SK.AMIR

THE STATE OF MAHARASHTRA

January 9, 1974.

[M. H. BEG ANDY. V. CHANDRACHUD, JJ.j

Drugs and Cosmetics Act (23 of 1940)-Ss. 18 and 27-'Stockedfor sale' 1neaning a11A .scope of.

Immediately after he had obtained delivery of a parcel from the railway authori tie1, the appellant was apprehended by a railway constable. The parcel was found to contain 95,000 capsules of a sedative agent commonly used for intoxication,, He was charged with the offence of stocking foi sale a misbranded drug without a licence under s. l8(a) (ii) and s.J8(c) read withs. 27(a) (ii) and 27(b) of the Dra115 and Cosmetics Act, 1940 and the trial Court convicted him. The District Judge OJ) appeal, acquitted the appellant. The High Court on further appeal sentenced the appellant to a minimum sentence of one year's imprisonment prescribed by the Act.

Disnti&sing the appeal to tiiis Court, HELD: Sections l8(a), l8(c) and 27(a) do not use the word stock" in any technical sense. The plain meaning of the word "stock" in these provisions of the Act i! "to keep" and the injunction of the law means no more than this that no per!on

shall keep for sate a misbranded drug or a drug in respect of which a valid licence is not held. It is not necessary that the drug should be 'stored' in a place in order that it can be said to have been "stocked" for sale. If any one keeps or carries a drug on his person in contravention of the terms of the Act and it is proved that the drug is kept or carried for sale, the act must fall within the mischief of the law. What is "intended for sale" can as much be stocked on one's perSon as in a shop or in a godown. "Keeping" for sale is of the essence of the matter, not tho mode and the manner of keeping. To keep for sale is to stock f<;>r sale. [86C] In the instant case a large quantity of capsules found in the possessioJt of the appellant leaves no doubt that be had stocked or kept the drug for sale.

Dlraram Deo Gupta v. State. A. I. R. (1958) All. 865, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 149of197.

Appeal by special leave from the judgment and order dated the 18th/20th July, 1970 of the Bombay High Court, Nagpur Bench at Nagpur in Criminal Appeal No. 20 of 1968.

U. P. Singh and Santokh Singh, for the appellant.

S. B. Wad and M. N. Shroff, for the respondent.

The Judgment of the Court was delivered by

CHANDRACHUD, J. On March 19, 1966 the appellant was apprehended by a Railway constable at the gate of the Malkapur railway G station immediately after he had obtained the delivery of a parcel.

The prcel was found to contain 95,000 capsules of Seco Barbital Sodium which is a sedative agent and is commonly used for intoxication.

The intoxicant is popularly called "Lal Pari".

The appellant was tried by the learned Judidal Magistrate, First Class, Malkapur for offences under sections 18(a)(ii) and 18(c) read with sections 27(a) (ii) and 27(b) of the Drugs and Cosmetics Act, 23 H of 1940, on the charge that he had stocked for sale a misbranded drug and that he had no licence for stocking the drug for sale. The appellant admitted that he was carrying the parcel at the time of his arrest but his

s. K. AMIR v. MAHARASHTRA (Chandrachud, J.) 85

defence was that he took delivery of the parcel on behalf of one Mohamad Jamadar who had represented to him that the parcel contained a 'science apparatus' meant for a school. The Magistrate rejected this defence as untrue, convicted the appellant and sentenced him to pay a fine of Rs. 1200.

In appeal the learned Sessions Judge, Buldana acquitted the appellant on the view that though the facts raised a suspicion that the apl:'ellant or some other person on whose behalf the appellant had taken delivery of the parcel may have had the object of selling the capsules, the mere fact that the appellant was carrying the parcel would not justify the inference that the drug was stocked for sale.

That decision was set aside in appeal by the High Court of Bombay (Nagpur Bench) which held that the prosecution had proved conclusively that the accuse had stocked the drug for sale. The High Court sentenced the appellant to the minimum sentence of one year's imprisonment, prescribed by the Act. This appeal by special leave is directed against the judgment of the High Court.

Under section 3(b) (i) of the Drugs and Cosmetics Act, 1940, 'drug' includes "all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of disease in human beings or

animals". Section 17 by its seven clauses defines inisbranded drugs and clause(e) thereof, which is here relevant, says that a drug sha11 be deemed to be misbranded if it is not labelled in the prescribed manner. Section 18(a) (ii) provides that "no person shall himself or by any other person on his behalf manufacture for sale, or sell, or stock or exhibit for sale, or distribute any misbranded drug" ... Section 18(c) provides that no person shall "manufacture for sale, or se11, or sto.ck or exhibit for sale, or distribute any drug or cosmetic, except under, and in accordance with the conditions of, a licence issued for such purpose" ....

Section 27(a) provides that whoever himself or by any other person on his behalf manufactures for sale, sells, stocks or exhibits for sale or distributes any drug (i) deemed to be misbranded under clauses (a), (b), (c),(d), (f) or (g) of section 17, or (ii) without a valid licence as required under section 18(c), shall be punishable with imprisonment, for a term which shall not be less than one year but which may extend to ten years and shall also be liable to fine, provided that the Court may, for any special reasons to be recorded in writing, impose a sentence of imprisonment of less than one year. ·

It is common ground that the substance which the appellant was found carrying is a 'drug' and a 'misbranded drug' and that he had no Yalid licence to stock it for sale. Before the High Court and the lower courts it was also common ground that the appellant had 'stocked' the drug. The controversy was limited to the question whether the appellant had stocked the drug 'for sale'. The trial court and the High Court relied upon various circumstan.ces particularly the circumstance that the appellant was found in possession of as many as 95,000 capsules, in support of their conclusion that the appellant bad stocked

86 SUPREi\.lE COURT REPORTS

[19741 3 S.C.&.

the drug for sale. The Sessions Court, on the other hand, thought that A there was no reliable evidence to show that the appellant had stocked the drug for sale.

Before us, the argument has taken a different shape. It is urged that at the highest, the drug was found on the person of the appellant, which is not enough to establish that the appellant had stocked the drug.

We see no substance in this argument. Section IS(a) of the Act which lays down an injunction that no person shall 'stock' for sale a drug of certain description, seotion IS(c) which says that no person shall 'stock' for sale a drug except in accordance with the conditions of a licence issued for such purpose and section 27(a) which prescribes a penalty, for a perso11 who stocks for sale a misbranded drug or a drug in respect of which no valid licence is held, do not use the word 'stock' i11 any technical sense. The plain meaning of the word 'stock' in these provisions of the Act is 'to keep' and the injunction of the\a\\ means no more than this that no person shall keep for sale a misbranded drug or a drug ilt respect of which a valid licence is not held. It is not necessary that the drug should be 'stored' in a place in order that it can be said to have been 'stocked' for sale. If anyone keeps or carries a drug on his person in contravention of the terms of the Act and it is proved that the drug is kept or carried for sale, the act must fall within the mischief of the law under consideration. In busy commercial cities, the streets are crowded with mobile hawkers who display their wares on their person. It is neither sound commonsence nor sound law to say that such wares are not stocked for sale. What is intended for sale can as much be stocked on one's person as in a shop or in a godown. 'Kee ping' for sale is of the essence of the matter, not the mode and the manner of keeping. To keep for sale is to stock for sale. The Shorter Oxford English Dictionary (Third Edition p. 2025) gives the meanin~ of the word 'stock' as "To lay up in store; to form a stock or supply of (a commodity) .... To keep (goods) in stock for sale" ..

