STATE OF MAHARASHTRA & ANR.

DIGAMBAR BALWANT KULKARNI

February 13, 1979

[P. N. BHAGWATI AND AD. KoSHAL, JJ.J

Contract-Stipulated titne as essence of contract-Meaning of -Right to rescind the contract-When accrues.

Clause (2) of a works contract entered into by the plaintiff (respond'ent) with 1 " the defendant (appellant) stipulated that time was of th~ essence of the contract,_ that time (of one year) allowed for carrying out the \\'ork shall be strictly ob~ c served by the contractor, and that the contractor shall pay compensation at a i

certain percentage for every day when the work re1nained unfinished after the proper dates. One of the three courses open to the defendant under cl. (3) was to rescind the contract in case the contractor rendered himself liable to pay con1pensation or Obandoned the work owing to serious illness or death of the contractor or any other cause and in that event security deposit of the contractor was to stand forfeited.

It was also provided in that clause that in the event of any of the above courses being adopted by the defendant the contractor shell have no claim to compensation for any loss sustained by him.

The work remained unfinished beyond the stipulated time.

The defendant rejected the contractor's request for extension of time and eventually rescinded the contract under cl. (3) and forfeited the security deposit.

E In the plaintiff's suit for refund of security deposit and payment of certain

other sums, the trial court, holding that the forfeiture of security deposit was legal, granted a decree for its refund.

O~ appeal the High Court held that the right to rescind n contract being a right to put an end to it, it could not exist after the date for its performance had expired and that in this case the right of re_scission having been exercised after the expiry of the date of contract, the impugned action of the defendant in rescinding the contract ..vtls unjustified.

Allowing the appeal,

HELD : I. The rescission of the contract was well-founded and the forfeiturt of the security deposit woo justified. [193 F]

2. Although cl. (2) specifically mentioned that time was of the essence of the contract, all that was meant was that in case the work was not completed within the originally specified time, the plaintiff would be liable to pay such compensa~ tion for delay in execution as was fixed within the limits of that clause.

This is clear not only from clause (2) but also from clause (3). These two clauses must be read together.

So read, the contract was to continue to be in force till the completion of the work or its abandonment. Time was of the essence only H in the sense that if the plaintiff completed it within the originti1 period of one year, he would not be liable to pay any con1pensation but in case he overstepped that limit he would have to compensate for every day of de-lay and that the right

• •

. '

to rescission would accrue only when compensation due exceeded the amount of the security d'eposit or the plaintiff aba.ndoned the \1/0rk. Till the time it was rescined, the contract was in force. [193 A~C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2010 of 1969.

(From the Judgment and Decree dt. 11-7-68 of the Bombay High Court in Appeal No. 534 of 1960) .

Girish Chandra and M. N. Shroff for the appellant.

A. G. Ratnaparkhi for the respondent.

The Judgment of the Court was delivered by

KosHAL, J. The facts giving rise to this appeal by the two defendants (who are the State of Maharashtra and one of its Executive Engineers) on certificate granted by the High Court of Bombay against its judgment dated 11th July 1968 may be briefly stated. In the year 1955, defendant No. 1 decided to construct an aqueduct over Kulthi Nala situated in Malegaon Sub-Division of Nasik district. The Executive Engineer, Nasik Irrigation Division, invited tenders for the work which was entrusted to the plaintiff in acceptance of his tender on conditions n.duced to writing in the form of exhibit 66. The estimated cost of the work was Rs. 1,55,854.00 and it was to be completed within 12 months from the date of the written order to commence it which happened to be the 16th of May 1955. The plaintiff paid a sum of Rs. 1558/- as earnest money and another of Rs. 3896/- as security deposit to defendant No. 1. Clauses (2) and (3) of the contract in

accordance with which the work was to be executed provided as follows:-

"(2) : The time allowed for carrying out the work as entered in the tender shall be strictly observed by the contractor xx xx The work shall throughout the stipulated period of the contract be proceeded with all due diligence (time being deemed to be of the essence of the contract on the part of the contractor) and the contractor shall pay as compensation an amount equal to one per cent or such smaller amount as the Superintending Engineer xx xx xx may decide xx for every day that the work remains uncommenced, or unfinished after the proper dates.

And further to ensure good progress during the execution of the work, the contractor shall be bound, in all cases in which the time allowed for any work exceeds one month, to complete

H ,

in 1/4 of time 1/10 of the work, in 1/2 of time 4 /10 of the work, in 3/4 of time 8/10 of the work

xx xx xx

'(X i:x xx"

"(3) : In any case in which under any clause or clauses of this contract the contractor shall have rendered himsdI liable to pay compensation amounting to the whole of his security deposit xx xx xx xx or in the case of abandonment of the work owing to serious illness or death of the contractor or any other cause, the Executive Engineer xx xx xx shall have power to adopt any of the following courses :-

(a) to rescind the contract (of which rescission notice in writing to the contractor under the hand of the Executive Engineer shall be conclusive evidence) and in that case the security deposit of the contractor shall stand forfeited and be absolutely at the disposal of the Government.

(b) xx

(c) xx

xx xx

xx xx

In the event of any of the above courses being adopted by the Executive Engineer, the contractor shall have no claim to compensation for any loss sustained by him." Clauses ( 4) and ( 5) of the contract related to action to be taken when the progress of any particular portion of the work was found unsatisfactory.

Provision was made in the contract for interim payments of running bills submitted by the plaintiff and for final payment to him against a certificate of completion of the work. Clause (6) of the contract provided for extension of time during which the work was to be completed, in pursuance of applications to be made by the plaintiff. A provision was made in clause ( 14) of the contract for extension of time as a consequence of additions to or alteration in the work.

The plaintiff started executing the work and by December 1955, running payments amounting to Rs. 13,9671in all had been made to him against bills submitted by him.

In the month of March 1956, Shri Y. A. Shinde, defendant No. 2, came to occupy the post of Executive Engineer in N asik Irrigation Division and called upon the plaintiff to speed up the execution of the work as the progress thereof was not satisfactory.

However, the work continued tQ be executed at a snail's pace and on May 9, 1956. the plaintiff made an application

• •

···---{ ...

(exhibit 54) for extension of the time fixed for completion of the work • by a period of six months. That application was rejected by defendant No. 2 who informed the plaintiff accordingly through a letter dated June 15, 1956 (exhibit 55) which stated inter alia that the reasons put forth by the plaintiff for extension of the time-limit were not convincing, that the application had not been received within the time prescribed in that behalf by clause ( 6) of the contract and that the proportion o! the work executed did not conform to the condition contained in clause ( 2 J of the contract, the value of the work executed till then being only Rs. 25,000/-.

The letter further informed the plaintiff that he had become liable to pay compensation under clause (2) of the contract and called upon him to show cause why action should not be taken against him under clause ( 3) thereof.

Ultimately, by letter dated October 30, 1956 (exhibit 48) the plaintiff was informed that it had been decided to burden him with compensation at the rate of Rs. 5 /- per day for the entire period commencing on the 16th of May 1956 and ending with the comple\ion of the work and that if the plaintiff failed to show satisfactory progress within a month of the date of the letter, defendant No. 2 would be compelled to increase the rate of compensaticn and take suitable penal action against the plaintiff. The work not having made much progress and the plaintiff having stopped its execution, he was informed by a letter dated January 17, 1957 (exhibit 49)

tr.at the contract stood rescinded under clause (3) thereof.

The de!cndan'.s also forfeited the security deposit which had by then swelled, presumably on account of the addition of interest, to Rs. 4679/- ( although this amount has been erroneously described by the High Court as consisting of the earnest money of Rs. 1558/- and the security deposit of Rs. 3896/-).

In his suit, the plaintiff claimed a refund of the said amount of Rs. 4679/-, another sum of Rs. 2500/- on account of the balance due to him for part execution of the work and still another sum of Rs. 4000/- by way of damages.

The trial court found that the plaintiff had failed to prove that any snm was due to him for execution of the work or by way of damages, but further held that the forfeiture of the security deposit was illegal. ll therefore granted a decree to the plaintiff for the sum of Rs. 4679/- only with interest at 3 per cent per annum from the date of the suit till realisation and also proportionate costs of the suit.

Aggrieved by the decree passed by the trial court, the defendants H went up in appeal to the High Court and the plaintiff filed his cross objections to the decree appealed from which was maintained by the

High Court in its entirety. The High Court agreed with the findings of the trial court and on the question of rescission of the contract observed as follows :-

"In our view in law the contract could not be rescinded subsequent to the expiry of the due date for the performance thereof. The right to rescind a contract is the right to put it to an end and such right cannot exist after due date for the performance expires. The right to rescind the contract is the right to accept anticipatory breach thereof by the promissor, i.e., prior to the expiry of the date of the performance of the contract.

This right arises in favour of the promisee under section 39 of the Contract Act. A contract cannot be abandoned by either side either by a promissor or a promisee after the expiry of the due date for performance thereof. For the above reasons in our view the abandonment of the work of the contract as mentioned in sub-clause (a) of the clause relate to (anticipatory) breach of the contract by the contractor before the due date for the performance thereof. In this case the Executive Engineer purported to rescind the con'.ract which had become dead some time in August 1956.

He purported to do so on the ground that the contractor had abandoned the contract some time in October 1956.

The Executive Engineer in our view, had no power under clause

(3) to rescind the contract having regard to the facts and circumstances which we have already pointed out above. The forfeiture of the security deposit on the footing that the contract was validly rescinded must be held to be unjustified and untenable."

It was on the basis of this conclusion that the trial court's decree for Rs. 4679/- passed in favour of the plaintiff was affirmed. On the 9th of June 1969 however, the High Court certified the case to be a fit one for appeal by the defendants to the Supreme Court under subclause ( c) of clause (1) of article 133 of the Constitution of India.

