41S

PILOO DHUNJISHAW SIDHWA v.

MUNICIPAL CORPORATION OF THE CITY OF POONA

January 15, 1970

[J. C. SHAH AND K. S, HEGDE, JJ.]

Conract-Formalities-Bornbay Provincial Municipal Corporation Act (59 of 1949), s. 74(2)-Contract requiring seal, and affixture of seal to be attesttZd by two me1nb.ers of Transport Committee-Members of Trans. port Committee not elecred--Contract entered into without seal-Enforce• ability.

Indian Contract Act (9 of 1872), s. 70-Invoice value as compensation-When allowed.

The appellant was the sole selling agent of motor spare parts for the manufacturers in the State of Bombay. The respondent-Corporation was constituted under the Bombay Provincial Municipal Corporations Act,

1949. Under s. 74 of Act and the Rules relating to contracts made under the Act, a contract relating to the purchase of goods exceeding Rupees five hundred is to be made in the name of the Corporation by the Trans port Manager, and, the contract has to be in writing and sealed in the presence of two members of the Transport Committee who should sign in token of the seal being affixed in their presence. Under s. 74(2), a contract not made in accordance with the provisions of .the Act and the rules is not binding on the Corporation. The Transport Manager of the respondent-Corporation called upon the appellant to supply certain spare parts worth more than Rupees two lakhs. A formal contract incorporat 4 ing the agreed terms w_as not and could not be executed and sealed as required by the Act. because, at the. time when the contract was entered into election of councillors to the Corporation had not been held and no Transport Committee was constituted and the powers of the C.Orpora~ tion and the Transport Committee were being exercised by the .Commis 4 sioner pursuant to the, transitory provisions of the Act.. The appellant supplied goods from time to time and the Corporation made payments according to the invoices. One of the invoices was. for about Rs. 49,000-00.

The invoice price consisted of an additional 12!% on the listed price by reason of the iricrease in the price made by the manufacturers.

With respect to that invoice, the Transport Manager was satisfied that the rates quoted were 'proper rates' and he accepted the goods delivered on behalf of the respondent, and appropriated them. But the respondent failed to pay the amount and terminated the contract.

The appellant filed a suit for a decree for the invoice amount and for damages. The respondent contended that the contract was not enforce4 able, because, it was not executed in tne manner prescribed by the Act.

-On the question of the amount to which the, appellant was entitled,

, , HELD : (I) The contrct was not made in accordance with the provts.ions of the Act, for, it Was not seated, and therefore, under s. 74(2) of the Act, the contract was not binding upon the Corporation, There is nothing in the transitory provisions which excludes the operation of s. 74(2). Hence. even if it was not possible to comply with the rules until the elections were held there was no warrant _for holding that the

-416

SUPREME COURT-REPORTS

[1970] 3 S.C.R.

-sub-section did not apply and that the Commissioner or the Transp0rt

Manager could enter into contracts without the seal of the Corperation. The appellant was accordingly not entitled to maintain a suit for the price of the goods relying upon any contractual obligation, nor maintain the claim for damages on the footing that the respondent committed a breach Of contract. [420 E, 421 B-DJ

(2) But the appellant was entitled to maintain bis claim for compensation under s. 70 of the Contract Act.

Under the section compensation would normally be the market price of the goods.

In the circumstanf<S of the present case, the invoice value was the .Prevailing market value of the goods and the appellant was entitled to it.

The appellant was also entitled to interest at 6% till date of pa'Yment.

"[422 E, FJ Secretary of State v. G. T. Sarin and Co. l.L.R.

II Lah. 375,

.approved.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 19 of 1967.

Appeal from the judgment and decree dated July 23, 24, and September 26, 1963 of the Bombay High Court in Appeal No. 801 of 1957 from Original Decree.

J. C. Bhatt, R. A. Gagrat and B. R. Agarwala, for the appellant.

R. B. Kotwal and Naunit Lal, for the respo, n.tlent.

The Judgment of the Court was delivered by

Shah, J, Piloo Dhunjishaw Sidhwa-hereinafter called 'the _plaintiff'-carries on business in the name and style of Hind Motor Corporation at Bombay.

By a letter dated February 1, 1952 the Transport Manager of the Municipal Corporation of Poona called upon the .Plaintiff to supply "motor spare parts" described therein of the total value of Rs. 2,71,808'12-3.

The plaintiff by letter dated February 22, 1952 agreed to supply the goods.

The plaintiff supplied the goods from time to time and the Corporation made payments according to the invoices.

Oii July 3, 1953 the plaintiff delivered certain goods required by the Corporation and submitted an inyoice for Rs. 49, 743-6-2.

The Municipal Corporation failed to pay the amount of the invoice and terminated the contract.

The plaintiff then instituted an actiOl!l .in the Court of the Civil Judge, Senior Division, Poona for a decree for Rs. 49, 743-6-2 being the value of "motor spare parts" supplied, and for Rs. 39,755-2-4 being damages for breach of contract. The suit was resisted by the Corporation principally on the ground !hat the contriict on which the plaintiff relied was not executed in the manner prescribed by the Bombay Provincial Municipal , Corporations Act 59 of 1949 and on that ground the contract was not

PILOO SIDHWA V. MUNICIPAL CORP. (Shah, J.) 417

enforceable.

The Trial Court decreed the plaintiff's suit for Rs. 49, 743-6-2 being the invoice value of the goods supplied with interest at 4% from the date of the suit and dismissed the claim for damages.

The Municipal Corporation appealed to the High Court of Bombay against the decree of the Civil Judge, Senior Division.

The plaintiff filed cross objections to the decree appealed from.

The High Court rejected the plaintiff's claim for damages for breach of contract and held that the plaintiff was entitled only to the "fair price" of the goods supplied to the Corporation. In the view of the High Court the fair price of the goods was the "landed cost and 40% thereo_n" beside freight, insurance, packing and forwarding charges from Bombay to Poona.

To determine the amount due to the plaintiff the Court appointed a Commissioner.

The Commissioner reported that an amount of Rs. 38,010-59 was due to the plaintiff.

The High Court disallowed Rs. 2,407-83 and Rs. 6,058/- being items respectively of commission paid to the financier of the plaintiff and the customs duty for determining the landed cost. The High Court accordingly decreed in favour of the plaintiff Rs. 32,121-11 nP with interest, "at the rate of 6% from one month after the furnishing of the bill by the plaintiff to the Corporation after the dateof the notice", at the rate of 93 from the date of the notice upto the date of the suit, and at the rate of 7t % from the date of the suit till the date of realization.

The plaintiff has appealed to this Court with certificate granted by the High Court.

The Municipal Corporation of Poona was constituted on February 15, 1950 under the Bombay Provincial Municipal Corporations Act 59 of 1949. The provision.s of the Act relating to the making of contracts are contained in ss. 73, 74 & 75 in Ch. VII of the Act insofar as they are relevant they provide :

s. 73-"With respect to the making of contracts under or for_ any pu!J)Ose of this Act, including contracts relat.ing to the acquisition and disposal of immovable property or any interest therein, the following provisions shall have effect, namely :-

(a) every such contl:act shall be made on behalf of the corporation by the Commissioner;

(b) no such contractfor any purpose which, in accordance with any provision of this Act, the Commissioner may not carry ou~ Without the approval or sanction of some other municiP.al authority, shall be made by him until or unless such approval or sanction has first been duly given; •

( c) no contract which will involve an expenditure exceeding five thousand rupees or such higher amount as the Corporation may, with the approval of the Provincial Government, from time to time prescribe, shall be made by the Commissioner unless the same is previously approved by the Standing Committee .. (d) ( e) the foregoing provisions of this section shall, as far as may be, apply to every contract which the Commissioner shall have occasion to make in the execution of this Act; "

s. 74--"(1) The mode of executing contracts under C this Act shall be as prescribed by rules.

(2) No contract which is not made in accordance the provisions of this Act and the rules shall be binding an the Corporation."

s: 75-"For the purpose .of contracts relating exclusively to the Transport Undertaking the provisions of section 73 and thos_e of Chapter V of the Schedule shall apply as if for the word 'Commissioner' wherever it occurs the words 'Transport Manager' and for the words 'Standing Committee' wherever they occur the words 'Transport Committee' had been substituted."

By the terms of s. 74(1) contracts with the Corporation had to be in the manner prescribed by rules. By Ch. V of the Schedule rules relating to contracts are prescribed. By r. I, it is provided, insofar as it is relevant :

" (I) Every contract entered into by the Commissioner on behalf of the Corporation shall be entered into in such maniier and form as would bind the Commissioner if such contract were on his own behalf, and may in the like manner and form be varied or discharged : Provided that-

(a) any such contract which would require to "be under seal if it were entered into by the Commissioner shall be sealed with the common seal of the Corporation; and

(b) every contract for the execution of any work or the supply of any materials or goods which will involve an expenditure exceeding live handred rupees or such higher amolJllit . . . shall be in writing and be sealed with the common seal of the Corporation in the manner presi; ribed in sub-rule ( 2) . .

P!LOO SIDHWA V. MUNICIPAL CORP. (Shah, J.) 419

A ( 2) The common seal of the Corporation . . . . shall be affixed in the presence of two members of the

Standing Committee to every contract or other instrument required to be under seal and such contract or instrument shall be signed by the said two members of the Standing Commi\tee in token that the same was sealed in B their presence. . . . . . . "

Rule 4 of Ch. V, insofar as it is relevant, provides :

"The provisions of this Chapter shall, so far as may be, apply to contracts relating to the Transport Undertaking:

Provided that the functions to be performed thereunder by the Standing Committee or the members thereof and the Commissioner shall be performed by the Transport Committee or the members thereof and the Transport Manager, as the case may be."

Transitory provisions were made in the Act for the administration of the affairs .of the Corporation, till elections of the Councillors were held.

By s. 15 of Appendix IV to the Act, it was provided :

"Notwithstanding anything contained in this Act, the Commissioner sha_ll exercise the powers and perform the duties of the Coryoration and the Standing Committee under this Act and under any other law for the time being in force until general ward elections shall have been held in accordance with the provisions of this Act and the first meeting of the Corporation shall have been held."

