) absence of vouchers supporting the alleged payment of interest, and similar weighty circumstances. In reaching his con clusion, the trial Judge had to consider the probabilities and circumstances of the case and hence, there should have been a full record of the reasons for his conclusion.[980 A-E; 981 D-G)\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 662 of 1966.\n\nAppeal by special leave from the judgment and order date<.!\n\nAugust 4, 1964 of the Calcutta High Court in Appeal from Original Order No. 99 of 1963.\n\nD. N. Mukherjee, for the appellant.\n\nS. C. Majumdar, for the respondents.\n\nThe Judgment of the Court was delivered by Shah, J.\n\nBirendra Krishna Ghosh-hereinafter called \"Ghosh-was practising as an attorney-at-law in the High Court of Calcutta. He died in August 1950. H. K. Banerje~\n\nthe first respondent herein-commenced in 1951 an action in 'he High Court of Calcutta on the original side against Swaran\n\n.ata and Arun Kumar-widow and minor son respectively of Jhosh-for a decree for Rs. 15,000 claiming that it was the balance of \"capital deposits\" due to him from Ghosh and Rs. 1,535 interest due thereon.\n\nThe plaintiff claimed that he had deposited with Ghosh Rs. 6,000 on December 10, 1946 for the \"specific purpose of investing the amount\" and the latter agreed to pay interest at the rate o.f 6% per annum and to repay the same or any portion thereof when demanded; that on or about February 17, 1948, he had deposited Rs. 10,000 with Ghosh also for \"the specific purpose of investing\" that sum, and the latter had agreed to pay interest at the rate of 7 % per annum and to repay the same or part thereof when demanded; that under the agreement Ghosh paid diverse sums of money as interest, and on July 3, 1947 Ghosh repaid Rs. 1,000 out of Rs. 6,000 deposited; and that the balance of Rs. 15,000 and Rs. 1,535 interest due thereon were repayable by the defendants to the plaintiff.\n\nSwaran Lata filed a written statement denying the claim of the plaintiff. She denied that the sums of Rs. 6,000 and Rs. 10,000 were entrusted to or deposited with her husband as alleged by the plintiff; she denied that her husband repaid any amounts towards mterest or part payment of principal; and she\n\n978 ,\n\nSUPREME COURT REPORTS\n\n[ 1969] 3 S.C.R. i submitted that the suit was in any event barred by the law of A limitation.\n\nThe trial of the suit commenced before Law, J., on July 12,\n\n1962. In support of the plaintiffs case four witnesses were examined. The plaintiff tendered in evidence extracts from certain Bank accounts and correspondence. He produced no documentary evidence in support of his case that any amount was deposited with Ghosh, on terms set out in the plaint. Apparently he relied upon the entries in the extracts from the statements of account with the United Bank of India Ltd., the Imperial Bank of India, the Hooghly Bank Ltd. and correspondence between him and Swaran Lata. The learned Judge by order dated August 17, 1962, passed the following order :\n\n\"There will be a decree for Rs. 15,000 with interest on judgment on Rs. 15,000 at 6% per annum and costs.\n\nNo interim inrerest allowed.\"\n\nPursuant to that order a decree was drawn up.\n\nAgainst the decree Swaran Lata appealed to the High Court under cl. 15 of the Letters Patent, and raised several grounds in the memo of appeal on -the merits. The High Court disposed of the appeal by a short judgment observing :\n\n\"We think that the plaintiff sufficiently proved the case made in the plaint. On the 10th December, 1946 the plaintiff entrusted and deposited with Birendra Krishna Ghosh a sum of Rs. 6,000 for the express and specific purpose. of investing the sum to yield interest at the rate of 6% per annum. He also entrusted and deposited with Bircndra Krishna Ghose on the 17th February 1948 a sum of Rs. 10,000 for 'the express and specific purpose of investing the sum to yield interest at the rate of 7% per annum.'\" The Court observed that the amounts paid to Ghosh were deposits, within the meaning of Art. 60 of the Indian Limitation Act,\n\n1908, and since interest was paid in respect of both the deposits within three years of the institution of the suit, no question of limitat.ion arose, and the Trial Court had \"rightly decreed the suit.'' The High Court, however, modified the decree passed by the Trial Court and declared that the liability of the defendants was not persona] and was limited only to \"the assets and properties\" of Ghosh received by them.\n\nWith special leave, Swaran Lata Ghosh has appealed to this Court.\n\nThe defendants had filed a written statement denying the avernments in the plaint and had contested the claim of the plaintiff.\n\nThe learned Judg.o apparently raised no issues.\n\nWe have found in the printed paper book no record of any issues raised.\n\nSWARAN LATA V. 11. K. BANERJ.l!E (Shah, J,) 979\n\nOn behalf of the plaintiff, witnesses were examined to prove the two deposits and the terms of the deposit which it was claimed were orally agreed upon. Th=re was no documentary evidence supporting the case of the plaintiff relating to the agreements between him and Ghosh.\n\nThere was also no documentary evidence supporting the case of payment of interest on the amounts deposited, or of re-payment of a part of the principal.\n\nIndisputably the pleadings of the parties raised substantial issues of fact for trial, and a lengthy trial was held. But the kamed Trial Judge delivered no judgment. He merely decreed the claim.\n\nThe decree was on the face of it erroneous, because it directed\n\nSwaran Lala and her minor son Arun Kumar personally to pay the amount decreed; Trial of a civil dispute in Court is intended to achieve, according to Jaw and the procedure of the Court, a judicial deterntination between the contesting parties of the matter in controversy.\n\nOpportunity to the parties interested in the dispute to present their respective cases on questions of Jaw as well as fact, ascertainment of facts by means of evidence tendered by the parties, and adjudication by a reasoned judgment of the dispute upon a finding on the facts in controversy and application of the Jaw to the facts found, are essential attributes of a judicial trial. In a judicial trial the Judge not only must reach a conclusion which he regards as just, but, unless otherwise permitted, by the practice of the Court or by law, he must record the ultimate mental process leading from the dispute to its solution. - A judicial determination of a disputed claim where substantial questions of law or fact arise is satisfactorily reached, only if it be supported by the most cogent reasons that suggest themselves to the Judge : a mere order deciding the matter in dispute noi supported by reasons is no judgment at all. Recording of reasons in support of a decision of a disputed claim serves more purposes than one.\n\nIt is intended to ensure that the decision is not the result of whim or fancy, but of a judicial approach to the matter in contest : it is also intended to ensure adiudication of the matter according to Jaw and the procedure established by Jaw. A party to the dispute is ordinarily entitled to know the grounds on which the Court has decided against him, and more so, when the judgment is subject to appeal. The Appellate Court will then have adequate material on which it may determine whether the facts are properly ascertained, the Jaw has been correctly applied and the resultant decision is just. It is unfortunate that the learned Trial- Judge has recorded no reasons in support of his conclusion, and the High Court in appeal merely recorded that they thought that the plaintiff had sufficiently proved the case in the plaint.\n\nThe defendants it is true Jed no oral evidence and produced no documentary evidence: But the defendants -had apparently LU Sup CJ/69-13\n\n~80\n\nSUPREME COURT REPORTS (I 969) 3 s.C.R\n\nno personal knowledge about the transactions and there is no clear evidence on the record that the first defendant Swaran Lata had in her possession any books of account of the deceased which she could have produced and had withheld. The burden of proving the claim in all its details lay upon the plaintiff. Absence of documentary evidence in support of the case. made the burden more onerous.\n\nWe are unable to agree with counsel for the plaintiff that \"for all practical purposes\" the action was undefended and that the Trial Judge recorded merely formal evidence in proof of the plaintiff's case.\n\nThe defendants had filed a written statement denying the plaintiff's claim, had appeared by counsel at the trial, and had challenged the plaintiff's evidence by intensive cross-examination.\n\nThe plaintiff who was the principal witness was asked as many as 31 7 questions and his examination appears to have. taken the better part of a day.\n\nIn the course of the examination in attempting to elicit the truth the learned Judge took no mean or insignificant part. Three more witnesses were also examined.\n\nWe are also unable to agree that the only plea raised at the trial and in the Court of appeal was about the personal liability of the defendants. The evidence led at the trial and the crossexamination amply establish that the defendants defended the claim on the merits.\n\nThe High Court in appeal modified the decree and restricted it to the estate inherited by the defendants from Ghosh. But there is no reason to hold that the only point argued before the Trial Court related to the extent of liability of the defendants. The grounds in the memorandum of appeal belie that submission. ·\n\nIt is true that rr. I to 8 of 0. 20 of the Code of Civil Procedure are, by the express provision contained in 0. 49 r. 3 cl. ( 5) inapplicable to a Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction. A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in rules 4 (2) and 5 of 0. 20 Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on anv substantial matter, in a summary trial of an action where leave to defend is not granted, in making interlocutory orders or in disposing of formal proceedings and the like. Order 49 r. 3 of the Code of Civil Procedure undoubtedly applies. to the trial of suits; but the question is not one merely of power but of exercise of judicial discretion in the exercise of that power. The function of a judicial trial is tu hear and decide a matter in contest between the parties in open court in the presence of parties\n\nG •\n\nSWARAN LATA v. a 1:. BANELJEE (Shah, I.) 981\n\naccording to the procedure prescribed for investigation of the dispute, and the rules of evidence. The conclusion of the Court ought normally to be supported by reasons duly recorded. This\n\nrequirement transcends all technical rules of procedwe.\n\nWe may assume that the learned Trial Iudge was satisfied that the claim of the plaintiff deserved to be decreed. But the judgment of the learned Trial Judge was not final : it was subject to appeal and unkss there was a reasoned judgment recorded by the Trial Judge, an appeal against the judgment may turn out to be an empty formality. A CoUit of appeal generally attaches great value to the views formed by the Judge of First Instance who had seen the witnesses and noted their demeanour. How the Judge who tried the suit reacted to the evidence of a witness may not always be found from the printed record.\n\nThe plaintiff's case was founded upon extracts of Bank accounts : the extracts however do not evidence the agreement under which the money passed from the plaintiff to Ghosh. The plaintiff had to prove not only that money passed from him to Ghosh; he had to prove that money passed under the agreement pleaded by him. Oral testimony of the plaintiff had to be examined in the context of several weighty circumstances e.g. complete absence of documentary evidence in the handwriting of Ghosh; absence of correspondence relating to the transactio.as between Ghosh and the plaintiff; absence of books of account in support of the transactions; improbability of a transaction of the nature pleaded between an attorney and the plaintiff; absence of any previous business or professional relationship between Ghosh and the pla'1!tiff; absence of vouchers supporting the alleged payment of interest and repayment of part of the principal and other important circumstances. In reaching a conclusion the Court had to consider the probabilities and the circumstances in which the plaintiff alleged that he had deposited the two sums of money with Ghosh. It was essentially a case in which there should have been a full record of the reasons which persuaded the learned Trial Judge to reach the conclusion he did. A mere order directing payment of the money, not supported by reasons, does not do duty for a judgment according to law.\n\nWe are, therefore, constrained to come to the conclusion that there has been no real trial of the defendants' case. It is a very unfortunate state of affairs that eighteen years after the date on which the suit was instituted, we have to remand the suit for trial according to law. But we sec no other satisfactory alternative.\n\nThe decree passed by the High Court is set aside. The suit stands remanded to the Court of First Instance for trial according to law. It will be open to the learned Judge who tries the suit io proceed on tke evidence already on the record.\n\nH the\n\n!182\n\nSUPREME COURT REPORTS ( i969] 3 S.CJl.\n\nparties desire to lead any additional evidence, he will give them opportunity in that behalf. If the learned Judge is of the opinion that the witnesses should be examined over again before him, he may adopt that course.\n\nAs costs till now incurred are thrown away on account of circumstances for which the parties may not be held responsible, we direct that there will be no order as to costs till this date.