At that s'age defendant No. 1 agreed to pay the costs of the respondent in the proceedings before the Supreme Court.

2. Learned counsel for the appellants has challenged the correet- :iess of the observations made by the High Court and reproduced above. Those observations, according to him, run counter to the tenor of clauses (2) and (3) of the contract governing the execution of the work and we are of the opinion that his criticism thereof is justified.

Although in clause (2) of the contract it was specifically mentioned that time was of the essence of the agreement between the parties, all

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MAHARASHTRA v. D. B. KULKARNI (Kasha/, l.)

I 93

that was meant was that in case the work was not completed within the time originally specified in that behalf, the plaintiff would be liable to pay such compensation for delay in execution as was fixed by the Superintending Engineer within the limits laid down in the clause. This becomes clear not only from the provision appearing in clause (2) and stating that "the contractor shall pay as compensation an amount equal to I per cent or such smaller amount as the Superintending Engineer may decide for every day that the work remains uncommenced, or unfinished after the proper dates" but also from the contents of clause

(3) of the contract, which would become operative only if the plaintiff

-~ renders himself liable to pay compensation [in accordance with clause 1 (2)] or abandons the work either on account of serious illness or • death or for any other cause and it is then that the contract would become liable to rescission. Clauses (2) and (3) have to be read together and interpreted with reference to each other and their provisions, read as one single whole, clearly mean that the contract was to continue to be in force till the completion of the work or its abandonment. The time was of the essence of the contract only in the sense that if the plaintiff completed it within the original period of one year, he would not be liable to pay any compensation but that in case he overstepped the said time-limit he would have to compensate the defendants for eve.y day of the delay in completing the work and that the right to rescission would accrue to the defendant No. 2 only when the compensation due exceeded the amount of the security deposit or the plaintiff abandoned the work. Till the time the contract was rescinded therefore, it was fully in force and the rescission was consequently wellfounded, being squarely covered by clause (3) of the contract, subclause (a) of which conferred on the Executive Engineer the right to forfeit the security deposit Far from being illegal, the forfeiture was

~_fully justified and the High Court's finding to the contrary is liable to "' , be reversed.

3. Jn the result the appeal succeeds and is accepted, the decree of the High Court is set aside and the suit of the plaintiff is dismissed in its entirety.

In accordance with the undertaking given by defendant

No. 1 on the 9th June 1969 to the High Court when it certified the G case to be a fit one for appeal to this Court, the plaintiff shall be entitled to the costs incurred by him in this Court. In respect of costs in the two courts below, we make no order.

P.B.R.

Appeal allowed.

STATE OF MAHARASHTRA & ANR

DIGAMBAR BALWANT KULKARNI

February 13, 1979

P. N. BHAGWATI

AD. KoSHAL, JJ

CIVIL APPELLATE JURISDICTION

Girish Chandra

M. N. Shroff

A. G. Ratnaparkhi

KosHAL

State of Maharashtra

16th of May 1955

Y. A. Shinde

May 9, 1956

June 15, 1956

October 30, 1956

16th of May 1956

January 17, 1957

section 39

9th of June 1969

Supreme Court

article 133

Constitution of India

clause 1


TARKESHWAR SIO THAKUR JIU

BAR DASS DEY & CO. AND ORS.

February 6, 1979

[R. S. SARKAitJA AND 0. C!i!NNAPFA REDDY, H.J

Transfer of Property Act, 1882 (Act IV) Sections 105, !OS "ad withs. 3(:i6)' of the Gi!Hi!ral Ctlluses .A.ct-"Immovable Property" definitioh Of, explaiiled.

Mines Act, 1952, s. 2(i) read with Cl. (c) and (d) of s. 3 of the Mines and Minerals (RegUlatfrh1 blid DevelbjJ1ne11tl Act, (NO. 67 of 1957), Scope of.

West B'engal Estates Acquisit1on A ct, 1953, Section 6 (1) (i), 27 and 28, si:ope df,

Wortis ilnd Phrases ''Any" "direci!y worked by him" in s. 28 of ihe West Bihitil Estates Acqulsltion Act, 1953, meaning Df-lnli!r/}reration of a ddcu- ·

niht=-~Riigatd Hu1st be had td the substance and nbi the words or Iha fdrJn.

The #petlalit idol,. a juti<tic person. W"3 exetcising the righ!S, lhtbugh tlie Shebait, Moha:nta Srimati Dlmdi Swami, of a Dalpatnidar iri the land iii suit.

D By a leaoe-deed (Ex. A), dated July 10, 1941, tlie appellant granted to !lie respondents a lease of the suit land for the purpose of raising and tl.lking sand out bf the Ia:nd for a period of nine years ending on 11.tly 13, '1949 ..

Sub!equenlly, .on April 27, 1950, the appellant rilade a similar grant (Ex. I) for another nine yers exp"iting on April 13, 1959, trot tliis grant was called• a "licence". The respondents did not pay the licence fee for the period 1362 (14-4-1955) to 1365 B.S.

The appellant thereupon issued notice dated March' E 31, 1966, terminating tlie 'licence' and then filed a suit No. 37 of 1960 for ejcctmen:t of the rCSpo"ndent in the Court of the MunSiff, Chandernagare. the trial cOU:rt h::ivi:dg disinissed the suit, the appeUant filed a fir5t peai WIIich. was a1lowed. In second appeal the High Court restored the decree of the

trial court.

Jn appeal by special leave to this Court, it '-"'as contended on behalf of the appellant :

(a) The transaction evidenced by the document (Ex. I) dated April 27, 1950 Was a 'IicCnsc' for taking away sand and not a 'lease' of immovable prtJi>erty. 'flie-refbte, the appellant-intermediary Win be considerect to be in Khas possession of the holding on the date of vesting (April l, 1955) thfOuB; h the licensee and as such, entitled to reta:in it under Section 6 of the Bengal Rstates Acquisition Act, 1953~

(b) Seeticn 28 of the Bengal Estates ACquisition: Act, 1953 is :dot pptica ble because there wa! no 'mine' in the suit land, es defirredin the Central Act 61 of 1Q57; the sand deposits naturally exist on the surface _and not be10w it and inere coUection and removal of the sand from the wrfacc did not constitute mining operations. Therefore, it could not be said that the suit land was comprised in a mine or. appertained to a mine ~>ithin the meaning of the said Section 28;

( c) Even if the land was a 'mine' or appertained to a mine, the mine w.:is being worked by the appellant through a licensee, and as such, was being

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I ,

TARKESHWAR V. B. D. DEY & CO. 19

'directly worked' by the appellant-intermediary within the contemplation of A Section 28 o'f the engal Estates Acquisition Act, and therefore, the land would be deemed to have been leased to the appellant by the Government.

Rejecting these contentions, and dismissing the appeal,

1-lELD : A. Jn ascertaining whether a dbcument evidences a 'Iea:se' or a 'licence.', regard must be had to the substa•nce of the transaction and not B n1erely the words or the form in which it is dreSsed.

[26F]

The docunltnt (Ex. I the Agreen1ent), in tbe instant case tveal' the followin:g characteristics, which show that in fact and substance, it is :i 'lease' and not a 'licence' :

[27E, 32C]

(i) A right to "raise' and "take out" and remove sand "lying inside" the Jand in dispute v.ras granted by the plaintiff to the defendant.

The words C "raise" and "take out sand" from "inside" 1hc land are Wide enbugh to include not only the "right to carry oUt all the op-erations" neceisary for eXtractirig sand, but alSo to take it away and appropriate it.

Coll'troed in the cO'irtext of the dotument: as a Whole, these words put it beyond dOulJt th'at rigOts to carry out "rniniFlg operations" [Within the definition in Cl. (d) of s. 3 of the

Central Act 67 of 1957] for winning sand and to rrppto}bri<tte it, V.:ete granted.

[27F-G] I}

(ii) The rights were granted for a period of 9 years, commencing from April 27, 1950.

[27H]

(iii) These rights were granted for a "price" fixed On yearly baiis, irres 4 pective of the quantity of sand extracted. The "price" fiXed is RS. 66/ 4 per annum. This consideration is payable in the month of Chaitra every year.

Jn case of dcfmllt, the First Patty (grantee) shall not bt entitled "td raise the sand next year" and the Second Party (grantor) shall have a riht to recover the arrears of rent together with interest at 12% by bringing a suit against the First Party.

[28A-BJ

(iv) "The Second Party \liill be entiled to take Khas possession of la11d'' "f.t the end of the stipulated period.

This coTI'ditiOil, (contained in paragraph 4 of Ex. 1) read atong with the other parts of the docU'inent necessarily itnplies that if the First P'a:rty continues to pay the "priCe", as stipulated, {a:} he s-hall be entit!ed to enter iniO" and remain in exclusive kha.~ p'osseSsiotl: Of the hi:rtd for the purpose of carrying out the; mining operations for the fall sti'puhttccl

period of 9 years and (b) the Second Party (plaintiff) \Vill not be entitled to retake khas possession of the Jand and revoke the so-called "licence" before the end of the .said period of 9 years.

[28B-DJ

The term "lea-se" occurring in the definition of ··mining lease'' given in

cl. (c) of s. 3 of the Mines and Minerals (Regulation and Developmnt) Act is not used in the narrow techilical sense in Which it is defined in s. 105 of the Transfer of Propert~' Act.

A rri."ining lease n'lay not rnefiCulot1slyarid strictly satisfy in all cases, all the characteristics of a ''lease" as defined in the Transfer of Property Act.