By s. 23 Appendix IV the State Government was given the power to make orders for removing difficulties. It provided :

"If any difficulty arises in giving effect to the provisions of this Act or, by reason of anything contained in this Act, to any other enactment for the time being in force, the State Gi;>vernmnt may, as occasion requires, by order do anything which appears to it necessary for the purpose of removing the difficulty : ..

Jn exercise of this power the State Government issued an order on May 6, .1950, authorising the Municipal Commissione(' of the City of Poona-(1) to exercise all the powers and perform all the duties, which are exercisable and to be performed by the Transport Committee under the said Act, until the first meeting of the Transport Committee as. constituted under the Act shall have been held; and (2) to exercise all the powers and perform all the duties,

which are exercisable or to be performed by the Corporation in respect of a Transport Committee under the said Act, until the general ward elections shall have been held in accordance with r. stile provisions of the Act and the first meeting of the Corporation shall have been held.

:~511 A contract relating to the purchase of "goods" exceeding rupees five hundred in value is to be made in the name of the Corporation by the-Transport Manager. It has to be in writing and has to be sealed in the presence of two members of the Transport Committee who sign in token of the seal being affixed in their presence.

A formal contract incorporating the agreed terms between the plaintiff and the Corporation was not and could not be executed and sealed as required by the Act, for, at the relevant time elections of councillors to the Corporation had not been held, and no Transport Committee was constitu'ted as required by s. 25 of the Act and the powers of the Corporation were being exercised by the Commissioner pursuant to the transitory provisions.

The Commissioner was, it is true, competent to exercise all the powers and perform all the duties of the Transport Committee.

But under the rules in Ch, V the seal of the Corporation must be affixed in the presence of two members of the Transpori Committee who signed in token of the seal having been affixed to the contract.

The Act clearly provided bys. 74(2) that the contract which was not made in accordance with the provisions of the Act and the rules shall not be binding on the Corporation. The contract was not made in accordance with the provisions of the Act, for, it was not sealed, and was by virtue of s. 74(2) of the Act not binding upon the Corporation.

I Mr. :\!hat! urged that the formalities relating to execution of the contract with the Corporation could not be complied with until a Transport Committee was constituted after election of Councillors of the Corporation l!Jld on that account the provisions relating to the form and manner of execution of the contract had no application to the contract in dispute. Any other view, counsel contended, rendercld. the Corporation incompetent to make contracts essential for the administration of the Corporation. Counsel also contended that the Corporation had not even a seal which could be affixed, because the form of the seal had not been approved by the Councillors. Counsel again said that even if the functions of the Transport {:ommittee could be exercised by the Ccimmissioner, a seal affixed in the preyence of the Commissioner and attested by him would not amount to compliance with the rules. In view of these provisions it was contended that the provisions of the Act relating to the form an_\l manner of execution of contracts could only apply after the elections are held and the Corporation could comply with the provisions.

PIIOO SIOHWA v. MUNICIPAL CORP. (S::.iil, f.) 421

By s. 5 of the Act the Corporation is a body corporate having a perpetua! succession and a common seul. Our attention has not been invited to any provision which even by impiicacion suggests that the Corporation may have a seal only after elections are held and the form of the seal is approved by the members of the Corporation. But the argument whether the Corporation had at the date of the contract a seal is not relevant. We are unable to hold that the provisions of ss. 73 and 74 and the relevant rule• in Ch. V

did not apply before the elections were held anu the statutory Committees were constituted. There is nothing in the transitory provisions which excludeS the operation of s. 7 4(2) of the Act.

Granting, that it is not possible to comply with the rules, until the elections are held, there is no warrant for holding that the provisions of s. 7 4(2) '111'.ill n.:it apply and the Commissioner or the Transport Manager may enter into contracis without seal which are enforcea'ille at law, Jll)!Witbstanding the absolute terms. of the Act.

In our judgment there was no enforceable contract between the r, laintiff and the Corporation.

The claim for damages on the •.ooting that the Corporation committed a breach of contract was, D 'therefore, rightly rejected by the Trial Court and the High Court.

_The plaintiff is not entitled to maintain a suit for price of the goods relying upon any contractual obligation of the Corporation.

But theflaintiff may still maintain hjs claim for compensation under s. 70 o the Contract Act which provides :

"Where a person lawfully does anything for another . person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of or to restore, the thing so done or delivered."

That is not disputed by the Corporation. The Trial Court awarded to the plaintiff the invoice value. of the goods delivered by him. '.fhe learned !.udge was of the view that the plaintiff as the sole sellmg agent of motor spare parts" for the manufacturers in the Bombay State, was entitled to the listed price with 12!% thereon because of the increase notified by the manufacturer. In the view of !he earned udge the price for which the plaintiff made out an mv01ce was 'reasonable and prOJ:!er". The High Court held that the plaintiff may recover compensation equal to the "fair price" of the goods.

In our view the High Court was in error in holding that the B plaintiff is entitled not to the invoice value of the goods but only to "the fair price" of the goods. Under s. 70 of the ccro'.tract Act, a person lawfully delivering goods to another, and not intending to do so gratuitously, is entitled to demand that the goods delivered L7 S.1p. CI (NP)70-12

shall be returned, or that compensation for the goods shall be made.

Compensation would normally b~ the market price of the goods.

By refusing to return the goods, the person to whom the goods have been delivered cannot improve his position and seek to pay less than the market value of the goods. The High Court of Lahore in Secretary of State and Another v. G. T. Sarin & Company(') held that a person without an enforceable contract in his favour supplying goods to a Government Department is entitled to a money equivalent of the goods delivered assessed at the market rate prevailing on the date on whch the supplies were made.

The plaintiff had made out an invoice in respect of the goods delivered.

The Transport Manager accepted the goods 'on behalf of the Corporation and appropriated them. He had satisfied himself that the rates quoted. were "proper rates". The plaintiff was paid in respect of other goods supplied at the rates quotd in the price-list together with incidental charges.

The plaintiff was tile sole selling agent in the Bombay State and the additional 12t% which the plaintiff claimed on the listed price wa~ by reason of the increase in the price made by the manufacturers. There is no rea- son to hold that the invoice price was more than the market value of the goods. If it was the contention of the Corporation that the market rate was Jess than the invoice pricq it was open to the Corporation to lead evidence about the ruling rates at which the spare parts were sold in India by otlier agents of the manUfacturers. But no such attempt was made.

The plaintiff, in our judgment, was entitled to the market value of the goods at the date of supply, and, in our judgment, the invoice value was the prevailing market value of the goods.

The plaintiff is also entitled to interest at the rate of 6% per annum from "the date one month after the date of supply" till the date of institution of the suit, and at 6 % on judgment from the date of the suit till payment.

We accordingly set aside the decree passed by the High Court and restore the decree passed by the Trial Court with the modification in the rate of interest set out earlier. In view of the partial success of the parties, . there will be no order as to costs in this Court and in the High Court.

In the Trial Court the plaintiff will be entitled to proportionate costs for the amount decreed and the Corporation will bear its own costs.

R.K.P.S.

Appeal dismissed.

(I) I.L.R. 11 Lah. J7'.

41S

PILOO DHUNJISHAW SIDHWA

January 15, 1970

C. SHAH

HEGDE, JJ.

s. 74(2)

Indian Contract Act

s. 70

Bombay

s. 74

s. 74(2)

s. 74(2)

s. 74(2)

s. 70

J. C. Bhatt

R. A. Gagrat

B. R. Agarwala

R. B. Kotwal

Naunit Lal

Shah

Piloo Dhunjishaw Sidhwa

July 3, 1953

High Court of Bombay

Poona

Municipal Corporation of Poona

February 15, 1950

ss. 73, 74 & 75

s. 73

s. 74

section 73

s. 74(1)

s. 15

Appendix IV to the Act

s. 23

May 6, .1950

s. 25

s. 74(2)

s. 5

ss. 73 and 74

s. 7

s. 7

s. 70

s. 70

High Court of Lahore

India


GCITIPULLA VENKATA SIVA SUBRAYANAM & ORS.

STATE OF ANDHRA PRADESH & ANR.

January 19, 1970 B

[M .. HIDAYATULLAH, C. J., A. N. RAY AND I. D. DUI\, JJ.J

Indian Penal Code (Act 45 of 1860), ss. 96 to 106--Right ,•f private

dfence-Scope of-Plea no: raised by accus2d-Duty vj Co1:rt, lVlien th?re is evidence showing right of privarc defence.

'''ith rspe;; t to a kuilf!i., which \Vas government propeny, certain persons who had .occupied a part of the land in the kunta, and the accused, were assering their respective claims, the former to the use of the land in the kunta for cultivation and latter. to the use of the kunta as a source. of irrigation. The occupie; s and accused belonged to opposite political factions.

A suit \Vas I11ed by the occupiers .and the civil court passed two orders of injunction, one restraining the accused from interfe.ring with the occupie!'s' possession, and the othe.r, restraining the uccupiers from opening sluices in the bund of the kunta. While the suit was pending the ·...iccupiers raised corps on their land and the accused raised a new bund.

Since their crops. were being damaged as a result of the raising of the new bund, the occupiers approached the police authorities and tahsildar for the removal of the bund, but they did not give any effective help.

The accused were not \Villing to allow the removal of the bund v1..-ithout

any Government orde:. TOereupon, the occupiers and their supporters, numbering not less than twenty went to the. s9ot to remove the bund by force, but the accused were present at the spot determined not. to allow the bund to be, rem'Oved.

In the fight that ensued, the first accused. aged about 60 years, received ten injuries on the vital parts of his body and the. Civil Assistant Sugeon who attended on him thought it was qecessary to take a dying declaration from him. The second accused.who was about 50 years old, was also subjected to severe beating.

Some of the other accu5ed also received injuries. The. tenth accused, who had a gun in his hand, and who was the son-in-law of the first accused, shot at the a'ctual aggressors and killed three of 1hem and iniured another.

