r 240

MOHSIN ALI & ORS.

STATE OF MADHYA PRADESH April 22, 1975

[V. R. KRISHNA IYER, R. S. SARKARIA AND A. C. GUPTA ]J.J

Sovereign grants-Construction of-Surrounding circrunstances as aid of construction-Occasion of grant as aid of constn1ction.

By Firman of 1934, the then ruler of Bhopal in appreciation of Jong and distinguished service of Sir Liaqat Ali gave him, in addition to the grant of pension,- the residential house in question and a sum of Rs. 400 /- per month C out of the Privy Purse of the Ruler.

Liaqat Ali died in March 1947 without Jeaving any issue or widow.

In May, 1947, Syed Mohammed Ali, an heir .of Liaqat Ali, who was n;:siding in the said house was forcibly ejected by the Government of Bhopal.

In 1957, the present appellants being the heirs of Syed Mohammed Ali filed the present suit against the State of Madhya Pradesh for the recovery of the possession o~ this house on the ground that the Firman gifted the house absolutely to Liaqat Ali and that they were entitled to inherit the house. The suit was resisted by the respondent on the ground that the ruler's Firman did not confef absolute title on Liaqat Ali, but only a life interest in the house. The Firman inter-alia stated "and you are granted your residential house situated at Bara Mahal Shahjahanabad as a gift." The Trial Court decreed the suit on the ground that the suit house was gifted by the ruler to Liaqat Ali absolutely.

The High Court on appeai reversed the finding and held that on a true construction of the Firman Liaqat Ali was given only a life estate. On appeal to this Court, it v.as contended by the appeJlants :-

1. The last sentence of the Firman declares in unambiguous terrms that the grant of the house is an out and out gift.

2. Since the granter and the grantee are Muslims, the gift would under Mohammedan Law have the effect of conveying an absolute heritable estate.

3. In a letter addressed by thr Chief Engineer and Secretary to the P.\V.D., Bhopal, issued in the year 1938, it was mentioned that the building in question was in the possession and ownership of this Liaqat Ali.

Jt was contended by the respondents

1. The grant of the house is not to be disassociated from the penslonary grants.

2. The Firman repTesents a grant made by an absolute ruler in fa\1our of his subjt:L:t a1Jd wa~ not a hiba n1ade bv CJne Muslim to another lvfuslim under Mohammedan Law.

3. The grant being a sovereign grant has to be construed strictly against the guarantee and imperfection in the language of the Firman had to be resolved in favour of the Government by reading it as a whole in the light of the surrounding circumstances.

H Dismissing the appeal,

HELD : In case of sovereign grants, \vhere two interpretations are possible, that V.'hich is mot favourable to the sovereign is to be priferred. [244B-CJ

HELD FURTHER--The Firman does not convey in precfre and unequi_vocal terms full and absolute ownership of the suit house to the grantee. The Firman does not use the word like heritable estate or that the grant would take effect from generation to generation or grant to the grantee and his heirs.

[246FJ

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fl.eld further-The Firman has to be read as. a \Vhole.

It cannot be dis- A sected into three water-tight compartments. It is permissible to consider the surrounding circumstances and the occasion on which this grant was made as legitimate aids to .construction of the Firman. The Firman confers three-fold benefits; pensiQn, Rs. 400!- per month and beneficial interest in the residential house. The object of conferring these benefits was the same, namely, to secure to the retiring servant a handsome maintenance and comfortable residence for the rest of his life. The surrounding circumstances, namely, the grantee had no issue nor ony near relation and was already residing at the suit house, also B' c.:infirm thisi interpretation. [246G, 247A-B].

fIELD FURTIIER-The grant is not a hiba made. in accordance with ivtohan1n1eCan Law. It was a grant ma.de by an absolute ruler to his subject.

[?.48D-E] .

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 166 of 1968.

From the. judgment a11d decree dated 5th September, 1962 of the Madhya Pradesh High Court in First Appeal No. 1 of 1956.

Hardaya/ Hardy and S. S. Hussain, for the appellants.

'> Ram Panjwani, H. S. Parihar and f. N. Shroff, for the respondent.

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The Judgment of the Court was delivered by

SARKARIA, J.--By a firma11, dated October 25, 1934, Nawab Sir Hamidullah Khan, the then Ruler of Bhopal State, in appreciation of the long and distinguished services of Sir Liaqat Ali, gave to the latter, in addition to the grant of pensions, the residential house in question as "inayat ataa". Sir Liaqat who was already residing in this house, E continued therein till he died, issueless and widowless, in March 1947.

One Syed Mohammed Ali who was the son of Sir Liaqat's father's sister, also used to reside in this house with the deceased. After Sir Liaqat's death, Syed Mohammed Ali continued in occupation of this house as one of the nine heirs of the deceased, till he was "forcibly

and unlawfully" ejected in May 194 7 by the, then Government of F Bhopal.

Paying a "deaf-ear" to the repeated demands of Syed Mohammed Ali for restoration of possession, the Government "persisted in the act of trespass" and continued in illegal possession of the house.

After his ouster, Syed Mohammed Ali also 'died sometime in 1947.

On April 30, 194 7, the N awab of Bhopal signed the Agreement G of Merger and the State of Bhopal was taken over by the Chief Commissioner on behalf of the Government of India on June !, 1949.

Thereafter, on November 1, 1956 the territory of the former Bhopal State became a part of the re-organised State of Madhya Pradesh.

On August 21, 1957, after serving a notice under s. 80, Code of Civil Procedure, the plaintiffs 1 to 3, who are the son, daughter and H widow, respectively, of Syed Mohammed Ali, instituted the suit against the State of Madhya Pradesh for recovery of possession of the house, on the footing that under the firman, it had been gifted absolutely by the Nawab to Sir Liaqat Ali who died possessed of it as full owner, and on the donee's death, it was inherited by Syed Mohammed Ali who, in turn, was succeeded by the plaintiffs. It was further pleaded

A that Syed Mohammed Ali was "forcibly and unlawfully" dispossessed by the Government in May, 1947.

The suit was resisted by the defendant State on the ground, inter ... alia, that the Ruler's firman "did not confer absolute title on late Liaqat Ali", but only a lifo-interest in the house.

B The Additional District Judge who tried the suit, found on a construction of the firman (Ex-P-1), that the suit house had been gifted by the Ruler to late Sir Liaqat Ali, absolutely, and, in consequence, decreed the suit.

On appeal, a Division Bench of the High Court of Madhya Pradesh reversed that finding and held that "on a true construction of the Firman (Ex.P-1), the grantee, the late Sir Syed c Liaqat Ali, was given only an estate for life in the suit property, and the plaintiffs as his heirs had no right to inherit it as his property." In the result, the appeal was allowed and the plaintiffs' suit was dismissed.

On a certificate granted by the High Court under Art. !33(1)(a) of the Constitution read with Sections 109 and JI 0 of the Code of D Civil Procedure, the plaintiffs have now come in apl"'al to this Court.

The main issue framed by the trial court was in these terms :

"Was the house in dispute given by the Ruler to Shri Liaqat Ali deceased absolutely or for life only."

The decision of this issue turns on an interpretation of the Firman (Ex.P-1), dated October 24, 1934 whereby the Ruler gave this house to the deceased.

The original Firman is in Urdu.

As rendered into English by the courts below, it reads:

"Hon'ble Motamid-u-Sultan Nasir-ul-Mulk S)'ed Sir Liyaqat Ali". '-.1

"Lookin~ into considerations with gratitude your valuable services and faithful sacrifices which you have rendered for more than 30 years and considering the economic condition of the State you have served without remuneration for the last 2 years, your application (for pension) is granted.

You are granted permission lo retire in lieu of your valuable services from 1st October 1934.

You should hand over charge of Mushir-ul-Muhami Rubkari Khas to Honourable Shoeb Qureshi.

Besides that pension you are entitled to receive under the Pension Rules of the State Treasury, you are also entitled to receive a sum. of Rs. 400/- as monthly pension from Treasury of Dcodh1 m lieu of valuable services of Deodhi Khas

an_d you are (further) granted your residential house situated at Bara Mahal Shahjahanabad, as gift."

..!' The original of the crucial sentence, which has been underlined, A

reads :

"Aur aapka sakoonti makan waqya Bara Mahal Shahjahanabad apko inayat ataa kiya jata hai."

The Firman was by order published in the Bhopal Government Gazette dated 31-10-1934, under the Heading : 'Pension toAali Mortabt Sir Syed Liaqat Ali Saheb'. Rendered into English, its material part runs thus :

"Now the said Hon'ble again requests for grant of his previous application on account of rendering service for more than thirty years.

Hence His Highness the Ruler of Bhopal Khuld-Allah-Mulkahum considering his valuable services and his faithful sacrifices that he had served without remuneration for the last two years, taking into consideration the economic condition of the State. Considering (all his valuable services) with gratitude (His Highness the Ruler of State) grauts him permission to retire from 1st November, 1934 and also grants him his residential house situated at Bara Mahal Shahjahanabad as gift.

His Highness the Ruler of Bhopal State further orders that Hon'ble Syed Sir L\aqat Ali Saheb be paid Rs. 400/- monthly pension from the Treasury of Deodhi Khas in respect of services of Deodhi Khas besides his regular pension under the Rules 'of the State Treasury for which he is entitled to receive from the Treasury of State".

The original of the underlined sentence, in the Gazette N otification reads :

"aur unko sakoonti makan waqya Bara Mahal Shahjahanabad inayat marhmat pharmale hain."

