1960 GLR

GUJARAT LAW REPORTER
Vol. I R E P O R T S 1960
SPECIAL CIVIL APPLICATION

The Hon’ble Mr. S. T. Desai, Chief Justice
and Mr. Justice N. M. Miabhoy.
DAHYAJI KALAJI PARMAR v. DAHIBEN WIFE OF ISWARLAL
R. VYAS AND OTHERS*
The Bombay Tenancy and Agricultural Lands Act 1948 - Section 76-
88C(1) and 88C(5)-Decision of the Mamlatdar under Section 88(C) - Final
subject to appeal to Collector-Whether subject to correction by the Revenue
Tribunal under Section 76.
The first opponent filed an application to the Mamlatdar for a certificate
under Section 88C(1) that her income is less than Rs. 1500-00. The learned
Mamlatdar refused to give the said certificate. On appeal, the learned Collector
dismissed the appeal. The first opponent then filed a revision application to
the Bombay Revenue Tribunal. The learned Tribunal held that the Mamlatdar
and the Collector had erred in that they took into account the income of the
son of the first opponent and reversed the decisions of the Mamlatdar and the
Collector. The petitioner tenant thereupon filed a Special Civil Application under
Article 227 of Constitution of India in the High Court. The question arose whether
any such decision is subject to correction by the Revenue Tribunal under the
Revisional powers under Section 76.
HELD THAT the plain, grammatical and ordinary meaning of sub-section (3)
of Sec. 88C of the Bombay Tenancy and Agricultural Lands Act 1948, in our
judgment, is that the decision of the Mamlatdar is to be final when there is no
appeal and when there is appeal to the Collector against a decision of the
Mamlatdar, the decision of the Collector is also to be final.
That the legislature has ruled that the subject matter of the decision is to
terminate with the decision of the Mamlatdar and in case there is an appeal then
with the decision of the Collector in appeal. The matter is not to be agitated
any more before any authority constituted under the Act and the Revenue Tribunal
had no jurisdiction to entertain the Revision Application and was patently in error
in assuming it.
Application praying under Article 227 of the Constitution of India that a
writ setting aside the order dated 21st September, 1959 passed by the Bombay
Revenue Tribunal, Bombay in Revision Application No. T. E. N. A. 4/
*Decided on 17-6-1960. Special Civil Application No. 184 of 1960.

(under Article 227 of the Constitution of India)
[Reproduction from GLROnLine]

© Copyright with Gujarat Law Reporter Office, Ahmedabad
2] GUJARAT LAW REPORTER [Vol. I
38/1959, preferred against the decision dated 11-2-1959 passed by the Special
Dy. Collector, Kaira Prant, Nadiad, in Tenancy Appeal No. 118 of 1959,
P. O. K. P. S. No. 135 of 1958, preferred against the decision dated
15-9-1959 passed by the Tenancy Aval Karkun, Kapadvanj, in Tenancy Act Case
No. 60 be issued and etc. ....
Mr. S. H. Sheth, for the Petitioner.
Mr. A. H. Mehta, for Opponent No. 1.
the following judgment was delivered by—
Desai C.J.
(1) This petition raises a question of some importance and interest relating
to the interpretation of section 88C(5) of the Bombay Tenancy and Agricultural
Lands Act which rules that the decision of the Mamlatdar....subject to appeal
to the Collector shall be final and the controversy is whether any such decision
is subject to correction by the Revenue Tribunal under the powers of revision
conferred on it by section 76 of the Act. The petitioner is the tenant of the
parcel of land of which opponent No. 1 is the owner. Opponent No. 1 applied
to the Mamlatdar for obtaining a certificate under section 88C on the ground
that her income was below Rs. 1500/-. Sec. 88C grants an exemption from certain
provisions of the Act to lands leased by persons whose annual income does not
exceed Rs. 1500/-. Two conditions are postulated by that section before any such
exemption can be granted. Firstly the land must not exceed an economic holding
and secondly the total annual income of the person who has leased out the land
including the rent of such land must not exceed Rs. 1500/-. One of the contentions
sought to be urged before us on behalf of the petitioner relates to the aspect
of economic holding but we have not allowed it to be raised since it was not
urged or even indicated before the Tribunal. The other contention which was
raised in the Courts below and before the Revenue Tribunal relates to the condition
about annual income of the lessor and in our judgment there is substance in
that contention.
(2) The application of opponent No. 1 for a certificate under section 88
was dismissed by the Mamlatdar as he was of the view that income of the opponent
to be taken into consideration exceed Rs. 1500/-. An appeal to the Deputy
Collector by the lessor-owner was dismissed. She carried the matter in revision
to the Revenue Tribunal and the Revenue Tribunal reversed the decisions of
the Deputy Collector and the Mamlatdar on the ground that in computing the
amount of Rs. 1500/- the Deputy Collector and the Mamlatdar had taken into
consideration the income of opponent No. 1 as well as of her son on the ground
that they were members of a joint Hindu family. The Tribunal pointed out in
its judgment that no such plea had been raised by the tenant and the Deputy
Collector and the Mamlatdar were in error in holding that the income of the
lessor-owner exceeded Rs. 1500/-.
(3) In the present petition before us the petitioner has raised a
contention of bar in limine which had not been urged before the Tribunal,
and the contention is that the Revenue Tribunal had no jurisdiction to
exercise its power of revision in a matter determined under sec. 88C. It
will be convenient to set out here the provisions of that section :