Nevertheless, in the accepted legal sense it has ahvays been rCg'a:rded as a lease in this counfry.

[29EG]

In the instant case the transaction evidenced by Ex. I not only falls within the definition of a mining l003e under Act, 67 of 1957, but also partakes of

A all the essential characteristics of a "lease" defined in s. 105 of the Transfer of Property Act. [30-A-B]

Balakrishna Pal v. Jagannath Marwari, ILR 59 Cal. 1314; approved.

Raj Kumar Thakur Girdhari Singh v. Megh Lal Pandey LR 44 I.A. 246; Gowan v. Christie, [1873] LR 2 HL (SC) 278; differed.

B The negative definition of "immovable property" given in s. 3, Para 1 of

the Transfer of Property Act, 1882, is not exhaustive.

Therefore, applying the definition given in s. 3 (26) of the General Clauses Act (X of 1897) to the expresSion used in the Transfer of Property Act, except as modified by the definition in the first clause of s. 3 every interest in immovable property or a benefit arising out of land, wiH be 'immovable property' for the purpose of s. 105, Transfer of Property Act. [30E-G]

A right to carry on mining operations in land to extract a specified mineral and to remove and appropriate that mineral, is a right to enjoy immovable property within the meaning of s. 105, more so, when it is coupled with a right to be in its exclusive khas possession for a specified period. The right to enjoy immovable property spoken of in s. 105, means the right to enjoy the property in the manner in which that property can be enjoyed. If the subject matter of the lease is mineral land or a sand-mine, it can be enjbyed and occupied by the lessee by working it Us indicated in s. 108 of the Transfer of Property Act which regulates the rights and liabilities of lessors and lessees of immovable property, [30G-H, 31A]

Nageshwar Bux Roy v. Bengal Coal Company, [1930]

LR 58

IA 29; applied.

E H. V. Low & Co. Ltd. v. Joyti Prasad Singh Deo, [1931] !LR 59 Cal. 699;

LR 58 IA 392, differed from.

Commissioner of Income Tax, Bihar and Orissa

v. Kumar Kanakhaya Narain Singh, ILR (XX) Patna 13; approved.

The true character of the tronsaction evidenced by the document (Ex. 1) being that pf a 'lease' and not a 'licence,' Section 6(1)(i) of the Wool Bengal Estates Acquisition Act, 1953 will not cover the appellant's case and give him a right to retain the land in dispute, even if section 28 of that Act was out of the way.

[32C-DJ

B. The definition of "mining operations" and "mine'', in the Central Act 67 of 1957 are very wide. The expression "winning of mineral" in the defi 4 nition of "mining operations is spacious enough to comprehend every activity by which the mineral is extracted or obtained from the earth,. irrespective of whether such activity is carried out on the surface or in the bowels of the earth.

Mines and minerals need not always be sub-soil and there can be minerals on the surface of the earth.

[24G]

B. Dass v. State of U.P. [1976] 3 S.C.R, 869, reiterated. . ' It is true that in the definition of "mine", the term "excavation" in the ordinary dictionary sense means "hole", "hollow" or "cavity made by digging

ont". But the word "any" prefixed to ''excavation" in the context of the hrase "for the purpose of searching for or obtaining mineral" gives it a p .

.~· '

much more extensive connotation, so that every "excavation'\ be it in the A shape of an open .. cast cavity or a sub-terranean tunnelling, will fall within the definition of 'mining operations'. The essence of 'mining operations' is that it must be an activity for winning a mineral, whether on the surface or beneath the surface of the earth. [24H, 25A-B]

In tho instant case, the land in dispute has large deposits of• sand, which is a minor mineral. The sand was admittedly being excavated and removed by the respondent lessee. The land was, thus, at the date of vesting, "comprised in or appertained to a.'mine' within the meaning of s. 28 of the West Bengal Estates Acquisition Act, 1953. [25B-C]

C. The phrase "being directly worked by him'' in s. 2.8 of the West Bengal Estates Acquisition Act, 1953, \vill not take in a case \Vhere the mine was

being \Vorked through a lessee or licensee to whom the right to conduct minin'g operations and to take away the mineral had been granted by the intermediary c in consideration of receiving a periodic rent, royalty or a like amount. [25E-F]

The word "directly" means "in a direct way, without a perso.n or thing coming between", immediately as directly responsible. fhe use of the expression "directly" in the context of the word "worked", followed by the words "by him" unmistakably shows that the legislative intent was to allow only those intermediaries to retain land comprised in or appertaining to a mine, as lessees under the State, who immediately before the date of vesting, were working the ine under their immediate control, management and supervision.

[25C-EJ

Section 28 of the West Bengal Estates Acquisition Act, 1953 denies the right to retain the land comprised in a mine or appertaining to a mine, if, at the material date, it was not being directly worked by the intermediary but through a licensee, or other agency to whom the right to conduct mining operations had been granted by the intermediary. In that respect, the provisions of s. 28 are contrary to those of s. 6(1)(i), which give to an intermediary a right to retain land held by him in khas for the purpose rr1entioned therein through a licensee. In this _situation, according to the legislative mandate in s. 27. the provisions of s. 6(1) (i) must yield to those in•· 28.

[26 B-C]

Thus, even on the assumption that the respondent was at the material date, holding the land in Kbas through a licensee and fulfilling all other conditions , vhicb entitled him to retain under section 6(1)(i), then also, the ce being in conflict with section 28, the latter section would prevail over the former.

[26D & 32E]

C!vIL APPELLATE JURISDICTION : Civil Appeal No. 2218 of 1969.

Appeal by Special Leave from the Judgment and Decree dated 14-3-1969 of the Calcutta High Court in appeal from Appellate Decree G No. 718 of 1962.

D. N. Mukherju and N. R. Chaudhary for the Appellant.

PurJhottam Ohattt:rju, P. K. Chatterjee and Rathin Das, for the Respondents.

The Judgment of the Court was delivered by It

SARKARIA, J.-Thii appeal by special leave is directed against a judgment, dated Marcll 1-4, 1969, of the High Court at Calcutta.

The appellant had the interest of a DarpMnidar in t!J!' Jgµd in sµit,

measurin~ 9 cres (27 big!Jas).

The plaintiff by~ /,, as~,<ll'~~ (px.A,)

qµep Jijly l 01 194), gral)('d to tl]~ df.en.dant-rnsp.on<lenls a lease uf this land for the purpose of raising and taking sand out of the land fqr 11 !lf+iP<I of 9 Years eqding on July 13, 194\).

In this lease deed, !AA pfopeyty was d.eiicribed to be Fatni Mahal.

Under the torms of this lcse, the Jessee had an option of .renewal for another 9 years.

Subsequently on April 27, 1950, appellant made a similar grant (Ex.I) for another 9 years expiring on April 13, 1959, but this grant was called a "licence".

TJ1e respo11<leµts did not pay the licence fee for the period from 1362 (14-4,1955) to 1365 B.S.

The plaintiffs thereupon issued notice, dated March 31, 1966, terminating the licence and then filed Suit No. 37 of 1960 for ejectmcnt of the respondent in the Court of the Munsif, Second Cou.rt, Chandernagore.

The S\lit was resisted by the <)efendant-respondents, inter alia, on the ground that the land hd vested in the State under the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the Acquisitio11 .A, ct); that they were tenants, and not licensees, under the plaintiff and after the date of vesting with effect from April 14, 1955, became direct te11ants under the State in respect of suit land and were paying re!)t to the State.

The Trial Court dismissed the suit holding:

(i) that the flefendants were not licensees, but were tenants; and (ii) that the plaintiff was not in khas possession on the date of the vesting (April 14, 1955); so he could not retain the land under Section 6 (I) (i) of the Act. , In the result, the suit was dismissed.

TJw jirt appeljte Co4rt reversed the def'ision of the trial court and decree;:! the suit with the finding that the grant being a licence, the plaintiff-intermediary was entitled to retain the holding under Sectioll 6(1){i) of the Act.

Allowing the Seco11d Appeal by the defendants, the High Court held:

(a) that if the lease (Ex.A), being a lease for 9 years, was void under Section 107 of the Transfer of Property t\.ct, it would still operate as a lease from month to month;

(b) it was not a licence; and H

(c) section 28 of the Act applied and, as the plaintiff was not directly working the mine in the land, he could not retain it.

Aggrieved, the plaintiff has come in appeal by special leave to this A Court.

The principal question that falls to be determined is: whether Section 6 o.r Section 28 of the Acquisition Act governs the case? The High Court has held that it is Section 28, and not Section 6, which is applicable; while the appellant contends that Section G is applicable.

B by virtue of which he is entitled to retain the holding.

Sestion 6, so far as relevant for our purposes, is in these terms:

 "6: Rirhts of intermediary to retain certain kinds.-

- (1)_ Notwithstanding anything contained in Sections 4 and 5, an intermediary shall, except . in the cases mentioned in the proviso to sub-section (2) but subject to the other provisions of that sub-section, be entitled to retain with effect from the date of vesting ...•........••

(i) Whe.r_e the intermediary is. . . an institution established exclusively for a religious or a charitable purpose, or both,

1or is a person holding under a trust or an endowment or other legal obligation exclusively for a purpose which is charitable or religious or both-land held in khas by such •..... institution or person, not being a tenant, by leave or licence of such ....... institution or person.'" c..~. . The contention of the learned counsel for the appellant is that since the suit land was held 'by the appellant-intermediary in khas for a religious purpose through a licensee-the defendant being a licensee, and not a tenant-he would be entitled to retain and hold this land from the date of vesting by virtue of clause (i) of sub-section (1) of Section 6.