It is to be noted that the disposition evidenced by the Firman, Ex. P-1, is a tripartite grant made by an autocratic ruler to his subject in recognition of !Dng, meritorious services rendered by the latter.

This grant belongs to the category of disposition, which under the English Common Law are known as "Crown grants".

The tenor and language of the Firman, particularly the words "aapko lnayat Kiya Jata Hai" unmistakably mark it out as a Sovereign grant. According to Steingass' Persian-English Dictionary "inayat" (Noune) signifies a favour, a gift, a present, a bounty";

and "Ataa" (Verb) means "to give, to confer a benefit or present with", H

"Ataa~' (Noun) implies "Giving, a present, gift, donation, favour, a

grant,- endowment, concession; consideration".

In the widest sense, 'grant' may comprehend everything that is granted or passed from one to another by deed.

But commonly the term is applied to rights ,. created or traferred by the Crown, ~.g .. , grants of pensions, patents, charters franchise (See 'Earl Jowtt's D1ct1onary of English Law).

A In England, contrary to the ordinary rule applicable to grants by, i., a subject, grants by the Crown are usually construed most favourably

for the Crown.

The rule in case of Royal Grants is that general words will not pass prerogative rights by implication.

This general rule is, however, capable of important relaxations in favour of the subject. If the intention of the Soverejgn is obvious from the document which in precise, unequivocal terms defines the extent and nature of the benefit conferred, it must take effect. No question of seeking extrinsic aid to its construction arises.

If the grant is for valuable consideration it must be construed strictly in favour of the grantee, for the honour of the Sovereign and where two constructions are possible, one valid and the other void, that which is valid ought C to be preferred, for the honour of the Sovereign ought to be more regarded than the Sovereign's profit. Where, however, two interpret; a, tions may be given to the grant, both of which are good, that which is most favourable to the Crown is in many cases preferred (see Halsbury's • Laws of England, 3rd Ed. Vol. 7, Paragraphs 669 and 670 pages 314- 316).

These rules of interpretation have been applied to Sovereign grants in India, also (see Raja Rajinder Chand v. Sukhi( 1), Gulabdas Jagjivandas v. Collector of Surat( 2 ), Sheikh Sultan Sani v. Shekh Ajmoddin(3), Azziz-un-nissa v. Tasadduq Husain Khan(''), Ram Narayan Sing/• v. Ram Saran Lal(").

It is in the light of the above principles that we have to determine whether by tire Firman, Ex. P-1, the Ruler intended to grant a life estate or an absorute estate in the suit house.

Mr. Hardy, learned Counsel for the appellants contends that the disposition in dipute would not fall within an exception to the general F rule according to which a Sovereign grant is construed in favour of the Sovereign, because firstly, the last sentence of the Firman, the interpretation of which alone is in question, declares in plain, selfcontained and irnambignous terms that the grant of house is an out and out gift to the grantee, and secondly, the grantot and the grantee, being Muslims, the gift would, under Mohammedan Law, have the effect of conveying an absolute heritable estate. In this connection, G support has been sought from certain observations of the Privy Council in Sardar Nawazish Ali Khan v. Sardar Ali Raza( 6), which are as follows :

"In general, Muslim Law draws no distinction between real and personal property, and their Lordships know of no authoritative work ......... which affirms that Muslim Law recognizes the splitting up of ownership of land into estates,

(1)11956] SCR 889 as per S. K. Das J. at p. 902.

(') 6 I.A.5 4

(') 30 I.A. 50.

1(<) 28 I.A. 65.

(5) !LR 46 Cal. 683 (P.C.).

(6) 75 I.A. 62 at 77.

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or in point. of quality like legal and equitable estates, or in - point of duration like estates in fee sample in tail, for life, or in remainder. What Muslim Law does recognize and insist on, is the distinction between the corpus of the property itself (ayn) and the nsufruct in the property (manafi). Over the corpus of the property the law recognizes only absolute dominion, heritable and unrestricted in point of time, and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the conditfon is rejected as repugnant, but interest limited in point of time can be created in the usufruct of the property, and the dominion over the corpus takes effect subject to any such limited interests." (emphasis added)

Mr. Hardy refers to the letter, dated 29-6-1938 (Ex. P-3) of the Chief Engineer and Secretary, P.W.D., Bhopal whereby two maps of the 'house, Nawab Manzi! were sent to the grantee. The portions shown in light red colour in these maps were referred to in this letter as in the "possession and ownership" of th'e grantee according to the Gazette Notification No. 7, dated 31st October, 1934.

As against the above, Mr. Panjwani, learned Counsel for the Respondent submits that the grant of the house is not to be dissociated from the pensionary grants; that even the last sentence of the Firman, read in the context along with its preamble reaso.tiably bears only one construction viz., that a right of residence for life, to be conveyed by the Ruler to the grantee. Stress has been laid on to be conveved by the Ruler to the grantee, Stress has been Jaid Oh

the fact that there are no words such as, nasa/an-dar-nasalan, pushatdar-pushat etc. in the language of the Firman showing that absolute heritable rights in the property were conferred on the grantee. Coun- Jsel further maintains that the Firman represent' a grant made by an absolute Ruler in favour of his subject on the occasion of the latter's retirement from service and that it was not a mere hiba made by one Muslim under Mohammedan Law to another Muslim. Reference to Mohammedan Law, proceeds the argument, has no relevance. It is urged that the grant being a SoYereign grant, had to be construed strongly against the grantee, and imperfections in the language of the Firman had to be resolved in favour of the Government, by reading it as a whole in the light of the surrounding circumstances and even the subsequent conduct of the then Bhopal Government in ejecting, Syed Mohammad Ali from the house in May, 1947.

That ejectment, according to the Counsel, amounted to resumption of the grant-(by the grantor) who was then alive and was still the absolute Ruler of Bhopal state.

Counsel has referred to several authorities in support of these contentions.

We are not persuaded to accept the appellant's contention that the Firman conveys, in precise and unequivocal terms, full and absolute ownership of the suit house to the grantee. In our opinion, the language of the last sentence of the Firman, which\ is the sheetanchor of this contention, even by itself; does not indubitably and

A unequivocally indicate that the intention of the Ruler was to grant an absolute estate. The Firman .is conspicuous by the non-employment of any words declaring that thenceforth the grantee would have a heritable estate in the house or that the grantpr had transferred all bis rights in the property, absolutely in favour of the grantee. There is no use of such words that the grant would take effect as "nasalan-dar- B_ nasaln", "from generation to generation" "towarsan, kaiam u qaman"'

"to grantee and his heirs" etc. pointing towards the creation of a heritable estate. Even the use of such terms by itself, has been held to be an inconclusive indication of the grantor's intention to confer absolute, heritable rights. Thus, in Gulabdas Jagjivandas's case (supra) despite a reference in the sanad to the children or descendants' of the C grantee, the Judicial Committee held that the grant bad not been made "on terms which would make them hereditary".

Again, in Sheikh Sultan v. Shekh Ajmoddin (supra), delivering the judgment of the Board, Lord Hannen quoted with approval, a minute dated 15-3-1922, recorded by Sir Thomas Munro in which he states that the terms .in such documents ( sanads) 'for ever' from gene- D ration to generation or in Hindu grants, 'while the sun and moon endure', 'are mere forms of expression', and were neve1 supposed either by the donor or receiver 1o convey the durability which they imply or any beyond the will of the Sovereign. On the authority of another minute recorded by Sir Thomas Munro, it was further observed "that while the seizure of private property by the native princes would have E been considered unjust by the country, Jagir grants were not regarded by the people in the light of private property".

It is not necessary to multiply authorities with regard to the construction of such customary terms which could possibly be indicative of the grantor's intention to make a heritable grant, because the Firman Ex. P-1, is benefit of all such terms. It will be sufficient to sav F that the language of the Firman does not in clear and unambiguous terms express an intention to create an absolute estate' in favour of the grantee and bis heirs. The Firman has therefore to be construed in accordance with the well-established rule of construction applicable to Sovereign grant.

Another cardinal canon of interpretation to be borne in mind G is that in order to ascertain the real intention of the grantor, the Firman has to be read as a whole. It will not be correctas the appellants want us to do to dissect the Firman into three water-tight compartments or to read last sentence of the Firman out of the context. It is also permissible to consider the surrounding circumstances and the occasion on which this grant was made, as legitimate aids to construction of the Firman (see Gu/abdas Jagjivandas v. Collector of Surat (supra).

H The occasion for the grant as apparent from the preamble of the Firman, Ex.P-1, (reproduced in the Notification Ex.P-2) was that the grantee, Sir Liaqat Ali, having attained the age of superannuation, was retiring with the permission of the grantor, after putting in "valuable" and "faithful" service for more than thirty years, including two years for which he served without remuneration, in view of the

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poor economic condition of the State .• An analysis of the Fir'!'a11 will A show that it confers three-fold benefits on the grantee. Firstly, 1t grants him such pension as would be admissible under the Service Rules. This he would draw from the State Treasury.

S.econdly, in addition to the first, it gran!s him pension at the. rae of Rs. 400 /- per mont~

which the pner would be entitled to drw frm the Dwdh1

Treasury i.e., Privy Purse of the Ruler. Tlnrdly, It grants hun a . B beneficial interest in the residential house, in these terms : "A ur aapka sakoonti makan waqya Bara Mahal Shahjahanabad apko inayat ataa kiya jata hai''.

As is indicated in the Fil man (Ex.P-1) (P-2J NolihcatJon i11 1naking c this tripartite grant the Ruler was actuated by consideration of. _gratitude for the valuable services rendered by the grantee.

The object of conferring these three-fold benefits was the same, namely, to secue to the retiring servant a handsome maintenance and comfortable residence for the. rest of his life.