1960] DAHYAJI PARMAR v. DAHIBEN (S.C.A.)-Desai, J. [3
“88C. (1) Nothing in sections 32 to 32R (both inclusive) shall apply to lands
leased by any person if such land does not exceed and economic
holding and the total annual income of such person including the rent
of such land does not exceed Rs. 1 500 Provided that the provisions
of this sub-section shall not apply to any person who holds such land
as a permanent tenant or who has leased such land on permanent
tenancy to any other person.
(2) Every person eligible to the exemption provided in sub-section (1)
shall make an application in the prescribed form to the Mamlatdar;
within whose jurisdiction all or most of the pieces of land leased by
him are situate within the prescribed period for a certificate that is
entitled to such exemption.
(3) On receipt of such application the Mamlatdar shall after giving notice
to the tenant or tenants of the land hold inquiry and decide whether
the land leased by such person is exempt under sub-section (1) from
the provisions of sections 32 to 32 R.
(4) If the Mamlatdar decides that the land is so exempt he shall issue
a certificate in the prescribed form to such person.
(5) The decision of the Mamlatdar under sub-section (3) subject to appeal
to the Collector shall be final.”
(4) The crucial argument on behalf of the petitioner is that the decision
of the Mamlatdar which in appeal was upheld by the Deputy Collector acquired
finality by operation of sub-section (5) of the section 88(c) and Mr. S. H. Sheth
who appears for the petitioner has strongly relied on the language of sub-section
(5). He has also drawn our attention to certain other provisions of the Act where
the expression final has been used by the Legislature. The expression for instance
appears in section 27(E) and section 66D.
(5) Section 76 of the Act lays down the powers of the Revenue Tribunal
to revise orders passed by the Collector on grounds therein stated. The material
part of that section is as under.
“76. (1) Notwithstanding anything contained in Bombay Revenue Tribunal Act
1939 an application for revision may be made to the Bombay Revenue
Tribunal constituted under the said Act against any order of the Collector
on the following grounds only :-
(a) that the order of the Collector was contrary to law;
(b) that the Collector ailed to determine some material issue of law; or
(c) that there was a substantial defect in the following the procedure
provided by this Act which has resulted in the miscarriage of justice.”
The argument of Mr. Sheth is that although section 76 empowers the Revenue
Tribunal to exercise its revisional jurisdiction in case of an order of the Collector
that section cannot cover an order passed by the Collector in an appeal against
an order passed by the Mamlatdar under sub-section (3) of section 88C because
sub-section (5) terms expressly rules that the decision of the Mamlatdar under
sub-section (3) subject to appeal to the Collector shall be final.
(6) It is argued on the other hand by Mr. A. H. Mehta on behalf of
opponent No. 1 that section 76 covers any and every order passed by the
Collector under the Act and sub-section (5) of section 88C does not create
any exception to the applicability of section 76. The further argument of
Mr. Mehta is that if the language of sub-section (5) is compared with the

language of the analogous provision contained in section 88C prior to its

amendment in 1957 it will appear that the Legislature which had ruled that
an order of the Collector in a case under section 88C should be final has
now made a deliberate departure from that rule and expressed the intention
that an order of the Collector should be subject to revisional jurisdiction of
the Revenue Tribunal. Prior to its amendment in 1957 the relevant part of
section 88C(2) was as under :-The decision of the Mamlatdar or in appeal
that of the Collector shall be final. There is some other difference in the
provisions of section 88C prior to amendment and the provision now contained
in section 88C after the amendment of 1957 It is not necessary however to
discuss those changes made in 1957 in section 88C as nothing in this petition
turn on those changes and what we have already set out above is sufficient
to enable us to examine the argument of Mr. Mehta. Mr. Mehta agrees that
words the decision of the Mamlatdar or in appeal that of the Collector shall
be final could only mean that prior to the amendment the order of the Collector
under section 88C was not subject to revision by the Tribunal. But the effect
of using the words the decision of the Mamlatdar............. subject to appeal
to the Collector shall be final says Mr. Mehta is that if there is appeal to
the Collector against a decision of the Mamlatdar there is no finality and if
there is no appeal to the Collector there is finality. We are unable to accede
to this argument which seems untenable.
(7) Reliance has also been placed by Mr. Mehta on the provisions contained
in section 74. That section enumerates a catena of cases where appeal lies to
the Collector. The argument is that Clause (1)(W) of the section mentions that
an order of the Mamlatdar under section 88C as an appealable order and it is
said that every order of the Collector being subject to revision under section
76 an order of the Collector under section 88C is also subject to revision. The
argument asks us to attach scant importance to and take no notice of the language
of sub-section (5) of section 88C. In terms sub-section (5) rules that the decision
of the Mamlatdar under sub-section (3) subject to appeal to the Collector shall
be final. There is nothing obscure or uncertain about the meaning of this sub-
section. It speaks of finality of a decision. That finality is to attach a decision
of the Mamlatdar under sub-section (3) but the decision of the Mamlatdar under
sub-section (3) being an appealable one sub-section (5) be final express and
explicit goes on to state that the decision of the Mamlatdar under sub-section
(3) shall be final subject to appeal to the Collector. The plain grammatical and
ordinary meaning of this sub-section in our Judgment is that the decision of
the Mamlatdar is to be final when there is no appeal and when there is appeal
to the Collector against a decision of the Mamlatdar the decision of the Collector
is also to be final.
(8) This expression final has come up for consideration in the context
of some other enactments but it seems unnecessary to us to refer to those
enactments. Speaking generally when it is said in an enactment that the
decision shall be final it must mean that the decision is not open to
appeal or revision by any Court of correction. In its ordinary signification
the expression “final” means last or that it absolutely puts an end to or
concludes a matter. The use of that expression would cannot that further

1960] PREMBAI v. KOLI TAPUR (A.C.)-Desai, C.J. [5
controversy on the question is precluded. Or to put the same thing somewhat

differently it connotes that there is to be finality to the proceeding. Whether
regarded in any ordinary sense or in a technical sense the expression in the
present context must in our judgment mean that the legislature has ruled
that the subject matter of the decision is to terminate with the decision of
the Mamlatdar and in case there is an appeal then with the decision of
the Collector in appeal. The matter is to be agitated any more before any
authority constituted under the Act. In our opinion therefore the Revenue
Tribunal had no jurisdiction to entertain the revisional application and was
patently in error in assuming it.
(9) The petition succeeds and the rule will be made absolute. There will
be no order for costs.
Rule Made Absolute.
* * *
APPELLATE CIVIL
Before the Hon’ble Mr. S. T. Desai, Chief Justice
and Mr. Justice N. M. Miabhoy
BAI PREMBAI ZAVER AND ORS. v. KOLI TAPUR RATNA*
Saurashtra Prohibition of Leases Act, 1953 - Sec. 6 - Result of non-
registration of Lease-not avoidance - Right of eviction by other process of
law-not barred.
The mere fact that a lease was not registered as required by Sec. 4 of Saurashtra
Prohibition of Leases Act, 1953, does not result in the consequence of its being
declared void, though of course in such a case, the penalty imposed by Secf. 6
would be invited by reason of the latter part of sub-sec. (2) of Sec. 4.
The view that the consequence of non-registration of the lease was avoidance
of the lease and that the lease could not be taken into consideration by any Court
for any purpose is erroneous.
Section 8 of the Act does no more than grant a summary remedy to the occupant
as against any person unauthorisedly occupying his land or a person who is
wrongfully in possession of the same. It does not follow from that Section that
the occupant has been deprived of his right to seek eviction by resorting to
ordinary produre of law.
The facts appear from the judgment.
Second Appeal against the decision of N. J. Mankad, Esquire, District
Judge at Gohilwad in Appeal No. 118 of 1955 from the decision of P. L.
Kamdar, Esquire, Civil Judge, Junior Division, at Mahuva in Civil Suit No. 56
of 1954.
Mr. V. G. Hathi, for the Appellants.
Mr. B. D. Shukla, for the Respondent.
*Decided on 22-6-1960. With Special Civil Application No. 43 of 1960, Appeal
No. 964 of 1960 from Appellate decree.