The other relevant provisions are in Chapter IV of the Acquisition Act They are as follows : " · ·

"Sec. 27. Provisions of Chapter iv to override other provisions of the Act.-The provisions of this Chapter shall have effect notwithstanding anything to the contrary elsewhere in this Act." /

"Sec. 28. Right of intermediaries directly working mines.-So much of the land in a notified area held by an intermediary immediately before the date of vesting (including sub-soil rights therein, but excluding rights in hats and bazars not in the khas possession of the intermediary and land comprising forests, if any) as was comprised in or as appertained to any mine wh_ich was being directly worked

by him immediately before such date shall with effect from such date be deemed to have been leased by the Statei Government to such ........ iutermediary. The terms and conditions of such lease shall be as agreed upon\ between him and the State Government, or in default of agreement as may be settled by the Mines Tribunal: Provided that all such terms and conditions shall be consistent with the provisions of anyi Central Act for the time being in force relating to the/ grant of mining leases."

Section 2(j) of the Mines Act, 1952, defines 'Mine' to mean "any excavation where any operation for the purpose of searching for obtaining mineral has been or is being carried on and includes ...... "

"Minor .Minerals" as defined in clause ( e) of Section 3 of the Mines and Minerals (Regulation and Development) Act, (No. 67 of

1957) include "ordinary sand". Clause ( c) of the same Section defines "mining lease" as a "lease granted for the purpose of undertaking mining operations, and includes a sub-lease granted for such purpose." Clause (d) of the same Section defines "mining operations" to mean "any operations undertaken for the purpose of winning any minerals."

Before the High Court, it was common ground between the parties that the land in dispute has a sub-soil deposit of sand and the right& granted to the respondent, under the document (Ex. I); styled as a 'licence', were "to raise" and "take" away that deposit of sand.

Before us, an attempt was made to deviate from that stand by contending that the deposits of sand are on the surface in the shape of sand-dunes and for removing the same no excavation or mining operations are necessary.

The contention must be repelled.

The definition of "mining operations" and "mine'', noticed above, are very ¥ride. The expression

"winning of mineral" in the definition of 'mining operations'. is spacious enough to comprehend every activity by which the mineral is extracted or obtained from the earth irrespective of whether such activity is carried out on the surface or in the bowels of the earth. As pointed out by this Court in B. Dass v. State of Uttat Prndesh('), it is wrong to assume that mines and minerals must always be sub-soil and that there can be no minerals on the surface ot the earth.

It is ttu~ that in the definition of "Mine", the term "excavation", in the ordinary dictionary sense, means "hole", "hollow" or "cavity made by digging out". But the word "any" prefixed to "excvatioa"

(1) [1976] 3 S.C.R. 869.

• \ --....._,

I ' ).

jrli I

' • ~-

< ;

' I

in the context of the phrase "for the purpose of searching for or obtaining mineral" gives it a much more extensive connotation, so that every "excavation", be it in the shape of an open-cast cavity or a subterranean tunnelling, will fall within the definition of 'Mine'.

Similarly, it is not a requirement of the definition of 'mining ope.ration' that the activity for winning the mineral must necessarily be an underground activity. The essence of 'mining operations' is that it must be an activity for winning a mineral, whether on the surface or beneath

t11e surface of earth.

Thus considered, the Jan_d in dispute having large deposits of sand, which is a minor mineral, was admittedly being excavated and removed by the defendant, was at the date of vesting "comprised in or appertained to a mine" within the meaning of Section 28.

Having seen that the land in dispute is a 'mine' in which 'mining operations' were ing carried on, the further question to be considered is, whether this mine was "being directly worked" by the appellantintermediary? The word "directly", according to Webster's New World Dictionary means "in a direct way, without a prson or thing coming betw~"; "immediately: as directly responsible".

The use of the expression "directly" in the context of the word "worked', followed by the words "by him", unmistakably shows' that the legislative intent was to allow only those intermediaries to retain land comprised in or appertaining to a mine, as lessees under the State, who immediately before the date of vesting, were working the mine under their immediate control, management and supervision. Thus construed, the phrase "being directly worked by him" in the Section will not take in a case where the mine was being worked through a lessee or licensee to whom the right to conduct mining operations and to take away the mineral had been granted by the inte.rmediary in consideration of receiving a periodic rent, royalty or a like amount.

It was CQntended by the learned counsel for the appellant, that this interpretation of the phrase "directly worked by him", is inapplicable to an intermediary who is an idol because an idol, albeit a juristic person, has perforce to work the mine through a lessee or licensee.

The argument is ingenious but untenable.

The idol held the suit land comprised in the mine as an intennediary, only in the juristic sense, but, in fact he was exercising his rights in the suit land, throngh his human representative, the Shebait, Mohan.ta Srimat Dandi Swami.

The Shebait could in that representative capacity, directly work the mine J1imself.

But, instead of doing so, he, on April 27 .. 1950 granted the right of carrying on mining operations in the land and taking away the mineral, on payment of an annual sum for a period. of 9 years to 3-l 96SCil79 .

\ d.

f •

A the respondents.

Thus, irrespective of whether this transaction or grant, dated April 27, 1950, was a lease or a license, the fact remains that immediately before the date of vesting, the mine in thti suit land, was not being "directly worked " by the intermediary within the contemplation of Section 28.

B The provisions of Section 6(1) (i) of the Acquisition Act, extracted earlier, give to an intermediary a right to retain land held by him in khas for the purposes mentioned therein, through a licehsee.

Sectiori 28, as construed by us, denies the right to retain the land comprised in a mine or appertaining to a mine, if, at the material date, it was '

c not being directly worked by the intermediary but through a licerisee, or other agency to whom the right to conduct mining operations had been granted by the intermediary.

In that respect, the provisions of Section 28 (in Chapter IV) are contrary to those of Section 6(1)(i).

Jn this situation, according to the legislative mandate in Section 27, the provisions of Section 6(1) (i) must yield to those in Section 28.

D Assunring argrendo, that the plaintiff was at th€1 material time,

holding the land in khas through a licensee and fulfilled all other conditions which entitled him to retain under Section 6(l){i), then also, this case being in conflict with Section 28, the latter Section would prevail over the former.

In this view of the matter, it is not, strictly speaking, necessary to resolve the controve.rsy as to whether the transaction (Ex. I) dated April 27, 1950, was a lease or a license.

But, as in the Courts below, and here also, a good deal of argument was addressed on this peint,

we propose to go into the same.

It is well-settled that in ascertaining the real character of a document, regard must be had to the substance of the transaction and not merely the words or the form in which it is dressed.

The Agreement ----!:. (Ex. I), which is named as a licence, is to be construed in the light of > this cardinal canon. !. ---

The Agreement (Ex. I) is not a very lengthy document.

The material part of this document may be extracted. as below:

"This deed of Agreement is executed to the effect following:- ................ We the First Party, have been carrying on the business of sand near Haripal Station. Sand was necessary for carrying on the said business and the said sand lymg inside the land described in the schedule below should be taken out and proposal having been made to the second parties for the purpose of business, the second parties agreed to take settlement to the effect that we can take out

L ,

the sands of the said lands and become bound by the agreement on the following terms and conditions of taking out the sand from the said land only.

TERMS AND CONDITIONS

1. The sand which is in the said land belongs to the own share of the First Party and should be takeu out within the month of Chaitr.a from 1357 to 1365.

2. Save and except the raising of the said sand there will be no right, title and interest in the land with the First Party. No right, title and interest will accrue to the First Party in respect of the land.

3. The First Party for the purpose of raising sand, will pay Rs. 66/- (Rupees sixty six) per annum as the price of the said sand.

If the Government fixes any new amount of demand, then, save and except this, they wilt take the said amount otf Rs. 66/- and/or the Second Party will not be entitled to claim

the same. If the amount is not paid within the month of Chaitra every year, then the parties will not be entitled to raise the sand next year, and for realisation of the said amonnt of Rs. 661-, Second Party can bring a suit against the First Party, and will .get the arrears. of interest at the rate of 12 % .

4. At the end of the stipulated period, the Second Party will take E k/zas possession of the said land; and the licence of the First Party will be revoked .... "

(Emphasis added)

From what has been extracted above, the following characteristics .of the transaction are clear: F )(-

(i) A right to "raise" and "take out" and rernme sand "lying "' inside" the land in dispute was granted by the plaintiff to --i the defendant.

Tue. words "raise" and "take out sand'' fro1n "inside" the land are wide enough to include not only the "right to carry out all the operations" necessary for extracting sand, but also to take it away and appropriate it.

Construed in the context of the document as a whole, these words put it beyond doubt that rights to carry out "mining operations" [within the definition in clause (d) of Section 3 of the Central Act 67 of 1957] for _; yinning sand and to appropriate it were granted.

(ii) The rights were wanted for a period of 9 years, commencing from April 27, 1950.

• I B

,.,_ c

(iii)

(iv)

These rights were granted for a "price" fixed on yearly basis, irrespective of the quantity of sand extracted. The "price" fixed is Rs. 66/- per annum.

This consideration is payable in the month of Chaitra every year. In case of default, the First Party (grantee) shall not be entitled "to raise" the sand "next year" and the Second Party

(grantor) shall have a right to recover the arrears of rent together with interest at 12 % by bringing a suit against the First Party. " "The Second Party will be entitled to take khas possession .~ • of the land" "at the end of the stipulated period". This.__,....,,. condition, (contained in paragraph 4 of Ex.I) <ead along :, with the other parts of the document, necessarily implies \ that if the First Party continues to pay the "price", as stipulated, (a) hei shall be entitled to enter into aiid remain in exclusive khas possession qf the land for the purpose of carrying out the mining operations for th~ full stipulated period of 9 years and (b) the Second Party (plain1iff) will not be entitled to detake khas possession of the laitd and revoke the so-<:alled "license" before the end of llie said period of 9 years.