In other words, all the three benefits . granted under this Fil'lnan were cognate benefits, arising out of the , "D

same occasion, and made with the same object in view viz., to enable the grantee to live comfortably in retirement. These related benefits could be compendiously described as "retirement benefits". The first t\vo benefus were indisputably pensionary benefits enuring only for the life-time of the grantee. All the three kindred benefits, including the one in question, were exprei; sly meant for the person of the grantee. This is clear from the word 'apkd' which means "to you" in E the phrase "apko inayat aiaa kiya jata hai'" The .conjunc.tion "aur"

(and) at the commencement of the last-sentence of the Firman inextricably Jinks the grant of interest in the residential house, with the pensionary benefits conferred in the foregoing parts of the Firman. Jn short, ail the three-fold benefits granted under this Firman are offspdng of the same genus. The language of the Firman relating direct- F ly to the grant in question therefore takes its colpur from the preceding parts of the Firman relating to the pensionary benefits conferred on the grantee for life. Thus if the crucial words quoted above, are construed in the context of the akin grants, andaccording to the general tenor of the Firman as a whole, it becomes clear that the. intention of the Ruler was to grant only a right of residence limited to the life time of the grantee-and not an absolute estate in the. house.

The snrronnding G crrcumstanc.es also confirm the interpretation, adopted by us.

The first sue~ circumstance was that at the time of the grant, the grantee

ad no issue, nor any near relation. Indeed, he died widowless and 1ssne-Jess. In this context, co11pled with the omission, of any wores

sch as to "grantee and his heirs" or "nasalan-dar-nasalan" indicatmg the grant to be heritable, it would be reasonable to hold that the

grat was intended to be for life only. .

The_re is yet. another circumstance which points towards the same

coclus1~11. It JS. that at the time of the grant the grntee was alread res1d.mg !n the smt house. In this context, the word "sakoonti" ('resl denl!al) m the last l?art of the Firman used in aS!>ociation with 'makan'

(honse) assumes significance.

It suggests that the intention of th

IOSC/75-17 e

A grantor was to convey to the grantee no more than a right of residence in the house which the latter was already enjoying.

The letter Ex.P-3 written by the Chief Engineer on 29-6-1938 is of hardly any assistance in construing the grant made three or four years earlier. It could not be treated as contcmperaneous conduct of B the grantor or his agent, which could legitimately be taken into consideration in construing the grant.

On parity of reasoning, it is doubtful whether the fact of eviction of Syed Mohammed Ali from the suit house, about two. months after the death of the grantee and about 15 years after the grant, could justifiably be called in_,}id as a "surrounding circumstance" to interpret C the Firman dated 24-10-1939. The High Court has taken this circumstance also into account.

We need only say that even after excluding this circumstance, there remains sufficient and sound foundation in the language of the Firman and the contemperaneous surrounding circumstances, including the common genus, the same occasion and purpose of the three-se1ided grant, to hold that the Rule1 had conferred D only a limited estate in the suit property for the life-time of the grantee.

The argument advanced on behalf of the appellants that the grant in question was a 'hiba' made in accordance with Mohammend1n Law by one Muslim toanother, has been stated only to be rejected. To all intents and purposes, it was a grant made by an absolute Ruler to his E subject who, had rendered long meritorious services, on the eve of his retirement. Reference to Muslim law is herefore misconceived.

We may, however, say in passing that even according to the observations of the Privy Council relied upon by the C..ounsel. creation of an interest limited in point of time, in the usufruct of the property is not necessarily repugnant to Muslim Law.

Mr. Panjwani has advanced an alternative argument also, to suppcrt the decision of the High Court.

The contention is that even if it is assumed that the house had been given to Sir Liaqat Ali absolutely, then also the grant had come to an end on resumption of the possession of the house by the Government of Bhopal in 194 7, and thereafter the grant continued to be non-est because after the merger of the State of Bhopal on 1-6-1949, it was not recognised by the Government of India or by the new Government of Madhya Pradesh after Bhopal became a part of that State on 1-11-1951. Rather, as per Ex.P-6, the new Government after the disappearance of Bhopal State from the scene, repndiated the grant.

In these circumstances, submits the Counsel, the appellants did not carry with them the right, if any, they had under the grant as subjects of the Ex-Sovereign Ruler of Bhopal H and after the extinction of Bhopal State and its Ruler, they had only such rights as were granted or recognised by the new Sovereign i.e. the Central Government. According to the Counsel, the plaintiffs' claim was not enforceable in the municipal courts. Reliance has been placed on the decision of this Court in State of Gujarat v. Vora F]difali Badn1_ddin !.fit_hibarwale('); ,

1[1964] 6 S.C.R. 461 at 551. • ·

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There is no foundation for the plea either in the pleadings or in the A issues.

We therefore do not allow it to he raised for the first time in this Court.

For the foregoing reasons, the appeal fails and is dismissed with costs.

P.H.P .

Appeal dismissed.

240

MOHSIN ALI & ORS

V. R. KRISHNA IYER

R. S. SARKARIA

A. C. GUPTA

the State of Madhya Pradesh

s. 80

Code of Civil Procedure

Sections 109

Hence His Highness the Rule

His Highness the Rule

His Highness the Rule

Privy Purse of the Rule

[1964] 6 S.C.R. 461


BALWANT NARAYAN BHAGDE

M. D. BHAGWAT & ORS.

April 23, 1975

[P. N. BHAGWATI, A. C. GUPTA AND N. L. UNTWALIA, JJ.]

Land Acquisition Act (1 of 1894) ss. 9(1), 17(1) and 48(1)-Possession taken of acquired land--Occupant resurnir1g possession-Effect of-If Governnient can withdraiv /ro1n the acquisition.

For the purpose of acquiring land for an Agricultural College a notification was issued under s. 4 of the Land Acquisition Act, 1894, in January 1959, with respect to several pieces of land one of which belonged to the respondents and was in possession of the appellant as tenant.

After the issue of the notification. under s. 6, in February 1959, the Commissioner directed that possession of that land may be taken Under s. 17 ( 1) on the exJriry of 15 days from the publication of the notice under s. 9(1).

On March 24, 1959, the appellant :flled a statement before the Land Acquisition Officer.

In that statement, he did not deny the publication of notice on the spot under s. 9( 1) nor did he put any impediment to the taking of the land.

He merely wanted the compensation amount to be paid to him and wanted stay of the taking possession of his house on the Iand.

The Land Acquisition Officer passed orders in the presence of the appellant directing the Tnhsildar to take possession of the land and hand it over to the Principal of the Agricultural College.

The Tahsildar went to the spot, inspected the land for the purpose of deter:mining \vhat part was waste and arable and should therefore be taken possession of and took possession of the land, leaving out the small portion containing the house of the appellant, and handed over possession of the land so taken over to the Principal of the Agriculturai Coilege. The appellant was not present at the time when the Tahsildar took posiession. There was, thereafter, corrcsnondence between the appellant and the Government. and various reports had been made by the officers of the Government and on April 16, 1959, a stay order \Vas passed by the Government.

On December 13, 1961, the Land Acquisition Officer wrote to the Commissioner that pos_session of the land was still \Vith the appellant. and on August 8, 1968, withdrawal from the acquisition of that part of the land under s .. 48(1) of the Act, was directed by the Commissioner.

The respondents and the Agricultural College filed writ petitions in the High Court, challenging the release of the land.

The High Court a11owed the petitions holing that posseion of the land was taken (even though the Government took the stand that thev had taken onlv 'svmbolical' oosse-sion) and given to the Principal of the College and that, therefore, it was not open to the Commissioner to withdraw from the acquisition under s. 48 ( 1) as amended by the Land Acquisition (Maharashtra Extension and Amendment) Act.

Dismissing the appeal to this Court,

H HELD : ·(Per Curiam) : Neither the Government nor the Comn1issionet could withdraw under s. 48(1) from the acquisition of any portion of the land v1hich had been taken over by and vested in the Government. [253-El

(Per P. N. Bhagv;'ati and A. C. Gupta JJ) : When Government proceeds to take possession of the land acquired by it under the Act. it must take actual posses:ion since all interests in the land are sought to be acquired by it, and there is no question of taking 'symbolical' possession as understood

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B. N. BHAGDE V. M. D. BHAGWAT

under the C.P.C.

Nor would possession merely on paper be enough.

How such actual possession may be taken would depend on the nature of land.

It is not an absolute and inviolable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking possession of land in every case.

It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or occupant of -the land that possession would be taken at a particular time, though it may be desirable to do so in order to eliminate the possibility of a fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever knowingabout it. [252E-H, 253ABl

On the facts and circumstances of the present case, the Tahsildar had taken actual possession of that part of the land which was waste or arable and handed it over to the Principal of the College.

The Land Acquisition Officer thought that actual possession could not be regarded as having been taken unless the appellant was excluded from the land, and, since the appellant, without any obstruction entered on the land and continued in possession, he mistakenly statea that actual possession was not taken. The legal position is that even ff the appellant entered upon the land after actual possession had been taken by and the land vested in, the Government, the appellanfs possession would not obliterate the consequence of vesting in the Government. (253-B-E]

[Discussion regarding delivery of 'symbolical' and 'actuaJ' possession under the C.P.C. is not necessary for the disposal of the appeals].

[252-D}

(Per Unt\valia J.) : (1) Under the C.P.C., a symbolical or formal delivery of possession has the effect of dispossessing the judgment-debtor from his right; title or interest in the property, although, as a matter of fact, he may have succeeded in resuming possession shortly after dispossession.