The following judgment was delivered by —

DESAI C.J.
(1) This Special Civil Application and the second Appeal which are directed
to be heard together arise in circumstances to be immediately stated. The
petitioners in Special Civil Application are the appellants in the Second Appeal
and they are occupants of agricultural lands admeasuring acres 65 and 10 gunthas
situated in the village Kantasar. The lands were leased out by them to opponent
No. 1 to the Special Civil Application Koli Tapur Ratna under a lease for a
period of eight years. About a month before the due date for the expiry of
the lease the petitioners gave a notice to opponent No. 1 calling upon him to
land over possession of the lands on the expiry of the lease by efflux of time.
The lease expired on 8th December 1953. Opponent No. 1 refused to hand over
possession of the lands and the petitioners filed a suit for eviction in the Court
of the Civil Judge at Mahuva. Various contentions were raised in that suit by
opponent No. 1. He contended that he had been in possession of the lands for
21 years. That was not believed by the learned Judge in the trial Court who
on evidence reached the conclusion that opponent No. 1 had been put in possession
of the lands by the petitioners themselves. He also contended that he had been
in possession of the lands in part performance of a contract for sale. That
contention also was rejected by the trial Court. The trial Court also held that
opponent No. 1 tenant had denied the title of the petitioners and had forfeited
his right as tenant. It determined the suit in favour of petitioners and passed
a decree for possession in their favour. The opponent-tenant preferred an appeal
against that judgment. At the hearing of the appeal before the learned District
Judge Gohilwad District the advocate for the opponent-tenant urged only one
contention and that was a new contention. It was urged that the suit for eviction
was filed after the coming into force of the Prohibition of Leases Act 1953
The lease was not registered by the petitioners and therefore the contention
proceeded no decree could be passed in favour of the petitioners. In his judgment
the learned District Judge has stated that although the point was a new one he
allowed it to be raised. One of the arguments urged before us by Mr. Hathi
who appears for the petitioners is that the learned Judge was in error in allowing
the new contention to be raised. The question has all along been treated as one
of law and no objection appears to have been raised before the District Judge
that any facts were involved. In our opinion the learned District Judge was not
in error in allowing the new contention of law being raised for the first time
at the hearing of the appeal before him.
(2) The contention of law raised before him was rather ingenious, but
devoid of any real substance. It was urged that sec. 4(1) of the Saurashtra
Prohibition of Lease of Agricultural Lands Act made it incumbent upon
every occupant of the land who had leased his occupancy prior to the
coming into force of the Act to get it registered and if the lease was not
registered section 4(2) would come into operation and the unregistered
lease would not be recognised as such and the provisions of section 6
would apply to such lease is if it were granted in contravention of section 5.

In order to appreciate the contention raised before the learned Judge and
which found favour with him it will be convenient to set out certain
relevant provisions of the Saurashtra Prohibition of Leases of Agricultural Lands
Act 1953.
“4. Registration of leases :-
(1) Every occupant who has leased his occupancy or part thereof prior to
the coming into force of this Act shall on or before 1st September 1954
get such lease if subsisting on the date of coming into force of this
Act registered with a revenue officer not below the rank of a Mahalkari
furnishing such particulars as may be prescribed by Government.
(2) No lease other than a lease which has been registered under sub section
(1) shall be recognised as such and the provisions of section 6 shall
apply to such lease as if it were granted in contravention of section 5.
5 Prohibition of lease; occupant to cultivate personally :-
(1) On and after the date on which this Act comes into force an occupant
shall not save as otherwise expressly provided by or under this Act lease
to any person or renew any lease registered under sub-section (1) of
section 4 in respect of his occupancy but shall cultivate it personally.
(i) Lease in contravention of sub-section (1) void :—Any lease granted or
renewed whether by an instrument or an oral agreement in contravention
of the provisions of sub-section (1) shall be void.
6. Penalty for contravention of sub-section (1) of section 5.
(1) Any occupant who contravenes the provisions of sub-section (1) of
section 5 shall on conviction be punishable with fine which may extend
to;
(i) in the case of contravention for the first time an amount equal to six
times the assessment;
(ii) in the case of contravention for the second time an amount equal to
twenty times the assessment
(iii) in the case of contravention for more than two times an amount equal
to twenty times the assessment
EXPLANATION :— For the purposes of this section assessment shall mean the
assessment leviable at full and not reduced rate on the occupancy in
respect of which the provisions of sub-section (1) of section 5 are
contravened.
xxx xxx xxx xxx xxx xxx xxx
8. Summary eviction :—
Any person unauthorisedly occupying or being wrongfully in possession of
any occupancy :—
(a) the transfer of which either by the act of the parties or by the operation
of law is invalid under the provisions of this Act or
(b) to the use and occupation of which he is not entitled under the said
provisions; may be summarily evicted by the Collector or by any officer
not below the rank of a Deputy Collector authorized by the Collector
in this behalf.”
The argument was founded on sections 4, 5 and 6. The argument was
that the trial Court was in error recognising the lease when it passed a
decree in favour of the occupants (the petitioners before us.) It was urged
that the lease had become void and no effect could be given to it for any