It is contended on behalf of the appellant that, according to Condition 2 of the Agreement (extracted above) , "except the raising of the sand", no right, title and interest in the land was given) tG the defendant. It is submitted that in view of this express condition, the transaction was only a 'licence'.

Relying on Paragraph 899 of Halsbury's Laws of England, 3rd Edition, Vol. 26, it is maintained that, in any case, it is not a 'lease' as defined in Section 105 of the Transfer of Property Act, but only a contract to sell sand, the price being payable in yearly instalments. It is emphasised that the essenti:il -'f: characteristic of a "lease" is that the subject is one which is occupied ,. and enjoyed and the corpus of which doe~ not in the nature of things \. __. and by reason of user disappear.

Reference has alsq been made to the dictum of the Judicial Committee of the Privy Council in Raj f Kumar Thakur Giridhari Singh v. Megh Lal Pandey('), and the deci- ,..., sion of the House of Lords in Gowan v. Christie(2).

We are unable to accept these contentions.

Para 899 of Halsbury's Laws of England (ibid) reads, thus :

"A lease may be granted of land or any part thereof, and since minerals are a part of the land it follows that a

(I) L. R. 44 I.A. 246.

(2) [1873] L. R. 2. H. L. (Sc.) 278.

lease can be granted to the surface of the laml and the minerals below, or of the surface alone, or of the minerals alone. It has been said that a contract for !he working and getting of minerals alone though for convenience called a milling lease, is not in reality a lease at all in the sense in w]Jich one speaks of an agricultural lease, and that such a contract, properly considered, is really a sale of a portion of the land at a price payable by instalments, that is, by way of rent or royalty, spread over a number of years."

• )__ _ This statement of the law in England, appears to be founded on the

bscrvations of Cairns, L. J. in Gowan v. Christie (ibid) and Gozens t Hardy, L.J. in Aldam's Settled Estate(!).

In Raj _Kumar Thakur Giridhari Singh (ibid), Lord Shaw, delivering the opinion of the Board, said that "it must be borne in mind also that the essential characteristic of a lease is that the subject is one which is occupied and enjoyed and the corpus of which does not in the nature of things and by ; reason of the user disappear". Counsel for the appellant has adopted this very argument. But this observation should not be tom out of the context.

Lord Shaw had further observed : "In order to cause the latter speciality to arise, minerals must be expressly denominated, so as thus to permit of the idea of partial consumption of the subject leased''. Thus, Lord Shaw had himself pointed

c.ut that minerals may be made a part of the subject-matter of a lease, and in such a case the lease would permit the idea of the partial con- •umption of the subj_ect-matter of the lease.

It is important to bear in mind that the term "lease" occurring in the definition of "mining lease" given in Section 3(c) of Act 67 of \ 1957 does not appear to have been used in the narrow technical sense in which it is defined in Section 105 of the Transfer of Property Act. "' But, as rightly pointed out by a Bench of the Calcutta High Court in

~-; Fala Krishna Pal v. Jagannath Marwari('), a settlement of the character of a mining lease is everywhere in India regarded as 'lease'.

A '• mining lease, therefore, may not meticulously and strictly satisfy in all -,.<· cases, all the characteristics of a 'lease' as defined in the Transfer of Property Act.

Nevertheless, in the accepted legal sense, it has always been regarded as a lease in this country.

In Fala's case (ibid) Mukerji, J., speaking for the Bench, held

that a cnal mining settlement may be regarded as satisfying the requirements of Section 105 and treated as a lease because under such H

(I) [1902] 2 Ch. 46 at page 56.

(2) I. L. R. 59 Cal. 1314.

A settlement some portion, however small, of the surface has to be used for carrying on the mining operations and taking the coal out.

Be that as it may, in the instant case, as shall be presently discussed, the transaction evidenced by Ex. I, not only fr.Us within the definition of a "mining lease" under Act 67 of 1957, but also partakes of B all the essential characteristics of a 'lease' defined in Section 105 of the Transfer of Property Act.

Section 105, Transfer of Property Act, defines a 'lease' of immovable ptoperty as-

"a transfer of a right to enjoy such property, made for a a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms."

In the second paragraph of the Section, it is expressly stated that the price so paid in consideration of the transfer is called "the premium, and the money, share, service, or other thing to be so rendered, is called the rent."

The definition of 'immovable property' given in Sectio11 3, Para

1 of that Act is in the negative, and is not exhaustive. Therefore, the cle:fuiition given in Section 3 ( 26) of the General Clauses Act (X of

1897) will apply to the expression used in this Act, except as modified by the definition in the first clause of Section 3.

According to the definition given in Section 3 (26) of the General Clauses Act, "immovable property" shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth". In short, the expression 'immovable property' comprehends all that would be real property according to 'f: English Law and possibly more. (See 1 I.A. 34). Thus, every in- "' terest in immovable property or a benefit arising out o[ land, will be '- 'immovable property' for the purpose of Section 105, Transfer of Property Act. <

A right to carry on mining operations in land to extract a specified mineral and to remove and appropriate that mineral, is a 'right to enjoy immovable property' within the meaning of Section I 05; more so, when -as in the instant case-it is coupled with a right to be in its exclusive khas possession for a specified period. The 'right to enjoy immovable property' spoken of in Section 105, means the right to enjoy the property in the manner in which that property can be enjoyed. If the subject-matter of the lease is mineral land or a sand-mine, as in the case

... r-

"'--.-I.

before us, it can only be enjoyed and occupied by the lessee by working it, as indicated in Section 108, Transfer of Property Act, which regUlates the rights and liabilities of lessors and lessees of immovable property.

In the view we take, we are supported by the observations of the Judicial Committee in Nageshwar Bux Roy v. Bengal Coal Company(1).

Delivering the opinion of the Board, Lord Macmillan said :

"In considering the character and effect of acts of possession in the case of a mineral field, it is necessary to bear in mind the nature of tbe subject and the possession of which it is susceptible. Owing to the inaccessibility of minerals in the earth, it is not possible to take actual physical possession at once of a whole mineral field : it can be occupied only by extracting the minerals and until the whole minerals are exhausted the physical occupation must necessarily be partial."

In H. V. Low & Co. Ltd. v. Jyoti Prasad Singh Deo( 2), the law, as laid down in Gowan's case (ibid), was strongly relied upon by the appellants, therein. Negativing this contention, the Judicial Committee pomtod out that the rights and liabilities of lessor and lessee are defined in Section 108 of the Transfer of Property Act, and the appellant had not shown that the respondent had failed, or was not in a position to perform the duties incumbent on a lessor under Section I 08 of the said Act.

The discussion will not be complete without noticing, the decision of the Patna High Court in Commissioner of Income Tax, Bihar & Orissa v. Kumar Kanakhaya Narain Singh('), which is in point.

In that case, af(er an exhaustive survey of all the c!ecisions on the subject; (including some of those which have been cited before us) a Full Bench consisting of three eminent Judges, held that coal-mining settlements whereby certain rights of entering upon the land of the sett!or. sinking shafts etc. and winning and taking away the coal are granted in consideration of receiving a salami and annual sums computed on

the amount of coal raised and the amount of coke manufactured, subject always to a minimum annual sum which was always payable irrespective of what coal was raised or coke manufactured, were not "a sale of coal", but could be regarded as 'leases' within the meaning of Section 105 read with Section 108, Transfer of Property Act, or with-

(!) [1930] L. R. 58 I. A. 29.

(2) [1931] I. L. R. 59 Cal. 699 ; L. R. 58 I. A. 392.

(3) I. L. R. (XX) Patna 13.

D .,

~: A in the legal acceptance of the term "lease" in this country. This decision of the High Court was affirmed by the Judicial Committee, and the appeal filed by Kumar Kanakhaya was dismissed. (See L.R. 70

I.A. 180).

The ratio of the Patna case applies with greater force to the facts B of the case before us, because, herein, (a) the annual fixed payment had no relation, whatever, with the quantity of sand extracted and appropriated, and, what is more important, (b) the defendant was given a right to enter into and remain in kha.r possession of the mineral field for the stipnlated period of 9 years.

The transaction (Ex. I), though labelled as a licence, has all essential elements of a 'lease' C even under Section 105 of the Transfer for Property Act. In short, stripped of the form in which it is draped, the Agreement (Ex. 0, in substance and in fact, is a 'lease' in the accepted legal sense of the term and not a 'licence' as defined in Section 52 of the Indian Easements Act. If this be the correct construction of the document, and we

think it is so-it is doubtful whether Section 6(1) (i) could cover the appellant's case and give him a right to .retain the land in dispute, even ii Section 28 was ou.t of his way.

In sum, we may reiterate that even on the assumption that the respondent was a licensee, the appellant will not be entitled to retain the holding because he was not directly working the mine immediately before the date of vesting, and as such, will not be entitled to retain, due to the overriding operation of Section 28.

For all the foregoing reasons, the appeal fails and is dismissed. In the circumstances of the case, however, there will be no order as to costs.

V.D.K.