It does not, however, dispossess the person in actual possession in his own right not liable to be evicted under the decree or in pursuance of the auction sale.

[263A-B] ·

(2) When a public notice under s. 9(1) of the Act is published at a convenient place or near the land to be taken that Government intends--tcf take possession, ordinarily there would be no question of resisting or impeding the taking of possession. Delivery of possession by the owner isnot required and the Coliector can enforce surrender under s. 47 if impeded.

On taking possession either under s. 16 or s. _17(1), the land ests absolutely in the Government free from q.11 encumbrances.

Therefore, in a proceeding under the Land Acquisition Act for acquisition of land all intere!t& are wiped out and hence, the taking of possession must be taking actual possession on th~ spot and not symbolical possession ; and surety it cannot be a possession merely on paJ>Cr.

[263E-G]

(3) As to the mode of taking possession, the Act is silent.

Unless possession .is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land a_nd do some act which woul~ indicate that the authority has taken

posess1on of th~ land. It may_ be 1n te form of a declaration by beat of' drum ?r otherwise or by hanging a wntten declaration on the spot that possession has been taken.

The presence of the owner or the occupant is not necessary to effectuate the taking of possession.

[263H, 264A]

( ~) In the instant case, actual possession of the land was taken by the H Tahstldar on the spot and the. possession was handed over to the Principal bf the College.

The Land Acquisition Officer's statementthat the land was not act_ually taken possession and te Government's stand that only symbolical possession was taken, should be viewed from the correct legal P'Osition.

So viewed, the appellant's resuming possession after once the land \vas validly take_n by the Government would not have the effect of undoing the fact of vesting 10 the Government.

[264B, E-F]

A CIVIL APPELLATE JuR'SDICTION : Civil Appeal No. 75 & 76 -of

1974.

Appeal by special leave from the Common Judgment and Order dated 27 /28-9-1973 of the Bombay High Court, Nagpur Bench, in Sp!. Civil Applications Nos. 826 of 1968 & 389 of 1971.

Sardar Bahadur Saharya and Vishnu Bahadur Saharya, for the appellants.

M. N. Plzadke and A. G. Ratnaparkhi, for respondent No. 1 and 2 (In Appeal No. 75/74).

Niren De, Attorney General of India, M. N. Phadke and A. G: Tl.atnaparkhi, for respondent No. 1 (In Appeal No. 76/74).

K. L. Rathi and M. N. Shroff, for respondents Nos. 3-6. (Ii; Appeal No. 75/74) and respondent No. 3 (in appeal No. 76/74).

The Judgment of P. N. Bhagwati and A. C. Gupta, JJ. was delivered by Bhagwati, J. N. L. Untwalia, J. gave a separate Opinion.

BHAGWATI, J.-Wc agree with the conclusion reached by our brother Untwalia, J., as also with the reasoning on which the conclusion is based.

But we are writing a separate judgment as we feel that the discussion in the judgment of our learned brother Untwalia, J., in regard to delivery of 'symbolical' and 'actual' possession under rules 35, 36, 95 and 96 of Order XX! of the Code of Civil Procedure, is not necessary for the disposal of the present appeals .a, nd we do not wish to subscribe to what has been said by our learned brother Untwalia, .T., in that connection, nor do we wish to express our assent with the discussion of the various authorities made by him in his judgment. We think it is enough to swe that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it.

There can be no question of laking 'symbolical' G possession in the sense understood by .iudicial decisions under the Code of Civil Procedure.

Nor would possession merely on paper be enough.

What the Act contemplates as a necessary condition of vesting of the ia, nd in the Government is the taking of actual possession of the land.

How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admit• of. There can be no hard and H fast rule laying down what , apt would be sufficient to constitute taking

of possession of land. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the spot and making a declaration by bea, t of drnm or otherwise would be sufficient to constitute taking of possession of Tand in every case.

But here, in our opinion, since the land was laying fallow and there was no crop on it at the material time, the act of the Tehsildar in

\ '

- .

B. N. BHAGDE .v. M. D. BHAGWA'l 253

going on the spot and inspecting the land for the purpose pf deter- A mining what part was waste and arable and should, therefore, be taken possession of a, nd determining its exteut, was s4fficient to constitute taking of possession. It appears that the appellant was not . present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession.

It is also not strictly necessary as B a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desira, ble where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it.

We are of the view, on the facts and circumstances of the present case, that the Tehsildar took actual possession of that part of the land which was w.a.ste or arable arid handed it over to the Principal of the Agricultural College. It is true that the Special Land Acquisic D tion Officer in his Jetter dated f3th December, 1961 to the Commissioner stated that possession of the entire land was still with the appellant and itwas not actua, lly taken possession of by the Principal, Agricultural College. But it is obvious that this £tatement was made by the Special Land Acquisition Officer because he thought that actual possession of the la, nd could not be regarded as having been taken, unless the appellant was excluded from the land and since E -the appellant immediately, without any obstruction, entered upon the

land and continued in possession, "the land was not actually taken possession of by the Principal, Agricultural College". This was plainly erroneous view, for the legal position is clear that even if the apjlellant entered upon the land and resumed possession of it the very next moment after the land was actually taken possession of and became F vested in the Government, such act on the part of the ; ippellant did not have the effect of obliterating , the consequences of vesting.

There can, therefore, be no doubt that actual possession of 19 acres 16 gunthas of. waste a.nd ara, ble land w.as taken by the Tehsildar on 3rd April, 1959 and 1t became vested m the Government. Neither the Government nor the Commissioner conld thereafter withdraw from the acquisition of any portion of this land under s. 48 (1) of the Act G

The result is that the appeals fail and are dismissed with costs.

There will be only one set of costs.

UNTWAL!A, J.-These two Civil ApPeals filed bv Shri Balwant Narayan Bbagde . on grant of special leave by this Court arise H out of a common Judgment of the Bombay High Court allowinrr Special Civil Application No. 826/1968 filed by Shri M DM

B~gwat and Shri E. R.

Mahaiani, respandent Nos. 1 and. 2 j~ Civil ppeal No. 75 of 1974 and Special Civil Application No. 389/ 1971 tild by the Punjabrao Krisbi Vidyapeeth-(hereinafter called the Agncultural Collge )-to quash the order of the Commissioner ,

A Nagpur purporting to give sanction for withdrawal of the acquisition by bis letter dated 8-8-1968 in respect of a portion of the land comprised in Survey No. 30/2 in village Umari, District Akola.

The High Court hp, s held that possession. of the land in question wa~ taken by, the Collector, Akola and given to the Principal, Agricultural College. It was, therefore, not open to the Commissioner to withdraw B from the acquisition of the land under section 48 ( 1) of the Land Acquisition Act, 1894 as it stands amended by the Land Acquisition (Maharashtra Extension and Amendment) Act-hereinatfer called the Act. It is well-settled and nothing t.o the contrary was canvassed before us, that after possession of the land forming the subject matter of acquisition has been taken in accordance with section 16 or section 1 7 ( 1) of the Act, the la, nd vests in the Government and the Government C or any other authority is not at liberty to withdraw from the acquisition

0f any land of which possession has been taken; vide, Slate of Madhya Pradesh and Ors. v. Vishnu Prasad Sharma and Ors.(') and Lt .. Governor of Himacha/ Pradah and Another v. Sri Avinash Sharma(~). The controversy, therefore, centered round the question as to whether possession of the land which was released by the Commissioner under D section 48 (1) of the Act had been tp, ken or not.

For the purpose of the Agricultural College a large area of land was acquired near Akola. A notification under section 4 of the Act was issued on the 24th January, 1959 by which several pieces of land

mesuring 236 acres 7 gunthas ( 40 gunthas make one acre) were sought to be acquired including 20 acres 32 gunthas of Survey No.

E 30/2 in Village Umari, Pargana Akola.

The total area of this plot is 20 acres 33 gunthas. A separae notification under-section ( 4) wa, s issued for acquisition of the remaining one guntha which contained a well. As the land was urgently required for the purpose of College, action under section 17 of the Act was taken dispensing with the following of the procedure under section SA.

The Sob-Divisional F Officer, Akola wa, s appointed the Land Acquisition Officer to perform the functions of the Collector under the Act.

A notification under section 6 of the Act was issued on the 17th February, 1959. A direction was given for taking possession of the land under section 17 (1) on the expiration of 15 days from the publication of the notice under section 9(1). Notice under section 9(1) of the Act was subsequently published on 6-3-1959. After expiry of 15 days from the publication G of the notice under s"ction 9(1) on 24-3-1959 the Land Acquisition

Officer ordered the Tchsildar, Akola to deliver possession of the land to the Principal, Agrknltural College or his nominee in the presence of the, Sub-Divisional Officer. P.W.D. Building and Roads Section, Akola and directed him to rep.ort compliance alongwitb the possession receipt obtained from the Principal by 2-4-1959. The Tehsildar took and ha.oded over possession on 3-4-1959 and made a report. Out of H 20 acres 33 gunthas of land comprised in Survey No. 30/2 possession was taken and handed over in regard to 19 acres and 16 gunthas only. An area of 1 acre 17 gunthas which contained a double storied house of the appellant and a we11 etc. was for the time being left and possession of the same was not taken.

'[196<\1 3 S.C.R. 557. '[1970] 2 s.c.c. 149.

It appears, just after the i'ssuance of the notification under section 6 of the Act, .the appellant who claimed to be the tenant of the land, the owners admittedly being respondents 1 and 2 in Civil Appeal No. 75 of 1974 made a representation to the Government that his field in Survey No. 30/2 should not be acquired'-and the acquisition should be withdrawn.