purpose. The learned District Judge also appears to have taken the view
that Civil Court had no jurisdiction to entertain the suit.
(3) In the penultimate part of his judgment the leaned District Judge observed
that it was unfortunate that two illiterate women should be prevented from being
restored to the lands which they had got from their mother and that the tenant
did not deserve the resultant benefit of continuing in possession. He pointed
out that it would be competent to the petitioners to apply to the Mamlatdar
under Section 8 of the Act for summary eviction. It is clear from that judgment
that the appeal succeeded on the short point that the lease had not been-registered
as required by section 4 of the Act.
(4) The petitioners thereupon adopted proceedings for summary eviction
under the Act. That application was resisted by the tenant on the ground that
he was not occupying the lands unauthorisedly and could not be said to be
wrongfully in possession of the lands. The Deputy Collector Mahuva who heard
the application dismissed it on the ground that the tenant could not be regarded
as a person who was in unlawful possession of lands or one who was
unauthorisedly occupying the same. In taking that view he followed a decision
of Mr. Justice Vyas and Mr. Justice Tarkunde in Special Civil Application No.
231 of 1956 decided in the High Court of Bombay. The unenviable position
of the petitioners was that the Civil Court while dismissing their suit directed
them to apply for summary eviction under the Act and the Deputy Collector
took the view that the tenant was not liable to be summarily evicted. The
petitioners have now come to this Court on a petition under Article 227 and
also as appellants in the second appeal. 27.
(5) It has been argued before us by Mr. V. G. Hathi learned advocate for
the appellants in the second appeal that the learned District Judge was in error
allowing the appeal and virtually driving his clients to an application for summary
eviction under the Prohibition of Leases Act. It is urged that the effect of Section
is not that the lease should not be recognised for any purpose in any proceeding.
The effect of sub-sec. (2) it is said is not to render the lease void but only
to render the contravention of the section liable to penalty provided in section
6. Now at first blush it may seem that the words “No lease............ shall be
recognised as such and the provisions of section 6 shall apply to such lease
as if it were granted in contravention of sec. 5 may mean that any such
unregistered lease was for all purposes to be treated as void and the occupant
would also be liable to penalty provided for in section 6. Reading sections 4
5 and 6 together it seems to us that no such meaning can be given to sub-
section (2) of section 4. It is only a lease granted or renewed in contravention
of the provisions of sub-section (1) of section 5 that becomes void by operation
of section 5. The mere fact that a lease was not registered as required by section
4 does not result in the consequence of its being rendered void though of course
in such a case the penalty imposed by section 6 would be invited by reason
of the latter part of sub-section (2) of section 4. In upholding the contention
of the tenant at the hearing of the appeal before him the learned District Judge
seems to have taken the view that sub-section (2) had the effect of rendering
any such lease void. He has observed in his judgment :

“As at the time of suit and judgment the Act was in force this lease being
not registered could not be recognised as such and the consequence of contra-
vention of Sec. 5 namely avoidance of the lease and penalty would ensue. It is
thus clear that the Court cannot pass a decree for eviction in this case because
that would amount to giving recognition to an unregistered lease against the plain
provision of the Act.”
In our judgment the learned Judge below was in error in taking the view
that the consequence of not-registration of the lease was avoidance of the lease.
He was also in error in taking the view that the lease could not be taken into
consideration by any Court for any purpose. If we are right in this view the
second Appeal must succeed and it becomes unnecessary to consider the argument
advanced before us Mr. Hathi in support of the Special Civil Application.
(6) It has been argued on the other hand by Mr. B. D. Shukla
learned advocate for opponent No. 1 to the petition and respondent to the
second appeal that the Civil Court had no jurisdiction to entertain the suit
and the learned District judge was right in upholding the contention that the
lease could not be recognised in the suit. Reliance has been placed on sec. 17
of the Act which is as under :—
“17 Bar of jurisdiction :—
(1) No Civil Court shall have jurisdiction to settle decide or deal with any
question which is by or under this Act required to be settled decided
or dealt with by a Mamlatdar a Collector or the Tribunal in appeal or
revision or the Government in exercise of their powers of control.
(2) No order of the Mamlatdar the Collector the Tribunal or the Government
made under this Act shall be questioned by any Civil Court or Criminal
Court.
EXPLANATION :- For the purpose of this section a Civil Court shall include
a Mamlatdars Court constituted under the Saurashtra Mamlatdars Courts
Ordinance 1948.”
Now it is clear that the bar of jurisdiction enacted in this section can
apply to any question which is by or under the Act required to be settled
decided or dealt with by a Mamlatdar Collector or the Tribunal in appeal
or revision or the Government in exercise of their powers of control.
When we asked Mr. Shukla as to what was the question which was required
to be settled or decided or dealt with by any of those authorities the
answer was that the only remedy of the occupant was to ask for summary
eviction under the Act and that was a question which could be determined by
those authorities. We are unable to see the force of this argument. Section 8,
to which reference was made in this behalf does no more than grant a summary
remedy to the occupant as against any person who is wrongfully in possession
of the same. It does not follow from that section that the occupant has
been deprived of his right to seek eviction by resorting to the ordinary procedure
of law. There is no provision and certainly our attention has not been
drawn by Mr. Shukla to any which requires an occupant who wants to evict
his tenant on the ground of efflux of time to resort to this summary remedy.
The present contention must therefore be negatived. The next argument of Mr.

Shukla is that if we are right and if Mr. Hathis contention as to the effect
of sections 4, 5, 6 and 8 is to be accepted then section 8 will become
redundant. There is in our opinion no substance in this contention. Section I
empowers an occupant to ask for summary eviction against any person who
is in unauthorised occupation or is illegally in possession of his land. That
remedy would be necessary in a variety of case to mention only one
instance where an occupant finds that a trespasser has occupied his land he wants
him to be evicted in a summary manner.
(7) A rather feeble attempt was made on behalf of the tenant win it was
urged that the tenant had acquired some vested rights in the lands by the operation
of the Gharkhed Ordinance of 1949 and the Act of 1951 which followed upon
that Ordinance. We do not think there is anything in that Ordinance or that
enactment which lands any support to the case of the tenant.
(8) In the view we take of the matter it is unnecessary to pass any order
in the Special Civil Application. The second appeal must however succeed and
it will be allowed with costs throughout. There will be no order for costs in
the Special Civil Application.
Order accordinly.
* * *

JAY GUJARAT PRAKASHAN LTD. & ORS. v.
HARIPRASAD HARGOVINDDAS PANDYA & ANR.*
Payment of Wages Act, 1936 - Sec. 1(4) - Jurisdiction & Authority to
decide contract of employment - Working Journalists (Conditions of Service)
and Miscellaneous Act, 1955, Sec. 17 - Does not affect jurisdiction of
Authority under Payment of Wages Act.
Whether a Person is a “Worker” or not must necessarily depend on the nature
of his work and not on his designation simpliciter. An editor of paper whose duties
are confined not merely to the work strictly of editing but embrace also duties
of reporter etc., is in our judgment a person within the ambit of Sec. 1(4) of
Payment of Wages Act.
Authority under Payment of Wages Act has jurisdiction to decide whether there
was subsisting contract between the employer and the employee.
Section 17 of the Working Journalists Act, 1955, does not affect the jurisdiction
of the Authority under the Payment of Wages Act in view of the words “without
prejudice to any other mode of recovery” in the said Section.
(Under Articles 226 and 227 of the Constitution of India.)