The party of the occupiers asserted that they went to the scene of occurrence unarmed and with the intention of peacefully persuading the accused to remove the bund and that when beaten by the accused they snatched the sticks and spears from them and retaliated. The tenth accused put forth a""

plea Of alibi. The oher accused asserted. that the party of the. occupiers were the aggressors and that tf:ley acted 10 serf defence. Huld1ng that n was not material to consider whether the occupiers and their supporters had brought with them sticks or snatched them from the accused, that the accused had attacked first and that the injuries to the accused did not give. rise to any right of pivate defence, the High Court C.Jnvicted some of the accused for the offence 11ridr ss. 147 J T>.C .. o:ne. for the offence under s. 148 I.P .C., and the tenth accused for the offences of murder and

g:ievous hurt with a dangrous weapon,

Jn appeal to this Court,

HELD (I) Whenthey went to the scene, rhe occupiers knew that determined not to allow the removal of the bund without an order rom determined not te a1tow the removal of the bund without a~ order rroi:n

he Gove-nment autiJorities.

In the circumstances the occupiers and their

supporters must have gone to the kunta fully armed, and it was not possible to accept their version. [434 E-G]

(2) The occupiers moved in the matter only after the new bund was raised by the accused. They had ample opportunity of approaching public authorities to have the bund removed.

When the occupiers and their supporters found that the. police were guilty of a grave dereliction of their duty, they could have approached the higher authorities or the civil court in which the suit was pending. Instead of having recourse to those steps they de.cided to go to the scene in large. numbers fully determined to remove the hund by force.

When that attempt was foiled by the accused with sho•.v of force, the members of occupiers' party mi::rcilessly beat up some of the accused persons who were advanced in age.

In such a situation it \Vas not possible for an average person placed in the position of the tenth. accused, to take a calm and objective view and calculate with arithmetical precision as to how much force would effectively serve the purpose of s.elf-defence and when to stop. He only used the gun against the real aggressors frum whom he apprehended grave danger to the lives of the other accused persons and to himself. Therefore, he was fully

justffi.ed in using his glln in the exercise of the right of private defence against the party of the occupiers. [438 C-D, E-H; 439 A-El

Except as against acts of public servants acting in good faith a:nd when there is time to have recourse to the protection of public authorities, under s. 97 I.P.C., every person has a right to defend : (1) his own body and the body o[ any other person against any offence affecting the human body, and (2) the property of himself or of any other person against theft, robbery. mischief, of criminal trespass.

Such a right is basically preventive and not punitive, and, nothing is an offence which is done in the exercise of the right.

Under s. 100 one of the circumstances in which the right of private defence of the body extends to the voluntary causing of death of the assailant, is, if he assault, which.occasions the exercise of the right, reasonably causes the apprehension that death or grievous hurt would otherwise be the consequences thereof. [437 B-D, E-F)

(3.) When there is evidence proving that.a person accused of killing or injuring another acted in the exercise of the right of private defence. the court would not be justified in ignoring that evidence and convicting the accused merely because he had set up a defence of q/ibi and set forth a plea different from the right of private defence.

Courts are expected to administer the law of private defence in a practical way with reasonable liberality so as to effectuate its underlying object.

Therefore, the Court was not precluded from giving the tenth accused the benefit of the right of private de'{ence. [439 F-H]

CRIMINAL

APPELLATE JURISDICTION : Criminal Appeal No. 75 of 1967.

Appeal by special leave from the judgment and order dated April 8, 1966 of the Andhra Pradesh High Court in Criminal Appeal No. 636 of 1963 ..

Nurud-din Ahmed, A. V. Rangam, A. Vedavalli and D.

H Gopala Rao, for the appellants.

P. Ram Reddy and A. V. V. Nair, for the respondents.

The Jud grnent of the Court was delivered by

Dua, J. In this appeal by special leave directed agains~ the order of the Andhr.a Pradesh High Court, the only question canvassed on behalf of the appellants before us relates to the plea of private defence raised by them at the trial. The appellants who are ten in number were tried on as many as 22 charges by the Court of Additional Sessions Judge, Masulipatam and acquitted of all the charges. On appeal by the State against their acquittal there was a difference of opinion between the two Judges of the High Court constituting the Division Bench hearing the appeal.

Whereas Sharfuddin Ahmed, J., upheld the order of acquittal on the basis of the plea of private defence, Mohd. Mirza, J., was of the opinion that the prosecution case was proved by overwhelming evidence. The case was in consequence laid before Basi Reddy, J., as provided bys. 429, Cr. P.C. That learned Judge accepted the prosecution case and convicted the appellants on some of the charges. He expressed his final conclusion thus :

"I shall now indicate the charges upon which the accused should be convicted and the sentences that should be imposed:

On charge no. 2 I would convict accused 1, 3 and 5 to 9 under section 147, I.P.C. and on charge no. 3 accussed 2, 4 and 10 and sentence each of accused 1, 2, 3, 4 and 5 to pay a fine of Rs. 500/-, in default each to suffer six months' rigorous imprisonment. I would sentence each of accused 6 to 9 (who are farm servants) to pay a fine of Rs. 100/- in default to suffer two months' rigorous imprionment. I would sentence accused 10 to suffer rigorous imprisonment for two years.

2. On each of charges nos. 4, 5 and 6 which pertain to the three counts of murder, I would convict and sentence accused 10 to suffer imprisonment for life under section 302, I.P .C.. '

3. On charge no. ii, I would convict and sentence accused no. 10 to suffer two years' rigorous imprisonment under section 326, I.P.C. for having caused grievous hurt to P.W. 6 by shooting at him with the gun.

4. On charge no. 22, I would convict accused 10 under section 19 (a) of the Indian Arms Act and sentence him to suffer one year's rigorous imprisonment.

I would direct all the sentences of imprisonment passed on accused 10 to run concurrently. I would uphold the order of acquittal on other charges.

The net result will be that accused l 0 will have to A undergo imprisonment for life; accused 1 to 5 will each have to pay a fine of Rs. 500; and accused 6 to 9 will each have to pay a fina of Rs. 100/-".

The final order of the High Court on appeal followed the opinion expressed by Basi Reddy, J.

The charges on which the appellants 8 were convicted are these : ..

Secondly : that you accused nos. 1, 3 and 5 to 9 along with accused nos. 2, 4 an<l 10 at about J 0 a.m. on l 0-9-61 at the same place and in the course of the same transactian as set out in charge no. 1 above, formed yourthe common object of such assembly viz : beating and the occupiers of Gabbilalakunta, committed an offence of assembly, viz. : beating <•ud k.i'iling the members of the lakunta, committed an olfe:.r~ of rioting and that at that weapons to wit, 'spears' and the .I 0th accused was armed and wiihin my cogniza•1cc;

Third!) : that you accused uos. 2, 4 and 10 along with accused nos. 1, 3 and 5 to 9 at the same time and place in the course of the same transaction as set out in charge no. 2 above, were members of an unlawful assembly and did in prosecution of the common object of such assembly, vi~ :beating and killing the members of the party that came in support of the occupiers of Gabbilalakunta, committed an ol'ence of rioting and that at that time, the accused nos. 2 m•d 4 were armed with deadly weapons to wit, 'spears' an<l the 10th accused was armed. with a D.B.Bl Gun and thereby committed an offence punishable under section 148 of the Indian Penal Co<le and within my cognizance;

Fourthly : that you accused no. 10 at the same time and place and in the course of the same transaction as set out in charge no. 2 above, did commit murder by intentionally or knowingly causing the death of Anne Ramarao, son of Seetha Ramarao of Atkur by shooting him with a D.B.B 1 gun and thereby committed an offence punishable under section 302 of the Indian Penal Code and within my cognizance;

Fifthly : that you accused no. 10 at the same time and place and in the course of the same transaction as set out in charge no. 2 above, did commit murder by intentionally or knowingly causing the death of Bodapati China Anjaiah s/o Danaiah of Mustabada by shootipg

him with a D.B.Bl gun and thereby committed an offence punishable under seetion 302 of the Indian Penal Code and within my cognizance;

Sixthly : that you accused no. I 0 at the same time and place and in the course of the same transaction as set out in charge no. 2 above, did commit murder by intentionally or knowingly causing the death of Boddapati Lakshmaiah s/ o Kotaiah of Medaripalem, hamlet of Verudupavuluru by shooting him with a D.B.Bl gun and thereby committed an offence punishable under section 302 of the Indian Penal Code and within my cognizance;

Eleventhly: that you accused no. 10 at the same time and place and in the course of the same transaction as set out in charge no. 2 above, voluntarily caused grievous hurt to Kolli Nagabhushanam, son of Venkaiah of Davajigudem by means of a D.B.BI gun an instrument for shooting and thereby committed an offence punishable under section 326 of the Indian Penal Code and within my cognizance and that the said act having been done in pursuance of the common object of the unlawful assembly consisting of you all the accused herein, all of you are guilty of the offence under section 326 of the Indian

Penal Code read with section 149, Indian Penal Code and within my cognizance, or alternatively under section 326 read with section 34, Indian Penal Code and within my cognizance;

Twentysecondly : that you accused no. 10 at about the same time and place and in the course of the same transaction as set out in charge no. 2 above, were armed with a D.B.Bl gun without licence under the Indian Arms Act and thereby committed an offence punishable under section 19 ( e) of the Indian Arms Act and within my cognizance."

In this Cou_rt, as already observed, the appellants' learned Advocate confined his submission only to the question of right of private defence.

According to the prosecution case there is a low lying area covering. about 11 acres known as Gabbilalakunta (hereafter to be referred as the Kunta) abciut one mile away from Surampalli village but within its limis. This Kunta sei:ving as a tank is fed by rain water.. The _villae of Surampalh was a Mokhasa village in the erstwhile zammdan of Mirzapuram. Under

the. provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, the zamindari of Mirzapuram was taken over by the Government in i 950.

As a result thereof the entire estate including Surampalli village and the Kunta became vested in the Government free from all encumbrances. This Kunta thus belonged to the Government.