The judgement of the Allahabad High Court in Dhar am Deo Gupta Vs. State, (') on which the appellant relies deals with a different point and lays down that mere stocking of goods unless it is for the purpose of sale, does not a1nount to an offence within the nleaning of section 18 of the Drugs and Cosmetics Act. It was found in that case that the accused had to stock certain ampoules of injection under the terms of a contract between him and the Government of India.

The large quantity of 95,000 capsules found in the possession of the appellant leaves no doubt that he had stocked or kept the drug for sale. It could not have been meant for his personal use and his defence that he had received the parcel on behalf of another person, not knowing what it contained, was rightly rejected by all the three courls.

Acvordingly we dismiss the appeal and confirm the order of convic tion and sentence.

P.B.R.

Appeal dismissed

()) A.T.R. 1958 All. 865,

SK.AMIR

THE STATE OF MAHARASHTRA

January 9, 1974

M. H. BEG ANDY. V. CHANDRACHUD, JJ

Drugs and Cosmetics Act

Ss. 18 and 27

Cosmetics Act, 1940

U. P. Singh

Santokh Singh

S. B. Wad

M. N. Shroff

CHANDRACHUD

March 19, 1966

sections 18(a)(ii) and 18(c)

sections 27(a)

Drugs and Cosmetics Act

Mohamad Jamadar

Sessions Judge, Buldana

High Court of Bombay (Nagpur Bench

section 3(b)

Drugs and Cosmetics Act, 1940

Section 17

Section 18(a)

Section 18(c)

Section 27(a)

section 17

section 18(c)

section 27(a)

Allahabad High Court

section 18

Drugs and Cosmetics Act

Government of India


COLLECTOR OF CUSTOMS., MADRAS & ANR.

C.TARACHAND

April 5, 1974

[M. H. BEG AND R. S. SARKARIA, JI.]

Imports and Exports (Control) Act, 1947-S. 3-Scope of.

The respondent had imported sewing machine needJcs under a licence.

Claiming that the import licence did not cover the needles for domestic sewing machines the Custom.Ii Authorities imposed a penalty and confiscated the goods.

The 1t$pondent cJaimed that the needles imported could be used in both domestic and industrial 11ewing Ipachines or were interchangeable and that the prohibition

was not meant for such interchangeable needles which could be used for c "domestic" as welt as "industrial" sewing machines but was confined to needles capable of being used only for domestic sewing machines. A single Judge of the High Court :.et aside the penalty but confirmed the order of confiscation.

On appeal the Division Bench; without going into the other question raised by the respondent. held that there was no prohibition or restriction during the relevant period for the import of domestic sewing machine needles. It therefore quashed the confiscation order.

Allowing the appeal and ren1itting the case to the High Court, D

lfELD : There was the required prohibition against import without licence of needles specified. Sec. 3 of the im_ports & xports (ControJ) Act, 1947 clearlv providesfor .Prohibition and restriction of imports and cl. 3 of the Import Control Order directly prohibits, in unambiguous and mandatory terms that "no iJCrson shall import any goods of the description specified in Schedule I except under and in accordance with the licence or a customs clearance permit granted by the Central Government or by any officer specified in Schedule II''.

This ianguage cannot have a meaning other than that the prohibition was there so E long as the goods of the description given in the schedule were not imported in accorda; Dce with the import licence. [856 E; 854 H; 855 A-Bl

(2) The prohibition is conditional in as mu Ch as it can be lifted by a licence which permits it; the question whether the respondent's licence covered the particular goods imported, was not specifically considered or decided by the division bench. . The division bench did not also consider it necessary to decide

whether any rules of natural justice weI'e violated at the inquiry held.

If the customs authorities had not acted in accordance with law in holding the F imported goods to be of the prohibited category the High Court could correct th; s error of law. [855 DEl

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1161 of 1973.

Appeal by Special Leave from the judgment and order <lated the 26th June, 1973 of the Madras High Court in Writ Appeal Nos. 381 of 1972 and 106 of 1973.

G. L. Sanghi and S. P. Nayar, for the appellants.

K. Jayaram, for the respondent.

The Judgment of the Court was delivered by

BEG, J.-The Colleetor of Customs, Madras, has c.ome up, by 11 grant of special leave to appeal, against the judgment of a Division Bench of the Madras High Court quashing an order of the Cenral Government which confirmed an order of' the appellant confiscatmg

a . large quantity of sewing mai:hine needles. The respondent had imported the llf!Cl(lles under a liceuce which did not, according to the case of the Customs' Department, cover the goods imported. A learned Single Judge of the High Court had set a5ide .a penalty of Rs. 5,000/· imposed upon the respondent as the sewing needles imported by tlie petitioner-respondent were not, according to the learned Judge, proved to belong to the prohibited class, but the confiscation order had, rather incoosistently, been maintained. On an appeal by the respondent against the refusal toquash the confiscation order, the Division Bench of the Madras High Court came to the conclusion that there was no prohibition at all as contemplated by Section 3 of the Import Control Order, 1955, made under Sections 3 & 4A of the Imports & Exports-

(Control) Act, 1947 (hereinafter referred to as 'the Act'), so that no further questiol). need be considered. The Division Bench, therefore, did not go into the Other questions raised by the respondent, who wa.• petitioner before the High Court, relating to violation 6f rules of natural justice or the merits of the case that the sewing needles imported were covered by the licence. It, therefore, held that the confiscation order could not stand and bad to be quashed with the penalty.

The Division Bench was of opinion that a prohibition or restriction authorised by the Act should be imposed by a Control Order such as the Control Order of 1955 duly notified in tbe official Gazette and not by any Other means. It held I.hat the prohibition relied upon by the Customs Department in the instant case did not satisfy this requirement.

Sectioo 3 of the Act reads as follows:

"3. Powers to prohibit or restrict imports and exports.

( 1) The Central Government may, by order published in tht official Gazette; make provisions for prohibiting, restricting or otherwise controlling in all cases or in specified classes of cases, and subject to Such exceptions, if any, as may be made by or under the order :-

(a) the import, export, carriage coastwise or shipment as ships stores of goods of any specified descriptio'!;

(b) the bringing into any port or place in India of gop<ls

of any specified description intended to be taken out pf India without being removed from the ship or conveyance in which they are being carried.

(2) All goods to which any order under sub-section ( l) applies shall be deemed to be goods of which the import or export has been prohibited under section 11 of the CustonLs Act, 1962 (52 of 1962), and all the provisions of that Act shall have effect accordingly.

(3) Notwithstanding anything contained in the aforesaid Act, the Central Government may, by order published in the Official Gazette, prohibit, restrict or impose conditions on !lie -clearance, whether for home-· consumption or for sbip

ment abroad of any goods or class of goods imported inlo India".

SUPREME COURT REPORTS (1974] 3 S.C.ll.

And clause 3 of the Import Control Order 1955 lays down : A

"3. Restriction, of Import of certain goods.-(1) Save as otherwise provided in this Order, no .person shall import any goods of the description specified in Schedule I, except under, and in accordance with, a licence or a customs clearance permit granted by the Central Government or by any officer specified in Schedule 11. n

(2) If, in. any case, it is found that the goods imported unc!er a licence do not conform to the description given in the licence or were shipped prior to the date of issue of the licence under which they are claimed to.have been imported, then, without prejudice to any action that mav be 1akei1 against the licensee under the Customs Act, 1962 (52 of 1962), in respect of the said importation, the licence may be C treaied as having been utilised for importing the said goods".

Item 288 of Schedule I of the Control Order specifies :

" (a) parts of sewing machines domestic.

(b) Needles for domestic sewing machines".

The case of the Customs Department is that the imporied sewing D machine needles fall under this description.

The contention is that, as they were duly notified, no question of any failure to impose a prohibition in accordance with the provisions of the Act arose.