\n\nWe may state that the observations made by us in the course of this judgment are not intended to express any opinion by this C0urt on the merits of the dispute.\n\nV.P.S.\n\nCase remanded.\n\n' •", "total_entities": 42, "entities": [{"text": "SWARAN LATA GHOSH", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "SWARAN LATA GHOSH", "offset_not_found": false}}, {"text": "H. K. BANERJEE AND ANR", "label": "RESPONDENT", "start_char": 19, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "H. K. BANERJEE AND ANR", "offset_not_found": false}}, {"text": "March 12, 1969", "label": "DATE", "start_char": 44, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "March 12, 1969\n\n(J. C. SHAH AND A. N. GROVER, JJ.)"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 64, "end_char": 71, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 76, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 1720, "end_char": 1740, "source": "regex", "metadata": {}}, {"text": "SWARAN LATA V", "label": "JUDGE", "start_char": 3138, "end_char": 3151, "source": "ner", "metadata": {"in_sentence": "979 F-H; 980 F-Hl\n\nIn the present case, since there \\Vas a contes~ _on m.erits, in the absenef of any documentary evidence in the hand-wntmg of the appellants husband, the burden of proving hi• claim lay on the J!rst respondent, and the oral testimony adduced by him had to be exammed m the context\n\nSWARAN LATA V, H. K. BANERJEE (Shah, J,) 977\n\nof : (a) absence of correspondence relating to the transactions between the first respondent and the appellant's husband; (b) absence of books of account in support of the transaction; (c) improbability of such a transaction between an attorney and his tjlient; (d) absence of previous business o:r professional relationship between the first respondent and appellant's husband; (e) absence of vouchers supporting the alleged payment of interest, and similar weighty circumstances.", "canonical_name": "SWARAN LATA GHOSH"}}, {"text": "Shah", "label": "JUDGE", "start_char": 3169, "end_char": 3173, "source": "ner", "metadata": {"in_sentence": "979 F-H; 980 F-Hl\n\nIn the present case, since there \\Vas a contes~ _on m.erits, in the absenef of any documentary evidence in the hand-wntmg of the appellants husband, the burden of proving hi• claim lay on the J!rst respondent, and the oral testimony adduced by him had to be exammed m the context\n\nSWARAN LATA V, H. K. BANERJEE (Shah, J,) 977\n\nof : (a) absence of correspondence relating to the transactions between the first respondent and the appellant's husband; (b) absence of books of account in support of the transaction; (c) improbability of such a transaction between an attorney and his tjlient; (d) absence of previous business o:r professional relationship between the first respondent and appellant's husband; (e) absence of vouchers supporting the alleged payment of interest, and similar weighty circumstances."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 4089, "end_char": 4104, "source": "ner", "metadata": {"in_sentence": "D. N. Mukherjee, for the appellant."}}, {"text": "S. C. Majumdar", "label": "LAWYER", "start_char": 4126, "end_char": 4140, "source": "ner", "metadata": {"in_sentence": "S. C. Majumdar, for the respondents."}}, {"text": "Birendra Krishna Ghosh", "label": "JUDGE", "start_char": 4217, "end_char": 4239, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J.\n\nBirendra Krishna Ghosh-hereinafter called \"Ghosh-was practising as an attorney-at-law in the High Court of Calcutta.", "canonical_name": "Birendra Krishna Ghosh"}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 4310, "end_char": 4332, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J.\n\nBirendra Krishna Ghosh-hereinafter called \"Ghosh-was practising as an attorney-at-law in the High Court of Calcutta."}}, {"text": "H. K. Banerje~", "label": "RESPONDENT", "start_char": 4358, "end_char": 4372, "source": "ner", "metadata": {"in_sentence": "H. K. Banerje~\n\nthe first respondent herein-commenced in 1951 an action in 'he High Court of Calcutta on the original side against Swaran\n\n.ata and Arun Kumar-widow and minor son respectively of Jhosh-for a decree for Rs.", "canonical_name": "H. K. BANERJEE AND ANR"}}, {"text": "Swaran", "label": "JUDGE", "start_char": 4489, "end_char": 4495, "source": "ner", "metadata": {"in_sentence": "H. K. Banerje~\n\nthe first respondent herein-commenced in 1951 an action in 'he High Court of Calcutta on the original side against Swaran\n\n.ata and Arun Kumar-widow and minor son respectively of Jhosh-for a decree for Rs.", "canonical_name": "SWARAN LATA GHOSH"}}, {"text": "Arun Kumar", "label": "RESPONDENT", "start_char": 4506, "end_char": 4516, "source": "ner", "metadata": {"in_sentence": "H. K. Banerje~\n\nthe first respondent herein-commenced in 1951 an action in 'he High Court of Calcutta on the original side against Swaran\n\n.ata and Arun Kumar-widow and minor son respectively of Jhosh-for a decree for Rs.", "canonical_name": "Arun Kumar"}}, {"text": "Jhosh", "label": "OTHER_PERSON", "start_char": 4553, "end_char": 4558, "source": "ner", "metadata": {"in_sentence": "H. K. Banerje~\n\nthe first respondent herein-commenced in 1951 an action in 'he High Court of Calcutta on the original side against Swaran\n\n.ata and Arun Kumar-widow and minor son respectively of Jhosh-for a decree for Rs."}}, {"text": "Ghosh", "label": "OTHER_PERSON", "start_char": 4750, "end_char": 4755, "source": "ner", "metadata": {"in_sentence": "The plaintiff claimed that he had deposited with Ghosh Rs."}}, {"text": "December 10, 1946", "label": "DATE", "start_char": 4769, "end_char": 4786, "source": "ner", "metadata": {"in_sentence": "6,000 on December 10, 1946 for the \"specific purpose of investing the amount\" and the latter agreed to pay interest at the rate o.f 6% per annum and to repay the same or any portion thereof when demanded; that on or about February 17, 1948, he had deposited Rs."}}, {"text": "February 17, 1948", "label": "DATE", "start_char": 4982, "end_char": 4999, "source": "ner", "metadata": {"in_sentence": "6,000 on December 10, 1946 for the \"specific purpose of investing the amount\" and the latter agreed to pay interest at the rate o.f 6% per annum and to repay the same or any portion thereof when demanded; that on or about February 17, 1948, he had deposited Rs."}}, {"text": "July 3, 1947", "label": "DATE", "start_char": 5297, "end_char": 5309, "source": "ner", "metadata": {"in_sentence": "10,000 with Ghosh also for \"the specific purpose of investing\" that sum, and the latter had agreed to pay interest at the rate of 7 % per annum and to repay the same or part thereof when demanded; that under the agreement Ghosh paid diverse sums of money as interest, and on July 3, 1947 Ghosh repaid Rs."}}, {"text": "Swaran Lata", "label": "PETITIONER", "start_char": 5483, "end_char": 5494, "source": "ner", "metadata": {"in_sentence": "Swaran Lata filed a written statement denying the claim of the plaintiff.", "canonical_name": "SWARAN LATA GHOSH"}}, {"text": "July 12,\n\n1962", "label": "DATE", "start_char": 5965, "end_char": 5979, "source": "ner", "metadata": {"in_sentence": "The trial of the suit commenced before Law, J., on July 12,\n\n1962."}}, {"text": "United Bank of India Ltd.", "label": "ORG", "start_char": 6363, "end_char": 6388, "source": "ner", "metadata": {"in_sentence": "Apparently he relied upon the entries in the extracts from the statements of account with the United Bank of India Ltd., the Imperial Bank of India, the Hooghly Bank Ltd. and correspondence between him and Swaran Lata."}}, {"text": "Imperial Bank of India", "label": "ORG", "start_char": 6394, "end_char": 6416, "source": "ner", "metadata": {"in_sentence": "Apparently he relied upon the entries in the extracts from the statements of account with the United Bank of India Ltd., the Imperial Bank of India, the Hooghly Bank Ltd. and correspondence between him and Swaran Lata."}}, {"text": "Hooghly Bank Ltd.", "label": "ORG", "start_char": 6422, "end_char": 6439, "source": "ner", "metadata": {"in_sentence": "Apparently he relied upon the entries in the extracts from the statements of account with the United Bank of India Ltd., the Imperial Bank of India, the Hooghly Bank Ltd. and correspondence between him and Swaran Lata."}}, {"text": "August 17, 1962", "label": "DATE", "start_char": 6521, "end_char": 6536, "source": "ner", "metadata": {"in_sentence": "The learned Judge by order dated August 17, 1962, passed the following order :\n\n\"There will be a decree for Rs."}}, {"text": "cl. 15", "label": "PROVISION", "start_char": 6817, "end_char": 6823, "source": "regex", "metadata": {"statute": null}}, {"text": "10th December, 1946", "label": "DATE", "start_char": 7068, "end_char": 7087, "source": "ner", "metadata": {"in_sentence": "On the 10th December, 1946 the plaintiff entrusted and deposited with Birendra Krishna Ghosh a sum of Rs."}}, {"text": "Birendra Krishna Ghosh", "label": "JUDGE", "start_char": 7131, "end_char": 7153, "source": "ner", "metadata": {"in_sentence": "On the 10th December, 1946 the plaintiff entrusted and deposited with Birendra Krishna Ghosh a sum of Rs.", "canonical_name": "Birendra Krishna Ghosh"}}, {"text": "Bircndra Krishna Ghose", "label": "JUDGE", "start_char": 7316, "end_char": 7338, "source": "ner", "metadata": {"in_sentence": "He also entrusted and deposited with Bircndra Krishna Ghose on the 17th February 1948 a sum of Rs.", "canonical_name": "Birendra Krishna Ghosh"}}, {"text": "17th February 1948", "label": "DATE", "start_char": 7346, "end_char": 7364, "source": "ner", "metadata": {"in_sentence": "He also entrusted and deposited with Bircndra Krishna Ghose on the 17th February 1948 a sum of Rs."}}, {"text": "Art. 60", "label": "PROVISION", "start_char": 7580, "end_char": 7587, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Limitation Act", "label": "STATUTE", "start_char": 7595, "end_char": 7616, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Swaran Lata Ghosh", "label": "PETITIONER", "start_char": 8061, "end_char": 8078, "source": "ner", "metadata": {"in_sentence": "With special leave, Swaran Lata Ghosh has appealed to this Court.", "canonical_name": "SWARAN LATA GHOSH"}}, {"text": "Swaran", "label": "PETITIONER", "start_char": 9098, "end_char": 9104, "source": "ner", "metadata": {"in_sentence": "The decree was on the face of it erroneous, because it directed\n\nSwaran Lala and her minor son Arun Kumar personally to pay the amount decreed; Trial of a civil dispute in Court is intended to achieve, according to Jaw and the procedure of the Court, a judicial deterntination between the contesting parties of the matter in controversy.", "canonical_name": "SWARAN LATA GHOSH"}}, {"text": "Arun Kumar", "label": "RESPONDENT", "start_char": 9128, "end_char": 9138, "source": "ner", "metadata": {"in_sentence": "The decree was on the face of it erroneous, because it directed\n\nSwaran Lala and her minor son Arun Kumar personally to pay the amount decreed; Trial of a civil dispute in Court is intended to achieve, according to Jaw and the procedure of the Court, a judicial deterntination between the contesting parties of the matter in controversy.", "canonical_name": "Arun Kumar"}}, {"text": "Jaw", "label": "OTHER_PERSON", "start_char": 9248, "end_char": 9251, "source": "ner", "metadata": {"in_sentence": "The decree was on the face of it erroneous, because it directed\n\nSwaran Lala and her minor son Arun Kumar personally to pay the amount decreed; Trial of a civil dispute in Court is intended to achieve, according to Jaw and the procedure of the Court, a judicial deterntination between the contesting parties of the matter in controversy."}}, {"text": "Swaran Lata", "label": "RESPONDENT", "start_char": 11537, "end_char": 11548, "source": "ner", "metadata": {"in_sentence": "The defendants it is true Jed no oral evidence and produced no documentary evidence: But the defendants -had apparently LU Sup CJ/69-13\n\n~80\n\nSUPREME COURT REPORTS (I 969) 3 s.C.R\n\nno personal knowledge about the transactions and there is no clear evidence on the record that the first defendant Swaran Lata had in her possession any books of account of the deceased which she could have produced and had withheld.", "canonical_name": "SWARAN LATA GHOSH"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 13157, "end_char": 13184, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 13512, "end_char": 13535, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 13877, "end_char": 13904, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "SWARAN LATA", "label": "PETITIONER", "start_char": 14205, "end_char": 14216, "source": "ner", "metadata": {"in_sentence": "The function of a judicial trial is tu hear and decide a matter in contest between the parties in open court in the presence of parties\n\nG •\n\nSWARAN LATA v. a 1:.", "canonical_name": "SWARAN LATA GHOSH"}}]}