He seems to have filed an application to that effect before the State Government on 18-2-1959. Some stay order thereupon is said to have been passed staying the proceeding in respect of the appellant's land. Following upon this correspondence took place and reports came to be made in April, 1959 and thereafter until the withdrawal from the acquisition of 12 cres and 23 gunthas of the land in Survey No. 30/2 was directed to be made by the Commissioner in the year 1968. As already stated the withdrawal was challenged by filing two writ petitions in the Bombay High Court.

The appellant filed a counter in tbe Writ application of the owners but did not do so in answer to the Writ application of the College.

On behalf of the Governmental authorities two counters were filed in the two Writ Petitions. In the owners' petition the petitioners had stated that pursuant to the relevant notifications, Government took possession of 19 acres 16 gunthas of land on 3-4-1959 a, nd gave possession of the same to tbe Principal, Agricultural College.

The Government in its return filed in the said case denied that possession as alleged was taken from the appellant and given to the Principal, Agricultur; i1 College.

In paragraph 3 of Special Civil Application No. 389/1971 it was stated on behalf of the Agricultural College that the Tehsildar took possession only of 19 acres and 16 gunthas out of the field as the remaining area was found in the meantime on spot inspection not to be waste or ara.ble to which the provision of section 17 of the Act could apply.

Actual possession of 19 acres 16 gunthas a!ongwith the other pieces of land measuring 200 acres and odd was delivered to the Principal, Agriculfural, College. Jn the return filed on behalf of the Officers of the Government the contents of paragmph 3 of the petition were admitted. But it was asserted that Government had taken only symbolical possession and the physical possession of the land remained with the appellant. On consideration of the relevant materials placed before the High Court it has come to the conclusion tha, t actual possession of thJ: land in question was taken and handed over on 3-4-1959 on the spot; and, even •ymbolical possession, if land is occupied by a person other than the owner. would be good possession for the purpose of section 48 of the Act.

Mr. Sardar Bahad1;1r Saharya, lean:ied counsel for the appellant, submitted that possess10n of any portion of the land comprised in Survey No. 30/2 was not taken by the Government or given to the H Prin.cipal, Agric_ultural College,. it was all a paper delivery of possession, no notice was ever given' to the appellant as to the date and time of taking possession of the land on the spot and the symb?lica~ delivery of possession, even if any, had not the effect of d1vestmg the ppellant from the a, ctual possession over the land, Counsel further submitted that the order of withdrawal which is confined to

A an area of 12 acres 23 gunthas only out of Survey No. 30/2 leaving a further balance of 6 acres 3 3 gunthas to the College was v; ilid.

Mr. Hathi appearing for the Government and its authorities struck to their stand that only symbolical possession was iaken and ; i.ctual possession remained with the appellant. Learned Attorney General for the Agricultural College, followed by Mr. Phadke for the owners, B submitted that no where the appellant had ch; t.llenged the taking of possession of the land on the spot on 3-4-1959.

The effect of taking posession of the rand was to vest it in the Government and no portion of it could be released under section 48 (1) of the. Act. It was further submitted that there is no provision in the Act requiring the giving of any notice to the possessor of the land of the exact date and time of ta.king possession on the spot and notice published C under section 9(1) is sufficient.

It may he stated at the outset that there does not seem to he any dispute as respects the fact that Bhagwat and Mahajani were the owners of the land , a, t the time of the issuance of the notification ·• under section 4 of the Act and the appellant was in it; occupation or D actual possession as a tenant. It is also not in dispute that possession was taken on 3-4-1959 in respect of the large portion of land measuring more than 200 acres. There is no controversy that the Agricultural College not only needed the land in question but subsequently steps were taken for acquiring an additional area of 340 acres for the needs of the College.

E The Commissioner in his order dated 17th February, 1959 had directed that the possession of the land may be taken on the expiration of 15 days from the publication of the notice mentioned in section 9(1) of the Act.

The. order recorded on 11-3-1959 shows that the notice in form 'D' under section 9(1) of the Act was published on 6-3-1959, so the possession of the land could be taken on 21-3-1959 or there- F after. Some persons filed their written statement showing their interest in the land to be acquired and their claims for compem, a, tion on 11-3-1959. On 24-3-1959 various other persons including the appellant appeared before the Land Acquisition Officer.

Appellant's counsel prayed for time to file his written statement. He was directed to do so by 5.00 p.m. on 24-3-1959.

On this date the land Acquisition Officer recorded the order in presence of the parties including the G a, ppellant directing Tehsildar Akola to take possession of the land and hand it over to the Principal, Agricultural College, in the presence of S.D.O., P.W.D .. Akola and to report compliance with possession receipt by 2-4-1959. A written statement on behalf of the appellant was filed by 4.20 p.m. on 24-3-1959.

Tt is necessary to refer to the claim of the appellant made in the written statement aforesaid.

He stated that he was interested in the field as he was its protected lessee and as such he was entitled to receive compensation that mav be wanted. The amount of claim put forward in respct of the field in Survey No. 30/2 by Bhagwat and Mahajani was stated to be acceptable to the appellant. But he said that he was entitled to the said am'ount.

In respect of the bungalow the appellant stated that it was his residential house, it was not necessary to be acquired, dispensing with the provision of section 5A in A respect of the house was not legal, therefore, the proceeding being not in a, ccordance with law be dropped.

Finally, the prayer in the written statement was to stay the delivery of possession of the bungalow at least for two months. It would thus be seen that in his' written statement.filed on 24-3-1959 the appellant did not deny the publication of notice on the spot under-section 9 ( 1) nor did he propose to B put any impediment in the taking of possssion of the land comprised in Survey No. 30/2. He merely wanted the stay of taking possession in respect of the house.

The Principal of the Agricultural College wrote a letter to .the Sub- Division Officer and Land Acquisition Officer, Akola on the 6th April, 1959 with an endorsement of the Revenue Inspector who it appears C was the Tehsildar, stating therein that he had ta)cen J?OSsession ot the fields mentioned below in the letter on the 3rd April, 1959, in presence of the Sub-Divisional Officer, P.W.D. and the Naib Tehsildar, Akola.

The total area mentioned in this letter is 234 acres 31 gunthas including 19 acres a, nd 16 gunthas in Survey No. 30/2. The Revenue Inspector endorsed "handed over as above." D

On the facts and in the circumstances of this case it is difficult to accep\ the argument put forward on behalf of the appellant that the taking 1>11d giving of possession on 3-4-1959 was only on paper and not on the spot.

The High Court in its judgment has referred to a letter dated 7-4-1959 by the Land Acquisition Officer to the Collector, Akola to say that the appellant represented before him that a stay order had been passed in respect of Survey No. 30/2 by the Minister for Agriculture and the proceedings for taking possession of this land may be deferred pending further instructions from the higher authorities ; but before any step could be taken on the representation of the appellant, tbe land Acquisition Officer. got the information that possession lrnd been taken and given bnt in spite of that in the letter dated 7-4-1959 a direction w; a, s given to tbc Tehsildar to withhold taking possession of the field in Survey No. 30/2 of village Umari temporarily. Thereupon, the Tehsildar made a report dated 11-4-1959 stating therein

"possession has already been delivered to the Principal, Agricultural

Collee, Akola and the possession receipt is enclosed. In case possession of S. No. 30 /2 is still to be withheld, the Princip11l, Agricultural College, S.D.O., P.W.D. and the lessee of the field would be approached in this respect and necessary action would be taken accordingly." As a matter of fact it would appear from the letter dated t"6-4-1959 written bv the Assistant Secretary of the Government of Bombav to the 11ppellant in reply to his letter addressed to tlie Minister for Ari culture a copy of which was forwarded to the Collector Akola that for the first time in this letter he was requested to stay th~ proceedings until further orders.

No stay order of the State Government seems to ha.vc rece?ved earlier and prior to the taking of possession of the land m question .

. . Then comes the letter d, a, ted 4-5·1959 written by the Land Acquis1t1on Officer to the Collector, Akola. Reference 'Mas made to al! these

A documents on behalf of both the parties. The S.D.O. and the Land Acquisition Officer sought instructions of the Collector as to what action was to be taken in respect of land measuring 19 acres 16 gunthas out of Survey No. 30/2 "the possession of which has already been delivered to the Agricultural Department". The next letter is one from the Principal of the College to the Land Acquisilion Officer dated the B 27th May, 1959 asking clarification of the stay order received in regard to Survey No. 30/2.

The reply is dated 4-6-1959 informing him that clarification will be made on receipt of further communication from the Collector.

The next letter is dated 18-7-1959 from the Principal of the C Collge to the Director of Agriculture stating therein that possession of the whole field no. 30/2 excluding Lhe area of 1 acre 16 gunthas which was also required for the purpose of the College, was delivered on 3-4-1959 but in view of the Government .order contained in their letter dated 16-4-1959 the land was not being cultivated and was lying as a sort of no man's land. 'f

D Then comes an important letter again referred at the Bar on behalf of both the parties written by the Special Land Acquisition Oflicer, Akola to the Commissioner, Nagpur on the 13th December, 1961. The difficulty in releasing the land under section 48(1) was pointed out and further, in this letter it is stated "Taking over possession of 1A-15G of land to be acquired under urgency clause was deferred as on joint E spot inspection made by the then Sub-Divisional Officer. Principal Agricultural College and S.D.O. (P.W.D.) Akola, it was thought that acquisition of this portion which contains one double storied building, some converted land etc. would entail heavy expenditure." It would thus be clear beyond any shadow of doubt that possession was taken on the spot.

On spot inspection the area of I acre and odd only F was left out of f<Jssession.