Appeal dismissed. ··--f. •

JIU

BAR DASS DEY & CO. AND ORS

February 6, 1979

0. C!i!NNAPFA REDDY

Transfer of Property Act, 1882

Sections 105

Mines Act, 1952

s. 2(i)

s. 3

Section 6

s. 28

Court of the MunSiff, Chandernagare

Section 6

Bengal Rstates Acquisition Act, 1953

Section 28

Section 28

Estates Acquisition Act

s. 3

s. 3

s. 105

Transfer of Property Act

s. 105

Transfer of Property Act

LR 44 I.A. 246

s. 3

Transfer of Property Act, 1882

s. 3

General Clauses Act

s. 3

s. 105

Transfer of Property Act

s. 105

s. 105

s. 108

Transfer of Property Act

LR 58

IA 29

LR 58 IA 392

Section 6(1)(i)

section 28

s. 28

s. 2

Section 28

s. 28

s. 6(1)(i)

s. 27

s. 6(1)

section 6(1)(i)

section 28

C!vIL APPELLATE JURISDICTION

Calcutta High Court

D. N. Mukherju

N. R. Chaudhary

PurJhottam Ohattt

P. K. Chatterjee

Rathin Das

SARKARIA

April 14, 1955

Section 6

Section 107

section 28

Section 6

Section 28

Section 28

Section 6

Sections 4 and 5

Section 6

Sec. 27

Sec. 28

Section 2(j)

Mines Act, 1952

Section 3

[1976] 3 S.C.R. 869

Section 28

Mohan.ta Srimat Dandi Swami

April 27 .. 1950

April 27, 1950

Section 28

Section 6(1)

Section 28

Section 6(1)(i)

Section 27

Section 6(1)

Section 28

Section 6(l)

Section 28

Chaitra

Section 3

Section 105

Transfer of Property Act

L. R. 44 I.A. 246

England

• )  This statement of the law in England, appears to be founded on the

bscrvations of Cairns, L. J. in Gowan v. Christie (ibid) and Gozens t Hardy, L.J. in Aldam's Settled Estate(!).

Gozens t Hardy

Aldam

Raj _Kumar Thakur Giridhari Singh

Shaw

Section 3(c)

Section 105

Transfer of Property Act

India

Transfer of Property Act

Fala

Mukerji

Section 105

Section 105

Transfer of Property Act

Section 105

Transfer of Property Act

Section 3

General Clauses Act

Section 3

Section 3

General Clauses Act

Section 105

Transfer of Property Act

Section 105

Section 108

Transfer of Property Act

Macmillan

Gowan

Section 108

Transfer of Property Act

Patna High Court

Section 105

Section 108

Transfer of Property Act

L. R. 58 I. A. 29

L. R. 58 I. A. 392

Kumar Kanakhaya

L.R. 70

I.A. 180

Patna

Section 105

Section 52

Indian Easements Act

Section 6(1)

Section 28

Section 28


JIT SINGH & ORS.

STATE OF PUNJAB & ORS.

February 13, 1979

[P. N. SHINGHAL AND D. A. DESAI, JJ.}

Puniab Police Service Ruf, s, 1959-Rules 6 & 14-Scope of.

The proviso to r. 6 of the Punjab Police Service Rules, 1959 relating to the appointment to the higher posts of Deputy Superintendents of Police provided' that only those. inspectors would be 'eligible for promotion who had got six years' oontinuous service (officiating as well as substantive) in the rank of impector.

Sub-rule (2) required that a Jist (called List 'G') of officer~ considered fit for promotion to the ra.nk of Deputy Superint'endent of Police be prepared by the State Government in consultation with the State Public Service Commission and appointments shall be made by promotion from persons brought on that list. In view of an urgent need to m~.ke a number of appointment9 of Deputy Supcrin tende11ts of Police, an executive order was issued in 1965 reducing the period of six years continuous service to four yea-rs. Responden:s 4 to 37 were accordingly promoted on an ad !zoe basis as officiating Deputy Superintendents of Police.

The first list 'G' prepared in term of r. 6(2) was sent for approval of me Service Commission on 7th January, 1966 and in Sept'ember, 1966 a supplementary Jist of inspectors who had completed four years' service after 7th January, 1966 wa~

sent ro the Commission. Both th~ lists were eventually approved by the srvice Commission in September, 1970.

The ;-tppellants who were appointed as inspectors in May, 1963 were con· firmed in May, 1966 and completed six years of service in May,

1969. Their. names were not included in either the first or the supplementary list 'G' se•at by the State Government to the Service Commission whereas the names of res-- pondents 4 to 37 found a place in the Jist.

In rejecting the appellants' writ petition the High Court held tht they had:

~1ot qualified th'emselves for inclusion of their names in List 'G' at the time

thut list was drawn up by the State Government in 1966 because they had not"- -·~

put in the requisite period of service for being considered for inclusion in it. • •

Dismissing the llppeal,

HFLD : l. The appellants were not eligible for indusion in List 'G' prepared

i~1 1966 on the basis of the State Government's recommendation m2.:te in January and September of that year because at the relevant time only those inspctors: who had put in six years of continuou& servi:e as inspector were eligible for promotion. No further supplement to List 'G' was sent for the Commission's approval after 1966. In other words the final List 'G' related only to the year 1966.

The aoppellants who by then had ot put in even four years' ervice could not have been promoted. [199 F, HJ

2. B'ecause of the extraordinary situa1ion which had developed on the borders of the State, the State Government \\tls driven to the necessity of making some

JIT SINGH v. PUNJAB (Shingha/, J.) 195

ad hoc or temporary appointments, but it cannot be said that by reason of this, A

.•.

the appointments so made were made wilfully in derogation of the requirements of the rules or were meant to run down the appellants. [200 B)

3. However, the appellants' argument that the relaxation contemplated by r. 14 \las restricted by considerations of "undue hardship" in any "pa-rticular case" and that it was not permissible for the State Govemmcnt to reduce in the case of the respondents 4 to 37, the requirement of continuous service from six years to fall r for the purpose of eligibility for promotion is correct because r. 14 as it

tcod at the relevant time when respondenUI 4 to 37 were promoted did not

;:ermit any general !'claxation of the nature ordered by the State Government in 1963 or 1965. The amended r. 14 could not avail the State Government because it c8me into force much later in January, 1969. [198 G-H, 199 C]

- ~ 4. The argument that only those inspectors who had been confirmed as inspectors and held that post substantively were eligible for promotion is not correct. To accept that would only mean that a.n inspector who had put in six years' officiating service would not be eligible for promotion ii he had not been confirmed. All that proviso (a) to r. 6 permits is that, in order to be cligib.le for promotion, an inspector should have got six years "continuous" ervice, including service in ; m officiating well a~ substantive capacity. [198 C-D]

CrvrL APPELLATE JURISDICTION: Civil Appeal No. 1849 of 1972.

Appeal by Special Leave from the Judgment and Order dated J 0 11-1970 of the Punjab & Harya:na High Court in C.W. No. 2547 of 1970.

Y. S. Chitale and Mrs. Unnila Sirur for the Appellant.

Hardev Singh and R. S. Sodhi for Respondents Nos. 2 and 3.

The Judgment of the Court was dvlivered by

SIIJNGIIAL, J. This appeal by special leave is directed again:, t the judgment of the Punjab and Haryana High Court dated Novem- -· ber 10, 1970, by which the writ petition of the appellants was dis- -.. missed on the ground that the promotions challenged by them were made on the basis of list "G" of 1966 when they had not qualified for promotion.

It has therefore to be examined whether that view of the High Court is incorrect in the facts and circumstances of the case.

A list of dates bearing on the controversy has been furnished by Mr. Y. S. Chitale, learned counsel for the appellants, and we have been told by the learned counsel for the respondents that it is correct.

The facts which emerge from that list may be stated briefly for learn- H ed counsel agree that they are quite sufficient for the disposal of the appeal.

SUPREME COURT REPORTS [1979] 3 s.c.R.

All the three appellants were appointed Inspectors of Police, by direct recruitment, on My 21, 1963, on a probationary period of three years.

At that time the Punjab Police Service Rules, 1959. hereinafter referred to as the Rules, were in force, providing fC( appointment to the higher post of Deputy Superintendent of Police.

For purposes of this appeal, it will be sufficient to say that rule 6 of the Rules provided tha~ recruitment to the Punjab Police Service, consisting of the cadre of Deputy Superintendents of Police, shall be made by promotion to the extent of eighty percent from the rank of Inspector and twenty percent by direct appointment.

That was subject to the proviso that only those Inspectors would be eligible for_ promotion who had put in six years continuous service. It appears that as there were many vacancies in the posts of Deputy Superintendents of Police, the State Government took a decision on August 21, 1963, that the minimum requirement of six years continuous service for eligibility for promoion may be reduced to four years if about fifty percent of the vacancies were to be filled in any year; and an executive order to that effect was issued some time in 1965 under rule 14 of the Rules as it stood until its amendment on January 23,

1969. The State Government accordingly promoted the respondents Nos. 4 to 37 as officiating Deputy Superintendents of Police on ad hoc basis. As it was the requirement of sub-rule (2) of ruk 6 of the Rules that appointments by promotion would be made from Inspectors ''brought on list 'G' which will be a list of officers considered fit for promotion to the rank of Deputy Superintendent of Police, prepared by Government in consultation with the Commission," a list was prepanCl by the State Government and it was sent for lhe approval of the Public Service Commission on January 7, 1966. Tb appellants were confirmed as Inspectors on September 10, 1966 witL retrospective effect from May 21, 1966.

The Government . took up the question of regularising the ad hoc promotions of respondents Nos. 4 to 3 7 pending the approval of the draft list 'G' by the Commission.

A supplementary list was prepared of Inspectors who had completed four years service after January 7, 1966, and it was sent to the Commis sion on September 29, 1966. Before the two lists could be examined by the Commission, the State of Punjab was reconstituted on November 1, 1966.

The Commission thereupon sent a Jetter on December 30, 1966, to the Inspector General of Police, asking for information about the allocation of the police officers to the reorganis~ ed States and for information regarding the vacancies which remained to be filled in the State.