1960] JAY GUJARAT v. HARIPRASAD (S.C.A.)-Desai, C.J. [11
Cases referred :
(1) Anthony Sabastin Almeda v. R. M. T. Taylor
(2) Sarin v. Patil
(3) Mushran v. Patil
(4) C. S. Lal v. Sheikh Badshah
(5) Vishwanath v. General Manager, Western Railway
Application praying under Articles 226 and 227 of the Constitution of India
that a writ setting aside the order dated 28-9-1959 passed by the Ex-Officio
Commissioner for Workmen’s Compensation, Ahmedabad, and Authority under
the Payment of Wages Act in Application No. 119 of 1959 be issued and etc.....
Mr. B. S. Kapadia, for the Petitioners.
Mr. A. H. Mehta, for Opponent No. 1.
The following judgment delivered by :-
DESAI C.J.
(1) Petitioners Nos. 4 and 5 are directors of petitioner No. 1 company
and partners in the firms of petitioners Nos. 2 and 3. They were concerned
with the publication of the daily newspaper “Jan Tantra” which we are
informed is now defunct. For convenience and brevity we shall refer to them
collectively. Respondent No. 1 who is a journalist filed an application for the
recovery of Rs. 2,726 from the petitioners under sec. 15 of the Payment
of Wages Act before respondent So. 2 who is the Authority under the
Payment of Wages Act to be referred to by us as the Authority. The case
of respondent No. 1 before the Authority was that he was employed as an
Editor of the daily newspaper Jan Tantra from 1 June 1958 on a monthly
salary Rs. 175/- or the wages to be fixed by the Wages Board appointed by
the Government of India whichever was higher. It was also his case before
the Authority that he was employed to do work in various other capacities
viz., that of a reporter an advertisement canvasser a translator and a proof
reader and that for the extra work payment was to be made to him in
addition to the salary. According to him he worked in that manner upto
February 1959 but for the Period October 1958 to January 1959 his salary
was not paid to him After some differences between the parties he
severed his connections with the petitioners and the petitioners removed
his name as editor and informed him that they had terminated his services.
Before the Authority he claimed Rs. 1,676 as wages for the period 1-6-1958
to March 1959 and also the sum of Rs. 1050/- by way of compensation
and pay in lieu of notice. The petitioners in their written statement filed
before the Authority contended that the application was not maintainable.
They denied that the applicant (respondent No. 1 before us) was employed
as an editor from 1 or that his monthly salary was Rs. 175/- as alleged. Their
contention was that they were starting a new venture and respondent No. 1
(1) 1956 (58) Bom. L.R. 899 (2) 1951 (53) Bom. L.R. 674
(3) 1951 (53) Bom. L.R. 1009 (4) 1954(56) Bom. L.R. 859
(5) 1957 (59) Bom. L.R. 892

had offered his services on an honorary basis and it was in that capacity that
he was taken up on the Editorial Board of their paper Jan Tantra. They also
contended that the question of remuneration if any to be paid to him was to
be considered in future if circumstances permitted. According to them the
agreement between the parties was that the respondent No. 1 was to receive
Rs. 100/- for the month of October 1958 and Rs. 125/- per month as honorarium
from November 1958 and that honorarium so computed had been paid to him.
They denied that any extra work was done by him as alleged or that anything
was to be paid to him for such work. Their principal contention was that
respondent No. 1 was not a worker and that the remuneration paid to him was
not wages at all and the Authority had no jurisdiction to entertain the claim
made against them. A preliminary issue was framed by the Authority and the
preliminary issue was Whether the application to the Authority under the Payment
of Wages Act was maintainable.
(2) The Authority decided she preliminary issue against the petitioners.
Referring to the contention that respondent No. 1 (Applicant before him) was
an editor and not a worker within the meaning of the relevant provisions of
law he observed that it was true that the applicant was not a worker within
the meaning of the relevant definition. He however took the view that the
application was maintainable as the language of clause (4) of section 1 of the
Payment of Wages Act covered all persons employed in any factory whether
workers or not. He also observed in his judgment that the question whether
the applicant was employed in the factory or not was a question of fact to be
decided only after the parties had led evidence of the point. His conclusion that
it was competent to him to entertain the petition is challenged by the petitioners
before this court on this petition.
(3) It is contended before us by Mr. Kapadia learned Advocate for the
petitioners that the Authority was in error in holding that the petition was
maintainable before him as an Authority constituted under the Payment of Wages
Act on the ground that the applicant was a person employed in a ‘Factory. In
order to appreciate this contention it is necessary to refer to certain provisions
of the Payment of Wages Act 1936 and the Factories Act 1948. Section 1(4)
of the Payment of Wages Act which relates to the application of that Act is
as under :-
“It applies in the first instance to the payment of wages to persons employed
in any factory and to persons employed (otherwise than in a factory) upon any
railway by a railway administration or either directly or through a sub contractor
by a person fulfilling a contract with a railway administration.”
(4) Section 2(i) of that Act states that factory means a factory as
defined in clause (j) of section 2 of Factories Act 1934 and we have
therefore to turn to the Factories Act 1934 for the definition of the expression
‘factory.’
(5) Section 2(m) of the Factories Act 1948 defines ‘factory’ as under :-
factory means any premises including the precincts thereof -
(i) whereon ten or more workers are working or were working on any
day of the preceding twelve months and in any part of which a manu-

1960] JAY GUJARAT v. HARIPRASAD (S.C.A.)-Desai, C.J. [13
facturing process is being carried with the aid of powers or if ordinarily