{"document_id": "1969_3_983_988_EN", "year": 1969, "text": "98~\n\nCOMMISSIONER OF INCOME-TAX, BIHAR & ORISSA,\n\nPATNA\n\nMIS. KIRKEND COAJ, COMPANY\n\nMarch 12, 1969\n\n[J. C. SHAH A~D A. N. GROVER, JJ.)\n\nIndian Jnrome-tax Act, 1922, ss. 26, 28, 44 and 66-Pena/ty leviah/e on firn: for assess1nent year 194849-Firin reconstituted in later years but business not discontinued-Penalt, v in respect of 1948-49 whether /eviable on reconstituted firm-Sect.ion 44 not apjJlicable to such Clllls- Applicahility of ss. 26 and 28-Question not rc.ised before Tribunal cannot he raised in reference under s. 66.\n\nThe respondent was a firm on which penalty under s. 28(1)(c) ot the Indian Income-tax Act, 1922 was imposed by the Income-tax Officer in respect of the assessment year 1948-49. At the time when the penalty was imposed the cpnstitution of the firm had changed though the same business was continued by the reconstituted firm.\n\nThe appeals filed by the respondent before the Appellate Assistant Commissioner and the Tribunal were rejected. In reference the High Court held that penalty could be legally imposed upon the original firm constituted in the account year relevant to the assessment year 194849 and not upon the new firm constituted in 1952.\n\nIn coming to their conclusions the Tribunal as well a! the. High Court proceeded on the assumption that the source and power of the Income-tax Officer to impose a penalty was in s. 44 of the Indian Income-tax Act, 1922.\n\nIn appeal by the Revenue to this Court,\n\nHELD : (i) Section 44 only applies to those <ases in which there has been discontinuance of the business and not to cases in which the business continues after the reconstitution of the firm, or there is succession to the business. Cases of reconstitution df the firm or succeso; ion to the business are covered by ss. 26(1) and (2~. The Tribun•l and the High Court were therefore in ctr.or in relying on s. 44 of the Act. [988 A;\n\n985 D-E]\n\n(ii) Assessment in Ch. IV of the Income-tax Act 1922 includes a proceeding for imposition of penalty and the expression 'peron' includes for the purpose of s. 28 a firm registered or unregistered. If there is recbnstitution of the firm by virtue of s. 26, the Income-tax Officer will in imposing the penalty proceed against the firm. lf there is discontinuance of the business penalty will be imposed against the partners of the firm.\n\n[988 B-0]\n\nIn the present case, however, this Court could not go into the question \\vhether penalty on the respondent firm was leviahle under the terms of ss. 26 and 28 even though the question raised by the Tribunal was irt terms sufficiently comprehensive to embrace the enquiry.\n\nIn a refetence under s. 66 of the Indian Income-tax Act. 1922, only the question which was either raised or argued before the Tribunal may be answered, even if the language of the question framed by the Tribunal may apparently include an enquiry into other matters which could have been but were not. raised or argued. [988 D-Fl\n\nShivr.m Poddar v. lncom•-tax Officer, Central Circle ll, Calcutta Anr., 51 I.T.R. 823, C. A. Abraham v, Jncom•-tax Officer, Kottav•m qnd\n\n98.& Sl!PUM• OOUllT llPOlln\n\n[1909] 3 S.C.L\n\nAnr., 41 I.T.R. 425 and Comml1Sloner of lnco-.t=, Madr01 A Anr. v.\n\nS. V. Angidl Chtttlar, 44. I.T.R. 739, applied,\n\nS. M. S. Karuppl•h Pillai Y. Comml'11oner qf lncom<t= Madr01, 9 I.T.R. 1, approved.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 2456 of 1966.\n\nAppeal from the judgment and order dated January 27, 1964 of the Patna High Court in Misc. Judicial Case No. 299 of 1958.\n\nD. Narsaraju, S. K. A.iyar, R. N. Sachthey .and B. D. Sharma, for the appellant.\n\nC. K. Daphtary, Narain Rao, V. D. Narayan and D. Goburdhun, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nShah, J. In determining the taxable income of the respon dent firm for the assessment year ~948-49 the Income-tax Officer\n\nadded to the income returned a sum of Rs. 1,60,000 as 'undis closed rcc.ipts'. The order was confirmed in appeal by the D Appellate Assistant Commissioner, and by the Tribunal. The Income-tax Officer had in the meantime commenced a proceeding for the levy of penalty and in exercise of the power under s. 28 ( 1 )( c) of the Indian Income-tax Act, 1922 he directed the res pendent firm to pay Rs. 60,000 as penalty. The Appellate Assistant Commissioner in appeal confirmed the order. The Incomez tax AJ)pellate Tribunal rejected the contention of the respondent that the order imposing penalty upon the firm after the original firm was dissolved was without jurisdiction. '\n\nThe Tribunal referred at the instance of the respondent firm the following question to the High Court of Patna for opinion;\n\n\"Whether on the facts and in the circumstances of F the case the imposition of penalty under s. 28 ( 1 )( c) of the Indian Income-tax Act, upon the petitioner firm\n\n(respondent) as constituted at the time of levy of penalty was legal and, valid?\" The High Court called for a supplementary statement of the case and pursuant thereto the Tribunal submitted a statement on G the specified points raised by the order of the High Court that : ( 1) The firm which carried on the business during the calendar year 1947 was dissolved on July 7, 1951 when Butta Kristo Roy, one of the partners, died.\n\n(2) During the previous year 1947 there was no ff instrument of partnership in existence, but the terms of the oral partnership were the same as set out in the. partnership deed dated October 17, 1949.\n\n........... A\n\n( B\n\nC, I.T. V. KIRKEND COAL CO. (Shah, J.)\n\n( 3) The business of the firm was continued with effect from July 8, 1951 by the new firm as successor to the business of the old firm. l:he terms of the partnership were the same as set out in the deed dated October .17, 1949 and the partners and their shares were also the same except that Baidyanath Roy took the place of Butto Kristo Roy.\n\n(4) With effect from April 28, 1952, the business was carried on by a partnership constituted by Baidyanath Roy and Bijali Kanti Roy under an instrument dated August 27, 1952. There was no dissolution of the firm, which was carrying on the business; there was only a change in the constitution of the old firm from April 28, 1952.\n\nThe High Court held that penalty could be legally levied only upon the original firm constituted in the account year relevant to the assessment year 1948-49 and not upon the new firm constituted under the deed dated April 27, 1952.\n\nThe Tribunal and the High Court approached the problem before th.em on the assumption that the source of the power .of the Income-tax Officer to impose a penalty was in section 44 of the Indian Income-tax Act, 1922. In so assuming, in our judgment, they were in error. Section 44 of the Indian Income-tax Act, 1922, as it stood at the relevant date, in so far as it is material provided :\n\n\"Where any business, profession or vocation carried on by a firm . . . . has been discontinued . . . every person who was at th.e time of such discontinuance . . . . . a partner of such firm . . . . . shall, in respect of the income, profits and gains of the firm . . . . . be jointly and severally liable to assessment under Chapter IV and for ihe amount of tax payable and all the provisions of Chapter IV shall, so far as may be, apply to any such assessment\".\n\nThe section is fairly plain : it applies to cases of discontinuance of the business of a firm and not wh.ere there is dissolution of the firm but not discontinuance of.its business.\n\nIn S. M. S. Karuppiah Pillai v. Commissioner of Income-tax, Madras( 1 ), in dealing with the effect of s. 44 ol' the Indian Income-tax Act, 1922, before if was amended by Act 7 of 1939, a Full Bench of the Madras High Court observed : ·\n\n\"This section (s.44) only applies when there has been discontinuance of the business, ... , The section\n\n(I) 9,~.T.R, 1.\n\n986 SUPREME COU..T RllPOJ.TS\n\n(1969] 3 S.C.R.\n\nmys that if a business is discontinued the partners shall nevertheless be jointly and severally liable for the proli cs which had been earned\".\n\nIn Shivram Poddar v. Income-tax Officer, Central Circle II, Calcuca oni Anr. (1) this Court examined the scheme of s. 44 (bfore it was amended by the Finance Act of 1958) and B its inter-relation with the provisions of ss. 25 (I), (2), 26( 1),\n\n(2) anJ 28(l)(c) in some detail.\n\nThe Court observed :\n\n\"Section 44 operates in two classes of cases; where there is discontinuance of business, profession or voca. ticin carried on by a firm or association, and where there is dissolution of an association. It follows that mere dissolution of a finn without discontinuance of the business will not attract the application of s.44 of the Act .\n\nThe reason for this distinction appears from the scheme of the Income-tax Act in its relation to assessment of the income of a finn.\n\nA finn whether registered or unregistered is recognised under the Act as a m.it of assessment (sections 3 and 2(2) ), and its income is computed under clauses (3) and\n\n(4) of section 23 as the income of any other unit. Section 25 ( 1) relates to assessment in cases of a discontinued business-whether the business is carried on by a firm or by any other person. . . . . . Then there is the special provision relating to assessment when at the time of making an assessment it is found that a change has occurred in the constitution of a firm, or a firm has been newly constituted : section 26 ( 1). The date on which the change has occurred is immaterial; it may\n\nbe in the year of account, in the year of assessment or even after the close of the year of assessment. The Income-far.: Officer has under section 26(1) to assess the !inn as constituted at the time of making the assessment, but the income. profits and gains of the previous year have. for the purpose of inclusion in the total in- COIT'.e of the partners, to be apportioned between the nartners who were entitled to receive the same.\n\nSubsection (2) of section 26 relates to assessment in the case of succession to a person (which expression includes a fi•m) carrying on a business by another person in such capacity. . . . . . Discontinuance of business has the same connotation in section 44 as it has in section 2 5 of the Act; it does not\n\n11) ~11.T.R. 823.\n\nC.l.T. v. K!J.DND C.OA.L eo. (Shah, J.)\n\ncover mere change in ownership or in the constitution of the unit of assessment.\n\nSection 44 is, therefore, attracted only when the business of a firm is discontinued, i.e. when there is complete cessation of the business and not when there is a change in the ownership of the firm, or in its constitution, because by reconstitution of the firm, no change is brought in the personality of the firm, and succession to the business and not discontinuance of the business results. . . . .\n\nBut the Income-tax Act recognises a firm for purposes of assessment as a unit independent of the partners constituting it; it invests the firm with a personality which survives reconstitution.\n\nA firm discontinuing its business may be assessed in the manner provided by section 25 ( 1) in the year of account in which it discontinues its business; it may also be assessed in the year of assessment.\n\nIn either case it is the assessment of the income of the firm. Where the firm is dissolved, but the business is not discontinued, there being change in the constitution of the firm. assessment has to be made under section 26\n\n(I ) , and if there be succession to the business assessment has to be made under section 26(2). The provisions rehting to assessment on reconstituted or newly c0wtituted firms. and on succession to the business are obligatorv.\n\nTherefore, even when there is change in the ownershio of the business carried on by a firm on reconstitution or because of a new constitution, assessment mmt still be made upon the firm.\n\nWhen there is succession, the successor and the oerson succeeded have to be assessed each in respect of his actual share.\n\nThis scheme of assessment furnishes the reason for omitting reference to dissolution of a firm from section 44 when such dissolution is not accompanied by discontinuance of the business\".\n\nTwo other cases decided by this Court mav be briefly noticed.\n\nIn C. A. Abrah'1m \"Income-tax Officer, Kotrayam and Another(') there was discontinuance of the business of the firm consequent upon dis<olution of the firm. s. 44 was held applicable, and it wns Jield that imnosition or penaltv beimt a nrc>cess of assessment the Tncnme-tax Officer was not incnmnetent to levv penaltv after discontinuance of the business.\n\nIn Commis•ioner of Tnrnm~-tn~. M11dra• an-I Anmher v. S. V. AnviJ; Ch•t•iar(')\n\nthis Court held tht the Income-tax Officer coulcl exercise under s. 44 read with s. 28 power to impose penalty uoon the firm which discontinued its business on dissolution caused by the death of one of the partners.\n\nIll 41 T.T.lt 42~. :l) .. J.T.R. 739.\n\nSUPREME COURT REPORTS\n\n[!969] 3 S.C.R\n\nSection 44 therefore only applied to those cases in which there had been discontinuance of the business and not to cases in which the business continued after reconstitution of the firm, or there was succession to the business.\n\nCases of reconstitution of the firm or succession to the business of the firm are covered by ss. 26(1) and (2).\n\n\"Assessment'' in Chapter IV of the Income-ta-,: Act, 1922, includes a proceeding for imposition of penalty.\n\nSection 28 of the Act authorises the Income-tax Officer, if satisfied, in the course of any proceeding under the Act that any person has, inter a/ia, concealed the particulars of his income or deliberately furnished inaccurate particulars of such income, to direct that such person shall py by way of penalty, a sum of money not exceeding the amount specified therein in addition to the income tax and super-tax payable by such person. The expression \"person\" includes for the purpose of s. 28, a firm registered or unregistered. If there is reconstitution of the firm, by virtue of s. 26, the Income-tax Officer will in imposing the penalty proceed against the firm.\n\nTf there is discontinuance of the business penalty will be imposed against the partners of the firm.\n\nBefore the Tribunal and the Higi\\ Court the case was argued on the footing that s. 44 alone was applicable. Whether under the terms of s. 26 read with s. 28, penalty may be imposed upon the new partners for the failure of the partners of the firm constituted in the year of account relating to the assessment 1948-49 was never investigated.