Some poor landless persons like P.Ws 1 J and 14, Shaik Madarsaheb and Kandavalli Anandam, began cultivating a part of this Kunta and started raising wet and dry crops. This started in the year 1953. Their occupation being unauthorised the Revenue Authorities collected penalty cist from the occupants. Accused nos. 1 to 4, Gottipulla Venkatasiva Subbarayanam, Gottipulla Bapaiah, Gottipulla Seshaiah and Gottipulla Subba Rao, who are the , former Mokhasadars have their lands measuring about 80 acres to the south of the Kunta. There is a big tank called Erracharuvu located about three or four furlongs to the north of the Kunta. There are some channels through which water flows from this tank to various fields and one such channel serves to irrigate the field of the accused nos. 1 to 4. According to the prosecution the lands of these accused persons should be irrigated by means of the channel running along the western side of the Kunta.

According to the accused persons, however, their fields should receive water from the Kunta through sluices in its southern bund. In 1958 the Settlement Authorities registered the Kunta as a source of irrigation for an ayacui of 34 acres. Prior to that, sometime in August 1957, the occupiers of the Kunta had instituted a suit for injunction restraining accused nos. 1 to 4 from interfering with the possession of the occupiers and also claiming damages on the allegation that the defendants had spoiled their crops and an interim injunction was actually granted on August 21, 1957.

Accused nos. 1 to 4 also filed an application seeking to injunct the occupiers from opening the sluices (out-lets) or making breaches in the bund of the Kunta during the pendency of the suit.

On this application also the court, by an order dated August 29, 1957, granted a temporary injunction in the following terms :

"Pending disposal of this petition, the respondents are restrained from opening the sluices or outlets or cutting any breaches to the bund of the tank situated in S. No. 44 if there is any bund .... "

On February 3, 1960 the Court confirmed both the orders of injunction mentioned above. The land in the Kunta was not cultivated in the years 1958 to 1960 because of failure of rains. In June, 1961 cultivation was resumed by P.W. 13 and P.W. 14, along with four other persons, raising paddy crop in a part of the Kunta.

Another part of the Kunta was prepared for raising

A '

jonna crop.

The suit mentioned above was still pending when on September 4, 1961 it was adjourned to some other da!e.

It rained hea-iily that night and the rain water collected m the Kunta. , on the following morning when P.W. 13 and P.W. 14, along with some other occupiers passed 6y the side of the Kunta they saw a new bund raised on its western side so as to prevent the rain water collected therein from flowing westwards.

This resulted in submerging the crop grown on the eastern, portion of the Kunta.

The new bund was about 3' high, 2t' wide and 25 yards in length.

There being no one present at the bund P.Ws 13 and 14 and their companions made a breach therein to let the water flow westwards. In the evening when they came back to the Kunta they found that the breach in the bund had been repaired and the bund restored to its original position. There were also two improvised huts set up to the south of the bund and all the ten accused were present keeping a watch. The occupiers pleaded with the accused persons to remove the bund pointing out that otherwise their crops would be damaged but the accused persons did not listen to their entreaties and threatened to beat them if they dared to interfere with the bund. The occupiers thereupon went back to their village. On the following day, September 6, 1961, P.W. 12, Yelamanchili Malikharjuna Rao, a medical practitioner at Surampalli and a leading member of the Communist Party was approached by the occupiers to assist them in representing to the authorities against the high-handed action of the Mokhasadars. A report was prepared by P.W. 12 which was addressed to the. Sub-Inspector of Police.

The Sub-Inspector promised to send his constables to the spot and on this assurance the occupiers went back to their village. On September 7, 1961 under the direction of the Police Sub-Inspector two police constables went to the Kunta with the object of getting the bund removed and if possible to bind over the parties. The Kunta was full of water and the paddy crop was submerged. Six of the occupiers were also present at the spot. The police constables informed the persons present keeping a watch on the bund, which included accused no. 1 Gottipulla Venkatasiva Subbarayanam, accused no. 2 Gottipulla Bapaiah and accused no. 10, Charugulla Vijayaramarao, that the Sub-Inspector had directed the western bund to be removed so that water may flow westwards. Accused nos. 1, 2 and 10 asked for Government orders to that effe.ct and declined to allow the bund to be removed in the absence of such an order. The police constables asked the pai; ties present to meet the Sub-Inspector on the following day.

Neither party, however, went to the police station as required.

The Tahsildar also appears to have been approached to get the bund removed but he declined to do so on the ground that it was not his business and that it was for the Revenue Divisional Officer to look into the matter.

On September 9, 1961 the Sub-Inspector sent a head constable along with

the constable who had gone there on September 7, to enquire into the complaint made to the police earlier.

According to the repart prepared by the head constable accused no. 10 was firm and emphatic that the bund could not be removed in the absence of. a Government order to that effect.

Bonds were, therefore, secured from accused nos. 2 and 3 and also from the occupiers for appearance before the Sub-Inspector on the following morning.

It appears that these steps by the police produced no tangible result.

The occupiers realising that their crops were being irreparably damaged made frantic efforts to get the bund removed and with that ooject they approached some ryots of the surrounding villages to intervene on their behalf and to persuade the Mokhasadars to remove the b und.

After the police party had left Surampalli on the evening of September 9, P. W s. 13 and 14 and some other occupiers proceeded to Gannavaram and approached some persons belonging to the Communist Party and apprised them of their plight. The occupiers were assured of their suppart on the following morning. On the morning of September 10, P.W. II, Katragadda Pedavenkatarayudu accompanied by P.W. 6, Koli Nagabhushanam, and Anne Rama Rao (deceased no. 1) went to Mustabada on their way to Surampalli. At Mustabada they contacted Chinna Anjayya (deceased no. 2) and P.W. 15, Pendyala Venkateswara Rao,. and from there they all proceeded to Surampalli. At the Panchayat Board Office at Surampalli they collei:ted P.W. 1, Madhukuluri Satyanarayana, P.W. 4, Kolampatta Venkata Subbayyachari, P.W. 5, Jasti Ramarao. P.W. 7; Garimella Subbarao, P.W. 8, Garimella Venkataiah, P.W. 9, Mukkala Veeraiah and deceased no. 3, B. Lakshmayya and also the six occupiers of the Kunta and two or three other persons. P.W. 12, Y. Mallikarjuna Rao also arrived there. A message was sent through P.W. 13 to bring accused nos. 1 to 4 to the Panchayat Board office but they were reported lo be at the Kunta. Then all the persons gathered at the Panchayat Board office numbering about 20 proceeded to the Kunta at abouc IO a.m. on September 10. Accused nos. 1 to 9 were found near the huts whereas accused no. 10 with a gun was standing about 25 yards to the southeast of the huts.

Accused nos. 2 and 4 had spears whereas accused nos. 1 and 5 to 9 had sticks with them. P.Ws. I, 4, deceased no. 1, P.W. I I and others are stated to have requested accused nos. 1 to 4 to remove the bund and save the growiltlg crop belonging to the poor men.

The accused declined to do so.

Thereuoon the six occupiers went towards the bund about 25 yards to the north of the huts and started themselves removing a Portion.

Accused nos. 1 to 9 thereupon rushed at them to beat them.

At that stage P. W. 5, Jasti Ramarao, P.W. 7, Garimella Subba Rao and some others who had come to mediate intervened but they were beaten by the accused. The prosecution witnesses in turn snatched the sticks from some o.f the accused persons and retaliated causing injuries to some of them.

At this point of time accused no. 10 who was standing near the huts shouted that the party of the occupiers would not go back unk>s sllot at and asked his companions to come back. Accused nos. l to 9 started retreating towards the huts.

Deceased no. 1 and P.W. I who was about JO yards southeast of the huts at that time went towards accused no. 10 challenging him to shoot if he dared and saying that they were prepared to be shot for a just caus:.

Accused no. I 0 then stepped forward and fired at deceased r.o. l "from a distance of about 10 yards.

Crying out "Abba'" deceased no. 1 fell down and died on the spot.

A pellet grazed the nose of P. W. 1 who was a couple of yards. '::t:hind deceased no. l and he too fell down.

According to the prosecution version accused no. 2 hit P.W. l at the back as a result of which P.W. l also fell down unconscious.

Accused no. 10 is stated to have fired another shot towards the west as a result of which P.W. 6 was injured.

Accused no. 10 then re-loaded his gun and fired a shot towards the west and this hit deceased no. 2 who also fell down dead.

The fourth shot was fired by accused no. 10 in the northwestern direction which hit deceased no. 3 who was about 25 yards away from the huts and he too fell dowq dead. P.Ws. 2, 3, 8, 9 and 10 also received pellet injuries in the course of this firing.

This, broadly speaking, is the prosecution case.

According to the defence version sought to be supported by four defence witnesses the gun used during the occurrence was brought by accused no. 1 who holds the necessary licence for this fire arm and it was he who used it in execcise of the right of private defence after accused [), OS. 2 to 4 had received injuries at the hand of about 200 or 300 communists who had come to the place of occurrence from the house of P.W. 12.

They were armed with sticks and spears and were also carrying their flag.

They were raising party slogans and shouting that Gottipulla people should be killed.

They tried forcibly to remove the bund and on being obstructed by accused nos. 2 to 4 and their servants working at their farm the occupiers and the communists gave a severe beating IQ the latter.

Accused no. 1 came to the spot with his gun and fired at the aggressors in exercise of the right of private defence.

Accused no. 10, according to this version, was not present at the spot.

Jn his statement under s. 342, Cr.P.C. this accused pleaded alibi by stating that he was at Sivapuram, Kadapa district on the fateful day having gone there weeks before and that he knew nothing about this occurrence; according to him he stayed in Sivapuram for .about one month and himself surrendered in

he Magi, trate's court on hearing that he was named as an accused in this case.

The trial court did not accep~ his plea of alibi nor did. the High Court accept it and we do not find any cogent ground for disagreeing with this conclusion.