But then in this very letter there is a statement "The Collector Akola was directed to stay the acquisition proceedings in respect of this field until further orders, though possession receipt for S. No. 30/2 was passed on 3-4-1959, the possession

(physical) of the entire field S. o. 30/2 of Umari iS still retained by the lessee of that field and the land was not actually iaken possession of by the Principal, Agricultural College, Akola." Learned counsel for G the appellant submitted that physical possession of the entire land

comprised in Survey No. 30/2 remained with the appellant and the possession delivered was either on paper or merely symbolical ; it, therefore, could not prevent the release of the 1.nd from acquisition under section 48 (1) of tll'e Act. ·

It is not nec(:ssary to refer to the further correspondence which H ensued. It may, however, be stated that because of the stay order and the dispute raised in respect of the land comprised in Survey No. 30/2 in the award prepared by the Collector on 30-1-1960 compensation for the said la.nd was not dctermfoed.

And eventually in the vcar 1968 an area of 12 acres 23 gunthas was sought to be released from accuisition.

The question for consideration is-was the release valid and proper?

In order to appreciate what is meant by taking possession of the land under section 16 or 1 7 ( 1) of the Act and what is the mode of taking such possession in regard to the waste or arable land with which we are concerned in this case, it is necessary to refer to certain provisions of the Code of Civil Procedure-hereinafter c, a.]led the Code, and some decisions thereon. Order 21, Rules 35, 36, 95 and 96 of the Code prescribe two modes of delivery of possession based upon the nature of the property concerned. The Code does not prescribe that inrespect ol a particular property there can be two mo<.'es of giving possession either to a decree-holder or to an auction-purchaser one

"ymbolical" l\Ild the other "actual".

These Rules prescribe that if the property is in the occupation of the judgmentdebtor or some-one on his behalf the possession shall be given if necessarY by removing the judgment-debtor and placing the -decree-holder or the auctionpurchascr in occupation of the same. On the other hand if the property is of such a nature that the judgment-debtor q1, nnot be in actual occupation of it, as for instance, property in the possession of a tenant, the only mode of giving possession is by proclaiming on the spot that the possession has been given to the decree-holder or the auction-purchaser. In some decisions the former mode of possession has been called "actual" and the latter "symbolical". Really speaking even the delivery of so-qi)led "symbolical" possession is delivery of "actual" possession of the right.title and interest of the judgment-debtor.

It completely dispossesses him. It does not affect the physical occupation of the property by a person who is not bound by the decree or whose interest is not affected by sale of the judgment-debtor's interest in execution of a decree.

If the property is land over which does not stand any building or structure, then delivery of possession over the judgment-debtor's property becomes complete and effective against him the moment the delivery is effected by going upon the land, or in case of resistance. by removing the person resisting unauthorisedly. A different mode of delivery is prescribed in the Code in the rules aforesaid in regard to a building, with which we are not concerned in this case. Sometimes the expression symbolical or formal delivery of possession i\as been used in decisions to connote the actual delivery of possession effective against the fodgment-debtor leading to his dispossession in tbe eye of law. even though the duration of the dispossession may be momentary or temporary.

Jn Juggobundhu Mukherjee and others v. Ram Chander Bvsack(') Garth, C. J. delivering the judgment of the Full Bench consisting of five Judges pointed out at page 588 :

"Iri. the one case, the delivery of the land is to be madt by placing the plaintiff in direct possession. In the other the i!elivery is effected by the. officer of . the Court by going through a certain process prescribed by s. 224, and proclaiming to the. occupants of the property that the plaintiff has rec?vered 1t from the defendant.

This is the only way in

whch. the decree_ .of the Court, awarding possession to ihe __ plamt1ff, an be enforced ; and as, in contemplation of Jaw,

( 1) I.LR. s Calcutte 584.

-~-~

both parties must be considered as being present at the time when the delivery is made, we consider that, as against defendant, the delivery thus given must be deemed equivalent to actua, l posse5.sion."

"As against third parties, of course, this symbolical possession (as it is called) would be of no avail; because they are no parties to the proceeding. But if the defendant should, after this, again dispossess the plaintiff by receiving the rents

and profits, we think that the plaintiff would have twelve years from such dispossession to bring another suit."

Another Full Bench consisting again of five learned Judges of the C Calcutta High Court presided over by Petheram, C.J ., in the case of Joggobnudhu Mitter v. Purna1111nd Gossami and another (') reaffirmed teh view taken in luggobundhu Mukherjee's case (l.L.R. 5, Calsutta, 5 84) in the following words :

"The Full Bench held that symbolica) possession obtained by the plaintiff's vendor was effective as against the judgmentdebtor, defendant, and that the suit brought against him within 12 years of that event was not barred by limitation."

The facts of the case of Sri Radha Krishna Chanderji v. Ram Bahadur and others('), are these : The dispute related to 150 bighas of land.

The plaintiffs had filed a suit to recover possession of the said E land. The principal defendant _who was the appelfant before the Privy Council was ap idol by shebiats who was in actual possession of the land by their tenants.

The predecessors of the defendants in the suit were parties to an earlier mortgage action.

In due course a decree was obtained. The property which, according to the finding, included the disputed land was sold.

The mortgagee decree-holders F were the purchasers of the property. "The l;\Ild being in occupation by cultivating tena!J.ts under an apparently bona fide title they received formal possession as usual after due proclamation by beat of drum in 1898."-(vide page 200 column 2).

Lord Sumner delivering the judgment of the Board said , a, t the same page "This interruption, if such it was, of the defendants' actnar J)ossess!on was not of long duration. Hence the necessity for the present suit. Hence also the defence G of adverse possession for more than twelve years before suit began."

It would thus be seen that formal possession of the land in actual occupation of the tenant•, which in a sense was symbolical, was characterised as interruption of _defendant's actual possession. And finallv the t11tio of the decision of the Full Bench of the Calcutta High Court in lu11gobundhu Mukherjee's case (I.L.R. 5, Calcutta, 584) was approved thusat page 201, column 1 :

"In the Hi!(h Court and before their Lordships it was further argued thal symbolical possession would not avail against the defendants, but thatonly actual disoossession wouM interrupt their adverse possession. The High Court

(') I.LR. 16 Cakntta 530. (') A.LR. 1917 Privy Council 197 (2).

following a decision of the Full Bench in J uggobundhu A Mukherjee v. Ram Chandra Bysack-(1880) 5 Calcutta, 584=5 C.L.R. 548 (F.B.) held that symbolical possession availed to disposess the defendants sufficiently, because they were parties to the proceedings in which it was ordered and given.

This decision is one of long standing, and has been followed for many years.

Their Lordships see no reason B to question it or to hold that this rule of procedure should now be altered."

Jn the case of joint possession the decision of the Privy Council in Sri Radha Krishna Chanderji's case [A.LR. 1917 Privy Council, 197(2)] has been referred with approval by this Court in the case of M. V. S. c Manikayala Rao v. M. Narasimhaswami and others(') in paragraph 7 at page 474 in the judgment of Sarkar, J, as he then was, as a, lso in paragraph 20 at page 4 78 is that of Ramaswami, J. I may just quote a, sentence from paragraph 7 which says :

"By the delivery of symbolical possession under the D order of November 6, 1939, the adverse possession of the defendants was interrupted."

Mohammad Noor, J. in the case of Ram Prasad Ojha and others v.

Bakshi Bindeshwari Prasad and others( 2 ) .has considered the point in his separate but .concurring judgment with reference to the relevant provisions of the Code at page 14 7.

In that case the question of E defendants' adverse possession arose with reference to a property which was not in occupation of any tenant. The suit for possession after the mortgage sale and delivery was being resisted Qy a µ<:rson who was in. no better position than the mortgagor judgment-debtor.

The learned Judge pointed out at pages 14 7 and 148 :

"When it is said that symbolical possession is not bindiag upon a third party but actual possession is, it is only meant that when a decree-holder or an auction-purchaser has been put in actual occupation of the property every body else has been ousted. from it, and consequently dispossessed. This is an obvious fact and not a question of law.· On the other ha, nd ff the Court simply proclaims that the decree-holder or auction-purchaser has been given possession bnt on account of the nature of the property tbey have not been placed in physical occupation of_ the property itself, such a delivery of pbssession can be binding only upon those who are parties to th'?se proceedings or on those who claim through them. The difference, as I !mve sa, id, is due to the riature of the property and not on account of the difference in the nature of possession. The question will always be not what was the mode of delivery of possession but who has in fact been ousted by it."

(1) A.T.R. 1966 S.C. 470. (') A.I.R. 1932 Patna 145.

A The same learned Judge had the occasion to consider the question again in the case oI Mahabir Singh and others v. Emperor('). And that too with reference to a property which was not in possession of any tenant but of the judgment-debtor.

The question arose in a criminal case and the confusion arising out of the use of the expressions-"the actual" and "symbolical" possession was again discussed B at page 568. The writ of delivery was issued in the previous litigation under Order 21, Rule 95 of the Code and in that connection the different modes of delivery of possession over a piece of land were discussed. The - momentary possession given to the purchaser was chara, cterised as delivery of symbolical possession by the Additional Sessions Judge and not actual possession. The learned Judge pointed out C at page 569, column 1 :

"It issued its writ under Rule 95, and the peon formally put the auction-purchaser in possession of the property.

It is wrong to think that there are two kinds of delivery of possession ; one actual a, nd the other symbolical independent of the nature of possession of the judgmentdebtor. Even if the delivery of possession was symbolical, its effect against the judgment-debtor was the same."

The so-called paper possession or possession on paper is no delivery of possession, actual, formal or symbolical.