\n\nThe question raised by the Tribunal is in terms sufficiently comprehensive to embrace an enquiry whether partners of the firm in existence on July 30, 1954, were liable to be assessed to penalty as successors in interest of the partners of the original firm in existence in the year of account relating to the assessment year 1948-49. But in a reference under s. 66 of the Indian Income-tax Act, 1922, only the question which was either raised or argued before the Tribunal may be answered, even if the language of the question framed by the Tribunal may apparently include an enquiry into other matters which could have been, but were not, raised or argued.\n\nThe aopeal fails and is dismissed.\n\nIn the circumstances of the case there will he no order as to costs in this Court.\n\nCT.C.\n\nAppeal di.nnissetl,", "total_entities": 90, "entities": [{"text": "COMMISSIONER OF INCOME-TAX, BIHAR & ORISSA,\n\nPATNA", "label": "PETITIONER", "start_char": 5, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, BIHAR & ORISSA, PATNA", "offset_not_found": false}}, {"text": "MIS. KIRKEND COAJ, COMPANY", "label": "RESPONDENT", "start_char": 57, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "M/S. KIRKEND COAL COMPANY", "offset_not_found": false}}, {"text": "C. SHAH A~D A. N. GROVER, JJ.", "label": "JUDGE", "start_char": 105, "end_char": 134, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Indian Jnrome-tax Act, 1922", "label": "STATUTE", "start_char": 137, "end_char": 164, "source": "regex", "metadata": {}}, {"text": "ss. 26, 28, 44 and 66", "label": "PROVISION", "start_char": 166, "end_char": 187, "source": "regex", "metadata": {"linked_statute_text": "Indian Jnrome-tax Act, 1922", "statute": "Indian Jnrome-tax Act, 1922"}}, {"text": "ss. 26 and 28", "label": "PROVISION", "start_char": 439, "end_char": 452, "source": "regex", "metadata": {"linked_statute_text": "Indian Jnrome-tax Act, 1922", "statute": "Indian Jnrome-tax Act, 1922"}}, {"text": "s. 66", "label": "PROVISION", "start_char": 526, "end_char": 531, "source": "regex", "metadata": {"linked_statute_text": "Indian Jnrome-tax Act, 1922", "statute": "Indian Jnrome-tax Act, 1922"}}, {"text": "s. 28(1)(c)", "label": "PROVISION", "start_char": 583, "end_char": 594, "source": "regex", "metadata": {"linked_statute_text": "Indian Jnrome-tax Act, 1922", "statute": "Indian Jnrome-tax Act, 1922"}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 602, "end_char": 629, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 44", "label": "PROVISION", "start_char": 1363, "end_char": 1368, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 1376, "end_char": 1403, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 44", "label": "PROVISION", "start_char": 1458, "end_char": 1468, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "ss. 26(1)", "label": "PROVISION", "start_char": 1762, "end_char": 1771, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "s. 44", "label": "PROVISION", "start_char": 1852, "end_char": 1857, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "IV of the Income-tax Act 1922", "label": "STATUTE", "start_char": 1912, "end_char": 1941, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 28", "label": "PROVISION", "start_char": 2045, "end_char": 2050, "source": "regex", "metadata": {"linked_statute_text": "IV of the Income-tax Act 1922", "statute": "IV of the Income-tax Act 1922"}}, {"text": "s. 26", "label": "PROVISION", "start_char": 2138, "end_char": 2143, "source": "regex", "metadata": {"linked_statute_text": "IV of the Income-tax Act 1922", "statute": "IV of the Income-tax Act 1922"}}, {"text": "ss. 26 and 28", "label": "PROVISION", "start_char": 2480, "end_char": 2493, "source": "regex", "metadata": {"linked_statute_text": "IV of the Income-tax Act 1922", "statute": "IV of the Income-tax Act 1922"}}, {"text": "s. 66", "label": "PROVISION", "start_char": 2629, "end_char": 2634, "source": "regex", "metadata": {"linked_statute_text": "IV of the Income-tax Act 1922", "statute": "IV of the Income-tax Act 1922"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 2649, "end_char": 2663, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. M. S. Karuppl•h Pillai", "label": "JUDGE", "start_char": 3238, "end_char": 3263, "source": "ner", "metadata": {"in_sentence": "I.T.R. 739, applied,\n\nS. M. S. Karuppl•h Pillai Y. Comml'11oner qf lncom<t= Madr01, 9 I.T.R. 1, approved."}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 3323, "end_char": 3351, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION: Civil Appeal No."}}, {"text": "D. Narsaraju", "label": "LAWYER", "start_char": 3508, "end_char": 3520, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju, S. K. A.iyar, R. N. Sachthey .and B. D. Sharma, for the appellant."}}, {"text": "S. K. A.iyar", "label": "LAWYER", "start_char": 3522, "end_char": 3534, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju, S. K. A.iyar, R. N. Sachthey .and B. D. Sharma, for the appellant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3536, "end_char": 3550, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju, S. K. A.iyar, R. N. Sachthey .and B. D. Sharma, for the appellant."}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 3556, "end_char": 3568, "source": "ner", "metadata": {"in_sentence": "D. Narsaraju, S. K. A.iyar, R. N. Sachthey .and B. D. Sharma, for the appellant."}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 3590, "end_char": 3604, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Narain Rao, V. D. Narayan and D. Goburdhun, for the respondent."}}, {"text": "Narain Rao", "label": "LAWYER", "start_char": 3606, "end_char": 3616, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Narain Rao, V. D. Narayan and D. Goburdhun, for the respondent."}}, {"text": "V. D. Narayan", "label": "LAWYER", "start_char": 3618, "end_char": 3631, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Narain Rao, V. D. Narayan and D. Goburdhun, for the respondent."}}, {"text": "D. Goburdhun", "label": "LAWYER", "start_char": 3636, "end_char": 3648, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Narain Rao, V. D. Narayan and D. Goburdhun, for the respondent."}}, {"text": "Shah", "label": "JUDGE", "start_char": 3715, "end_char": 3719, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J. In determining the taxable income of the respon dent firm for the assessment year ~948-49 the Income-tax Officer\n\nadded to the income returned a sum of Rs."}}, {"text": "s. 28", "label": "PROVISION", "start_char": 4140, "end_char": 4145, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 4163, "end_char": 4190, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "High Court of Patna", "label": "COURT", "start_char": 4604, "end_char": 4623, "source": "ner", "metadata": {"in_sentence": "The Tribunal referred at the instance of the respondent firm the following question to the High Court of Patna for opinion;\n\n\"Whether on the facts and in the circumstances of F the case the imposition of penalty under s. 28 ( 1 )( c) of the Indian Income-tax Act, upon the petitioner firm\n\n(respondent) as constituted at the time of levy of penalty was legal and, valid?\""}}, {"text": "s. 28", "label": "PROVISION", "start_char": 4731, "end_char": 4736, "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": 4761, "end_char": 4775, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "July 7, 1951", "label": "DATE", "start_char": 5167, "end_char": 5179, "source": "ner", "metadata": {"in_sentence": "The High Court called for a supplementary statement of the case and pursuant thereto the Tribunal submitted a statement on G the specified points raised by the order of the High Court that : ( 1) The firm which carried on the business during the calendar year 1947 was dissolved on July 7, 1951 when Butta Kristo Roy, one of the partners, died."}}, {"text": "Butta Kristo Roy", "label": "OTHER_PERSON", "start_char": 5185, "end_char": 5201, "source": "ner", "metadata": {"in_sentence": "The High Court called for a supplementary statement of the case and pursuant thereto the Tribunal submitted a statement on G the specified points raised by the order of the High Court that : ( 1) The firm which carried on the business during the calendar year 1947 was dissolved on July 7, 1951 when Butta Kristo Roy, one of the partners, died.", "canonical_name": "Butta Kristo Roy"}}, {"text": "October 17, 1949", "label": "DATE", "start_char": 5415, "end_char": 5431, "source": "ner", "metadata": {"in_sentence": "partnership deed dated October 17, 1949."}}, {"text": "I.T. V. KIRKEND COAL CO", "label": "JUDGE", "start_char": 5457, "end_char": 5480, "source": "ner", "metadata": {"in_sentence": "........... A\n\n( B\n\nC, I.T. V. KIRKEND COAL CO. ("}}, {"text": "July 8, 1951", "label": "DATE", "start_char": 5555, "end_char": 5567, "source": "ner", "metadata": {"in_sentence": "Shah, J.)\n\n( 3) The business of the firm was continued with effect from July 8, 1951 by the new firm as successor to the business of the old firm."}}, {"text": "October .17, 1949", "label": "DATE", "start_char": 5703, "end_char": 5720, "source": "ner", "metadata": {"in_sentence": "l:he terms of the partnership were the same as set out in the deed dated October .17, 1949 and the partners and their shares were also the same except that Baidyanath Roy took the place of Butto Kristo Roy."}}, {"text": "Baidyanath Roy", "label": "OTHER_PERSON", "start_char": 5786, "end_char": 5800, "source": "ner", "metadata": {"in_sentence": "l:he terms of the partnership were the same as set out in the deed dated October .17, 1949 and the partners and their shares were also the same except that Baidyanath Roy took the place of Butto Kristo Roy."}}, {"text": "Butto Kristo Roy", "label": "OTHER_PERSON", "start_char": 5819, "end_char": 5835, "source": "ner", "metadata": {"in_sentence": "l:he terms of the partnership were the same as set out in the deed dated October .17, 1949 and the partners and their shares were also the same except that Baidyanath Roy took the place of Butto Kristo Roy.", "canonical_name": "Butta Kristo Roy"}}, {"text": "April 28, 1952", "label": "DATE", "start_char": 5859, "end_char": 5873, "source": "ner", "metadata": {"in_sentence": "(4) With effect from April 28, 1952, the business was carried on by a partnership constituted by Baidyanath Roy and Bijali Kanti Roy under an instrument dated August 27, 1952."}}, {"text": "Bijali Kanti Roy", "label": "OTHER_PERSON", "start_char": 5954, "end_char": 5970, "source": "ner", "metadata": {"in_sentence": "(4) With effect from April 28, 1952, the business was carried on by a partnership constituted by Baidyanath Roy and Bijali Kanti Roy under an instrument dated August 27, 1952."}}, {"text": "August 27, 1952", "label": "DATE", "start_char": 5997, "end_char": 6012, "source": "ner", "metadata": {"in_sentence": "(4) With effect from April 28, 1952, the business was carried on by a partnership constituted by Baidyanath Roy and Bijali Kanti Roy under an instrument dated August 27, 1952."}}, {"text": "April 27, 1952", "label": "DATE", "start_char": 6386, "end_char": 6400, "source": "ner", "metadata": {"in_sentence": "The High Court held that penalty could be legally levied only upon the original firm constituted in the account year relevant to the assessment year 1948-49 and not upon the new firm constituted under the deed dated April 27, 1952."}}, {"text": "section 44", "label": "PROVISION", "start_char": 6572, "end_char": 6582, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 6590, "end_char": 6617, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 44", "label": "PROVISION", "start_char": 6672, "end_char": 6682, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 6690, "end_char": 6717, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 44", "label": "PROVISION", "start_char": 7544, "end_char": 7549, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 7558, "end_char": 7585, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Madras High Court", "label": "COURT", "start_char": 7647, "end_char": 7664, "source": "ner", "metadata": {"in_sentence": "In S. M. S. Karuppiah Pillai v. Commissioner of Income-tax, Madras( 1 ), in dealing with the effect of s. 44 ol' the Indian Income-tax Act, 1922, before if was amended by Act 7 of 1939, a Full Bench of the Madras High Court observed : ·\n\n\"This section (s.44) only applies when there has been discontinuance of the business, ... , The section\n\n(I) 9,~.T.R, 1."}}, {"text": "s.44", "label": "PROVISION", "start_char": 7694, "end_char": 7698, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "s. 44", "label": "PROVISION", "start_char": 8108, "end_char": 8113, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "ss. 25", "label": "PROVISION", "start_char": 8212, "end_char": 8218, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Section 44", "label": "PROVISION", "start_char": 8295, "end_char": 8305, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "s.44", "label": "PROVISION", "start_char": 8614, "end_char": 8618, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 8696, "end_char": 8710, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "sections 3 and 2(2)", "label": "PROVISION", "start_char": 8862, "end_char": 8881, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23", "label": "PROVISION", "start_char": 8942, "end_char": 8952, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 25", "label": "PROVISION", "start_char": 8986, "end_char": 8996, "source": "regex", "metadata": {"statute": null}}, {"text": "section 26", "label": "PROVISION", "start_char": 9348, "end_char": 9358, "source": "regex", "metadata": {"statute": null}}, {"text": "section 26(1)", "label": "PROVISION", "start_char": 9569, "end_char": 9582, "source": "regex", "metadata": {"statute": null}}, {"text": "section 26", "label": "PROVISION", "start_char": 9884, "end_char": 9894, "source": "regex", "metadata": {"statute": null}}, {"text": "section 44", "label": "PROVISION", "start_char": 10114, "end_char": 10124, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 10138, "end_char": 10147, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 44", "label": "PROVISION", "start_char": 10317, "end_char": 10327, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 10730, "end_char": 10744, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 25", "label": "PROVISION", "start_char": 10992, "end_char": 11002, "source": "regex", "metadata": {"linked_statute_text": "But the Income-tax Act", "statute": "But the Income-tax Act"}}, {"text": "section 26", "label": "PROVISION", "start_char": 11336, "end_char": 11346, "source": "regex", "metadata": {"linked_statute_text": "But the Income-tax Act", "statute": "But the Income-tax Act"}}, {"text": "section 26(2)", "label": "PROVISION", "start_char": 11430, "end_char": 11443, "source": "regex", "metadata": {"linked_statute_text": "But the Income-tax Act", "statute": "But the Income-tax Act"}}, {"text": "section 44", "label": "PROVISION", "start_char": 11988, "end_char": 11998, "source": "regex", "metadata": {"statute": null}}, {"text": "C. A. Abrah'1", "label": "OTHER_PERSON", "start_char": 12143, "end_char": 12156, "source": "ner", "metadata": {"in_sentence": "In C. A. Abrah'1m \"Income-tax Officer, Kotrayam and Another(') there was discontinuance of the business of the firm consequent upon dis<olution of the firm."