Now, the fac:ts in the background of which the question of right of private defence is to be considerd are that the Kunta was the property of the Government and it was registered as a source of irrigation in the year 1958 or 1959.

The occupiers were thus .cultivating the Kunta in an unauthorised manner.

Both sides had also secured injunction orders from, the civil court against their opponents and the. orders sec11red by the accused restrained the opposite party (plaintiffs in the suit) from cutting any breaches in the bund.

The accused no doubt seemed to have put up the present bund after the occupiers had grown their crops but it is clear that for a c-ouple of years previously there was insufficient rain and ther.~ was also no cultivation in the Kunta. The present bund was apparently raised on September 4, because it was on the morning of September 5, that the existence of the bund is stated to have been noticed by the occupiers.

Thereafter the occupiers approached the police authorities for assistance in getting th~ bund removed but unfortunately t)le matter was not dealt w:th by the authorities in an effective manner as they ought to have.

Haviin, g failed in their attempt to have the bund removed, the occupiers with their communist helpers seem to have gone to the spot on the day of the occurrence to help themselves.

Up to this stage there does not seem to be any controversy.

The only difference between the rival versions relates to the question, whether or not

the party of the occupiers was armed and their number.

The prosecution witnesse5> would have us believe that they (the occupiers) along with some of their friends and supporters had gone to the E Kunta unarmed to peacfully persuade the accused persons to remove the burn! and that ti)e accused persons beat them up with sticks and spears.

The occupiers, acting merely in self-defence, snatched the sticks and spears from some of the accused persons

nd gave them a beating whereupon accused no. 10 used his gun. 1c'ldiscriminately firing at the party of the occupiers.

The accused, on the other hand, claimed that the pary of the occupiers; helped by prominent communists which far outnumbered the accused persons were anned with sticks and spears and. they forcibly tried to remove the bund and when the accused objeced they were beaten up.

Apprehending danger to their lives, the gun was used on behalf of the -party of the accused persons.

It was tlrns in exercise of the right of private defence that this gun was used.

It may at this stage be pointed out that the accused persons had also reported the matter to the police but on the plea that the police was siding with the occupiers and favouring them the accused persons filed a complaint ih the court of a Magistrate against 35 persons and both the cases were tried simultaneously.

As each side is blaming the other of being the aggressor and the witnesses for the prosecution deposing to the occurrence as eye witnesses are clearly interested in the occupiers the nature and

extent of the injuries suffered by the men of the two factions would serve as more reliable material for arriving at the truth.

It is in this connection noteworthy that even according to the prosecution witnesses the party of the occupiers consisted of not les than 20 persons.

We may now tutn to the wound certificates of the accused persons.

Gottipulla Venkata Siva Subbarayanam, aged 60 years, accused no. 1, had 10 injuries on his person mainly on the head, base of the neck and the shoulders and dying declaration was considered necessary by the Civil Assistant Surgeon.

Gottipulla Bapaiah, aged about 50 years, accused no. 2 had the follow·

ing in juries on his person :

1. A contusion 12" in length x t" with raised edges placed diagonally across the upper 1/3 of left half of the back, the lower and towards the spine and the upper end towards the shoulder.

Brownish red in colour;

2. A contusion brownish red in colour l" in diameter situated on the right shoulder;

3. Whole of the right shoulder joint swollen and brownish red im colour.

Movemens at right shoulder joint restricted;

4. A contusion bluish in colour 3" in diameter on the outer aspect of upper t of the right arm;

5. A contusion 6"X !" with raised edges situated diagonally across the right side back, the outer end towards the axilla and the upper end towards the neck.

Brownish in colour;

6. Whole of the right hand swollen and tender brownish red in colour;

7. A lacerated injury 2" x !" scalp deep situated on the left parietal eminence 4" above Pinna of left ear.

Clotted blood seen in the wound and is placed transversely;

8. An incised wound transversly placed on the right ha!f of centre of occiput at the back of head 1 t" x 1/ 4" scalp deep.

Clotted blood found in the wound.

X-ray report disclosed M.C. dislocation of right acromio c!avicular joint.

Gottipulla Seshayya, aged 50 years, accused no. 3, had two injuries on his person one of which was incised wound scalp deep situated diagonally on the front half of right parietal bone. Dying declaration was not considered necessary and he was discharged from the hospital on the 16th September, 1961 after six days.

Gottipulla Subba Rao, aged 48 xears, accused no. 4 had :i brownish red contusion with raised edges and small al"a6ion 01<e~ it situated transversely on the right forearm, 1/3 of which wasswollen and tender.

There was a fracture of the bone blo"' He also remained in the hospital from September 10, to Septenr: ber 16.

Korlagunta Narayana Rao, aged 35 years, accused no. $ had four injuries on his person including a lacerated injury 2" '< J" scalp deep on the. froin.t of the right parietal bone, t" to the right of mid line of skuil and another similar injury !" x t" scalp dee, p on a contusion 3" in diameter, brownish red in colour at the hack of junction of both parietal bnes in between parietal emine, nces.

Shaik Madarsaheb, aged 25 years, accused no. 6, ·!lad Jive injuries on his person including a contJsion.

He too ret!lllined in the hospital for six das upto sptember -16, 1961.

Thota Seethararnayya, aged 40 years, accused no. 7 had a

simple injury on his right hand ringiinger. o

Accused no. 8, Thota Subba Rao, aged 22 years had only a contusion on right buttocks.

These injuries quite clearly suggest that the party of occupiers did not consist of a few unarmed persons who had no design to forcibly remove the bund.

It is the prosecution case that the accused were determined not to allow the bund to be removed without an order from the Government authorities and that they were prepared to use force to protect the bund.

The accused were also armed with the gun belonging to accuse:! no. I and thi; was fully known to the occupiers.

In this background it is not possible to accept the story that the prosecution witne; ses had gone to the Kunta unarmed and it was onlv when they were beaten by the accused persons that they in self-defence snatched the sticks and spears from some of the accused persons and beat up the others with those sticks and spears.

Some of the injuries found on the persons of the prosecution witnesses were of course caused by blunt weapons lmt most of the injuries were, according to the medical evidence caused by gun shots.

According to the trial court both parties asserted their respective claims, t)le occupiers to the use c.' the land in the Kunta for cultivation and the accused IO the use of the Kunta as a source of supply of rain water for irrigating their land and these conflicting riW!ts could not co-exi; t. When the prosecution witnesses attempted forcibly to remove the bund the trouble flared up.

The two factions had also affiliations with two different political parties :

the occupiers had full support of the Communist Party and accused no. IO was a member of the Mandal Congress.· The court also did not believe the prosecution version that prosecution wi~ nesses had gone to the Kunta to peacefully persuade the accused persons to remove the bund. It held the occupation of the Kunta by the occupiers tQ be unauthorised after its registration as an irrigation tanlcs. It further held that the bilnd as it existed on September 5, 1961 had been raised by the accused persons but thete were sluices and vents in the Southern bund.

The court also found that water from Erracheuvu used to flow into the .bund of the Kunta from where it passed on to the fields of the accused nos. 1 to 4 with the result that the accused persons were justified in raising the bund and if there was any contravention of the civil court's injunction the occupiers should have approached that court for appropriate relief.

It was on this line of reasoning that the action of the accused in protecting the bund was upheld.

On a consideration of the prosecution evidence the trial court observed that notwithstanding the denial of his presence at the spot by accused no. l 0 it was open to him to say that on the prosecution evidence itself he must be held to have acted in exercise cf the right of private defence and so observing that court expressed its conclusion thus :

"The facts and circumstances elicited in the prosecution evidence referred to above clearly establish that the accused l to 9 were maintaining a right at that time, that . the bund was being removed by men on the other side and the men on the other side also inflicted simple and grievous injuries on the accused l to 9.

In such a situation it was open either to any of the accused l to 9 or even to the l 0th accused to do something to avert further beating.

The beating to the extent to which it took place resulted in grievous injuries to some of the accused.

Under these circumstances it has to be held that the fact!!" disclose a situation in which the l 0th accused can well claim to have acted in the exercise of the right of private defence.

Charges 4 to 6, !O to 13, 15 to 17 against the 10th accused, therefore, fail.

Consequently, the charges 7, 8 and 9 against the remaining accused also fail."

• In regard to the other char,\les, after discussing the e.vidence m the case and other material on the record and criticising the failure on the part of the police authorities to take effective and timely measures in advance to prevent the occurrence in question the trial court came to the conclusion that in regard to the actual beating suffered by the members of both parties the evidence was so oonflicting and their respective versions so distorted that

[1970] 3 S.C.R.

no definite finding. could safely be arrived at.

AU that emerged from the material in \]le court's view was that the accused wanted ' ·to retain the burid \vhich the prosecution party wanted to remove and the fight ensued.

On this view the accused were acquitted.

On appeal Basi Reddy J., who disposed it of in the High Court llnder s. 429, Cr.P.C. felt that the case put forward by the.prose' cution was substantially true and the case set up by the defence palpab:y false. According to the learned Judge neither the accused had a right to put up the bund nor had the occupiers a right to encroach on the bed of the Kunta.

The injunction order in favour of 'the accused was only based on the existence of a bund at the time of the order and thus did not entitle the accused to raise a new bund whereas the injunction order in favour of the occupiers restrained the accused persons from interfering with the enjoyment of the Kunta by the occupiers.

The accused who had .. raiseq the bund l!'rid who being fully armed were deermined to •guard and preserve it by use of fo!ce were held by the learned Judge to constitute an unlawful assembly.

Accused nos. 2, 4 and IO were held to be armed with deadly weapons and therefore guilty of s. 148, l.P.C. and the other accused were held guilty under s. 147, I.P.C.

The right of private defence was also negatived by the'learned Judge.

It was observed that this right had not been pleaded by accused no. 10 and on the prosecution evidence the accused had first attacked the mediators on their intervention. to prevent the occupiers being beaten up and it was thereafter that P.Ws. 5 and 7 and others beat the accused persons in retaliation.