A Bench of the Madr; i, s High Court consisting of Rajamannar, C.J. and Rajagopala Aiyangar, J. has stated at page 762 in the case of Pathaperumal Amba/am v. Chidambaram Chettiar( 2 ) :

"The next question is whether it makes any difference in legal effect if possession is taken through court. The Code contemplates no notice to the juagment-debtor at that stage or any objection being raised by him to the delivery of possession under Rule 95, or Rule 96, and as the full title to the property has passed from the judgment-d.,; btor to the auction purchaser, he has no interest in the property to protect."

It has further been pointed out :

"The characterisation of possession taken under Order 21 Rule 96, as "paper possession" is hardly justified and runs counter to the principle on which the provision is based.

Symbolical possession obtained under Order 21, Rule 96 is quite a different thing from paper possession, which might correctly describe only the possession obtained by a party who being entitled to actual possession, . the judgment-debtor himself being in possession, obtains delivery of possession on paper without actual possession ; or those cases where without complying with the requisites of the statute a fahe return is made as if they were complied with."

(') A.l.R. 1934 Patna 565. (') A.!.R. 1954 Madras 760,

;·. B, N. Bl:IAGD!l y, ~. D, l!W.<iWAT (Untwlllia, J,) 2§3

It would thus be seen .that a symbolical or formaLdehvery of A possession: as understood 'in law has the effect of dispossessing the judgment-debtor lrom hiS right title. or -interest in the property, -'"It does Mt di.Spossess the person in actual possession in hiS own right not liable to be evicted under the decree or in pursuance of the auction sale.

A symbolical or forrtial delivery of possession'against the judgment-debtor is giving of actual possession of the property

'B in the .. eye of law and has the effect Df dispossessing him although as a matter of fact he may have succeeded in resuming back possession as before shortly after diSpossession; · ..

In a proceeding under the Act for acquisition of land all interests are wiped oqt. Actual possession of the _ land becomes necessary for its use for the public purpose for which it has been acquired. C Therefore, the taking of possession under the Act cannot be ''sym~ bolical" in the sense as generally understood in Civil' Law, Surely it cannot be a possession merely on paper. What is required under the Act is the taki.ng of , a, ctual possession on the spot. In the eye. of law the taking of possessiori will _have the effect of transferring possession from the owner or the occupant of the land to th\I Govem- 'D ment.

Section 9 (1) of the Act reads as follows :

"The Collector shall then cause public notice to given at convenient places or near the land to be taken, stating that the Government intends to take possession of 'E the land, and that claims to compensation for all interests in such land may be made to him."

. When a public notice is published at: a conve11ient _place or .neat the land to be taken stating that the Government intends to take possession of the land, then ordinarily and generally there would be no question of resisting or impeding the taking of possession. Deli- F very or giving of possession by the owner or the occupant of the

land .is not required.

The Collector can enforce the surrender of the land to himself under section 4 7 of the Act if impeded jn taking possession.

On publication of the notice under section (1) / claims to compensation for all interests in the land has to be made ; be it the interest of the owner or of a person entitled to the occupation of the land. On the taking of possession of the land under G section 16 or 17 (1) it vests absolutely in the Government free from all incumbrances.

It iS, therefore, clear that taking of possession within the meaning of section 16 or 17 ( 1) means taking of possession on the spot. It is neither a possession on paper nor a "symbolical" possession as generally understood in Civil Law.

But the question is what is the mode of taking possession ? The Act is silent on the point.

Unless possession iS taken by the written agreement of the H party concerned the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land. [t may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority

10 SC 15-18

A has taken pos_session of the land.

The , presence of the own~ or the occupant of the land to effectuate the taking of possession not

necessary~ No further notice beyond that under sec1ion 9 ( 1) .. of the act is required.

When possession has been ta, ken, the owner or the occupant of the land is dispossessed.

Once possession has been taken the land vests in the Government.

B In the instant case in agreement with the findings of the High Court, I hold that in the eye of law actual possession of the Jarid in question was taken by the Tehsilda.r on the spot and the possession was handed over to the Principal of the Agricultural College.

It appears that the appellant on his part thought that he never gave up possession and claimed to continue in actUill possession of the C disputed land, because of the stay order passed by the Government on or about the 16th April, 1959. It is in the background of the law discussed above that the statement _that "the possession (physical) of the entire field S. No. 30/2 of Umari is still retained by the lessee pf th~ field and the land was not actually taken possession of by the Principal Agricultural College, Akola", occurring in the letter D dated the 13th December, 1961 written by the Special Land Acquisition Officer, Akola to the Commissioner, Nagpur has got to be appreciated and so also the stand .of the Government in its counter as to what was meant by ta, king of symbolical possession.

Viewed in the light of the discussion of law I have made above, it would be noticed that possession of the land, in any event, was taken on E the spot and it vested in the Government.

The appellnt's resuming possession of the land .!\fter once it was validly taken by the Government had not the effect of undoing the fact of tbe vesting of the land in the Government. The Government or tbe Commissioner was not at liberty to withdraw from the acqnisition of any portion of the land of which possesion had been taken, under section 48 ( 1) of the Act.

F In the result the appeals fail and are dismissed with c-0sts.

One set of hea, ring fee.

V.P.S.

Appeals dismissed.

BALWANT NARAYAN BHAGDE

M. D. BHAGWAT & ORS

P. N. BHAGWATI

A. C. GUPTA

N. L. UNTWALIA, JJ.

Land Acquisition Act

ss. 9(1), 17(1) and 48(1)

s. 4

Land Acquisition Act, 1894

s. 6

s. 17

s. 9(1)

s. 9( 1)

s. 48

s. 48(1)

C.P.C

C.P.C

C.P.C

s. 9(1)

s. 47

s. 16

the Code of Civil Procedure

the Code of Civil Procedure

s. 48

section 48

Land Acquisition Act, 1894

section 16

section 1

section 48

section 4

section 17

section 6

section 17

section 9(1)

section 9(1)

section 6

section 17

section 48

section 48

section 9(1)

section 4

section 9(1)

section 9(1)

section 5A

section 9

section 48(1)

section 48

section 16

the Code of Civil Procedure

Order 21, Rules 35

s. 224

Order 21, Rule 95

Order 21 Rule 96

Order 21, Rule 96

Section 9

section 4

section 16

section 16

section 48


'J ~65

MARTAND DAIRY & FARM

THE UNION OF INDIA & ORS .

April 23, 1975

[V, .R. KRISHNA IYER, R. S. SARKARIA AND A. C. GUPTA, JJ.J.

Ceniral Sales Tax Act 1956-"Sealed Container"-Meaning of.

A notification i"'ued under the Central Sales Tax Act, 1956 allowed ex emption to, among others, cream but excluding "products sold in sealod OOBtainers". The appellant sends cream to Calcutta in sealed containers. The "Sales tax authorities held that the sales were of cream, that they "Were inter~ C .state Sales but that the exemption extended by the notification could not be .enjoyed by the Msessee since he fell within the area of exclusion contained in , the exemption notification.

. . The High Court rejected the writ petition of the appellant On . appeal

to this Court it was contended that the containers were used for bulk tranomission, that sealing was for 'preventing abuse on the way or to avoid pilferas; e D , and that the emphasis should be on the "cream" andthe container bad no

relevance in the context.

Dismissing the appeal,

HEID : It is not for the Court to launch on ob6cure fiscal astroloa but merely to conStrue what has been expressed in plain words. _ "Sealed container" merely means a container which is "so closed that access to the :cootents is impossible without breaking the fastening.

The eXJ>reo- . , E sion seal in this context does not involve affixture of the seal of -the ooller such as impressing a signet in wax etc., as evidence or guarantee of authenticity.

An article may be regarded as put in sealed conta'iners if it is Closed securely in any vessel or container by any kind of fastening or covering that must be broken before access can be obtained to what i• packed in.side. This is the popular, perhaps the lit.eral, meaning of the expretlllliom: 1l8ed in the notification.

Maybe the State though\ . that .sealed containen would be used only by big manufacturers who were able to bear the burden . - F -Of tax ; maybe administrative conveniellce in assessing quantities sold in- <luced this step. [269BDJ ·

Con1inissioner qf Sales Tax, U.P., v. G. G. Industries; 21 S.T.C. 63 follow- .ed. .

Govindram Ramprasad v. Assessing Auhority (Sales Tax) 8 S.T.C. 407, theld inapplicable.

ClvIL APPELLATE JurusosCTION : Civil Appeals Nos .. 1623 and 1624 of 1971.

From the Judgment aitrl Order dated the 13th bctober, 1970 of the Allahabad High Court in O.M. Writ Petition No. 55 and 56 of 1970.

. S. T. Desai, Naunit Lal and Miss Lalita Kohli for the appellant. ' . . G. L. Sanghi, .Girish Chandra and E. N. Sachthey for respondoot ~1. . .

S. C. Manchanda and 0. P. Rana for Respondents Nos. 2-4.:

r-- .,

_,._ ~;

[1975] SUPP $.C.R. rl~~)f SUPll.EME COURT REPORTS

The Judgment of the Court was delivered by : ..

')'I''

KRISHNA IYER, J.-Mr. s. T. Desai, counsel for the appellants . ....,~ in both the appeals, correctly assured us that the facts are not in

dispute, although the legal inference bearing on taxability is very much in controversy.

The appellant, who has atTived in this Court by certificate under Art. 133(1) (a) of the Constitution, urges before us that he is not liable to sales tax under the Central Sales Tax Act, 1956 (LXX!V of 1956) {for short, the Act) sought to be levied from him. Admittedly the appellant is a leading dairy of Benaras anid has been sending cream to Calcutta for being converted into butter or ghee.