}}, {"text": "s. 44", "label": "PROVISION", "start_char": 12297, "end_char": 12302, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44", "label": "PROVISION", "start_char": 12642, "end_char": 12647, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 28", "label": "PROVISION", "start_char": 12658, "end_char": 12663, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 44", "label": "PROVISION", "start_char": 12872, "end_char": 12882, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 26(1)", "label": "PROVISION", "start_char": 13194, "end_char": 13203, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 28", "label": "PROVISION", "start_char": 13323, "end_char": 13333, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 28", "label": "PROVISION", "start_char": 13811, "end_char": 13816, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26", "label": "PROVISION", "start_char": 13906, "end_char": 13911, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44", "label": "PROVISION", "start_char": 14174, "end_char": 14179, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26", "label": "PROVISION", "start_char": 14229, "end_char": 14234, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 28", "label": "PROVISION", "start_char": 14245, "end_char": 14250, "source": "regex", "metadata": {"statute": null}}, {"text": "July 30, 1954", "label": "DATE", "start_char": 14578, "end_char": 14591, "source": "ner", "metadata": {"in_sentence": "The question raised by the Tribunal is in terms sufficiently comprehensive to embrace an enquiry whether partners of the firm in existence on July 30, 1954, were liable to be assessed to penalty as successors in interest of the partners of the original firm in existence in the year of account relating to the assessment year 1948-49."}}, {"text": "s. 66", "label": "PROVISION", "start_char": 14796, "end_char": 14801, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 14809, "end_char": 14836, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1969_3_989_994_EN", "year": 1969, "text": "GOPPULAL\n\n11.\n\nTllAKUlUI SHRIJI SHRIJI DWARKADHEESHJI & ANR.\n\nMarch 12, 1969\n\n[S. M. SIKRI, R. S. BACIIAWAT AND K. S. HEGDE, IJ.]\n\nI Rajasthan Premises (Control of Rent & Eviction) Act, (Raj. 17 of 1950). s. 13(1)(e)-Subletting before enforcement of the Act-Eject ment, if possible-Landlord and tenant-Increase of rent-If imports new demise-Sub-letting-How established.\n\nThe respondent-landlord let out to the appellant four shops aod later on let out to him two more shops.\n\nThe respondent filed a suit alleging that subsequent to the letting of the shops, by a contract, the rent was consolidated and increased and that the shops we're sub-let by the appel\n\nlaot, so the appellant be ejected from all the six shops under s. IJ(l)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act. The appellant denied the contract and denied the subletting altogether.\n\nThe trial court dismissed the suit, and the first appellate court affirmed the decree. Both these courts concurrently found that new contract of tenaocy was not created. it was only an increase of rent, the other terms of the tenancy remained unaltered, and that the two shops were sub-let but with the permission. of the landlord. The High Court, in second appeal, reversed the decree of the courts below, and held that there was one integrated tenancy of all the shops, that the four shops were sub-let with the permission of the landlord, but the later t\\VO were sub-let without permission, and that having sub-Jet a .Part of the premises without the permission, the dec!ree for possession of all the shops must be passed.\n\nIn appeal to this Court, the appellant-tenaot contended that (i) the tenancy of all the six shops were not one integrated; (ii) two shops were not sublet without the permission of the landlord; and (iii) the sub-letting was before the Jaipllr Rent Control Order, 1947 came into force, which was repealed and continued by the promulgation of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, and therefore ejectment could not be claimed unde'r s. 13 (I )(e) of the Act.\n\nHELD : The appellant could not be ejected from four shops, but ought to be ejected from the two shops.\n\n(i) A mere increase or reduction of rent does not necessarily import the surrender of the existing lease and the grant of a new tenancy. In the present case the first two c'ollrts on a review of the entire evidence came to the conclusion that the increase of rent did not import a new demise.\n\nThis finding of fact was binding on the High Court in second appeal and it erred in holding that there was one integrated tenancy of the six shops.\n\n[991 H-992 BJ\n\n(ii) In the abs\"'1ce of any pleading and any i'8ue on the question of sub-letting, the first two courts were in error in holding that the two shops we're sublet with the permission of the landlord. The permission of the landlord for the sub-letting cannot be established from the mere fact that the landlord realised rent after the sub-lettina in the absence of proof that the landlord had then clear knowled1e of the 1ub-le., e. [992 DJ\n\nThe date of the sub-letting of the two lhOJ!! is not mentioned in the plaint In the aboence of any plelQina and anv iS1ue on this queotion the\n\n990 SUPllEME COURT REPORTS\n\n[1969] 3 S.C.R.\n\nHigh Court was error in reco'rding the finding that the two shops were sub-let towards the end of 1947 after the Jaipur Rent Control Order 1947 came into force.\n\nIt can only be said that the sub-letting was sometime :ifter 1945. (992 El\n\n(iii) Section 13 ( l) ( c) of the Act was intended to apply to sub-letting before the Act came info force.\n\nIf the tenant had sub-let the premises \\\\'ithout the permission of the landlord either 1'efore or after the coming into force of the Act, he was not protected from eviction under s. 13 ( l) ( e), and it matters not that he had the right to sub-let the premises under s. I 08 ( i) cf the Transfor of Property Act.\n\nThe present perfect tense, bv words \"has .sub-let\" in s. lJ(J)(e) of the Act contemplates J completed event connected in some \\Vay with the pi'esent time.\n\nThe \\vords t:ike \\vithin their sweep any sub-letting which was made in the part and hr1.r;; continued up t0 the present time.\n\nIt did not matter that the subletting \\Vas either before or after the Act came into force.\n\nFurther\n\n.'OS. 26 and 27(1) of the Act contemplated that grounds of eviction mentioned ins. 13 m:i.y have arisen before the Act came into force. [993 D-994 A]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No, 53 of 1969.\n\nAppeal by special leave from the judgment and decree dated November 1, 1968 of the Rajasthan High Court in Civil Re; ular S2c0nd Appeal No. 487 of 1962.\n\nC. B. Aganmla, Rames/11rnr Nath and Mahinder Narain, for 111e appellant.\n\nB. R. L. Iyengar. S. K. Mehta and K. L. Mehta, for the respondents.\n\nThe Judgment of. the Court was delivered by\n\nP.~h,, wat, 1. This appeal arises out of a suit for ejectment by a landlord a!!ainst a .tenant. The defendant is the tenant of six shops belonging to Thakurji Shri Shri Dwarkadheeshji installed in the temple at Chaura Raasta, Jaipur.\n\nDevendra Prasad is the adhikari or manager of the temple.\n\nHe gave a notice to the. defendant to quit the shop on August 1. 1957. On February '.?8. 1958, the. deity and Devendra Prasad filed a suit against the defendnt claiming recovery of possession of the six shops and Rs. 1.0061on account of arrears of rent.\n\nThe suit was\n\novcrned bv the Rajasthan Premises (Control of Rent and Eviction) Act. 1950 (Act No. XVII of 1950). The plaintiffs asked for ejectment of the defendant on the ground that he had suhlet the six shops.\n\nThe other grounds of ejectment were not e'tablished. and it is not necessary to mention them. The courts\n\nblow concurrently found that Devendra Prasad as the adhikari of the temple was entitled to give the notice to quit and to maintaiJl the suit.\n\nThe trial court held that ( 1) all the six shops were sub-let hv the defendant; (2) the sub-letting wa~ with the penni!!illn of\n\nuOPl'ULAL >'. DWAlt1'AlJHl!llSHJI (B•c/; QIV\"l J.) 991\n\nthe iaadlord and (3) the notice to quit was waive<l by acceplanc~ of rent subsequently accrued due.\n\nAccordingly, tht: trial cou.-1 dt>nJ.issed the suit so far as it claimed ejectment and passed a decree for Rs. 1,006 on account arrears of rent. The plaintiff filed an .ippeal against the decree.\n\nThe District Judge, Jaipur City, dismissed the appeal. The plaintiffs filed a second appcai agai, n.st .the dec<ce. The H.igh Court hdd that ( 1) there was on integra:ed\n\ntenancy of ali the six shops; (2J four shops were sub-let with the permission of the landlord; ( 3) two shops were sub-:et w1lh out the permission of the landlord tuwards t!1e end of 19.+1; (4) the tenant having sub-kt a pan of the premises without the pe: - mission of the landlord the ground of eviction under claii>e ( e) of s. J 3 ( 1) was made out and the landlord was entitled to a decree for possession ol all the six shops and (5) thrc was no waiver of the notice to quit. Accordingly, the High Court allowed the appeal and passed a decree for eviction of the deiendant from the six shops. The present appeal has been field by the defendant after obtaining special leave.\n\nCounsel for the appellant conceded that there was no waiver of the notice to quit by acceptance of rent or otherwise.\n\nThe points arising for determination in this appeal are : ( 1) was there on~ integrated temancy of all the six shops ? ( 2) were the two sub-let without the permission of the landlord towacds the end at 1947? and (3) is the sub-letting a ground of ejectment under clause ( e) of s. 13 ( 1) of the Rent Act ?\n\nAs to the first question, we !ind that four shops were let to the defendant in 1944 and the other two shops on the northern side of the staircase of the temple were let to him in 1945. The rent of the four shops was Rs. 150.'- per month.\n\nThe rent of the other two shops was Rs. 65, - per month.\n\nIn paragraph 5 of the plaint it was pleaded that in 1953 the defendant aoreed to pay a consolidated rent of Rs. 251 /8/- per month for all the >ix shops \"!ld to vacate them by July 3 l, 1957.\n\nIn paragraph 5 of the wntten statement the defendant denied this contract and alleged that in 1953 there was only an enhancement of rent. The first two courts found that in l 953 there was no new contract of tenancy, that there was only an increase of rent and that the other terms and conditions of the tenancy remained unaltered.\n\nThis finding was not vitiated by any error of law.\n\nA mere increase or reduction of rent does not necessarily import the surrender of the existing lea!e and the grant of a new tenancy.\n\nAs stated in Hill and Redman's Law of Landlord and Tenant, 14th ed., art. 385, p. 493 :-\n\n\"But a surrender does not follow from a mere agreement mde during the tenancy fur the reduction\n\n992 SWl'lllld• COIJJ.T Ul'OJ.Tli\n\n\nor increase of rent, unless there is some special reason to inlet a new tenancy, where for instance, the parties make the change in tne ren1 in the belief that the old tenancy is at an end.\" ln the present case the first two 1; ourts on a review of the entire evidence came to the conclusion that the increase of rent did not import a new demise.\n\nThis finding of fact was binaing on tbe\n\nH1n Court in second appeal. The High Court was m error Ill holding that there was one integrated tenancy of the six shops.\n\nAs to the second question the defendant denied that he sublet the two shops. The courts below concurrently found that this derual was laJse and that he sub-let the two shops to his brotherin-law Ram Gopal.\n\nThere was no pleading nor any issue that the sub-1etting of the two shops was made with the permission of the landlord. It was not the case a.f the defendant at any stage of the tnal that he had obtained the permission of the landlord for sub-letting the two shops. In the aosence of any p1eadmg and any issue on his joint the first two courts were in error in holding that the two shops were sub-let with the permission of the landlord.\n\nThe permission of the landlord for the sub-letting is not established from the mere fact that the landlord realised rent after the sub-Jetting in the absence of proof hat the landlord had then clear lmowleage of the sub-lease:\n\nThe date of the sub-letting of the two shops is not mentioned in the. plaint. In the absence of any pleading and any issue on his question the High Court was in error in recording the finding that the two shops were sub., Jet towards the end of 194 7 after the Jaipur Rent Control Order 1947 came into force.\n\nWe can only say that the sub-Jetting was sometime after 1945.