The Division Bench had held :

"Our attention, however, was invited by the learned Counsel for the Central Government to &ction 3 of the Act E and the Import Control Order, 1955. That Section merely invests the Central Government with power to prohibit, re~ trict or otherwise control specific goods or classes of goods specified, subject to exceptions.

Such prohibition or restriction should be made by an order published in the official Gazette.

The Imports Control Order, 1955, as applicabk to the relevant year, did not specify, as far as our attention F was drawn, the goods imported in the instant case. Section 3 in the order does not prohibit the import of any goods whatever, if it is done under a licence. But what it does is to prohibit a person from importing any goods of the description specified in Scheudle I, except as specified and permitted by the proper' authority. It follows, therefore, that there was no prohibition or restrictio.n during the relevant period to the Ci importation of domestic sewing machine needles. The word 'nil' in the policy book does not mean anything in the nature of prohibition or restriction".

We regret that we are unable to concur with the reasomng of the Division .Bench.

We find that Section 3 of the Act clearly provides for prohibition and resrriction of imports and tliat clause 3 of the ff Control Order directly prohibits, in unambiguous and mandatory terms, that "no person shall import any good of the description specified in Schedule I except under and in .accordance with the licence or a

( ,

Customs clearance p, rmit granted by the Central Govt. or by any officer specified in Scliedule 2". This language cannot have a meaning other than that the prohibition i~ there so long as goods of the description given . in the schedule are not imported in accordance with an impon licence.

The case of the Department is that the import licence ol the respondent does not cover "needles for domestic sewing machines" which the respondent had imported.

It was urged on behalf of the respondent that it was demonstrated that the needles actually imported could be used in both domestic and industrial sewing machines or were interchangeable. According to the respondent, the prohibition was not meant for such interchangeable needles which could be used for "domestic" as well as "industrial'" sewing machines but was confined to needles capable of being used only !or domestic sewing machines.

This question, among other questions, was not specifically considered or decided by the Division

Hench.

The Divi<ion Bench did not consider it necessary to decide whether any rules of natural justice were violated at the iriquiry held.

If the Customs authorities had not acted in accordance with law in holding the imported goods t.o be of the prohibited category the High Court could correct its error of law. If they had violated any rule of natural justice the case could be remitted to them for decision afresh. lt is agreed by learned Counsel for both sides that the Division Bench should decide questions of law left undecided by it ii the Division Bench was in error in holding, on a preliminary question, that no prohibitiQn to import needles for domestic sewing machines without a licence had been imposed at all. As we are of opinion that the prohibition is conditional, in as much as it can be lifted by a licence which permits it, the real question which will, ultimately, have to be decided is whether the respondent's licence covers the particular goods imported.

Before proceeding further, we may observe that there were references in \he order of the learned Single Judge as well as of the Division Bench, to what is known as the "Red Book" containing the .. Import Trade Control Policy" with regard to various types of goods including needles for domestic sewing machines.

In the ''Red Book" the word 'nil' appeared against the item in question in the column for "policy" for the relevant year.

Therefore, the learned Single Judge of the Madras High Court had relied upon a decision of this Court in the Joint Chief Controller of Imports & Exports, ,'; fadras v. M/S.

Amichand Mutha etc.(') where it was held (at page 272) :

"The last point urged was that subsequent to October 1957, Government of India changed its policy with respect to import of fountain pens with which some of the present appeals are concerned. This it l!'.as urged amounted to a ban on the import of fountain pens and it would not be open to the Joint Chief Controller to issue any licence for any period, be it January-June 1957, after the import of fountain pens had been banned from Ootober 1957. Now there is no

II) [1966) I SCR 262 rii 272.

SUPREME COURT REPORTS

(1974) 3 S.C.R.

doubt that it is open to the Central Government under s. 3 /I to prohibit the import of any article but that can only be done by an order published in the official gazette by the Central Government under s. 3. The High Court has found that no such order J!nder s. 3 of the Act has been published.

Nor hos any such order by the Central Government been brought to our !JOtice. All that has been said is that in the declaration of policy as to import, the word"nil" appears B against fountain pens. .That necessarily dor, i; not amount to prohibition of import of fountain pens unless there is an order of the Central Government to that effect published in the official gazette. We therefore agree with the High Court that unless such an order is produced it would be open to the licensing authority to issue a licenc> for the period of January, -June 1957 eve, n after October 1, 1957" C

We do not think that the above mentioned refercn:e to the Rd Book was at all neceMary here or that a decision in a case where the Customs authorities relied merely on something found in the Red Book assists us in the case before us. Here, we have the item No. 288 in Schedule I read with clause 3 of the Control Order which was dilly published in. the Official Gazette. This had the effect of a eategorieal D prohibition against needles satisfying the description but not covered by a licence. We thi!lk that a reference to the Red Book, in the instant case, seems to have misled learned Judges in the High Court.

The result is that we hold that there is the required prohibition against import without licence of needles specified.

Other questions of law which were not gone into by the High Court can now be on- E sidered and decided bv it. Accordingly, we allow this appeal, set aside the judgment and order of the Diyision Bench, so that the appeal is now restored to its original number in the High Court. It may be heard and decided in accordance with law.

In the circumstances of the case, we award no costs of the appeal to this Court.

P.B.R.

A µpeal allowed.

COLLECTOR OF CUSTOMS., MADRAS & ANR

C.TARACHAND

April 5, 1974

M. H. BEG

R. S. SARKARIA

S. 3

Sec. 3

cl. 3

Schedule I

Central Government

Schedule II

G. L. Sanghi

S. P. Nayar

K. Jayaram

BEG

Cenral Government

Madras High Court

Section 3

Sections 3 & 4A

India

section 11

CustonLs Act, 1962

clause 3

Schedule I

Schedule 11

Customs Act, 1962

Schedule I

Section 3

Section 3

clause 3

Schedule I

Amichand Mutha

Government of India

s. 3

s. 3

s. 3

Schedule I

clause 3


VASANT KRISHNARAO PATURKAR & ANR. v.

D. R. MAJRAMK'.AR & OTHERS

April 8, 1974,

[H. R. KHANNA AND P. N. GosWAMI, JJ.]

S1ates' Reorganisation Act, 1956--S. 115 and l11-Whetl1er Higf1 Court can decide issues of gradation senioriJy etc. of officers (lllotted to the bilingual state

of Bombal' after reorca11isation of States.

The appellants and the first 19 res, Pondents and respondents 22 to 24 re the employees in the Agriculture Dept. of the State of Maharashtra following reorganisation of states.

Respondents 1 to 19 were the original petitioners in S.C.A. No. 1354/70.

They were offi:cers of the former Hyderabad State. They prayed in their application for a writ to set aside the Bombay Government's Resolutions dated 17th February 1958 and 16th fay 1969 and.the provisional gradation List of 27th Seotemb:r 1969 and the promotion orders of 5th and 6th June 1970 and other coitsequential reliefs.

The Bombay High Court disposed of the application on merits ln favour of th.e appellants. The orders oC the High Court affected the interests of the present appellants. • Before the Nagpur Bench of the Bombay High Court, appellant No. 1 and three other officers lodged an applicaon impleading the State of Maharashtra and 88 other respondents including the present respondent 1 to 19. Respo_ndents 1 to 19 and others contested the application before the Nagpur bench unsuccessfully.

The Nagpur b:!nch allowed the writapplication and quashed the resolution of the Government dated 9-9-1960 and combined Seniority List of 22-8-62 and quashed the order of absorption of the petitioners and respondents 3 to 89.

The respondents, who were Agricultural officers from Hyderabad Region.