so carried on or
(ii) whereon twenty or more workers are working or were working on any
day of the preceding twelve months and in any part of which a
manufacturing process is being carried on without the aid of power or
is ordinarily so carried on,
but does not include a mine subject to operation of the Mines Act 1952
(XXXV of 1952) or a railway running shed section 2(1) of the Factories
Act 1948 defines worker as under:—
“Workers means a person employed directly or through any agency
whether for wages or not in any manufacturing process or in cleaning
any part of the machinery or premise is used for manufacturing process
or in any other rind of work incidental to or connected with the
manufacturing processor the subject of the manufacturing process.”
(6) The argument stressed before us is that the Payment of Wages Act
does not apply to an editor of a paper because an editor of a paper cannot
be regarded as a person employed in and factory. It is also stressed that an
editor of a paper cannot be regarded as a worker in a factory within the
scope of the definitions of ‘worker and ‘factory in sec. 2(1) and 2(m)
of the Factories Act 1948.
(7) Abstracted from the facts of the case the argument must seem attractive.
But in effect it asks us to refuse to recognise the realities of the interpretative
process. The expression worker as defined in sec. 2(1) of the Factories Act
is one of amplitude and we must not read in that definition words of limitation
nor must we acquiesce in construction which would modify or qualify its width
of application unless there is any sound and cogent reason for doing so. When
one has regard to the definitions of factory and worker in section 2 of the
Factories Act and the scheme and object of the legislation under consideration
it becomes abundantly clear that the expression persons employed in any factory
in sec. 1(4) of the Payment of Wages Act is not to be understood in any
restricted and narrow sense but in a wide and comprehensive sense A person
may have to do skilled or unskilled work clerical work and also intelligent
and responsible work as a person employed in any manufacturing process or
the subject of the manufacturing process. An editor of a paper may or may
not have anything to do wish any such matter relating or incidental to the
manufacturing process or on the other hand it may be part of his duty by
virtue of his contract with his employer to attend also to such matters. Therefore
whether he is a worker or not must necessarily depend on the nature of his
work and not on his designation simpliciter. An editor of a paper whose duties
are confined not merely to the work strictly of editing the paper but embrace
also the humbler duties of a reporter an advertisement canvasser a translator
and a proof reader is in our judgment a person within the ambit of sec. 1(4)
of the Payment of Wages Act. The present contention of the petitioners must
therefore be negatived.
(8) It is next urged by Mr. Kapadia that rival contracts were set up
by the contesting parties and the Authority under the Payment of Wages
Act had therefore no jurisdiction to determine the claim made by respondent
No. 1. According to the petitioners it is said the respondent No. 1 was

entitled only to honorarium of Rs. 100/- for the month of October 1958 and
then monthly honorarium of Rs. 125/- whereas the case of respondent No. 1
before the Authority was that his salary was Rs. 175/- per month in addition
to some payment for additional work. In support of his contention Mr. Kapadia
has relied on a decision of the High Court of Bombay in Anthony Sabastin
Almeda v. R.M.T. Taylor, 1956 (58) Bombay Law Reporter 899. In that case
it was held that :-
“The jurisdiction of the Authority under Payment of Wages Act 1936 is limited
to decide what is contract in the sense of construing the contract in order to
determine the liability of the employer to pay wages. But when the employer
and the employee come before him and rely on different contracts it is not within
his jurisdiction to decide which of the two contracts holds the field which of
them is subsisting and under which of them the employer is liable to pay wages.
It is only when there is no dispute as to the contract that subsists and regulates
the rights and liabilities of the parties that the jurisdiction of the Authority arises
to determine the quantum of wages.”
(9) It is true that there are observations of the learned Chief Justice in that
case which at first blush may seem to land support to the argument of Mr.
Kapadia. It is also true that for many years after the Payment of Wages Act
1936 found place on the statute book the view seems to have prevailed that
the Act did not apply where the factum of employment was dispute. The leading
case on the subject is Sarins case where the scope and ambit of the jurisdiction
of the Authority was considered in the light of the scheme and the relevant
provisions of the Act. That case is a landmark among the decisions of the courts
on the questions of the jurisdiction of the Authority. The logical extension of
the principles laid down in Sarins case is to be found in Mushrans Case. I had
to consider this question of jurisdiction of the Authority under the Payment of
Wages Act in C. S. Lal v. Shaikh Badshah, 1954 (56) Bombay Law Reporter
859 and said :-
“....Again it is well established that it is open to the Authority under the
Payment of Wages Act in order to decide what sums are payable as wages to
determine whether a person has been employed or not because the question of
contract of employment can only arise if there was at the relevant time a subsisting
contract of employment.”
(10) This question of the scope and ambit of the authority under the Payment
of Sages Act was considered in a Full Bench decision of the Bombay High
Court in Vishwanath v. General Manager Central Railway to which I was a party.
We reaffirmed in that case that it was open to the authority under the Payment
of Wages Act in order to decide what sums are payable as wages to determine
whether a person had been employed or not. The view we took in that case
was that it was within the ambit It of his jurisdiction to decide whether there
was relationship of a master and servant between the employer and employee
or to use different language whether there was a subsisting contract of employment
between the employee and the employee. In that view of the matter the present
contention of the petitioners most be negatived.
(11) It is lastly urged by Mr. Kapadia that the effect of Sec. 17 of
the Working Journalists (Conditions of Service) and Miscellaneous Provisions

1960] JAYANTILAL v. BOM. REV. TRIBUNAL (S.C.A.)-Desai, C.J. [15
Act 1955 is that in case of working journalist the authority under the Payment
of Wages Act could have authority to determine any dispute about any wages
due to him by his employer. That section is as under :-
“Where any money is due to a newspaper employee from an employer under
any of the provisions on this act whether by way of compensation gratuity or
wages the newspaper employee may without prejudice to any other mode of
recovery make an application to the State Government for the recovery of the
money due to him and if the State Government or such Authority as the State
Government may specify in this behalf is satisfied that any money is so due it
shall issue a certificate for that amount to the Collector and the Collector shall
proceed to recover that amount in the same manner as an arrear of land revenue.”
(12) We are unable to read anything in this section which can even remotely
suggest that the jurisdiction of the Authority under the Payment of Wages Act
has in any manner been affected by it. Moreover the argument ignores the words
Without Prejudice to any other mode of recovery in the section. There is no
substance in this contention and it must be negatived.
(13) These are the three contentions urged before us by Mr. Kapadia.
They all fail and the petition must stand dismissed. Rule will be discharged
with costs.
Rule Discharged.
* * *
Before the Hon’ble Mr. Justice S. T. Desai, Chief Justice
JAYANTILAL JERAM v.
BOMBAY REVENUE TRIBUNAL AND ANOTHER*
The Bombay Tenancy and Agricultural Lands Act, 1948 - Orders of
Mamlatdar or Tribunal before coming into force Sec. 76A - Whether can
be revised by Collector - Date of Rejection of application is postponed date
of “Tiller’s day” - Allowing plea though not pleaded as it goes to jurisdiction
of Collector.
The orders made by a mamlatdar or Tribunal before the coming into force
of Sec. 76A of the Bombay Tenancy and Agricultural Land Act, 1948, cannot
be revised under that Section, as admittedly the order of the Tenancy Aval Karkun
was made on 29th May, 1957 and the Section came into force on 28th September,
1957. The Collector was not entitled to pass the order in the exercise of his
revisional powers.
Ordinarily, we would not allow the petitioner to raise a point before us
which is not expressly taken in the petition. But having regard to the nature
of it and since it goes to the very jurisdiction of the Collector to pass an order
in the exercise of his revisional powers, we have allowed the point to be urged
before us. At the instance of the parties, we have not insisted on a formal
amendment of the petition, otherwise we might have done so.
*Decided on 22-6-1960. Special Civil Application No. 37 of 1960, with
C.A. No. 113 of 1959.
(Under Articles 226 and 227 of the Constitution of India.)