\n\nAs to the third question : section 13 ( 1) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 provides :-\n\n\"Notwithstanding anythi, ng contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied-\"\n\nThe sub-section then sets out several grounds of ejectment under twelve main heads, Clause ( e) mentions the following ground:-\n\n\"that the tenant has assigned, sub-let or otherwise H parted with the possession of, the whole or any part of th• prtmiHi without th• p1rmiaaio12 of th• landlord.\"\n\nGOPPlJLAL V. DWAllKA!lHillSH.H (ll*KMWWI, J.) 9ii3\n\nThe appellant's contention is that sub-letting before the Act came into force is not within the purview of clause ( e). The High Court held that the two shops were sub-let after October 15, 1947 when the Jaipur Rent Control Order, 1947 came into force, that the sub-letting was a ground oi ejectmtmt under paragraph 8(l)(b)(ii) of thftt Order and that the tenant's liability for eviction on this ground continued after the promulgation of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950.\n\nWith regard to this line of reason:ing it is sufficient to say that the plaintiffs have not established that the sub-letting was after October 15, 1947. The case must be decided on the footing that on the date of the sub-letting, no Rent Control legislation was in force.\n\nThe question whether a sub-letting before the coming into force of the Act is within the purview of clause ( e) of s. 13 ( 1) depends upon the construction of that clause. The relevant words are \"has sub-let\". The present perfect tense contemplates a completed event connected in some way with the present time.\n\nThe words take within their sweep any sub-letting which was made in the past and has continued up to the present time. It does not matter that the. sub-letting was either before or after the Act came into force. AH such sub-lettings are within the purview of clause (e).\n\nSections 26 and 27 ( 1) of the Act throw considerable light on the construction of s. 13 ( 1). They are as follows :-\n\n\"26. No decree fodhe eviction of a tenant from any premises in areas to which this Act extends for the time being, passed before the date of commencement of this Act shall in so far as it relates to the eviction of such tenant be executed against him, as long as this Act, remains in force therein, except on any oi the growids mentioned in s. 13 and under the circumstances specified in this Act. 27 (1) In all suits for eviction of tenants from any premises in areas to which this Act has been extended under section 2, pending on the date specified in tlie notification under that section, no decree for eviction shall be passed except on one or more of the grounds mentioned in section 13 and u:nder the circumstances specified in this Act.\"\n\nSection 26 bars the execution of a decree for eviction passed before the commencement of the Act except on any of the QTOunds mentioned in s. 13 and under the circumstances specified in the Act. Likewise, s. 27 ( 1) bars the passing of a decree for eviction in a pending suit except on one or more of the groundi undtr\n\niii\" SUllll>t& WU.ll.T ll.IPO.ll.Tii\n\n[1116~] 3 S.C.R.\n\ns. J 3 and under the . irumstances specified in the Act. Secti?ns 26 and 27 ( l) clearly contemplate that the grounds of eviction mentioned in s. 13 may have arisen before the Act came mto force.\n\nThe argument that section 13 ( l )( e) takes away vested rights and should not be give.n a retrospective effect is based on .faUa cious assumptions. Apart from th~ Rent Act th.e Jandlod IS e~ titled to eject the tenant on the expiry of the period mentioned .m the notice to quit. Section 13 ( l) protects the tenant from eviction except in certain specified cases. If one of the grounds of ejectment is made out the tenant does not qualify for protection from eviction. We find no reason for pfesuming that s. 13 (1 )( e) is not intended to apply to sub-lettings before the Act came into force. If the \"tenant has sub-Jet\" the premises without the permission of tlie landlord either before or after the coming into force of the Act, he is not protected from eviction under s. 13 ( l )( c), and it matters not that he had the right to sub-let the premises under s. 108 (j) of the Transfer of Property Act.\n\nThe plaintiffs have thus established the ground of eviction under s. 13 ( 1 )( e) with regard to the two shops on northern side of the staircase of the temple. With regard to the four other shops the courts below concurrently found that they were sublet with the permission of the landlord. In our opinion, the plaintiffs are entitled to a decree for ejectment of the defendant from the two shops and the claim for eviction from the other four shops should be dismissed.\n\nIn the result, the appeal is allowed in part. The decree passed by the High Court for eviction of the defendant from the four shops is set aside and the suit in so far as it claims eviction from the four shops is dismissed. The decree passed by the High Court for evict!on of the defe.ndant from the other two shops on the northern side of the .staircase of the temple mentioned in par_agraph 4 of the. plaint is affirmed. Parties will pay and bear their own costs throughout, in this Court and in all the courts below.\n\nThe defendant will have one month's time to vacate the two shops.\n\nY.P.\n\nAppeal allowed in part.", "total_entities": 43, "entities": [{"text": "GOPPULAL", "label": "PETITIONER", "start_char": 0, "end_char": 8, "source": "metadata", "metadata": {"canonical_name": "GOPPULAL", "offset_not_found": false}}, {"text": "TllAKUlUI SHRIJI SHRIJI DWARKADHEESHJI & ANR", "label": "RESPONDENT", "start_char": 15, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "THAKURJI SHRIJI SHRIJI DWARKADHEESHJI & ANR", "offset_not_found": false}}, {"text": "March 12, 1969", "label": "DATE", "start_char": 62, "end_char": 76, "source": "ner", "metadata": {"in_sentence": "March 12, 1969\n\n[S. M. SIKRI, R. S. BACIIAWAT AND K. S. HEGDE, IJ.]"}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 79, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "S.M. 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Aganmla, Rames/11rnr Nath and Mahinder Narain, for 111e appellant."}}, {"text": "Mahinder Narain", "label": "LAWYER", "start_char": 4715, "end_char": 4730, "source": "ner", "metadata": {"in_sentence": "C. B. Aganmla, Rames/11rnr Nath and Mahinder Narain, for 111e appellant."}}, {"text": "B. R. L. Iyengar", "label": "LAWYER", "start_char": 4753, "end_char": 4769, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar."}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 4771, "end_char": 4782, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta and K. L. Mehta, for the respondents."}}, {"text": "K. L. Mehta", "label": "LAWYER", "start_char": 4787, "end_char": 4798, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta and K. L. 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{"document_id": "1969_3_995_1001_EN", "year": 1969, "text": "HEAVY ENGINEERING MAZOOOR UNION\n\nTHE STATE OF BffiAR & ORS.\n\nMarch 12, 1969\n\n[J. M. SHELAT AND V. BHARGAVA, JJ.]\n\nIndustrial Disputes Act, 1947, ss. 2(a) and !(}-Industry carritd'on by company incorporated under the Companies Act, 1956--E:ntire share capital subscribed by Central Government-Whether industry ca\"ied on \"under the authorirry of\" the Central Government and if that the \"apprn. priatt government\".\n\nIndustrial Employment (Standing Orders) Act, 1946-Question.r pending before certifying authority-If bar to a reference of adjudication under s. 10 of the Industrial Disputes Act, 1947.\n\nThe Heavy En.gioeering Corporation Limited was incorporated under the Companies Act and its entire share capital contributed by the C.Cntral\n\nGovernment. It was therefore a Government Company under s. 617 of the Companies Act.\n\nIts Menwrandum and Articles conferred large powers on the Central Governrnent including the power to give directions\n\nas regards the operation of the Company, the wages and salaries of its employees, and the appointment of directors of the company, Certain disputes arose between the Company and its workmen whereupon the\n\nState Government of Bihar referred these disputes by a notification in November 1956 to the Industrial Tribunal for adjudication.\n\nThe workmen through their union filed a writ petition under Arts: 226 and 227 of the Constitution disputing the validity of the reference on two grounds :\n\n(i) that the appropriate Government to make the said reference under s. 10 of the Industrial Disputes Act; 1947 was the Central Government and not the State Government; and (ii) that the questions refer'red for adjudication were at the time actually pending before the certifying authority under the Industrial Employment (Standing Orders) Ac\\!, 1946. on an application for modificatioa of the Company's Standing Orders and therefore the said questions would not be indust'rial disputes which could be validly refei:red for adjudication.\n\nThe High Court negatived both the contentions and upheld the validity of the reference.\n\nIn appeal to this Court under Art. 133(i) (c) it was contended inter alia on behalf of the appellant that the industry in question was \"carried on under the authority of the Central Government\" within the meaning of s. Z(a) of the Act and the reference under s. 10 was therefore required to be made by that Government.\n\nHELD, Dismissing the appeal: (i) The words \"under the authority of' mean pursuant to the authority, such as where an agent o'r a servant acts under or pursuant to the authority of his principal or master. That obviously cannot be said of a company incorporated under the Companies Act whose Constitution, powers and functions are provided for and re~ gulated by its memorandum of association and the articles of association.\n\nAn incorporated company has a separate existence and the law recognises it as a juristic person separate and distinct from its members. The mere fact that the entire share capital of the respondent-company was contributed by the C.Cntra\\ Government and the fact that all its shares were L 11 Sup CI;69-14\n\nheld by the President and certain officers of the Central Government did A not make any difference. [998 H-999 Gl\n\nSalomon v. Salomon & Co., [1897) A.C. 22; Janson v. Driefontain CoMO/idated Mines; [1902) A.C. 484; Kuenigi v. Donnersmarck, [1955) I Q.B. 515; Graham v. Public Works Commissioners, [19011\n\n(2) K.B. 781; The State Trading Corporation of India Ltd. v. The Commercial Tax Officer, Visakhapatnam [1964) 4 S.C.R. 99 at 188, per Shah J; Tamlin v. Hannaford [1950) I K.B. 18 at 25, 26; London County Te\"i- B torial and Auxiliary Forces Association v. Nichols, [19481 2 All. E.R. 432;· referred to.\n\nAlthough extensive powers were conferred on Central Government to give directions in regard to various matters; these powers were derived from the company's memorandum and articles and not by reason of the company bein2 the agent of the Central Government. [1000 BJ\n\nThe definition of \"employer\" in s. 2(g) of the Act suggests that an industry carried on by and under the authority of the Government means either the industry carried on directly by a department of the Government, such as the Posts and Telegraphs or the Railways, or one carried on by such department throu2h the instrumentality of an agent. [1001 Bl\n\nCarlsbad Mineral Water Mfg. Co. v. P. K. Sarkar, (1952) (1) L.LJ. 488; Cantonment Board v. State of Punjab, [19611 (!) L.L.J. 734: Abdul Rehaman Abdul Gafur v. Mrs. E. Paul, A.I.R. 1963 Born. 267, referred to.\n\n(ii) There was no force in the contention that as the questions relating to the modific!ation of the company's Standing Orders were pending before the certifying authority under the Industrial Employees (Standing Orders) Act, no reference could be made relating to these under s. 10 of the Act. [1001 DJ\n\nManagement of Banga/o, e W oo/len, Cotton and Silk Mills Co. Ltd.\n\nv. Workmen, [19681 1 S.C.R. 581; Management of Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v. S. S.\n\nRallway Workers Union, [1969] 2 S.C.R. 131. followed.\n\nCML APPELLATE JURISDICTION: Civil Appeal No. 1463 of 1968.\n\nAppeal from the judgment and order dated September 5, 1967 of the Patna High Court in Civil Writ Jurisdiction Case No. 921 of 1966.\n\nA. K. Nag, Jai Kishan and Ranen Ro, v, for the appellant.\n\nV. P. Singh. for respondent No. 1.\n\nB. P. Singh, for respondent No. 2.\n\nThe Judgment of the court was delivered by Shelat, 1.-The Heavy Engineering Corporation Ltd., Ranchi is a company incorporated under the Companies Act,\n\n1956. Its entire share capital is contributed by the Central Govennment and all its shares Jiave been registered in the name of the President of India and certain officers of the Central Government. It is, therefore, a Government company within the\n\n., '\n\nHEAVY ENGIN. MAZDOOR UNION v. BIHAR (She/at, J.) 997\n\nmeaning of s. 617 of the Companies Act. The Memorandum of Association and the Articles of Association of the company confer large powers on the Central Government including the power to give directions as regards the functioning of the company. The wages and salaries of its employees are also determined in acc0rdance with the said directions. The directors of the company are appointed by the President. In its standing orders, the company is described as a Government undertaking. The workmen employed by .the company have two unions, the Heavy Engineering Mazdoor Union and the Hatia Project Workers Union.\n\nCertain disputes having arisen between the company and its workmen, into which it is not necessary for the purposes of this judgment to go, the State Government of Bihar by its notification dated November 15, 1966 referred two questions to the Industrial Tribunal for its adjudication : firstly, as regards the number of festival holidays and secondly, whether the second Saturday in a month should be an off-day.