Preferred an appeal against the judgment of the Nagpur High Court fore the Supreme Cou1i. They were, allowed to withdraw the same without prejudice to all paties affected to make representations to the Government .in accordanc~

with :;. 115 of the Staes Reora, anisation Act 1956.

The Govern; nent of .Maharashtra made a new gradation list on 27-9·69 and allowed certair. consequential orders of promotion on 5th,, and 6th June, 1970.

This, therefore led to the Special Civil Application No. 1354 of 70 at the instance of respondents 1 to 19.

The appellant and another 1;1erson had also filed Special Civil Application No. 1126/71 in the Nagpur Bench for quashing the resolution of Bombay Government of 16th Mav 1969 on certain grounds. That matter is still pending in the Nagpur Bench. The respondents 1 to 19 were impleaded as respondents in that application but they, did not file anv affidavits in suppol't of their case.

When the matter came up for hearing, the appellants knew that another petition in the same subject was already decirled bv the Bombay High Court.

The appellants took immediate stet?s in the Bombay High Court but failed to obtain

any favourable orders. although they prayed for rehearing of the writ petition.

The oroblem is a difficult one to decide gradation, seniority etc. when officers of 3 different States are alloted to the new bilingual state of Bombay under the provisions of the States Reorganisation Act. Setting aside the impugned judg~ ment and order of the Botnba.y High court and directing restoration of the Special Civil Application No. 1354/70 and disposal of the same in accordance v.ith law,

HELD : {I) There is sufficient guideline in Part X of the States Reorganisation Act 1956 and als9 in Part Vlll of the Bomtiav Reorganisation Act 1960

that lhe Government of India is the final authority in the matter of division and A integration of services among the new states tO ensure a fair and equitab1e 1reatment to all perons affected by the reorganisation including proper consider-

11:tion of any representation made by concerned persons.

Further it. is well

settld that the Central Government under Sec .. 115 or the Act has to determine the principles governing equation of pests and prepare common gradation lists by integration of services an•j in doing so to ensure fair and equitable treatment to all persons concerned: [860 H; 861 A-B] I

Q. Rajian Rai 11nd Ors. v. Union of b1dia & Or.if. A.I.R. 1974 S.C. 457, N.

S11bbe1 RC10 etc. v. Union of India & Ors. [1972] 2 S.C.C. 862; and Uh.ion of /11d111 and a1101/ier v. P. K. Roy & Ors. [1968] 2 S.C.R. 186, referred to.

(II) The High Court cannot clothe upon itself the authority for pedormin1 the functions which are :>pecifically and expressly intended to be the duty of the •..:entral Government under the Act.

Therefore, the High Court was not right in directing the State Government to do that which under the provisions of the Act is within the domain of the Central Government and secondly, in fixing a

ime limit for action and if the same is exceeded, directing an auto1natic entitlement tO the :iecond relief as to equation, ab.iorption and fixation of seniority as pr;:iJed for by respondents 1 to 19. [861 D]

(111) Jn the .Present case, a1though the High Court observed that there was sufficient cause for rehearing the special Civil application; it wrOngfuUy did not give any Opportunity to th!! petitioners nd b'le State of Maharashtra tQ convass their respective poinl'!. of view against the writ petition.

Under the circumstances, this Court -directs rehearing of the sped-Ill civil applicatiol). no. 1354/70 after givi!J.g opportunities to a]) the parties concerned. [862 Q

CIVIL APPELLATE JURISDICTION :-Civil. Appeal No. 1227 ot 1972.

Appeal by special leave from the judgment and order dated the 9th December, 1971 of the Bombay High Court in Special Civil Application No. 1354 of 1970.

M. N. PJ.adke, Naunit Lal and Lalita Kohli, for the appellant.

S. c. Agarwala, K. K. Singhvi, R. K. Garg., S.S. Bhatf>/iagar and

v. J. Francis, for respondent Nos. 10.& 14.

M. C. Rhandare and M. N. Shroff, for respondentNos. 20--24.

The J utlgment of the Court was delivered by-

GmwA M 1, J.-This appeal by special leave is dirocted against the judgment of the High Court of Bombay of 9th December, 1971, in Special Civil Application (S.C.A.) N<>. 1354 of 1970 under Article 226 of the Constitution. The appellants and the first nineteen .re,..

pondents and respondents 22 to 24 are at present the employees in the Agriculture Department of the State of Maharashtra following reorgani .. tion of States on !st November, 1950.

Respondents I to 19 were the original petitioners in S.C.A. No. 1354 of 1970. They were officers from the former Hyderabad State

p1ior to the State.s Reorganisation Act, 1956, (briefly called the Act).

They prayed in their said application for a writ to set aside the Bombay Government's Resolutions of 17th February, 1958 and

I 6th May, 1969 and the provisional gradation list of 27th September, 1969 and the promotion orders of 5th and 6th June, 1970

.,.

... .. ,

' c

and other consequential reliefs.

They h'!d impleaded in the said application five respondents, the first two being the State of Maharashtra and the Director of Agriculture, Maharashtra and the remain ing three respondents were the three Agricultural Officers impleaded in a representative capacity by leave of the High Court under order 1, rule 8, Civil Procedure Code.

These respondents (Nos. 3 to 5) did not appear to contest the application in th~ Bombay High Court and it is alleged that they had no interest in the matter and were in collusion with the appellants. Even the first two respondents, namely, the State of Maharashtra and the Director of Agriculture, went by default, although a belated prayer to enter appearanc.e had been made through counsel on behalf of the State of Maharashtra after commencement of arguments, on the day of final hearing, which was, however, rejected by the High Court. The application was then disposed of, ex parte, on merits by the High Court in favour of the applicants. It is not disputed that the order of the High Court directly affects the interests of the present appellants, who are Agricultural Officers from the Madhya Pradesh region.

From Bombay we may now turn to the Nagpur Bench of the said High Court. Tliere the appellant No. 1 and three other Agricul'ural Ofticers lodged a Special Civil Application No. 361 of 1964 impleading the State of Maharashtra and 88 other respondents, including the present respondents 1 to 19.

Respondents. 1 to 19 and others contested the application before the Nagpur Bench unsuccessfully .. The Nagpur Bench of the High Court allowed the Writ application by its judgment and order dated 6th December, 1967 and the operative part of the same may be quoted.

"Accordingly, we allow the petition and quash the resolution of the Government dated 9-9-1960 and combined seniority list issued by the Government on 22-8-1962.

If the State Government wants to alt.er the basis of equation originally fixed on 17-2-1958, an opportunity to make representation against ihe proposed alteration has to be given to the persons likely to be affected.

The State Government will now take an appropriate action.

The neces· sary correspondence of quashing of these two orders is that the irtermediate order of absorption which is necessary step after inter se seniority and gradation list can be compiled is also to be quashed.

Acoordingly, we quash the order. of absorption, so far as these petitioners and respondents No. 3 to 89 are concerned, dated 11.5.1962 ..... ".

The respondents, '.!'ho were Agricultural Officers from Hyderabad region, preferred an appeal against the judgment of.-Oie Nagpur Bench being No. 1366 of 1968 in this Court. They were, however, allowed by this Court on 23rd January, 1969, to withdraw the same "without prejudice to all parties affected to make representations to the Government in accordance with section 115 of the States Reorganisation Act, 1956"

After the above order of this Court, it is said that many Agri- A cultural Officers made representations to the Government of India under section 115 of the Act. The Government of Maharashtra possed a Resolution of 16th May,, 1969, purporting to be an order giving new equation of posts in the Agricultural Departmnt in pursuance of which a gradation list was made on 27th September, 1969.