The date on which the final orders of rejection of application of landlord

under Sec. 29 for obtaining possession is made becomes “the postponed date”
of the “Tiller’s day.”
Case agreed with.
Phirosh Sarosh Kothawala v. State of Bombay (1),
Application praying under Articles 226 and 227 of the Constitution of India
thatsetting aside the order dated 31-1-1959 passed by the Bombay Revenue
Tribunal Rajkot Bench in Tenancy Revision Application No. 114 of 1958 preferred
against the decision dated 28-5-1959 passed by the Deputy Collector, Amreli
in Taluka Tenancy Suit No. 61/57-58 preferred against the decision dated 29-
5-57 passed by the Tenancy Aval Karkun, Dhari in Tenancy Suit No. 61/57-
58 issued etc.
Mr. J. L. Hathi, for the Petitioner.
Advocate General with Mr. H. M. Choksi, Govt. Pleader as amicus curie.
Mr. A. H. Thakkar, for Opponent No. 2.
The following judgment with delivered by :-
Desai C. J.
(1) The petitioner is the owner of 5 acres and 22 gunthas of agricultural
land which is had let out to opponent No. 2 On 26th December 1956 he gave
notice to he tenant to quit the land on the ground that he required the same
for his bona fide personal cultivation. Then he filed an application under section
29 of the Bombay Tenancy and Agricultural Lands Act 1948 before the Mamlatdar
Dhari Taluka. On 18th May 1957 he stated before the Tenancy Aval Karkun
that he had compromised the dispute relating to the land with the opponent-
tenant and did not intend to proceed with the tenancy case. The Tenancy Aval
Karkun passed an order on that application which had the effect of rejection
of the application for possession made by the petitioner. On the same day i.e.
18th May 1957 the opponent filed and application stating that he intended to
surrender to the landlord the land held by him. On 29th May 1957 the Tenancy
Aval Karkun passed an order allowing the surrender of the land in favour of
the petitioner.
(2) On 30th April 1958 the Deputy Collector Amreli in the purported
exercise of his powers under section 76-A of the Act issued a notice to the
petitioner calling upon him to show cause why the order of the Tenancy
Aval Karkun should not be set aside as the same contravened the provisions
of section 32 of the Act. In the present petition the petitioner has raised some
other contentions but in the view we take of the matter or examine those
contentions. The Deputy Collector set aside the order dated 29th May 1957 passed
by the Tenancy Aval Karkun on the ground that the surrender had been made
after 1st April 1957 which was the ‘Tiller’s Day’. The petitioner carried the
(1) 1959 (61) Bom. L.R. 1959

1960] JAYANTILAL v. BOM. REV. TRIBUNAL (S.C.A.)-Desai, C.J. [17
matter in revision and in revision the Revenue Tribunal confirmed the decision
of the Deputy Collector on this point on the same ground and the petitioner
has come to this Court on this petition.
(3) Section 76-A was inserted in the Act by Bombay Act XXXVIII of
1957 and conferred revisional powers on the Collector It is in the following
terms :-
“Where no appeal has been filed within the period provided for it the Collector
may suo motu or on a reference made in this behalf by the Divisional Officer or the
State Government at any time,
(a) call for the record of any inquiry or the proceeding of any Mamlatdar or
Tribunal for the purpose of satisfying himself as to the legality or propriety of any
order passed by and as to the regularity of the proceeding of such Mamlatdar or
Tribunal as the case may be and
(b) pass such order thereon as he deems fit provided that (no such record shall
be called for after the expiry of one year from the date of such order and) no order
of such Mamlatdar or Tribunal shall be modified annulled or reversed unless
opportunity has been given to be interested parties to appear and be heard.”
(4) It has been urged before us by Mr. J. L. Hathi who appears for the
petitioner that the revisional powers conferred on the Collector by section 76-
A could not be exercised retrospectively so as to disturb and defeat rights which
were already vested in the petitioner. Now this point was not taken before the
Tribunal and presumably it has been raised on this petition in view of the a
decision of the High Court of Bombay to which we will presently turn. We
have before us for hearing to day a number of Special Civil Applications in
some of which this point has been taken and in some this point has not been
pleaded. Ordinarily we would not allow the petitioner to raise a point before
us which is not expressly taken in the petition. But having regard to the nature
of it and since it goes to the very jurisdiction of the Collector to pass an order
in the exercise of his revisional powers we have allowed the point to be urged
before us. At the instance of the parties we have not insisted on a formal
amendment of the petition otherwise we might have done so.
(5) The identical question came up for consideration before the learned
Chief Justice of the High Court of Bombay and Mr. Justice V. S. Desai in
Phirosh Sarosh Kothawalla v. State of Bombay, 1959 (61) Bombay Law
Reporter 1959 It was held in that case that orders made by a Mamlatdar
or Tribunal before the coming into force of section 76-A of the Bombay
Tenancy and Agricultural Lands Act 1948 cannot be revised under that section.
Now admittedly the order of the Tenancy Aval Karkun was made on 19th
May 1957 and the section come into operation on 28th September 1957.
We agree with the view taken by the learned Judges and are of the opinion
that the Collector was not entitled to pass the order in the exercise of his
revisional powers. The order of the Mamlatdar had already become final when
the Deputy Collector acted under section 76-A.
(6) Mr. A. H. Thakkar learned Advocate for opponent No. 2 the
tenant has been unable to advance any argument before us on this question
of operation of section 76-A but he has tried to support the decision of the
Revenue Tribunal on two other grounds. It is urged that the order passed by
the Mamlatdar was not a final order at all. It is difficult to see how it can