\n\nThe Mazdoor Union thereupon filed a writ petition under Arts. 226 and 227 of the Constitution in the High Court of Patna disputing the validity of the said reference on two grounds : ( 1) that the appropriate Government to make the said reference under s. 10 of the Industrial Disputes Act, 194 7 was the Central Government and not the State Government and (2) that the questions referred to were at the time actually pending before the certifying authority under the Indus: trial Employment (Standing Orders) Act, 1946 on an application for modification of the company's standing orders and that therefore the said questions would not be industrial disputes which could be validly referred for adjudication. Before the High Court it was conceded that the company was not an industry carried on by the Central Government but the contention was that considering the fact that the entire share capital was contributed by the Central Government and extensive powers were conferred on it, the company must be regarded as an industry carried on under the authority of the Central Government and that therefore it was thai Government which was the appropriate Government which could make the said reference. On the second question, the contention was that the Industrial Employment (Standing Orders) Act was a self-contained code, that once a question relating to conditions of service was before the certifying authority constituted under that Act and was pending before him, the said question could not be an industrial dispute which could be referred for adjudication under s. 10 of the Industrial Disputes Act. It was urged that consequently the reference on both the grounds was invalid.\n\nThe High Court negatived both the contentions and upheld the validity of the reference.\n\nThe Mazdoor Union obtained a certificate under Art. 133(1)(c) and filed this appeal impugning the oorrectness of that decision.\n\nUnder s. 2 (a) 'appropriate Government' (leaving aside the words which are not relevant for our purposes) means (i) in relation to any industrial dispute concerning an industry carried on by or under the authority of the Central Government, the Central Government, and (ii) in relation to any other industrial dispute the State Government.\n\nAs was done before the High Court, Mr. Nag, appearing for the appellant-union, conceded that he would not contend that the company is an industry carried on by the Central Government but argued that it is an industry carried on under the authority of the Central Government and therefore it is that Government and not the State Government which is the appropriate Government for making a reference under s. JU of the Act. The first question raised by the appellantunion, therefore, turns solely upon the construction of the words \"carried on under the authority of the Central Government\". The contention was primarily grounded on the faqt that the entire share capital of the company has been contributed by the Central Government, all its shares are held by the President and certain officers of the Central Government presumably its nominees and extensive control is vested in the Central Government.\n\nBefore considering the authorities cited by counsel before us, we proceed first to examine the meaning of the words used lJy Parliament in the definition clause of 'appropriate Government'.\n\nIt is an undisputed fact that the company was incorporated under the Companies Act and it is the company so incorporated which carries on the undertaking.\n\nThe undertaking, therefore, is not one carried on directly by the Central Government or by any one of its depanrr.cnts as in the case of posts and telegraphs or the _ railways.\n\nIt was, therefore, rightly conceded both in the High Court as also before us that it is not an industry carried on by the Central Government.\n\nThat being the position, the question then is, is the undertaking carried on under the authority of the Central Government '! There being nothing in s. 2 (a) to th.~ contrary, the word 'authority' must be construed according to its ordinary meaning and therefore must mean a legal power given by one person to another to do an act.\n\nA person is said to be authorised or to have an authority when he is in such a position that he can act in a certain manner without incurring liability, to which he would be exposed but for the authority, or, so as to produce the same effect as if the pe:son graning the aut.hority had for himself done the act.\n\nFor mstance, if A authonses B to sell certain goods for and on his behalf and- B does so, B incurs no liability for so doing in respect of such oos and confers a aood title on the purchaser. There clearly arises m such a case\n\nth~ relationship of a principal and an agent. '.fhe words \"under the authority of\" mean pursuant to the authonty, such as where an agent or a servant acts under or pursuant to the authority of his principal or master.\n\nCan the respondent-company, there-\n\n., A\n\n11BAVY .ENGIN. MAZilOOR UNION v. BIHAR (Shela/, J.) 99 9\n\nfore, be said to be carrying on its business pursuant to the authority of the Central Government '?\n\nThat obviously cannot be said of a company incorporated under the Companies Act whose constitution, powers and functions are provided for and regulated by its memorandum of association and the articles of association.\n\nAn incorporated company, as is well known, has a separate existence and the Jaw recognises it as a juristic person, separate and distinct from its members.\n\nThis new personality emerges from the moment of its incorporation and from that date the persons subscribing to its memorandum of association and others joining it as members are regarded as a body inco:- porate or a corporation aggregate and the new person begins to function as an entity. (cf. Salomon V.\" Solomon & Co.)('). Its rights and obligations are different from those of its shareholders.\n\nAction taken against it does not directly affect its shareholders.\n\nThe company in holding its property and carrying on its business is not the agent of its shareholders. An infringement of its rights does not give a cause of action to its shareholders. Consequently, it has been said that if. a man trusts a corporation he trusts that legal persona and must look to its assets for payment; he can call upon the individual shareholders to contribute only if the Act or charter creating the corporation so provides. The liability of an individual member is not increased by the fact that he is the sole person beneficially interested in the property of the corporation and that the other members have become members merely for the purpose of enbling the corporation to become incorporated and possess only a nominal interest in its property or hold it in trust for him. (cf. Halsbury's Laws of England, 3rd Ed. Vol. 9, p. 9). Such a company even possesses the nationality of the country under the laws of which it is incorporated, irrespective of the nationality of its members and does not cease to have that nationality even if in times' of war it falls under enemy control. (cf. Janson v.\n\nDriefontai~ Consolidated Mines(') and Kuenigi\n\nv. Donnersmarck('). The company so incorporated derives its powers and functions from and by virtue of its memorandum of association and its articles of association.\n\nTherefore the mere fact f!1at the entire share capital of the respondent-coi'upany was contnbuted by the Central Government and the fact that all its shares are held by the President and certain officers of the Central Government does i; iot make any difference. The company and the shareholders bemg, as aforesaid, distinct entitles the tact\n\nthat the President of India and certain officers hold all its shares does not make the company an agent either of the President or the Central Government. A notice to the President of India and the said office.rs of the Central Government, who hold between them all the shares of the company, would not be a notice to the\n\n---(JJ-11897] A:C:.22.---\n\n(2) [1902] A.C.484.\n\n(3) [1955] 1 Q.B. 515.\n\n1000 SUPREME COURT REPOllTS [1969] 3 S.C.ll.\n\ncompany; nor can a suit maintainable oy and in the name of the A company be sustained by or in the name of the President and the said officers. ·\n\nIt is true that besides the Central Government having contributed the entire share capital, extensive powers are conferred on it, including the power to give directions as to how the company B should function, the power to appoint directors and even the power to determine the wages and salaries payable by the company to its employees.\n\nBut these powers are derived from the company's memorandum of association and the articles of association and not by reason of the company being the agent of the Central Government.\n\nThe question whether a corporation. is c an agent of the State must depend on the facts of each case.\n\nWhere a statute setting up a corporation so provides, such a corporation can easily be identified as the agent of the State as in Graham v. Public Works Commissioners(') where Phillimore, J. said that the Crown does in certain cases establish with the consent of Parliament certain officials or bodies who are to be treated as agents of the Crown even though they have the power of D contracting as principals.\n\nIn the absence of a statutory provision, however, a commercial corporation acting on its own behalf, even though it is controlled wholly or partially by a Government department, will be ordinarily presumed not to be a servant or agent Of the State. The fact that a minister appoints the members or directors of a corporation and he is entitled to E call for information, to give directions which are binding on the directors and to supervise over the conduct of the business of the corporation does not render the corporation an agent of the Government. (see The State Trading Corporation of India Ltd.\n\nv. The Commercial Tax Officer, Visakhapatnam( 2 ) and Tamlin\n\nv. Hannaford('). Such an inference that the corporation ls the F agent of the Government may be drawn where it is performing in substance governmental and not .commercial functions. (cf.\n\nLondon County Te\"itorial and Auxiliary Forces Association v.\n\nNichols)(').\n\n. In. this connection the meaning of the word 'employer' as given~ s. 2(g) of the Act may be looked at with some profit as G the legislture there has used identical words w)lile defining 'an\n\nmployer. An employer under cl. (g) means, m relation to an' mdustry earned on by or under the authority of any department of the. Cenral Government or a State Government, the authority prescnbed m tha.t behalf or where l!lO such authority is prescribed,\n\nth~ hea~ of the department.. No such authority has been pres- H cnbed m regard to the busmess carried on by the respondent-\n\n(1) (19011.2 K.B. 781.\n\n(2) 11964] 4 S.C.R. 99at188. per Shah. J.\n\n(l) [19SO] I K.B.18 at 25. 26.\n\n(4) [1948) 2 All. E.R. 432,\n\nitEAVY llNGIN. MAZOOOR UNION V. BIHAR (She/at, J,) 1001\n\ncompany. But that does not mean that the head of the department which gives the directions as aforesaid or which supervises\n\nover the functioning of the company is the employer within the meaning of s. 2(g). The definition of the employer, on the contrary, suggests that an industry carried on by or under the authority of the Government means either the industry carried on directly by a department of the Government, such as the posts and telegraphs or the railways, or one carried on by such department through the instrumentality of an agent.\n\nWe find that the view which we are inclined to take on the interpretation of s. 2 (a) is also taken by the High Courts of Calcutta, Punja;,· and Bombay. (see Carlsbad Mineral Water Mfg. Co. v. P. K.\n\nSarkar('), Cantonment Board v. State of Punjab(2 ) and Abdul Rehaman Abdul Gafur v. Mrs. E. Paul('). In our view the contention that the appropriate Government to make the aforesaid reference was the Central Government and not the State Government has no merit and cannot be sustained.\n\nThe second contention that the questions referred to were regulated qy the company's standing orders and an application for a modification of the said standing orders relating to those questions was actually pending before the certifying authority under the Industrial Employees (Standing Orders) Act precluded a reference thereof under s. l 0 of the Act requires no discussion as it is covered by the decision in Management of Bangalore Woollen, Cotton & Silk Mills Co. Ltd. v. Workmen(<) and The\n\nManagement of Shahdra (Delhi) Saharanpur Light Railway Co.\n\nLtd. v. S. S. Railway Workers Union(\").\n\nThus neither of the two contentions can be upheld. In the result the appeal is dismissed but there will be no order as to costs.\n\nR.K.P.S.\n\n(I) [1952] I L.L.J. 388.\n\n(2) [1961 J I L.L.J. 734.\n\n(3) A.I.R.1963 Born. 267.\n\n(4) [1968] I S.C.R. 581.\n\n(5) [1969) 2 S.C.R. 131.\n\nAppeal dismissed.", "total_entities": 68, "entities": [{"text": "HEAVY ENGINEERING MAZOOOR UNION", "label": "PETITIONER", "start_char": 0, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "HEAVY ENGINEERING MAZDOOR UNION", "offset_not_found": false}}, {"text": "THE STATE OF BffiAR & ORS", "label": "RESPONDENT", "start_char": 33, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF BIHAR & ORS", "offset_not_found": false}}, {"text": "March 12, 1969", "label": "DATE", "start_char": 61, "end_char": 75, "source": "ner", "metadata": {"in_sentence": "March 12, 1969\n\n[J. M. SHELAT AND V. BHARGAVA, JJ.]"