Then followed certain consequential orders of promotion of 5th and 6th June, 1970.

This, as already noticed, led to the Special Civil B Application No. 1354 of 1970 at the instance of respondents 1 to 19 ""d the operative part of this impugned order of 9th Decembor J9il, is. m the tollowing terms :- '

"For the reasons stated in the accompanying judgment, the Court makes absolute with costs the rule granted by it on 30. 6. 70 in terms of the prayer (a) of the petition. The c Court further directs that if respondent No. 1 fails to decide the question of equation of posts held by the petitioners in the former Hyderabad Sta.te in acordanc-o. with law and the observa'.ions in this Judgment within three months from 9.12.71, Respondent No. I shall equate the posts of Agricultural Assistant of the former Hyderabad State in the scale of Rs. 176-300 with the posts of Agricultural Officer, D Grade I of the former Bombay State in the scale of Rs. '210-10-300 and to absorb the petitioners and to fix their

soniority on that bosis with effect from the 1st day of November 1956"

The appellant and another person had also filed Special Civil Application No. 1126 of 1971 in the Nagpur Bench for quashing tile

F - Resolution of the Bombay Government of 16th May, 1969, on certain grounds. That matter is still pending in the Nagpur Bench. The respondonts I to 19 were impleaded as respondents in that application and although they had been served, they did not file any return when the said application came up for hearing at Nagpur on 2nd February, 1972.

The learned Government Advocate, however, mentioned to the court that another petition on the same subject had F already been decided by the Bombay High Court. It is said that this was the first time when the appellants came to know of the impugned judgment and took immediately steps in .the Bombay High Court to set aside the order and for rehearing the writ petition, but failed to obtain favourable orders.

The problem is indeed ticklish and sensitive concerning integra- G tion, absorption, gradation and fixation of appropriate seniority o[ the officers throwing by act of the State their common lot from different areas, namely, the former State of Madhya _Pradesh, former State of Hyderabad and the former State of Bombay allotted to the new bilingual State of Bombay under the provisions Of the satcs Reorganisation Act. It is, however, cleat that there is sufficient guideline in Part X of the States Reorganisation Act, 1956 as also u larer in Part VIII of the Bombay Reorganisation Act 1960 and it is reserved for the Government of India, advisedly, to be the final authority in the matter of division and integration of services amoug

' '

' A :the new States to ensure a fair and equitable treatment to all persons

:iliected by the reorganisation including proper consideration of any representation made by concerned persons. (See section 115 and section 117 of the Act and sections 81 and 83 of the Bombay Ro ,, rganisation Act, 1960).

It is well settled that the Central Government under section 115 d the Act has to de-termine the principles governing equation of posts and prepare common gradation lists by integration of services

nd in doing so to ensure fair and equitable treatment to all persons concerned. The Central Government is also required to give opportunities to the parties affected to make their representations. (See D. Rajian Raj & Others v. Union of India & others('); N. S11bba Rao etc. v. Union of India and Others( 2) and Union of India & Anr. v. P. K. Roy & Ors.(3) ).

The High Court cannot clothe upon itself the authority for performing the functions which are specifically atiil expressly intended to he the obligation and duty of the Central Government under the Act.

The High Court is, therefore, not right in two matters namely, in directing the S•ate Government to do that which under the provi D sions of the Act is within the domain of the Central Government and secondly in fixing a time limit for action and, if the same is exceeded, directing an. automatic entitlement to the second relief as to equation, absorption and fixation of seniority is prayed for by respondents 1 to 19. This view of the High Court is clearly erroneous in view of the provisions of the Act.

£ That, however, does not dispose of this matter. Mr. Phatlkc, learned counsel for the appellants, raises several questions before us.

Firstly, that the Division Bench of the High Court could not sit in appeal against the Division Bench decision of the Nagpur Bench which is binding on the respondents, 1 to 19. Secondly, that there is clear violation of the principles of natural justice in disposing of the writ pe'ition by the High Court, ex parte, and in not reviewing its order F when sufficient cause was shown by the appellants herein.

Thirdly, that the High Court should not have allowed the application under order I, rule 8, Civil Pro:edure Code, and should have insisted upon personal service of the rule nisi on the affeced petitioners in a service matter of such implications.

G Mr. Bhandare, learned counsel for the Stale of Maharashtra, also, inter a/ia, took the point that the Central Government was a necessary party and the petition should have been dismissed by the High Court for non-joinder of that Government.

lt is not necessary for us to go into these questions in. view of the High Court's order of December 24, 1971~ in Civil Application No. 3261 of 1971, of the State of Maharashtr~ and the Director of

(I) A, tR. 1974 SC 457-1973 (I) sec 61

(2) 1972 (2) s.c.c. 8<2 (l} [19681 (2) SCR 186.

Aj; riculture praying for permission to file an affidavit in reply to the, ... A writ petition and for 'contesting the petition on merits. The High Court observed "we are satisfied on reading these affidavits that there was sufficient cause for rehearing the Special Qvil Application", but on perusal of the affidavit in reply and hearing counsel for the State rejected th~ said petition.

The High Court also dismissed the petitioners' application for rehearing the writ application.

We are not satisfied that the High Court was right in not allowing_ an cippcrtunity to the petitioners as well as to the State to canvass their respective points of view before it against the writ application, particularly so when the matter bad been heard in a representative writ application and not one of the actually affected persons had been impleaded as a respondent even to represent their category.

The High Court itself observed, as noticed above, "there was sufficient cause for rehearing".

Without, therefore~ going into the various points raised before us, we set aside the impugned judgment and order of tiie Bombay High Court of 9th December, 1971 and direct restoration of the Special Civil Application No. 1354 of 1970 to its file for disposal of the same in accordance with law after giving opportunity to all the parties concerned.

We further direct that respondents 1 to 19 shall take steps in the High Court to implead the Central Government as well as. the present appellants and all other officers affected by the orders sought to be quashed in the Special Civil Application No. 1354 of 1970

The appeal is allowed on the terms indicated above. There will bt: 110 order as to costs in this appeal.

s.c.

Appeal (I/lowed.

VASANT KRISHNARAO PATURKAR & ANR

D. R. MAJRAMK'.AR & OTHERS

April 8, 1974

H. R. KHANNA

P. N. GosWAMI, JJ.

Reorganisation Act, 1956

S. 115

Bombay High Court

State of Maharashtra

Nagpur

Nagpur High Court

Govern; nent of .Maharashtra

27-9·69 and

5th,, and 6th June, 1970

States Reorganisation Act

Government of India

Central Government

[1968] 2 S.C.R. 186

M. N. PJ.adke

Naunit Lal

Lalita Kohli

S. c. Agarwala

K. K. Singhvi

R. K. Garg

S.S. Bhatf>/iagar and

M. C. Rhandare

M. N. Shroff

High Court of Bombay

Article 226

Reorganisation Act, 1956

State of Maharashtra

Director of Agriculture, Maharashtra

order 1, rule 8

Civil Procedure Code

Madhya Pradesh

23rd January, 1969

section 115

States Reorganisation Act, 1956

section 115

Government of Maharashtra

16th May,, 1969

27th September, 1969

30. 6. 70

1st day of November 1956

2nd February, 1972

section 115

section 117

sections 81 and 83

section 115

Phatlkc

Bhandare

December 24, 1971~

State of Maharashtr~

sec 61

Bombay High Court of 9th December, 1971


KHEM KARAN AND OTHERS

THE STATE OF U.P. AND ANOTHER April 8, 1974.