The High Court did not consider it material whet- . her the prosecution witnesses and others had brought with them sticks of had snatched the same from the accused persons and sustenance of injuries by accused nos. 1 to 8 in this connection was held not to give rise to any right of private defence.

Holding the use of the gun by accused no. I 0 to be his individual act independent of the object of the assembly he alone was held guilty of the offence of murder.

I In our opinion the High Court has misconceived the law in regard to the right of private defence and the appeal has, therefore, to be allowed.

The 'right of private defence of person and property is recognised in all free. civilised, democratic societies within certain reasonable limits.

Those limits are dictated by two considerations :

(1) that the same riht is claimed by all other members of the society and (2) that it 1s the State which generally undertakes the responsibility for the maintenance of law and order.. The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, nor are they expected, by use of force, to right the wrongs done to

c .

. GOTTIPUI-LA I'. A. P. STATE (Dua, /.) 437

them or to punish the wrongdcer for commioion of offences.

The right ofprivat.: defence serves a social purpose and as observed by this Court more 'hain once there is nothing more degrading to the human spirit than to ruu away in face of peril; (Munshi Ram

v. Delhi Administration(') and Kishna 1•. State of Rajasthan(2 ).

But this right is ba; ically preventive and not punitive. lt is in this background that the provision;. of ss. 96 to 106, I.P.C. which deal with the right of private defence have . to be construed.

According . to s. 96 nothing is an offence Wlfkh is done in the exercise of the right of private defence and uncler s. 97 subject to the restrictions contained in s. 99 every person has a right to defend : ( 1) his own body and the body of any other person against any offence affecting the human body and (2) the property whether movable or immovable of himsdf or of any other person against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass or which is an attempt to commit these offences.

The right of private defence, according to section 99, does not extend to an act which doe& not reasonably cause the apprehension of death or of a grievous hurt if done or attempted to be done by a puMic servant acting in good faith etc., and there is also no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.

Nor does it extend to the inflicting of more harm than is necessary to inflict for the purpose of defence.

Section 100 lays down the circumstances in which the right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailants.

They are: (1) if the assault which occasions the exercise of the right reasonably causes the apprehension that death or grievous hurt would otherwise be the consequence thereof and (2) if such assault is inspired by an intention to commit rape or to gratify unnatural lust or to kidnap or abduct or to wrongfully confine a person under circumstances which may reasonably cause apprehension that the victim would be unable to have recourse to public authorities for his release.

In case of less 1>erious offences this right extends to causing any harm other than death.

The right of private defence to the body commences as soon as reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed and it continues as long as the apprehension of danger to the body continues, The right of private defence of property under s. 103 extends, subject to s. 99, to the voluntary causing of death or of any other harm to the wrongdoer if the offence which occasions the exercise of the right is robbery, house-breaking by night, mischief by fire on any building etc., or if such offence is, theft, mis-

(1) Cr!. A. No: 124 of 1965 decided on 27.11.1967.

(2) Crl. A. No. 23of1960 decided on 30.10.1961.

L 7Sup.Cl(NP) \1 -13

chief or house trespass in such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if the right of private defence is not exercised. This right commences when reasonable apprehension of danger to the property commences and its duration, as prescribed in s. 105, in case of defence against criminal trespass or mischief, continues as Jong as the offender continues in the commission of such offence.

Section 106 extends the right of private defence against deadly assault even when there is risk of harm to innocent persons.

In the case in hand it is undoubtedly true that the accused persons are found to have raised the bund after the rainfall of September 4, 1961. But it is indisputable that the occupiers had ample opportunity of approaching the public authorities concerned if they felt that their right had been encroached upon. It is noteworthy that the accused persons had accomplished the raising of the bund Jong before the occupiers noticed it. A civil suit had already been instituted by them as far back as 1957 in respect of their right to cultivate the Kunta.

In that suit a permanent injunction had been sought against the defendants and their agents etc., restraining them from interfering with the plaintiff's possession and enjoyment of the disputed land.

Damages amounting to Rs. 300/- were also claimed in that suit for loss suffered by the plaintiffs as a result of trespass alleged to have been committed by the defendants on the said land.

This suit was pending anhe time of the occurrence in question and as observed earlier in February, 1960 both sides had secured injunctions in this suit. The police authorities had also been approached by the occupiers with a complaint against the recent raising of the bund by the accused persons a couple of days prior to the present occurrence. If the Sub-Inspector concerned was guilty of grave dereliction of duty (as in our opinion he clearly was) the higher authorities could easily have been approached by the occupiers and their supporters. Even the civil court could have been. moved with a complaint that the accused persons were interfering with the occupiers' possession and enjoyment of the Kunta.

But instead of having recourse to these steps the occupiers and their supporters decided to go to the spot in large numbers folly determined to remove the bund by use of force. \Vhen this attempt was foiled by the accused persons with show of force the party of the prosecution witnesses mercilessly beat up some of the accused persons who were advanced in age. This conduct on the part of the occupiers and their supporters was, in our opinion, sufficient, on the facts and circumstances of this case, to give rise to a reasonable apprehension in the mind of accused no. 10 that the victims of this assault would have been killed had he not exercised the right o.f private defence.

The use of the gun by accused no. 10 against the members of the opposite faction would thus seem to be justified.

It may be

GOTTIPULLA v. A. P. STATE (Dua, J,) . .. -· 439 -·---

A .· recalled that accused rio. 1 gt:<! about 60 years; who is the father-in-law of accused no. 10 _had received as many as 10 in- . juries mostly on vital parts_ of the body and accused no. 2 about. 50 years old had also been subjected to severe beating. In a situation like this it .is not possible for an average person whose mental excitement can be better imagined than described, to weigh B . the position in golden scales and it was, in our opinion, wellnigb impossible for the person placed in the position of accusr.A no. 10 to take a calm and objective view expected in the detached - .. atmosphere of a .. court, . and calculate with arithmetical precision

as to how much force would effectively serve the purpose of selfdefence and when to stop.. It appears that the persons agains~-- . whom the gun was used were the realaggressors_from whom accused no. 10, agitated in mind as be must be at that time, apprehended grave danger to, the lives of -the other accused persons and_ ultimately to himself.

We are, therefore,. satsified that accused no. 10 was fully justified in using his gun in exercise of the right of private defence against the party of the prosecution witnesses who had come to the spot in support of the occupiers to use force in removing -the bund and who actually did use it and mercilessly beat up the accused persons and that accused no. 10 did not exceed this right. _ _ ___ · ·

 The fact that the plea of self-defence was notrisecl°by accused no. 10 and that be had Qn the contrary pleaded •alibi does not in our view, preclude the Court from giving to him the benefit of the right of private defence, if, on proper . appraisal of the evidence and other relevant material on the record; the 'Court concludes that the circumstances in which be found himself at the relevant time gave him the right to use his gun in exercise of this right, When thei:e is evidence proving that a person accused of killing or injuring another acted in. the exercise of the right of private defence the Court would not be justified in. ignoring that evidence and convicting the accused merely because . the latter has set up a defence of alibi and set forth a plea different. from the nght of private defence.

The ana!Ogy of estoppel or of. the technical rules o.f civil pleadings is, in cases like the present, inappropriate and the Courts are expected to administer the law of private defence in a practical way with rea.>onable liberality so as to effectuate its undei; lying object,. bearing in mind that the essential basic_ character of this right is preventive and not retributive.

The approach of the High_ Court in this matter, seems to us -- to be erroneous. We accordingly allow the appeal and acquit . the appellants. ·

V.P.S. -Appeal allowed .

GCTTIPULLA VENKATA SIVA SUBRAYANAM & ORS

STATE OF ANDHRA PRADESH & ANR

January 19, 1970

M .. HIDAYATULLAH

A. N. RAY

Indian Penal Code

ss. 96 to 106

ss. 147

s. 148

s. 97

I.P.C

s. 100

Andhra Pradesh High Court

Nurud-din Ahmed

A. V. Rangam

A. Vedavalli

D.

H Gopala Rao

P. Ram Reddy

A. V. V. Nair

Dua

Sharfuddin Ahmed

Mohd. Mirza

Basi Reddy

section 147

I.P.C

section 302

section 326

I.P.C

section 19

Arms Act

Gabbilalakunta

section 148

Anne Ramarao

Seetha Ramarao

Atkur

section 302

Indian Penal Code

Bodapati China Anjaiah

Indian Penal Code

Boddapati Lakshmaiah

section 302

Indian Penal Code

Kolli Nagabhushanam

Venkaiah

Davajigudem

section 326

Indian Penal Code

section 326

Penal Code

section 149

Indian Penal Code

section 326

section 34

Indian Penal Code

section 19

Arms Act

Surampalli village

Surampalh

Mirzapuram

Shaik Madarsaheb

Kandavalli Anandam

Gottipulla Venkatasiva Subbarayanam

Gottipulla Bapaiah

Gottipulla Seshaiah

Gottipulla Subba Rao

Kunta

August 21, 1957

August 29, 1957

February 3, 1960

Kunta

September 4, 1961

September 6, 1961

Yelamanchili Malikharjuna Rao

Surampalli

Mokhasadars

September 7, 1961

Charugulla Vijayaramarao

September 9, 1961

s. 13 and 14

Gannavaram

Katragadda Pedavenkatarayudu

Koli Nagabhushanam

Anne Rama Rao

Mustabada

Chinna Anjayya

Pendyala Venkateswara Rao

Madhukuluri Satyanarayana

Kolampatta Venkata Subbayyachari

Jasti Ramarao

Garimella Subbarao

Garimella Venkataiah

Mukkala Veeraiah

B. Lakshmayya

Y. Mallikarjuna Rao

Garimella Subba Rao

Gottipulla

s. 342

Cr.P.C

Sivapuram

Kadapa district

he Magi

Haviin

Gottipulla Venkata Siva Subbarayanam

Gottipulla Seshayya

16th September, 1961

Korlagunta Narayana Rao

sptember -16, 1961

Thota Seethararnayya

Thota Subba Rao

September 5, 1961

Erracheuvu

s. 429

Cr.P.C

s. 148

s. 147

I.P.C

ss. 96 to 106

I.P.C

s. 96

s. 97

s. 99

section 99

Section 100

s. 103

s. 99

s. 105

Section 106


J, S, BAJAJ & ORS. v.