The Inspector General of Police sent a reply on February 8, 1967. The appellants completed four years of continuous service on May 21, 1967.

While the aforesaid two lists of

JIT SINGH v. PUNJAB (Shinghal, J.) 197

1966 were pending with the Commission for the preparation of list 'G', the State Government substituted a new rule 14 on Januaty 28,

1969.

The. appellants completed six years of service on May 21, ·

1969. The Public Service Commission asked for a seniority Jist of Inspectors some time in 1970, and ultimately approved the list 'G' on September 7, 1970, consisting of the names in the two lists which had been sent by the State Government in 1966.

The names of respondents Nos. 4 to 37 were thus included in that list but it did not contain the names of the appellants.

They felt aggrieved and filed a writ petition in the High Court in September 1970, but it was dis- _missed by the High Court on November 10, 1970, as aforesaid.

That is why they have come up in appeal to this Court by special leave.

Before examining the arguments which have been advanced before us, it will be proper to make a brief reference to the salient points mentioned in the reply of the State Government. It was stated there that a large number of vacancies occurred in the cadre of Deputy Supr intendents of. Police because several battalions of the Police force had to be sent to the Punjab-Pakistan border and it became necessary !or the State Government to fill those vacancies immediately.

The State Govere..'llent had therefore, to reduce the minimum requirement of six years service for eligibility to appointment to the post of Deputy Superintendent of Police to four years.

The State Government mentioned the circumstances in which it had to send two lists to the Commission in 1966 for the preparation of list 'G' and its ultimate approval by the Commission on September 7, 1970.

The lists, it was pointed out, were prepared as in 1966, by which date the appellants had not completed four years service as Inspectors. That, . accvrdit1g to the respondents, was the reason why their names could not be brought on that list. It was categorically stated that no names were recommended for inclusion in that list during the years 1967, 1969 and 1970, and that the assertion of the appellants to the contrary was

.-... incorrect.

T •

It is in the light of these facts and circumstances that we shall examine the arguments which have been advanced before us by the learned counsel for the appellants.

The main controversy is that relating to the meaning and the application of rule 6(1) of the Rules G which provides as follows,-

"6. Method of recruitment.- ( 1) Recruitment to the Service shall be made-

(i) Eighty per cent by promoion from the rank of Inspector and twenty per cent by direct appointment :

SUPREME COURT REPORTS (1979] 3 S.C:t.

Provided that only those Inspectors wil1 be eligible for promotion who--

(a) in the case of Inspectors (both promoted from

subordinate rank and directly recntited) have go't six years continuous service (officiating as well as substantive) in the rank of Inspector: and"

We are not concerned with part (b) of the proviso as it relates to the promotion of Prosecuting Inspectors.

It has been argued that only those Inspectors were eligible for C promotion as Deupty Superintendent of Police who h<\d been confirmed as Inspector and held that post on a substantive basis.

A reading of part (a) of the proviso shows however that it c; mnot be said to rtstrict the eligibility for promotion only to the substantive holder~ o'f the post of Inspector. All that it permits is that, in order to be eligible Cor promotion, the Inspectors £hould have got six years "con- D tinuous" service, including service in an officiating as well as substantive capacity.

We are therefore unable to think that an Inspector who had put in six years officiating service was not eligible. for promotion as Deputy Superintendent of Police.

c ·

It has next been argued that the requirement of six years service could not be rcla:ted by the State Government on August 21, 196), or thereafter in 1965, because rule 14 of the Rules as it stood until its substitution on January 28, 1969, read as follows,-

"Wncre the Government is satisfied that the opcrattoH of any o[ the rules causes undue hardship in any particular case, it may, by order, dispcn.sc with or rcla.t the requirement o( that rule to sm:h extent and subject to such conditions as it may consider nccess:uy for dealing with the ase iu a iut and equitable manner, provided that the case is not dealt with in a m:!nncr less favourublc to the person concerned than providcll by the rdcvnnt rule."

It has thcrdore been urged that the rdaxation contemplated by that rule was rcstrich:d by conideratious o( "undue hardship", in uny

''p:trticul:r case", and thilt lt wa~ Dot permissible for thl! Stall! Government to rcducc tltc requirement of continuous service !rom six years to four y.:.trs for purposes of eligibility for promotion to th¢ Punjab 11 Police S.:rvi.:c.

The argument is correct because n.lc 14 as it stood

011 the rckvant period of. time when promotions of respondents (Nos. 4 to 3 7) were made, dtd Dot permit any general rdaxation of the

' '

JIT SINGH v. PUNJAB (Shinghal, J.) 199

nature ordered by the State Government in 1963 or 1965.

It is A true that rule 14 was amended and a new rule was inserted on ..

January 28, 1969, to the following effect-

"7. General power to relax rules.-where the Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons."

• That was a rule of general application, and it appears that there is .. ~-justification for the argument of the learned counsel for the respondents that it could not authorise the kind of relaxation which was made by the State Government in 1963 and in 1965, but the fact remains that it could not avail the State Government as the new rule came into force much later on January 28, 1969. It would thus follow that the respondents were not eligible for promotion because the relaxation which was ordered in 1963 and 1965 was not warranted by the old rule 14 as it stood at that time. The question however remains whether the appellants could possibly succeed in their appeal before us for that reason.

While examining this aspect of the matter we shall have regard to the requirement of rule 6, as it stood before its amendment on January 28, 1969 and disregard the relaxation orders of 1963 and 1965 as they were not warranted by the provisions of that rule.

And as that rule made a clear provision that only those Inspectors would be eligible for promotion who had got six years continuous service as Inspectors, it would follow that the appellants were not eligible for promotion until May 21, 1969 as they had been appointed only -~ _on May 21, 1963.

In other words, they were not eligible for inclu- sion in list 'G', which was prepared under sub-rule (2) of rule 6, as it was prepared in 1966 on the basis of the State Government's recommendations dated January 7, 1966, and September 29, 1966.

It may be recalled that the State Government have categorically stated that they did not send any list thereafter, for the Commission's approval. We have made a reference to the facts and circumstances in which the Commission did not find it possible to finalise list 'G' until 1970, but the fact remains that the list contained names upto the year 1966. In other words, the final list 'G' related only to the year 1966, and as the appellants had not put in even four years of service by then, what to say of six years service in terms of clause

(a) of the proviso to sub-rule

(1) of rule 6 of the Rules, their names could not possibly be included in that list.

When that was so, tlley could not have been promoted as Deputy Superintendent of

SUPREME COURT REPORTS [1979] 3 s.c.R.

A Police because that was the asic requirement o'f sub-rule (2) of that mle.

We have made a reference to the circumstances in which the

... _

State Government was driven to the necessity of making some ad hoc .j, t. .. or temporary promotions because of the extraordinary situation which had developed on the border of the State, and as it was the Public Service Commission which delayed the finalisation of list 'G', it can~ not be said that the ad hoc appointments of the respondents were wilfully made in derogation of the requirement of the Rules, or were meant to run down the appellants.

In fact, as has been explained above, the appellants were, in any view of the matter, not eligible for promotion as their names were not included in list 'G' as it emerg- .. ed from the Public Service Commission in 1970.

The High Cour~ therefore cannot be blamed if it took the view that as the appellants had not qualified for promotion when list 'G' was drawn up by the State Government in 1966, they could not succeed in their claim in the writ petition.

Their names did not appear in list 'G' which was approved by the Commission in 1970, whereas the names of rc:spondents Nos. 4 to 3 7 appeared in it and it is not in dispute that they had all completed 6 years' continuous service much before the appellants.

The appellants have not therefore been able to show that they had any legal right for promotion before the respondents.

There is thus no force in the arguments which have been advanced by the learned counsel for the appellants and the appeal is dismissed.

In the circumstances of the case, we shall leave the parties to bear their own costs.

N.V.K.

Appeal dismissed.

, ...

JIT SINGH & ORS

STATE OF PUNJAB & ORS

February 13, 1979

D. A. DESAI, JJ.

Punjab Police Service Rules, 1959

s 4 to 37

Y. S. Chitale

Unnila Sirur

Hardev Singh

R. S. Sodhi

SIIJNGIIAL

Y. S. Chitale

Punjab Police Service

August 21, 1963

January 23,

1969

January 7, 1966

September 10, 1966

May 21, 1966

September 29, 1966

State of Punjab

November 1, 1966

December 30, 1966

February 8, 1967

May 21, 1967

September 7, 1970

November 10, 1970

Punjab

August 21, 196

January 28, 1969

May 21, 1969

May 21, 1963

N.V.K.


r •

-·.

, .

STATE OF U.P.

ASHOK KUMAR & ANOTHER

February 2, 1979

[S. MVRTAZA FAZAL ALI AND A. D. KosHAL JJ.]

Penal Code-s. 302-Supreme Court-When would' interfere with order of acquittal in special leave-Witnesses claimed they identified the assailant from a distance of 150 yards on a moonlight night-If could be believed.

The respondents were charged with an offence under s. 302, I.P.C. The prosecution case was thh, t on the night of occurrence (which was a moonlight 'night) the deceased and the prosecution witnesses attended a drama in the Ramlila Grounds of the village and when the deceased, after taking two 1amosas and tea, was returning home some time past midnight, the respondents shot him dead and that this was seen by them from a distance of 150 yards from the scene of occurrence.

The trial court, believing the prosecution version, convicted the respondents.

On appeal the High Court rejected the prosecution story and acquitted both D the respondents. The State came in appeal to this Court by special leave.