(M .. H. BEG, Y. V. CllANDRACHUDAND V .• R .. KRISHNA IYER, JJ.J

Code of Criminal Pr'Ocedure, 1908-A.ppeal against acqui1tal-Propriety oft Court of Appeal convicting sQme of the acquit1ed persons-Group clash-Scope

of High CC?_url's power to re-evaluate evidence-Foundation for acquittal is remov~ by otherwise credi'ble testimony.

In a background of bitter hclstility, there was a confrontation and exchange of violence between the comp1ainants' group and that of all the ccused-appel lants. Several. on the prosecution side sustained gunshot wounds, although not fatal, while the three accused-appellants received lathi blow injuries. The com.;.. plainatit'.s plea was that when attacked by guns, he and his men went at them~ di'sarD; Ied . them and beat them with lathis. Twenty-three accused stood trial.

The trial court disbelieved the defence version out. found that the prosecution testimony too partisan, and consequently acquitted everyone. The High Court maintained the acquittal of all but the three appellants-accused. In respect of the latter, it found tht1.t the injuries on the persons of the three appe1lants and the fact that one of them had a gun in his hands at the time of the occurrence. were sufficient, together with the Qt her eVienCe to hold them guilty.

On appeal by special leave to this Court by the said three appellants,

HELD: (1) The principle of law is well established that merely b:cause a diffcrept view of the evidence is possible, you cannot cancel a finding against guilt Dot the appellate Court is untrammelled in its power to re-evaluate the eviden~ bearing in minQ the seriousness of overthrowing an acquittal once recorded. In. that view we cannot find any error of 'aw in th~ High Court reconsidering ¢he probative value of the oral and circumstantial evidence in the case.

Nor are we persuaded to think that the a!')pellate Court has failed to observe. the built-in. -restraints on .exercise of rower while upsetting an acquittal.

On the other hand~ the Court has made the correct approach that only those accused against whom there was additional probative rei_nforcement could be convicted. [864 G-865 BJ\

(II) Neither mere possibilities nor remote pro 1babilities nor mere doubts which are not reasonable can, without danger to the administration. of justice,. be the foundation of the acquittal of an accused person, if there is Qt[herwise fairly credible testimony.

If a trial Courts~ judgment vrges on the perverse, the appellate Court has a duty to set the evaluation right and that is about all that has happened in this case. [865 E-F]

(III) . The fact that a large numb:r of accused have been. acquitted and th:· remaining who have been convicted are less than five cannot vitiat'! th~ con viction under s. 149 read with the substantive offence if-as in this case the Court has taken care to find-'-there are other persons who might not have been identified or convicted but were party to the crime and together constituted the statutory number. On this basis, the convktion under s. 307, .read with s. 149' has to be sustned. [866 AB] ·

Sukh Ram v. State of U.P. A~I.R. 974, S.C. 323, referred to.

Bharwad Mepa Dana v. State of Bombay. [1962) 2 S.C.R. 172. relied Oll.

CRIMIN, AL AnELLATE JURISDICTION :-Criminal Appeal No. 40 of 1971.

Appeal by special leave from the Judgment anrl Order dated the 21st September, 1970 of the Allahabad High. Court at Allahabad in Criminal Appeal No. 944 of 1967.

12-LB4Sup. CI/75

8 A4 SUPREME COURT REl'ORTS

[1974] 3 S.C.R.

/\. L. Ko.'ili, for the appellant.

0. l'. Rana; for respondent No. 1, ·

The Judgment of the Court was delivered by:_

KRISHNA IYER, J.-This appeal by special leave, by three out of twenty three, who alone were convicted by the High Court in .reversal of a total aoquittal by the trial court, turns on the propriety of the Court of _Appeal convicting accused persons whose initial advantage of a presumption of innocence has been strengthened by a judicial affir.mation at the first level.

The !ew facts are these. Two groups-the complainants' and the accused's-have been on terms of bitter hostility-a background mate

rial ,\hich has kgitimately induced both the courts to be very sceptical about the veracity of the prosecution witnesses in the absence of unlying corroborat10n.

As found by both the courts, a confron" talion and exchange of violence occurred on June 22, 1964 each party caliing the other aggressor.

Anyway, several on the prosecution side. dia receive gunshot wounds, although luckily not fatal, and three among the accused bunch had on their person lathi blow injuries.

The trial Judge disbelieved the version of the defence but found the P.Ws. too partisan to pin his faith on, and in consequence acquitted everyone. The High Court agreed that unless the infirmity of interested testimony was cur, d by other credible evidence the fate of the case would be the same and on that basis dismissed the State's

appeal against ali but the three appellants befor-e us.

Was this exceptional treatment justified (a) by the evid_ence, and (bl in the light cf first court's acquittal ?

. - • • I - .An encounter did take place and a case and counter-case ensued.

The accused-except a few who pleaded alibi in vain-daimed that faey were attacked.

Even the trial court has rejected this contention 1nd the High Court has held that, having regard to the number and nature of injuries an:d the number of persons who bave been hit by fire power, the accused were the attackers. We see no reason to disturb this conclusion.

Even so, how could you hand-pick three out cf twentr three for punishment?

The complainant's plea is that when attacked by guns he and his men went at them, disarmed them

and boat them with lathis. The convkted three have injnries which fit in with this version.

The appellate Court has taken these injuries :is corroborative of participation in the rioting and attempt to murder

(reod with s. 149, J.P.C.) charged against all the accused.

The short question is whether these wound bring home the guilt so .strongly as to warrant upsetting of an earlier acquittal. : .

 The principle of law is well-settled that merely because a differeni view of the evidence is possible--minds differ as rivers differyou cannot cancel a finding against guilt. But the appellate Court is untrammelled in its power to re-evaluate the evidence bearing in mind the seriousness of overthrowing an acquittal once recorded.

In that view we cannot find any error of law in the High Court

' • ...

._ __ _

KllEM KARAN v. u. P. STATE (Krishna Iyer, J.) ' 865

A rec:onsidering the probative value of the oral and circumstantial evidence in the case.

Nor are we persuaded to think that the appellate Court has failed to observe the bui!Hn restraints on exercise ol power while l!psdting an acquittal.

On the other lund. the Cour< has made the correct approach that only those accused against whom there was additional probative reinforcement could be convicted. So, it found. that the injuries on the persons of the three appellants and the fact B . that Si ya Ram, appellant No. 2, had a gun in his hands at the time of the occurrence were sufficient, together with the other evidence, to hole the appellants guility.

We cannot part with this case without mentioning the serious error sonie subordinate courts commit in. the application of the rule of benefit of reasonable doubt.

For instance, in the preocnt case the learned Sessions Judge has misguided himself by chasing bare possibilities 6l' doubt and exalting them into sufficiently militating factors justifying acquittal.

The following passage illustrates the grievous mistake of the learned Judge :

"I must concede that probabilities for such a situation are remote but possibilities cannot be ruled out.

We hav~ to see whether the incident took place in the manner as alleged by the prosecution or not. To inspire confidence of _ the Court the prosecution has to establish each link in its version beyond all doubts.

When other links in the prosecution, as discussed above; have failed to inspire confidence, I think in such a case the benefit of doubt prevailing around the remaining links in the version must go to the accused."

Neither mere possibilities. nor remote probabilitie~ nor mere doubts which are not reasonable can, without danger to the admhllstration of justice, be the foundation cif the acquittal of art accused person, if there js other}Yise fairly credible testimony. If a trial court's judgment verges on the perverse, the .appellate court_ has a duty to set the evaluation right and that is about all that has happened in this case. The High Court has given a large margin for reasonable donbt and confirmed the acquittal of a considerable number of the accused. --

--~

Although the surviving accused who have been convicted are only three, s. 149, and in any case s. 34, I.P.C., will rope in the appelants by way of constructive liability.