ARJANDAS DAYARAM VACHHANI & ORS.

Janµary 21, 1970 [S. M. SiKRI, V. BHARGAVA AND l, D. DUA, JJ.] 8 The Displaced Persons (Compensation and Rehabilil<ltion) Rule" r, 19(2) and (3)-Scope of.

Rule 19(2) of the Displaced Persons (Compensation and Rehabilita lion) Rules provides for the method of compensation to_ joint families which have migrated to India as a result of the partition of the country in 1947. Rule 19(3) (b) provides that for the purpose of calculating the C nµmber of members of a joint family. Under r. 19(2), a person who was a lineal descendant in the main line of another living member of the. family entitled to claim partition shall be excluded.

A joint family consisting of a father and his sons bad migrated to India from Sind. The father made an application for the verification of claim in respect of the properties left by the family in Sind and the claim was verified. One of the sons claimed that the father and sons D should be treated as tenants-in-common. The authorities under the Act held that the parties constituted a joint .Hindu family and that in view of the r. 19(3) (b), r. 17(2) was not applicable. The High Court quashed the order holding that the living member of the family whose line.al descendants are to be excluded under r. 19(3) (b), must be a person other than their father. on the assumption that a person against whom partition can be claimed by the father must be some member of the family other E than his lineal descendants.

In appeal to this Court,

HELD : The special provision embodied in . the rule is intended to treat a joint Hindu family consisting only of a father and his sons as one unit for the purpose of payment of compensation for the ioint family property left in Pakistan. 'The rule is rational and logical and its language F is not susceptible of the meaning given to it by the High Court, because under Hindu law a father and each of his sons are entitled to claim parti

tion against each other. [444 A-B, C-F]

CIVIL APPE.LLATE JURISDICTION: Civil Appeill No. 1178 of 1966.

Appeal by special leave from the judgment and order dated G June 15, 16, 1965 of the Bombay High Court in Special Civil Application No. 2061 of 1963.

 V. A. Seyid Muhammad and S. P. Nayar, for the appellant.

N. N, Keswani for the rtl/lpondents.

The Judgment of the Court was delivered by .

DUA. J. This appeal by special leave iS directed again'st the decision of a Division Bench of the Bombay High Court allowing

a petition under Arts. 226 and 227 of the Constitution by Arjandas Dayaram Vachhani challenging the order of the Depty Chief Settlement Commissioner (with delegated powers of Chief Settlement Commissioner) under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954), hereafter referred to as the Act, disallowing the writ petitioner's revision from the order of the Settlement Officer (with delegated powers of Settlement Commissioner) which had affirmed on appeal the order of the Assistant Settlement Officer.

The writ petitioner's case was held to fall within r. 19 ( 3) of the Displaced Persons (C & R) Rules, hereafter called the Rules, made by the Central Government under s. 40 of the Act.

The question which falls for decision is a very short one and it relates to the meaning and effect of r. 19(3).

The facts are not in dispute.

Kishanchand Dayaram Vachhani and his four sons Arjandas Dayaram Vachhani, Dayaram A. Vachhani, Ramchand Dayaram Vachhani and Kanayalal Dayaram Vachhani constituted a joint Hindu family when, as a result of partition of the country in 1947, they migrated from Sind

(now in Pakistan) to India.

After their migration Kishanchand Dayaram Vachhani, the father, made an application for vertification of claim in respect of the properties left by the joint Hindu family in Sind.

This claim was duly verified. It is unnecessary to make a detailed reference to the history of the case.

Suffice it to say that on October 28, 1961 Shri Purshottam Sarup, Deputy Chief Settlement Commissioner (with delegated powers of Chief Settlement Commissioner) (Rehabilitation Department) allowed the appeal preferred by Arjandas Dayaram Vachhani from the order of Shri H. K. Chaudhary, Regional Settlement Commissioner, Bombay, dated May 14, 1961 and after setting aside the impugned order, directed that the property in question be treated as joint family property in which the parties would be entitled to apportionment as members of joint Hindu family in accordance with the Rules.

Pursuant to this direction Shri K. S.

Bedi, Assistant Settlement Officer, Bombay, on June 12, 1963 directed that the case he re-processed.

Shri Arjandas Dayaram Vachhani appealed from this order to the Settlement Officer (with delegated powers of the Regional Settlement Commissioner) but without success.

That officer recorded a fairly exhaustive order dated October 21, 1963 in which the entire history of the case was noticed.

A revision was taken to the Deputy Chief Settlement Commissioner, Shri Purshottam Sarup (with delegated powers of Chief Settlement Commissioner). That officer also went into the controversy at some length and by his order dated February 13, 1964 disallowed Shri Arjandas Dayaram Vachhani's claim both under r. 20 and r. 19(2) of the.Rules. It was pointed out that in his ( Shri Purshottam Sarup's) earlier order it had

been clearly stated that the parties constituted a joint Hindu family and were entitled to apportionment. The father and the sons could not be treated as separate and that their claim as tenants in common or as co-sharers was contrary to his earlier decision which had remained unchallenged.

In view of sub-r. (3) of r. 19, r. 19(2) was held inapplicable.

On an application under Arts. 226 and 227 of the Constitution the High Court disagreed with the view of the Chief Settlement Commissioner and held r. 19 ( 3) to .be inapplicable when the joint Hindu family consists only of father and his sons.

On this view the order of the departmental authorities was set aside.

The short question which now falls for our determination in this appeal is whether the sons of Kishanchand Dayaram Vachhani are entitled to claim the benefit of r. 19(2) which bas been granted by the High Court on their writ petition in disagreement with the view of the departmental authorities which excluded the claim of the sons under r. 19 ( 3) . Rule 19 may here be read :

"Special provision for payment of compensation to joint families :

( 1) Where a claim relates to properties left bythe members of an undivided Hindu family in West Pakistan

(hereafter referred to as the joint family) compensation shall be computed in the manner hereinafter provided in this rule.

(2) Where on the 26th September, 1955 hereinafter referred to as the relevant date the joint family consisted of:

(a) two or three members entitled to claim partition, the compensation payable to such family shall be computed by dividing the verified claim into two equal shares and calculating the compensation separately on each such share,

(b) four or more members entitled to claim partition, the compensation payable to such family shall be computed by dividing the verified claim into three equal shares and calculating the compensation separately on each such share

( 3 ) For the purpose of calculating the number of !he members of a joint family under sub-rule (2), a person who on the relevant date :-

(a) was less than 18 years of age,

(b)

was a lineal descendant in the main line of another Jiving member of joint Hindu family entitled to claim partition shall be excluded:

Provided that where a member of a joint family has died during the period commencing on the 14th August, 194 7 and ending on the relevant date leaving behind on the relevant date all or any ol the following heirs namely :-

{a) a widow or widows,

( b) a son or sons (whatever the age of such son or sons) but no IineaI ascendant in the main line, then all such heirs shall, notwithstanding anything contained in this rule, be reckoned as one member of the joint Hindu family.

Explanation :-For the purpose of this rule, the question whether a family is jolllt or separate shall be determined with ref.; rence to the status of the family on the 14th day of August, 1947 and every member of a joint family shall be deemed to be joint notwithstanding the fact that he had separated from the family after that date."

E According to the High Court the other living member of the joint Hindu family whose lineal descendants are to be excluded under sub-r. (3) (b) must be a person other than their own father.

This view, in our opinion, is contrary to the plain words used in this sub-rule.

The High Court expressed its opinion in these words:

"It is clear that this condition is intended to apply to a case where a joint family consists of more than two persons where each one of them is entitled to claim partition and the members sought to be excluded are lineal descendants of one of such members.

It is only in such cases that it could be s'aid that they were lineal descen dants of a member who was entitled to claim partition against another. In the present case the father and each of the sons is entitled to claim partition against each other.

If the lineal descendants are to be excluded even in a case like the present it only means that all the descendants of the father must be excluded even though there is no other member against whom the father can seek to enforce partition. Having regard to the words used the only interpretation which can be placed on clause (b) of sub-rule (3) of r. 19, is the one adopted by us."

The error into which the High Court seems to have fallen is that it has assumed that a person against whom partition can be claimed by the father of the lienal descendants constituting the joint Hindu family must be some .meniber of that family other than his lienal descendants imd that it exc\udes his right to claim partiti~

when the only other members of the joint family are his own lineal descendants.

For this assumption there does not seem to us to be any justification either in the languag11 or in the scheme -Of the Act and the rules or in any other provision of law applicable to the parties before us 'lnd governing the present controversy.

According to the general provisions of Hindu law the father fo a joint Hindu family has the pcwer to partition the joint family property and indei-.d in the present case the High Court has accepted the legal position that the father and each of his sons are entitled to claim partition against each other.

It is only on the language of r. 19(3) and as the judgment under appeal suggests, on that Court's disinclination to accept as proper, the exclusion of the sons when the joint family consists only of the father and his sons that the High Court construed r. 19 ( 3) in the manner stated above.

We are unable to find any warrant for this view.

The plain reading of r. 19(3) is against it.

The language is not susceptible of the meaning that there should be in existence some member of the joint family other than the sons, against whom the father should be entitled to claim partition.

The words of the sub-rule being plain and unambiguous they have, in our view, to be construed in their natural and ordinary sense.

No cogent reason has been suggested for <!eparting from the rule of literal construction in this case.

The consequence flowing from this construction is quite intelligible and seems to us to be rational and logical.

The special provision embodir.d in r. 19 for. paying compemation to joint Hindu families i5, in our view, intended. to .treat a joint Hindu family. consisting only of a father and his sons as one unit for the purpose of payment of compensation for the joint family property left in Pakistan.

Such a joint family is not intended to be broken up by the statutory scheme of the Act and the Rules.