C The long journey involved and the considerable quantities despatched

necessarily called for protective receptacles during transport. So the cream used to be carefully sent in canisters whose lids were sealed . by the seller. The Calcutta buyers received the cream and paid for it on the basis of the ghee/butter recovered from the cream supplied.

Although there was some controversy even on the facts, counsel on D both sides proceeded on the factual findings recorded by the Judge (Revisions) who held that the sales were of cream, that they were inter-State sales and that the exemption extended by Government notification under the Act for cream could not he enjoyed by the assessee as he fell with.in the area of exclusion contained in the exemption notification. It is appropriate at th.is stage to reproduce the E notification, dated May 10, 1956, under which the exemption is claimed. It reads :

"No. ST-3506/X

D/10-5-56

Exemption has been allowed to :

Milk and Milk products such as Chhena, Dahl, kha, Butter and Cream but excluding (i) products sold in sealed containers (ii) sweet-meats and (iii) ghee."

Th.is in general tenns cream is exempted from payment of Central Sales Tax by virtue of this notification but it carves out an exception to the exemption. If the cream were 'sold in sealed containers' the seller could not come within Jhe exemption notification. We need G not go into the technique of sealing adopted in this case since it is common ground now that the cream is put in containers whose lids are properly soldered. The short question is whether cream sold in soldered containers in. the circumstances set out above can be described appropriately as 'products sold in sealed containers'.

Fascinated we were by the imaginative and realistic pictnrisation H of the expression 'products sold in sealed containers' projected by

Shri S. T. Desai, counsel for the assessee-appellant but, on further reflection, we veered round to the view presented by Sri Sanghi, for tle State, that after all law is not always logic and taxation considera-. tions may stem from administrative experience and other factors of life and not artistic 1isualisation or neat logic and so the literal, though pedestrian, interpretation must prevail.

. 41

. . . :MARTANI) PAIRY ANI) :FARM v •. UNJON (l(rishna Iyer, J.) 267

}1)e High Co11rt has negatived 'the plea of the assessee anQ since -"'. wf ai:e jnclined U1 agtee with its reasoning, we express out grounds

o; nly priefly, althQugh we may, . in passing, make reference to two decisions cjted, before us, viz., Govindram l?.amprasad v. Assessing

Authority (Sales Tax)(') and Commissioner of Sales T!JX, U.P. v, G. t;. Industries('). Govindram(l ).:_a decision of the Madhya Pradesl\' }ligh Court-'-is not germane to the qljestion \ve are dealing with B and therefore we need not discuss it. The latter-The Commissioner of Sales Tax, U.P. ( 2)-we shall discuss as it in some measure, governs thC issue before us.

The assessce's main contention is that cream solt! in sealed containhs must bear a 'markel' meaning, if we may say' so, and not be taken literally. What Shri Desai urges is that there are many articles which th.c consumers buy on the strength of the image projected before them in their packed st.ate. For instance, a well-secured box of chocolates, carton of dried fruits or a tin of coffee put out with well-known mar'kings, a sealed bottle of whisky sold in such manner that its quality, quantity and genuineness are easily acceptable-these, going by the consumers' habit of looking for articles properly packed or tinned an.d acquiripg a special value as a unit of consumer commodity, may legitimately be described as items 'sold in sealed , containe~'. If we consult our housewives or our village vendor$, there' is no doubt that there.

ill11strations may be blJme out as apt and may even be supplemented hy .other like instances. A thing is bought loose for a price by, a buyer on certai11 assumptions. But a securely packed or properly sealed commodity sold by a well-known manufacturer is ptlrchased by the consumer based on a sort of flavoured considerations. The assessee's case is that here no cream in sealed containers as a unit with an individuality is sold. On the other hand cream qua cream is bargained for and despatched. The canister is used because, ex necessilae large quantities of cream cannot be transported over distances without being put in some container and its leakage and spoilage can be prevented only by soldering or sealing. Hems sold in containers are usually .so sold for two reasons : (i) for easy consumption by the retail consumer who, by mere sight, is able to distinguish the particular patented brand, and picks it off the counter ; (ii) to prevent adulteration or mixing wit.h spurious stuff. In the instant case the containers used are for bulk transmission--like tea chests-and sealing is fgr preventing abuse on the way or pilferage. And soldering is a sure mctho4. of sealing. Further, if the item were not a liquid like cream, but a solid, it could be transported even in gunny bags-merely stitched and without any seal. If this view be sound, certainly the Benaras cream dealer is out of the liability zone. We do not examine the impact <?11. taxability had the receptacles. been returned by the buyer since it

1 oes not arise on the evidence. .

Shri Desai further drew our attention to the fact that the containers had no particular design nor did theybear any special marks. or ba_ve

a uniforin size.: Tbus:.the sealed container had np connection with

(' J; & l).T.C. 407 •.

(') 21 S.T.C .. 63.

268 liliPREMli COURT i!.BPOllTS

[1975] SUPP· $.C.R.

Athe bargain or the stuff sold. The emphasis was on the cream and the container had no pertinence in the context. In this connection, he also referred to s. 8 of the Act which refers to containers and packing material. There is force in the argument, certainly. But, as earlier indicated, judicial adventure in interpretation-particularly ill taX matters,-is sever!y circumscribed, Mr. De.sai posed the question whe- B ther sale in loose quantities and unsealed containers (in this very case, cream also been sold in milk cans which were not sealed and had been granted tax exemption) made any difference from similar salu in old kerosene tins, the soldering being no sin which attached taX guilt. Not that we are oblivious to the force of this argument, but we are influenced by the words whose normal meaning should ordinarily C guide interpretation. All that the notification states is that products sold in sealed containers must sail out of the harbour of exemption.

The simple question is this : Was the sale, of cream? Yes. Was it, when sold, packaged in containers which were sealed? Yes. On these two affirmative answers the exclusion from the exemption operates.

Such is the contention put forward on bcljalf of the taxing authority by Shri Satighi, learned counsel.

D l n this connection, he drew our attention to Commissioner of Sales Tax, U.P. (supra). Sikri, J. (as he then was), speaking for the Court, considered a somewhat similar question of exemption where sales-tax dealers in cooked food 'other than cooked food sold in sealed containers' were conferred exemption, on certain conditions.

E The commodity trere was confectionery sold in sealed containers and the High Court upheld the assessee's case with these words :

"In commercial world in such trades, particularly where food materials are concerned, it would be seen that the name and reputation of the manufacturer by itself is a sufficient evidence or guarantee of the quality of the contents. The most usual form or method for furnishing such evidence or guarantee of the quality and quantity of the contents is by way of putting its seal by the manufacturer in order to secure the. goods in the container in such manner that to have access to the contents of the container the seal so put has to be destroyed or broken. For if it were not so done neither the retailer nor the purchaser would be sure whether the goods inside the container as to their quality and quantity are the same as represented and have not been otherwise adulterated . or mixed up by extraneous elements is hardly necessary to mention that a dealer carrying on the business of selling sweetmeats and coufectionery on a comparatively smaller scale would find it uneconomical commercially to put the stuff sold or to be sold in sealed containers; it is only a large scale manufacturer who manufactures and exports the confectionery, who would need selling the same in a container. In our opinion, therefore, it is only that class of dealers carrying on the business of sale of confectionery in sealed containers as explained above who were not intended to be exempted from the liability to pay sales tax on their turnover."

> •

MARTAND DAIRY AND FARM v. UNION (Krishna Iyer, J.) 269

On appeal, this Court, after noticing ihe plausibility of the opposite A point of view and guessing the possible administrative and other reasons for the exclusion from exemption, held :

"Be that as it may, in the context it is difficult to give to the expression 'sealed container' a meaning different from the ordinary dictionary meaning.~ B

"Sealed container" merely means a container which is "so closed tliat access 'to the contents' is impossible without breaking the fastening". The expression 'seal' in this context does. not involve an allixture of the seal of the seller such as impressing a signet in wax etc., as evidence or guarantee of authenticity. An article may be regarded as put in sealed containers if it is closed securely in any v<ssel or container by any kind of fastening or covering that must be broken before access can be obtained to what is packed inside. This is the popular, perhaps the literal, meaning of the expressions used in the notification.

Maybe the State thought that sealed containers \Vi)uld be used only by big manufacturers. who were able to bear .. the . burden of tax; maybe administrative convenience in assessing quanti~

ties sold induced this step. It is not for the Court to launch on obscure fiscal astrology but merely to construe what has been expressed in plain words. We should have been happier if the State had. furnished

the reasons prompting ihe exclusion from the exemption. An intelligent appreciation of the reason of the rule is an aid to judicial construction but the State has not been as alert on this score as we might have wished. Why should a sale, if generally exempt from tax, being a milk product, forfeit it merely because the wholesome step of sealing the container and insulating the food article from contamination, is taken <luring transit ? But counsel for the State has expressed his inability to throw light on this aspect or on the reasons for the policy. Had ; he State's counter-affidavit been more illuminating on these questions, it would have performed a service to this Court and to the public and rendered the task of judicial construction simpler.

',\'itli these observations, we dismiss the appeals but there will be no order as to costs in this Court.

P.B.R.

Appeal dismissed.

65

MARTAND DAIRY & FARM

THE UNION OF INDIA & ORS

R. KRISHNA IYER

R. S. SARKARIA

A. C. GUPTA, JJ

Ceniral Sales Tax Act 1956

Central Sales Tax Act, 1956

Art. 133(1)

Central Sales Tax Act, 1956

s. 8