This Court has, in Sukh Ram

v. State of U.P.,( 1) held that the acquittal of two out of three named accused does not bar the conviction of the third under s. 302, read with s. 34, if he is shown to have . committed the offence with unknown companions. As in that case, here also no possible prejudice can be claimed by the accused-appellants by the invocation of s.34, LP.C., even if twn!y out of twentv three have been acquitted. Moreover, this Court has in Bharwad Mena Dana v. State of, Bombay(2)

(I) A.T.R. 1974 S.C. 323. (21

(1962] 2 SCR J72. . ·

SUPREME COURT REPORTS

(1974] 3 S.C.R.

taken the view that nothing in .law prevents the .court from fin.cling A that the unlawful assembly consisted of less than five convicted persons and some unidentified persons together numbering more than !iv,.._ In: our view, the fact that a large number of accused have been acquitted and the remaining who have been convicted are less than five cannot vitiate the conviction under s. 149 read with the substantive offence if-as in this case the Court has taken care to

findthere are other persons who might not have be-on identified or B convicted but were party to the crime and together cc/nstituted the statu'.ory number.

On this basis, the conviction under s. 307, read with s. 149, has to be sustained.

What remains is the Question of sentence. It is true that those assailants who did not receive injuries have escaped punishment aed conviction has been clamped down on those who have sustained inju ries in the course of the clash. It is equally true that those who have allegedly committed the substantive offences have jumped the gauntlet of the law and the appellants have been held guility only con,._ trUctively.

We also notice that the case has been pending for around ten years and the accused must have been in jail for some time, a circumstance which is relevant under the new Criminal Procedure Code rhou~ it has come iriJ.i.i operation only from April 1, 1974.

Taking a conspectus of the 'Various circumstances in the case, some of which are indicated above, we are satisfied that the ends of justice would bo met by reducinii the sentence to three years rigorous imprisonment under s. 307, read with s. 149, and one yeacrigorous impri<onment under s. 147, I.P.C., the two terms running concurrently. \ViL'i this modification regarding sentence, we dismiss the appeal.

S.B.W.

Appeal dismissed.

KHEM KARAN AND OTHERS

THE STATE OF U.P. AND ANOTHER

M .. H. BEG

s. 149

s. 307

s. 149

[1962) 2 S.C.R. 172

L. Ko

l'. Rana

June 22, 1964

s. 149

Si ya Ram

s. 149

s. 34

I.P.C

s. 302

s. 34

s. 149

s. 307

s. 149

Criminal Procedure Code

April 1, 1974

s. 307

s. 149

s. 147

I.P.C


BIHAR STATE BOARD OF HINDU RELIGIOUS TRUSTS

BHUBNESHWAR PRASAD CHOUDHARY & ANR.

April 9, 1974.

[K. K. MATHEW AND A. ALAGIRISWAMI, JJ.) B BUrar Hindu Religious Trusrs Ac!, s. 2-Dedicatio1i of properties to idol- Wlien a religious trust. ·

The members of a family executed various documents the effect of which was that the executants had completelv dive.stetl themselves of any title to or interest in certain properties dedicated to a deity, and which, thereby, became the propertie~ of the deity. The appellant called upon the respondent, who had been appointed shebait and manager of all the dedicated properties, to furnish returns and the respondent filed a suit contending that the temple was not a religious trust within the meaning of the terms in s. 2 ( 1) of the Bihar Hindu .Re1igious Trusts Act but that it was a private endowment. The trial court held that the trust was one in which the public were interested. The High Court, in appeal, took a contrary view.

Allowing_ the appeal to this Court,

JI.ELD : On the facts of this case the trust should be deemed to be religious trust. as the DUblic are interested in it.

The temple Was sitriated within independent compound walls and not within the residential precincts of the founders.

There was provision for the appoint~ anent and dismissal of pujaris. The onlv right that the members of the family had was to have a member of the f<imi!y as manager or shebait; but the shebait was subject to the superinte.ndence and control of a body of outsiders

(t>anches) who were given the power to remove the shebait if he did not act properly_ There could be no better indication of the fact that -the members of the public were associated with the management of the temple and interest in its management was created in them, thus bringing the trust directly within s. 2(g) of the Act. The tact that the provision regarding the panches was to come into effect oilly after the death. of the executants of the deed, does not affect the merits of the questiou. There was also provision for expenses over faquirs, -Sadhus and occasional festivals. Since the endowment was in favour of the idol itself proof of user by the public without interference would be cogent evidence that dedication was in favour of the public. (870 F-H; 871 C-D]

Deoki Nandan v. Murlidhar [1956] S.C.R. 756, followed,

F Bh'agwan Din v ... Har Saroop AJ.R. 1940' P.C. 7 and Ranzsaran DaJ v. Jai Ram Das, A I.R. 1943 Pat. 135, explained.

CIVIL APPELLATE J\JRISDICTION :--Ovil Appeal No. 1871 of f967.

Appeal from the Judgment and Decree dated the 3rd May, 1965 of the Patna High Court in Appeal from Original J; Jecree No. 345 of G 1960.

D. Goburdhan, for the Appellant.

K. K. Sinha and S. K. Sinha, for Respondent No. 1.

The Judgment of the Court was delivered by- ALAGIRISWAMI, J.-The question for decision in .this appeal is whether the temple of Shree Maharaja Ram Janki Lacchuman Maha raj in the village of Mauza D(ogan in the State of Bihar is a religious trust within the meaning of the term in section 2, clause (1) of the Bibar Hinliu Religious Trusts Act, or a private endowment.

Two broth., rs, Ram Adhikari Choudhary and Ram Lochan Choudhary, and Amir Prasad Choudhary, son of their brother, for hims., lf and as guardian of Ramakant Prasad Choudhary, who were all members of joint Hindu family executed OJl 17: 6 .1921 a samarpannama by which they dedicated certain properties to the above mentioned temple.

By that deed of dedication they completely divested themselves of any interest in the properties except that Ibey and the m_embers of their families were to be shebaits. By the same deed five persons, who were absolute strangers to the family, were appointed panches "to take the rendition of account of the income and ex?"ndi

ture from the manager, shebait for the time being year after ye.ar on the death of the executants .... J, f in the opiniort. of the said panches the manager and shebait for the time being be found (illeg) and extravagant or there be any loss in respect of the income of the dedicated _property or the dedicated property which is at present or be acquired in future, in that case they should discharge the manager shebait for the time being and (appoint) other deserving manager, shebait, who be deemed according to the conditions mentioned ohove, in his place from among the _members of the family of the_ executants." The panches were given power to fill up vacancies in their ranks.

D On 7·12-1928 Ram Adhikari Choudhary al0ne executed another samarpannnma endowing some further properties in favour of the temple, containing similar terms as in the earlier samarpannama; but in place of five panches mentioned in the earlier deed he appointed a fresh set of five panches, of whom only one belonged to the earlier set of panches. In this deed also it was provided that "if any future E shebait fails to manage the dedicated properties, arrange ragbhog to the aforesaid deities properly, show negligence, spoil the property, and incur (un)-necessary expenses, the said panches will be competent to dismiss the said shebait and appoint another one out of the members of the family of me, the executant, who happens to be holli!st and capable."