Sub-rule (3){b) of r. 19 was, in our opinion, correctly construed by the Chief Settlement Commissioner and the High Court was wrong in disagreeing with it and in allowing the writ petition.

The appeal accordingly succei-.ds and is allowed with cOSts.

V.P.S.

Appeal allowed.

S, BAJAJ & ORS

ARJANDAS DAYARAM VACHHANI & ORS

Janµary 21, 1970

S. M. SiKRI

V. BHARGAVA

D. DUA, JJ.

India

Sind

Pakistan

A. Seyid Muhammad

S. P. Nayar

N. N

Arts. 226 and 227

Arjandas Dayaram Vachhani

Central Government

s. 40

Kishanchand Dayaram Vachhani

Arjandas Dayaram Vachhani

Dayaram A. Vachhani

Ramchand Dayaram Vachhani

Kanayalal Dayaram Vachhani

Kishanchand Dayaram Vachhani

October 28, 1961

Purshottam Sarup

H. K. Chaudhary

Bombay

May 14, 1961

K. S.

Bedi

June 12, 1963

October 21, 1963

February 13, 1964

Arts. 226 and 227

West Pakistan

26th September, 1955

14th August, 194 7

14th day of August, 1947


BECKER GRAY & CO. (1930) LTD. & ORS.

UNION OF INDIA & ANR.

January 23, 1970

[S. M. S!KRI, V. BHARGAVA AND I. D. DUA, JJ.]

Foreign Exchange Regulation Act 7 of 1947, ss. 12(1) and 23A- Sea Customs Acl ss, 19 and 167(8)-l/nder-va/uation of ihvoices of goods exported whether a violation of s. 12(1) of Act 7 of 1947-Dec/aration of value of goods on the basis that they were sold to buyer when in fact fhey were yet unsold whether a con:iravention of s. 12( 1 )-Whether penalty frvfoble under s. 167(8) of Sea Customs Act.

The appellants were exporters of jute carpet backing cloth and in connection with some exports by them between January 1957 and January 1963 penalties were imposed on them under s. 167(8) of the. Sea Customs Act for contravention of s. 12(1) of the Foreign Exchange Regulation Act No. 7 of 1947 in view of the provisions of s. 23A of the Act and s. 19 of the Sea Customs Act by the Adjudicating Officer.

Appeals to the Central Board of Revenue were dismissed. The Board in uplrolding the penalties found two defects in the declarations filed by the appellants in purported compilance with s. 12(1) 'of the Act 7 of 1947, namely: ( 1) that the invoice value of the goods was shown at a figure lower than the real sale, value; (2) that in the declaration it was stated that the invoice value declared was the full export value of the goods and was the same as that contracted with the buyer, whereas the correct delaration should have been that the declarations contained a fair valuation of the goods which \\-'ere unsold.

The declarations were given in form G.R. I prescribed by the Rules framed under Act 7 of 1947. In appeal before this Court against the decision of the Board it was urged on behalf. of the appellants that the defects in question did not amount to contravention of the restrictions imposed by s. 12(1) of the Act 7 of 1947, so that the imposition of the penalties was not justified.

HELD : (i) In viw of the decision of this Court in the case of M /.r.

Rai Bahadur Shreeram Durga Prasad (P) Ltd. which was fully applicable. to the facts of the present case the imposition of the penalties on the basis that the under-valuation of the goods amounted to contravention of s. 12(1), was unjustified. [447 BJ

Union of India v. M/s. Rai Bahadiu Shreeram Durga Prasad (P) Lrd. and Ors. [1969] 1 S.C. Cases 91, applied.

(ii) The second defect found by the Board in the declarations related to points on which s. 12(1) does not require a declaration. A declaration, which is in contravention of the Rules or the forms prescribed under the Rules may be penali•ed under s. 23 of the Act but such contravention will not attract the provisions of the Sea Customs Act.

Under s. 23A of the Act 7 of 1947 only a breach of restrictions imposed by s. 12(1) of the. Act is to be deemed to be a contravention of restrictions imposed by s. 19 of the Sea Customs Act.

An incorrect declaration in contravention of the Rules made under s. 27 of the Act 7 of 1947 is not to be deemed a contravention of any restriction imposed by s. 19 of the Sea Customs Act. Therefore the imposition on the appellants of penalties under s. 167(8) of the Sea Customs Act was totally unjustified. [447 C-FJ

SUPREME COURT REPORTS [1970] 3 s.c.R.

CIVIL APPELi.ATE JUlllSDICTION : Civil Appeals Nos. 1178 A. to 1180 of 1967.

Appeal by special leave from the Older dated March 13, 1967 of the Central Board of Excise and Customs (Appeal), New Delhi in appeals Nos. 47 to 50 of 1967.

N. A. Palkhivala, P. P. Ginwala, D. N. Mukherjee, R. S.

B Kumar and A. Choudhiiry, for the appellants.

N. S. Bindra and S. P. Nayar, for the respondents.

M. C. Chagla and D. N. Gupta, for the intervener.

The Judgment of the Court was delivered by Bhargava, J.--The appellants in these appeals were exporters of Jute Carpet Backing Cloth and, in connection with some exports by them between the period January 1957 to January 1963, penalties have been imposed on them under section 167 ( 8) of the Sea Customs Act for contravention of section 12(1) of the Foreign Exchange Regulation Act No. 7 ol 1947 (hereinafter referred to as "the Act") in view of the provisions of section 23A of the Act and section 19 of the Sea Customs Act by the Adjudicating Officer.

Their appeals to the Central Board of Excise and Customs (hereinafter referred to as "the Board") were dismjssed, though the amounts of penalties imposed were reduced.

The' order of the Board dismissing the appeals has been challenged in these appeals before us by special leave.

The Board based its decision for upholding the penalties on the finding that the declarations given in purported compliante with s. 12 (1) of the Act were defective in two respects.

One defect found was that, in the declarations, the invoice value of the goods was shown at a figure lower than the real sale value. The second defect found was that, in the declarations, it was stated that the invoice value declared was the full export value of the goods and was the same as that contracted with the buyer whereas, in fact, the goods had not been sold to the buyer and were being exported on consigrunent ba:sis, so that the correct declarations should have been that the declarations contained a fair valuation of the goods which were unsold.

The declarations were given in Fonn G.R.I. prescribed by the Rules framed under section 27 of the Act.

On behalf of the appellants, the argument advanced was that these defects in the declarations did not amount to contravention of the restrictions imposed bys. 12(1) of the Act, so that the imposition of these penalties was not justified.

Sc far as the question of under-valuation ol the exported goods in the declarations or the documents accompanying the declarations is concerned, reliance was placed on the decision of this

BECKER GRAY "' co. v. UNION (Bhargava, J.) 447

Court in Union of India and Others v. M/s. Ra; Bahadur Shreeram Durga Prasad (P) Ltd. and Others(') where this Court held that under-valuation in a declaration under s. 12(1) of the Act does wt amount to contravention of the restrictions imposed by that provision.

That decision , is fully applicable to the present cases before us on this point and, in view of that decision, the imposition of the penalties, on the basis that the under-valuation of the goods amounted to contraventiqn of s. 12( 1), is unjustified.

We may add that we see no justification for granting the request of Mr. Bindra, learned counsel for the respondents, that that decision should be reconsidered by a larger Bench.

Mr. Bindra, however, urged that, i, n these cases, there was the distinctive feature that the Board also found that the declarations were further incorrect inasmuch as the goods were declared to have been sold, while they were being exported on consignment basis as unsold goods, and it was further stated in the declarations that the lull export value of the goods is the value show, n instead of stating that it was the fair valuation of unsold goods.

The finding recorded by the Board, no doubt, shows that the declarations required to be made under the Rules in Form G.R.I. contained incorrect information; but that incorrect information retated to points on which s. 12(1) does not require a declaration.

A declaration, which is in contravention of the Rules of the Forms prescribed under the Rules, may be penaliSed u, rlder section 23 of the Act, but such contravention will not attract the provisions of the Sea Customs Act.

Under s. 23A of the Act, only a breach of restrictions imposed bys. 12(1) of the Act is to be deemed to be contravention of restrictions imposed bys. 19 of the Sea Customs

Act.

An incorrect declaration in contravention of the Rules made under s. 27 qf the Act is not to be deemed a contravention of any restriction imposed by s. 19 of the Sea Customs Act.

It is, therefore, quite clear that, in these cases, the imposition of the penalties under s. 167 ( 8) of the Sea Customs Act was l!Otllly unjuStified~ Consequently, these appeals are allowed with COila, aDd the order• of the Adjudicating Officer, and the Board impelling the penalties

under s. 167(8) of the Sea Customs Act are set Uide.

Penalties, if recovered, sha!J be refunded.

G.C.

Appeals allowed.

(!) (1969) I s.c. cases 91.

BECKER GRAY & CO. (1930) LTD. & ORS

UNION OF INDIA & ANR

January 23, 1970

V. BHARGAVA

I. D. DUA, JJ.

Foreign Exchange Regulation Act

ss. 12(1) and 23A

s. 12(1)

s. 12( 1 )

s. 167(8)

Sea Customs Act

s. 167(8)

Sea Customs Act

s. 12(1)

s. 23A

s. 19

Customs Act

Central Board of Revenue

s. 12(1)

s. 12(1)

s. 12(1)

s. 12(1)

s. 23

Customs Act

s. 23A

s. 12(1)

s. 19

Customs Act

s. 27

s. 19

Customs Act

s. 167(8)

Customs Act

N. A. Palkhivala

P. P. Ginwala

D. N. Mukherjee

R. S.

B Kumar

A. Choudhiiry

N. S. Bindra

S. P. Nayar

C. Chagla

D. N. Gupta

Bhargava

section 167

Customs Act

section 12(1)

section 23A

section 19

Customs Act

Central Board of Excise and Customs

s. 12

section 27

s. 12(1)

s. 12( 1)

Bindra

s. 12(1)

section 23

Customs Act

s. 23A

s. 27

s. 19

Customs Act

s. 167

Customs Act

s. 167(8)

Customs Act