Dismissing the appeal,

HELD : It is well-settled that this Court, in special leave, would. not normally interlere with an order of acquittal unless there are cogent reasons for doing so or unless there is a gross violation of any procedure of law which results in serious miscarriage of justice. [2H] E

Having regard to the glaring defects in the prosecution story this is not a case in which this Court should interefere with the order of acquittal. [3B]

In the present case, though it was a moon-lit night according to the almanac the moon would have covered three-fourths distance on the night of occurrence. Even in the moonlight it would have been difficult for the witn°"'"' to identify the as.m!ants; even if they did, the possibility of mistake in identification could not be completely excluded. According to an authority, when the moon is at the quarter, it is possible to recognise persons at a distance of from 21 ft; in bright moonlight at from a distance of 23 to 33 ft. and at the very brightest period of the full moon at a distance of from 33 to 36 ft. In tropical countries the distance for moonlight nIDy be increased. Therefore, it would not have been possible for the eye witnesses to identify the assailants from a distance of 150 yards.

[3F, G]

After the assailants had given a call and fired at the deceased the witnesses would not have flashed the torch light, as suggested by the prosecution, and exposed themselves to the risk of being shot at. Even if the torches were lighted, in view of the distance, it would not have been Possible for the witnesses to identify the assailants with certainty. [ 4 B]

Secondly, the medical evidence had shown that the stomach of the deceased was empty and the large intestines too were empty. Therefore, the evidence

of the witnesses that the deceased took two samo!ils after the drama at midnight and before the attack i~ completely falsified by medical evidence.

Another prosecution witness stated that the deceased having had stomach ulcers never took any food at night. .Apparently until the dcpoaition of the first witness was complete the prosecution did not realise -the grtwvity of tho statement made by him and deliberately introduced a change on a vital i!sue which by itself is an importE.nt circumstance throwing doubt on the pr08ecu~ tion case.

While witnesses may lie, circumstances would never. The evidence of the doctor, based on conclusive evidence cannot be belied, [4F-Hl • CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 166 of 1976. • Appeal by Special Leave from the Judgment and Order dated :=Ji\ 21-4-75 of the Allahabad High Court in Criminal Appeal No. 27761 .. 74 and Referred No. 76/74. ~-

D. P. Uniyal, and M. V. Goswami for the Appellant.

D. Mookherjee, 0. P. Tewari, S. S. Srivastava and K. C. Jain, for Respondent No. 1.

R. K. Garg, V. J. Francis and D. K. Garg for Respondent No. 2.

The Judgment of the Court was delivered by

FAZAL ALI J.-The respondents had been convicted by the Additional Sessions Judge, Banda under section 302 of Indian Penal Code and senienced to imprisonment for life.

The respondents thereafter filed an appeal to the High Court of Allahabad which after a fnll and complete consideration of the evidence came to a finding of fact that the prosecution has not proved its case and accordingly acquitted the respondents.

The High Court rejected the prosecution case mainly on two grounds. In the first place, it held that having regard to the circumstances and the distance from which the witnesses saw !he accused, it was difficult for them to identify the accnsed. Secondly, the High Court found that in view of the medical evidence which showed that the large intestines of the stomach were absolutely empty, the evidence of the eye-witnesses could not be believed.

Against the order of acquittal passed by the High Court the State came up to this Court by special leave and after obtaining the same the case has been placed before us for hearing.

The facts of the case have been set out in the judgment of the High Court and it is not necessary for us to repeat them again. it is well settled that this Court would not normally interfere with an order of acquittal in special leave unless there are cogent reasons for . doing so or unless there is a gross violation of any procedure of law which results in serious miscarriage of justice.

We have heard

• •

' .

counsel for the parties and have gone through the judgment of the A Sessions Judge and of the High Court. It is true that High Court has not made an attempt to discuss the intrinsic merits of the evidence of the eye-witnesses but having .regard to the glaring defects

aparing in the prosecution case we are in agreement with the ultimate view taken by the High Court.

According to the prosecution the deceased along with P.Ws. 1 & 2 had gone to Atarra to witness a drama in the Ramlila Grounds.

The party reached Atarra at about 9 o'clock and the drama finished at about 12 o'clock. Baura and Chanada P.Ws. 2 and 5 were also with the deceased Budhi Bi!as when he was returning from the Natak.

It is alleged that at about 12.30 a.m. the respondent-Ashok Kumar fired a few shots which hit the deceased as a result of which he died instantaneously. The two eye-witnesses P.Ws. 1 and 2 admittedly saw the firing from a distance of about 150 yards, as would appear from an examination of the te plan Ka-23 and which is endorsed_ by P.W. 1 who stated in his evidence that he has given the detaiL of the place from where they saw the occurrence to the Investigating Officer at the spot. The first question which falls for consideration is as to whether or not the witnesses would be in a position to identify the respondents from such a large distance at night.

It is true that it was a moon-lit night but from a reference to the almanac it would appear that the moon had covered 3/4th distance on the night of occurrence and wai to set at 3.23 a.m. Even though there may be some moon light at that night, it is difficult for the witnesses to identify the respondents or even if they did the possibility of mistake in identification cannot be completely excluded.

In this connection, we may refer with advantage to the following passage appear- , ing in Dr. Hans Grass's Criminal Investigation at page 185 :

"By moonlight one can recognise, when the :noon is at the quarter, persons at a distance of from 21 feet, in bright moonlight at from 23 to 3 3 feet; and at the very brightest period of the full moon, at a distance of from 33 to 36 feet.

In tropical countries the distances for moonlight may be increased."

The opinion of Gross referred to above fully fortifies our conclusions that it was not possible for the witnesses to have identified the respondents even in moonlight from a distance of about 150 yards.

In these circumstances, therefore, the High Court was fully justified in holding that it was not possible for _the eye-witnesses to identify the respondents from such a long distance on the night of the

occurrence. The prosecution suggested that the witnesses had lighted their torches and it was in the light of torches coupled with moonlight that ideutification was possible.

In the first place, we find it difficult to believe that after Ashok Kumar had given a call and fired, the witnesses would dare to flash the torch light and expose themselves to the risk of being shot themselves. Secondly, even if torches were lighted, in view of the large distance, it would not be possible for the witnesses to identify the respondents with absolute certainty.

Another important circumstance which appears td clinch the issue is the medical evidence in the case. It appears from the evidence of Dr. Pillay, P. W. 7 who performed the post-mortem that the small intestines were distended with gas and in the end of the small intestines liquid faeces was present. The doctor further says that large intestines were empty.

Doctor also fourtd the stomach to be empty.

These facts are also 1J1entioned in the post-mortem report.

This clearly shows that the deceased must have been shot at a time

0 when he had either not taken any food at all or the entire food if taken was fully digested and left the stomach. P.W.1 had stated in his evidence that he along with his uncles and the deceased took tea and ate samosas.

The deceased had taken two samosas. This meal was taken by the deceased and the witnesses after the Natak

ended, that is to say, at about 12 O'clock in the night, because the evidence of P.W.1 is that the Natak started at 9 p.m. and continued for three hours. If th~ evidence of this witness is believed, then it is completely falsified by tile medical evidence which shows that the stomach was empty. In other words, if the witness is believed, the position would be that the deceased would have been shot only a few minutes after he had taken two samosas and a cup of tea.

In that case the stomach would not be empty.

Perhaps realising this difficulty the prosecution through the mouth of P. Ws. 2 and 3 tried to effect a deliberate embellishment in their evidence by making them depose that the deceased Budhi Bilas had taken only milk when he started.

P.W. 3 goes to the extent of saying that deceased Budhi B!las was suffering from stomach ulcers and he never took any food at night. The story of the deceased having taken samosas is given a complete go-back by other eye-witness, P.W. 2.

Indeed, if these witnesses were present at the time when the deceased has taken something we should i0t have expected any discrepancy of this kind on this important aspect of the matter.

Either deceased took food or he did not take any food. This fact would be known to his son, P.W. 1 and also to P.W. 2. We cannot understand what is the explanation for the two different versions given by P.Ws. 1 & 2 unless the idea

. ,

' .

was to bring the evidence, at least, of P.W. 2 in tune with the medical evidence.

Until the deposition of P .W. 1 was complete, the prosecution did not realise the gravity of the statement made by P.W. 1 that the deceased has taken two samosas and a cup of tea shortly before the occurrence. This deliberate attempt to introduce a change on a vital issue is by itself a very iinporta:nt circumstance which throws doubt on the prosecution case. It is manifest that whereas witness may lie circumstances never lie. The evidence of the doctor is based on conclusive circumstantial evidence which cannot be belied, and therefore an attempt has been made by the prosecution to introduce improvements in explaining the lacuna present in the case.

Apart from this we have gone through the evidence of P.Ws. 1 & 2 and their evidence also is full of discrepancies as pointed out by the High Court. Taking therefore an overall view of the picture, we hold that this is not a case in which we should interfere with the order of acquittal passed by the High Court.

For the reasons given above, we confirm the order of the High Court and dismiss this appeal. The respondent No. 1 who is in jail is directed to be released forthwith and respondent No. 2 will be discharged from his bail bonds.

P.B.R.

Appeal dismissed .

STATE OF U.P

ASHOK KUMAR & ANOTHER

February 2, 1979

S. MVRTAZA FAZAL ALI

A. D. KosHAL JJ.

Penal Code

s. 302

s. 302

I.P.C

D. P. Uniyal

M. V. Goswami

D. Mookherjee

. P. Tewari

S. S. Srivastava

K. C. Jain

R. K. Garg

V. J. Francis

D. K. Garg

FAZAL ALI

section 302

Indian Penal Code

High Court of Allahabad

Atarra

Baura

Chanada

Budhi Bi!as

Ashok Kumar

Hans Grass

Gross

Ashok Kumar

Pillay

Budhi Bilas

Budhi B!las