}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 81, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT*", "offset_not_found": false}}, {"text": "V. BHARGAVA, JJ.", "label": "JUDGE", "start_char": 95, "end_char": 111, "source": "metadata", "metadata": {"canonical_name": "VISHISHTHA BHARGAVA", "offset_not_found": false}}, {"text": "Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 114, "end_char": 143, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 2(a)", "label": "PROVISION", "start_char": 145, "end_char": 153, "source": "regex", "metadata": {"linked_statute_text": "Industrial Disputes Act, 1947", "statute": "Industrial Disputes Act, 1947"}}, {"text": "Companies Act, 1956", "label": "STATUTE", "start_char": 216, "end_char": 235, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Industrial Employment (Standing Orders) Act, 1946", "label": "STATUTE", "start_char": 413, "end_char": 462, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10", "label": "PROVISION", "start_char": 554, "end_char": 559, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1956", "statute": "the Companies Act, 1956"}}, {"text": "Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 567, "end_char": 596, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Corporation Limited was incorporated under the Companies Act", "label": "STATUTE", "start_char": 622, "end_char": 682, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "C.Cntral\n\nGovernment", "label": "ORG", "start_char": 731, "end_char": 751, "source": "ner", "metadata": {"in_sentence": "The Heavy En.gioeering Corporation Limited was incorporated under the Companies Act and its entire share capital contributed by the C.Cntral\n\nGovernment."}}, {"text": "s. 617", "label": "PROVISION", "start_char": 797, "end_char": 803, "source": "regex", "metadata": {"linked_statute_text": "Corporation Limited was incorporated under the Companies Act", "statute": "Corporation Limited was incorporated under the Companies Act"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 811, "end_char": 824, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "State Government of Bihar", "label": "ORG", "start_char": 1150, "end_char": 1175, "source": "ner", "metadata": {"in_sentence": "Its Menwrandum and Articles conferred large powers on the Central Governrnent including the power to give directions\n\nas regards the operation of the Company, the wages and salaries of its employees, and the appointment of directors of the company, Certain disputes arose between the Company and its workmen whereupon the\n\nState Government of Bihar referred these disputes by a notification in November 1956 to the Industrial Tribunal for adjudication."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 1506, "end_char": 1511, "source": "regex", "metadata": {"linked_statute_text": "Corporation Limited was incorporated under the Companies Act", "statute": "Corporation Limited was incorporated under the Companies Act"}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 1519, "end_char": 1542, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Central Government", "label": "ORG", "start_char": 1557, "end_char": 1575, "source": "ner", "metadata": {"in_sentence": "The workmen through their union filed a writ petition under Arts: 226 and 227 of the Constitution disputing the validity of the reference on two grounds :\n\n(i) that the appropriate Government to make the said reference under s. 10 of the Industrial Disputes Act; 1947 was the Central Government and not the State Government; and (ii) that the questions refer'red for adjudication were at the time actually pending before the certifying authority under the Industrial Employment (Standing Orders) Ac\\!,"}}, {"text": "Art. 133(i)", "label": "PROVISION", "start_char": 2095, "end_char": 2106, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 2324, "end_char": 2329, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 2656, "end_char": 2669, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "C.Cntra\\ Government", "label": "ORG", "start_char": 3040, "end_char": 3059, "source": "ner", "metadata": {"in_sentence": "The mere fact that the entire share capital of the respondent-company was contributed by the C.Cntra\\ Government and the fact that all its shares were L 11 Sup CI;69-14\n\nheld by the President and certain officers of the Central Government did A not make any difference. ["}}, {"text": "[1964) 4 S.C.R. 99", "label": "CASE_CITATION", "start_char": 3525, "end_char": 3543, "source": "regex", "metadata": {}}, {"text": "s. 2(g)", "label": "PROVISION", "start_char": 4024, "end_char": 4031, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 4832, "end_char": 4837, "source": "regex", "metadata": {"statute": null}}, {"text": "Management of Banga", "label": "RESPONDENT", "start_char": 4860, "end_char": 4879, "source": "ner", "metadata": {"in_sentence": "1001 DJ\n\nManagement of Banga/o, e W oo/len, Cotton and Silk Mills Co. Ltd.\n\nv. Workmen, [19681 1 S.C.R. 581; Management of Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v. S. S.\n\nRallway Workers Union, [1969] 2 S.C.R. 131."}}, {"text": "[1969] 2 S.C.R. 131", "label": "CASE_CITATION", "start_char": 5058, "end_char": 5077, "source": "regex", "metadata": {}}, {"text": "A. K. Nag", "label": "LAWYER", "start_char": 5283, "end_char": 5292, "source": "ner", "metadata": {"in_sentence": "A. K. Nag, Jai Kishan and Ranen Ro, v, for the appellant."}}, {"text": "Jai Kishan", "label": "PETITIONER", "start_char": 5294, "end_char": 5304, "source": "ner", "metadata": {"in_sentence": "A. K. Nag, Jai Kishan and Ranen Ro, v, for the appellant."}}, {"text": "Ranen Ro", "label": "PETITIONER", "start_char": 5309, "end_char": 5317, "source": "ner", "metadata": {"in_sentence": "A. K. Nag, Jai Kishan and Ranen Ro, v, for the appellant."}}, {"text": "V. P. Singh", "label": "LAWYER", "start_char": 5342, "end_char": 5353, "source": "ner", "metadata": {"in_sentence": "V. P. Singh.", "canonical_name": "V. P. Singh"}}, {"text": "B. P. Singh", "label": "LAWYER", "start_char": 5378, "end_char": 5389, "source": "ner", "metadata": {"in_sentence": "B. P. Singh, for respondent No.", "canonical_name": "V. P. Singh"}}, {"text": "Shelat", "label": "JUDGE", "start_char": 5457, "end_char": 5463, "source": "ner", "metadata": {"in_sentence": "The Judgment of the court was delivered by Shelat, 1.-The Heavy Engineering Corporation Ltd., Ranchi is a company incorporated under the Companies Act,\n\n1956."}}, {"text": "Ranchi is a company incorporated under the Companies Act", "label": "STATUTE", "start_char": 5508, "end_char": 5564, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 617", "label": "PROVISION", "start_char": 5888, "end_char": 5894, "source": "regex", "metadata": {"linked_statute_text": "Ranchi is a company incorporated under the Companies Act,\n\n1956", "statute": "Ranchi is a company incorporated under the Companies Act,\n\n1956"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 5902, "end_char": 5915, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Memorandum of Association", "label": "PETITIONER", "start_char": 5921, "end_char": 5946, "source": "ner", "metadata": {"in_sentence": "The Memorandum of Association and the Articles of Association of the company confer large powers on the Central Government including the power to give directions as regards the functioning of the company."}}, {"text": "Heavy Engineering Mazdoor Union", "label": "ORG", "start_char": 6419, "end_char": 6450, "source": "ner", "metadata": {"in_sentence": "The workmen employed by .the company have two unions, the Heavy Engineering Mazdoor Union and the Hatia Project Workers Union."}}, {"text": "Hatia Project Workers Union", "label": "ORG", "start_char": 6459, "end_char": 6486, "source": "ner", "metadata": {"in_sentence": "The workmen employed by .the company have two unions, the Heavy Engineering Mazdoor Union and the Hatia Project Workers Union."}}, {"text": "November 15, 1966", "label": "DATE", "start_char": 6685, "end_char": 6702, "source": "ner", "metadata": {"in_sentence": "Certain disputes having arisen between the company and its workmen, into which it is not necessary for the purposes of this judgment to go, the State Government of Bihar by its notification dated November 15, 1966 referred two questions to the Industrial Tribunal for its adjudication : firstly, as regards the number of festival holidays and secondly, whether the second Saturday in a month should be an off-day."}}, {"text": "Mazdoor Union", "label": "PETITIONER", "start_char": 6908, "end_char": 6921, "source": "ner", "metadata": {"in_sentence": "The Mazdoor Union thereupon filed a writ petition under Arts."}}, {"text": "Arts. 226 and 227", "label": "PROVISION", "start_char": 6960, "end_char": 6977, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Patna", "label": "COURT", "start_char": 7005, "end_char": 7024, "source": "ner", "metadata": {"in_sentence": "226 and 227 of the Constitution in the High Court of Patna disputing the validity of the said reference on two grounds : ( 1) that the appropriate Government to make the said reference under s. 10 of the Industrial Disputes Act, 194 7 was the Central Government and not the State Government and (2) that the questions referred to were at the time actually pending before the certifying authority under the Indus: trial Employment (Standing Orders) Act, 1946 on an application for modification of the company's standing orders and that therefore the said questions would not be industrial disputes which could be validly referred for adjudication."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 7157, "end_char": 7162, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 7170, "end_char": 7193, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Industrial Employment (Standing Orders) Act", "label": "STATUTE", "start_char": 8158, "end_char": 8201, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10", "label": "PROVISION", "start_char": 8475, "end_char": 8480, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 8488, "end_char": 8511, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Mazdoor Union", "label": "ORG", "start_char": 8685, "end_char": 8698, "source": "ner", "metadata": {"in_sentence": "The Mazdoor Union obtained a certificate under Art."}}, {"text": "Art. 133(1)(c)", "label": "PROVISION", "start_char": 8728, "end_char": 8742, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 8816, "end_char": 8820, "source": "regex", "metadata": {"statute": null}}, {"text": "Nag", "label": "OTHER_PERSON", "start_char": 9190, "end_char": 9193, "source": "ner", "metadata": {"in_sentence": "As was done before the High Court, Mr. Nag, appearing for the appellant-union, conceded that he would not contend that the company is an industry carried on by the Central Government but argued that it is an industry carried on under the authority of the Central Government and therefore it is that Government and not the State Government which is the appropriate Government for making a reference under s. JU of the Act."}}, {"text": "Parliament", "label": "ORG", "start_char": 10181, "end_char": 10191, "source": "ner", "metadata": {"in_sentence": "Before considering the authorities cited by counsel before us, we proceed first to examine the meaning of the words used lJy Parliament in the definition clause of 'appropriate Government'."}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 10316, "end_char": 10329, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2", "label": "PROVISION", "start_char": 10873, "end_char": 10877, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 12083, "end_char": 12096, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "England", "label": "GPE", "start_char": 13687, "end_char": 13694, "source": "ner", "metadata": {"in_sentence": "Halsbury's Laws of England, 3rd Ed."}}, {"text": "India", "label": "GPE", "start_char": 14566, "end_char": 14571, "source": "ner", "metadata": {"in_sentence": "The company and the shareholders bemg, as aforesaid, distinct entitles the tact\n\nthat the President of India and certain officers hold all its shares does not make the company an agent either of the President or the Central Government."}}, {"text": "Phillimore", "label": "JUDGE", "start_char": 15932, "end_char": 15942, "source": "ner", "metadata": {"in_sentence": "Where a statute setting up a corporation so provides, such a corporation can easily be identified as the agent of the State as in Graham v. Public Works Commissioners(') where Phillimore, J. said that the Crown does in certain cases establish with the consent of Parliament certain officials or bodies who are to be treated as agents of the Crown even though they have the power of D contracting as principals."}}, {"text": "Commercial Tax Officer, Visakhapatnam( 2 )", "label": "RESPONDENT", "start_char": 16779, "end_char": 16821, "source": "ner", "metadata": {"in_sentence": "see The State Trading Corporation of India Ltd.\n\nv. The Commercial Tax Officer, Visakhapatnam( 2 ) and Tamlin\n\nv. Hannaford(')."}}, {"text": "s. 2(g)", "label": "PROVISION", "start_char": 17165, "end_char": 17172, "source": "regex", "metadata": {"statute": null}}, {"text": "1964] 4 S.C.R. 99", "label": "CASE_CITATION", "start_char": 17699, "end_char": 17716, "source": "regex", "metadata": {}}, {"text": "s. 2(g)", "label": "PROVISION", "start_char": 18054, "end_char": 18061, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 18480, "end_char": 18484, "source": "regex", "metadata": {"statute": null}}, {"text": "High Courts of Calcutta, Punja", "label": "COURT", "start_char": 18510, "end_char": 18540, "source": "ner", "metadata": {"in_sentence": "We find that the view which we are inclined to take on the interpretation of s. 2 (a) is also taken by the High Courts of Calcutta, Punja;,· and Bombay. ("}}, {"text": "A.I.R.1963", "label": "RESPONDENT", "start_char": 19687, "end_char": 19697, "source": "ner", "metadata": {"in_sentence": "(3) A.I.R.1963 Born."}}, {"text": "[1969) 2 S.C.R. 131", "label": "CASE_CITATION", "start_char": 19740, "end_char": 19759, "source": "regex", "metadata": {}}]}