On 14. 7 .1934 Ram Adhikari Choudhary executed aaother deed called 'ekrarnama' referring to the fact that he had adopted Bhagwat Prasad Choudhary, the present first respondent, and that he had been appointed shebait and manager c~ all the dedicated properties covered by the earlier two samarpannaas. He also directed that "the stipulations contained irl th• sllmarpannama dated the 7th December, 1928 in respect of maintenance of account qf income and expenditure of the dedicated property, shalt hold good in respect of the management of the dedicated property and maintenance of the account of income a'nd expenditure." He mentioned nothing about the panches mentioned in the earlier deed, but provided that "as (to) the appoidtment of shebaits in future, the practice to be followed will be that the shebait in office shall be fully competent to (appoint) during his life time or that after him he who amongst his sons be alive and most capable shall be appointed shebait of the said deities one after another. In case there be no male issue in the family of

th~ shebait in office, firstly, amongst the male issue or in case there

b~ no capable malt amongst the children of th~ aforesaid persons, the shebait in office shall be competent to appoint a shebait amongi; t

the children of my cousin (father's brother's sons) brothers, deemed to be capable.

But the shebait in office is and shall nof be competent to appoint a shebail from the family of other persons."

It is unnecessary for the purpose of this case to go into the ques;- tion whether by executing the samarpannama of 7.12.1928 and ek

rarnama of 14.7, 1934 Ram Adhikari Choudhary was competent to change the provisions of 1921 document. It is not even clear whether .by this document he had intended to do away with the provisions contained in the earlier documents regarding the panches and their powers.

Be that as it may, we are of opinion that the main point regarding :ill these documents is the fact that the executants had completely divested themselves of any title to or interest in the dedicated properties which thereby became the properties of the deity.

The only power which the members of the family thereafter had was to be shebaits arij managers of the temple.

The Subordinate Judge who tried this suit considered that the 1921 document created a trust in which the public were interested.

But in this to some extent he seems to have been inffuenced by a wrong reading of section 2(g) (i) of the Act, especially the words

"to participate in any religious or charitable ministration under such trust".

He mistook the word 'ministration' to b'e 'administration'.

The difference between the woiqs would make all the difference as to whether any member of the public ccr.ild be said to be interested in the religious trust We have called for and perused the copy of the Act as printed in the official publicatio11 and we find that the word used is 'tninistration' and not 'administration'.

The question for decision in this case' therefore, has to be decided on the grounds other than the supposed presence of the word 'administration' in section 2(g)(i).

The learned Judges of the High Court on the other hand took the view that the mere fact that the temple was situated within independent compound walls, though near the house of the founders, could not by itself indicate that the temple was meant. for public purposes. They further took the view that "the cost over faqirs, sadhus and the occasional festivals would be ancillary to the main purpose, that is, for puja of the deity," As regards the panches mentioned in the documents they were of opinion that they had no opportunity to function or take any part in the affairs of the temple and the trust properties, and that there was nothing to indicat~ that the founder or founders of the trust intended that members of the public should be associated with the managementof the temple and the trust properties and the puja.

They also held that "the mere fact that some other members of the public might be attending festivals like Ram Navami. Janmashtami etc. does not justify the inference that the trust or temple was created for the benefit or worship of the public at large or of some considerable portion of it"

We find ourselves unable to agree with the learned Judges of the High_ Court. We are of opinion that the judgment of the High Court proceeds from failure to appreciate the effect of the judgment of this Court in Deoki Nandan v. Murlidhar (1956 SCR 756). In that case the dedication of the properties was not as complete and as categorical as in the present case. Only in the absence of male issue, the entire immovable property was to stand endowed in the name of the deity.

Half of the income from the properties was to be taken by the two wives of the testator for their maintenance during their lifetime. If a son was born to the testator then the properties were to be divided between the son and the temple. A committee of four persons was appointed to look after the management of the temple and its proper .. ties, and of these, two were not the relations of the testator. The committee "may appoint the testator's nephew as Mutawalli by their unanimous opinion''. The documents in the present case are only slightly different in that they providefor the members of the. family being shebaits. But the panches are all outsiders. In Deoki Nandan v. Murlidhar this Court referred to certain facts as indicating that the endowment is to the public :

"Firstly, there is the fact that the idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site.

And as pointed out in Delroos Banoo Begum v. Nawab Syud Ashgur Ally Khan('), it js a factor to be taken into account in deciding whether a11 endo:, vment is private or public, whether the place of worship is located inside a private house or a public building. Secondly, it is admitted that some of the idols are permanently installed on a pedestal within the temple precincts. That is more consis.tent with the endowment being public rather than private. Thirdly, the puja in the temple is performed by an arhaka appointed from time to time."

In the present case the first factor is present. There is no evidence about the second. There is also provision for appointment and dimissal of pujaris. Though there is no evidenc_, in.this case, as in that case, that the temple was built at the request of the public we do not think that it makes much difference. We are particularly of the view that as the only right which the family had was to have a member of the family as a manager or shebait and the shebait was subjed to superintendence and control by a body of 011tsiders, who were given the power to remove the shebait if he did not act properly, it is decisive of the question as to the public character c( the temple. There could be no better indication of the fact that the members of the public were associated with the management of the iemple and interest in its management was created in them, thus bringing the matter directly within clause (g) of section 2 of the Act. The fact that this provision regarding the panches was to col1le into ~!feet only after the death of the executants of the deed, does not affect the merits of the question.

We are also of opinion that the learned Judges of the High Court were

(I) 1875 15 B:n. LR. 167, 186.

not correct in their view that the fact that members of the public took part in the worship in the temple and the provision for faqirs etc. was of no signifjcance, and in rejying, upon the decision of the Privy Council in Bhagwan Din v. Har Saroop (AIR 1940 PC 7) for this purpose. In that case the properties were granted not in favour of an idol or temple, but in favour of a private illdividual., who was maintaining a temple, and his heir~. The contention in that case was that subsequent to the grant the family of the grantee must be held to have dedicated the temple to the. public for purposes of worship and it was this contention that was repel!ed' by the Privy Cou:ncil by observing that as the grant was initially to-mrcindividual, a plea that it was subsequently dedicated by the family to .the public requi.red to be ciearly made out and it was not made out rrierely by showing that the public was allowed.to worship at the temple. But in the present case, as in the case pf Deoki Na; ldan

v. Murlidhar, the endowm_ent is in favour o[ the idol itself and in such circumstances proof of user by the public without interference would be cogent evidence that dedication was in favour of the public. The decision of the Division Bench of the Patna High Court in Ramsara11

Das v. Jai Ram Das (AIR 1943 Pat 135) tha.t "a mere provision for the service of sadhus, occasional guests and \vayfarers in a dedication to an idol does not render the dedication substantially for public purpose" must be understood in the background of that case where the properties originally stood in the names o'f various mahants and. the property was to be held by the grantee generation after generation and the Court held that the gift was to. the mahant personally.

We arc, therefore, satisfied that on the facts of this caso the trust should be deemed to be a religious trust as the public are interested E in it. The appeal is allowed and the judgment and decree of the High Court set aside, restoring the judgment of the learned Subordimte Judge. The 1st respondent will pay t\te costs of the appcll.ant. The

C.M.~. No. 3132 of 1973 is allowed.

V.P .• S.

Appeal allowed.

. I

BHUBNESHWAR PRASAD CHOUDHARY & ANR

April 9, 1974

K. K. MATHEW

A. ALAGIRISWAMI, JJ.

B BUrar Hindu Religious Trusrs Ac

s. 2

s. 2

s. 2(g)

D. Goburdhan

K. K. Sinha

S. K. Sinha

ALAGIRISWAMI

Bihar

section 2

Ram Adhikari Choudhary

Ram Lochan Choudhary

Amir Prasad Choudhary

Ramakant Prasad Choudhary

14. 7 .1934

Ram Adhikari Choudhary

Bhagwat Prasad Choudhary

7th December, 1928

section 2(g)

section 2(g)(i)

section 2

Patna High Court

AIR 1943 Pat 135