be said that the order passed by the Mamlatdar was one which was
not final. Mr. Thakkar has relied on last paragraph of the order which
is as under :-
“Tenancy right of Shri Madhu Naran in respect of survey number 80 admeasuring
5 acres 22 gunthas of Ditla is ordered to be terminated under section 15 of the B. T.
& A. L. Act 1948 and the opponent Shri Jayantilal Jeram is allowed to take possession
of the suit and for personal cultivation.”
There is no substance in the contention and it must be negatived.
(7) It is next urged that the surrender application was made on 18th
May 1957 which was after 1st April 1957 the Tillers Day. The tenant
became an owner of the land on 1st April 1957 and therefore any
purported surrender by him on 18th May 1957 of his tenancy rights would
be invalid and ineffective. Now this argument ignores the proviso to
section 32(1) which lays down that if an application made by the landlord under
sec. 29 for obtaining possession of the land has been rejected under the
provisions of the Act tenant is to be deemed to have purchased the land on the date
on which the final order of rejection is passed. In any such case the date on which
the final order of rejection is passed becomes ‘the postponed date’ of the ‘Tiller’s
Day’. Therefore the present contention of Mr. Thakkar must be negatived.
(8) In the result the petition succeeds and will be allowed. Rule will be made
absolute. Rule made absolute.
Rule made absolute.
* * *
and Mr. Justice N. M. Miabhoy.
MALIK VAGHJI BAWAJI AND ANOTHER v.
PATEL HIRJI NATHU DECEASED BY HIS SON AND HEIR*
Saurashtra Barkhali Abolition Act, 1951 — “Tenant” includes person holding
land from mortgages in possession — Definition of “Tenant” in Bombay
Tenancy and Agricultural Lands Act, 1948 compared — Provisions not in
pari materia.
Petitioners (Barkhalidars) had morgaged their lands with possession to
opponents (Tenants) after passing of the Saurashtra Barkhali Abolition Act, 1957,
mortgagees in possession filed applications for obtaining occupancy rights
certificates. Mamlatdar rejected the contention of Barkhalidar and held them
“tenants” as defined in that Act. Appeal and revision to Revenue Tribunal also
rejected. Barkhalidars then preferred special application to the High Court. The
question raised was about the connotation and the ambit of the expression “tenant”
in the Saurashtra Barkhali Act.

1960] VIGHAJI BAWAJI v. HIRJI NATHU (S.C.A.)-Desai, C.J. [19
HELD THAT “tenant” in Barkhali Abolition Act includes not only an

agriculturiast who holds land on lease directly from the Barkhalidar, but also an
agriculturist who holds land from a mortgagee in possession, with whom the land
has been mortgaged by the Barkhalidar, unless there is anything repugnant to
the subject of the matter or the context of it.
The definitions of “tenant” in Bombay Tenancy and Agricultural Lands Act,
1948, and the Saurashtra Barkhali Abolition Act are not in pari materia.
Comparison of provisions of one enactment with provisions of another
enactment even when they are similar, is often an unsafe guide to construction,
and more so when the relevant and material provisions in the two enactments
are not in parti materia. Therefore, any analogy drawn from the decisions under
the Bombay Tenancy and Agricultural Lands Act, 1948, is apt to be misleading.
Case referred :-
Kanji Kurji v. Kala Gopal (1),
Mr. V. G. Hathi, for the Petitioners.
Mr. A. V. Modi, for Opponent No. 2.
The following judgment was delivered by :-
Desai C. J.
(1) A question of some importance has been raised before us on this
petition and the question relates to the connotation and the ambit of the
expression tenant in the Saurashtra Barkhali Abolition Act 1959. That Act
it may be mentioned was enacted principally to abolish barkhali tenure
prevailing in certain parts of Saurashtra. It appears from the provisions
of the Act that it brought about certain agrarian reforms and improvement
in the land revenue administration. It is necessary to examine the scope of
the Act in so far as it is helpful in understanding the principal question which
arises for our determination.
(2) But of this more hereafter. The petitioners are barkhalidars within the
meaning of section 2(i) of the Barkhali Abolition Act of 1951 and one of
their fields Hamirki admeasuring four acres was mortgaged with possession
to one Lallu Bechar. Two other fields admeasuring 6 acres and 16 gunthas
belonging to the barkhalidars were also mortgaged with possession. It is not
necessary to set out the details pertaining to these mortgages. The opponent-
tenants filed an application in Form 11 for obtaining occupancy certificate in
respect of some of these lands on the ground that they wore cultivating the
suit lands since long prior to the mortgage of the same. The Mamlatdar held
that the opponents were cultivating the suit lands prior to the mortgages. He
reached the conclusion that the opponents were covered by the definition of
tenants in sec. 2(iv) read with section 4 of the Barkhali Abolition Act.
Section 4 it may be observed mentions persons who are to be deemed to
tenants. The Mamlatdar also held that the estate off the barkhalidar
was more than two economic holdings and they were not entitled to
any gharkhed land. The barkhalidars appealed against the decision of the
(1) 59 Bombay L.R. 846

Mamlatdar which appeal was rejected. The matter was carried in revision to
the Revenue Tribunal and the Revenue Tribunal also rejected their application
and the barkhalidars have come to this Court on this petition. The Revenue
Tribunal has pointed out in its judgment that it was admitted by the applicant
Vaghji Bawaji that when the suit lands were mortgaged to Ambaram Karsan the
opponents were cultivating the suit lands. The Tribunal has also pointed out
that the opponents were on the land and were cultivating the same before the
Barkhali Abolition Act came into force.
(3) Mody who appears for opponents 1 and 2 has not supported that judgment
of the reasons given by the Tribunal. He has rested his arguments before us
on a brief contention and the contention is that in any event opponents 1 and
2 were persons who held the lands on lease from the mortgagees of the
barkhalidars and the mortgagees must be regarded as persons claiming through
the barkhalidars and therefore opponents 1 and 2 were tenants within the meaning
of that expression as defined in section 2 of the Act. That being the position
says Mr. Mody it is not even necessary for him to urge before us that the Tribunal
was right in taking the view that the opponents 1 and 2 were deemed tenants
within the meaning of the Act. Succinctly stated the argument is that a lessee
of such lands from a mortgagee of a barkhalidar is within the ambit and scope
of the Act.
(4) Section 2(iv) defines Tenant to mean an agriculturist who holds land
on lease from a barkhalidar or a person claiming through him and a person
who is deemed to be a tenant under the provision of this Act.
(5) It will convenient to set out here the definition of “Barkhalidar”
“2 (i) Barkhalidars means a person who holds a tenure as Barkhalidar Jivadar
Chakariyat Kherati or Dhramada and includes.
a) any person who has been granted any such tenure; or
b) any holder of an estate whom the Government may by Notification in the
Official Gazette declare to be a Barkhalidar for the purpose of this Act. Provided that
where the great grand-father grand father or father of a Barkhalidar is alive only the
great grand-father or the father as the case may be who is alive shall be deemed to
be the Barkhalidar for the purposes of this Act.
It will also be convenient to set out here the relevant part of section 4
which mentions person who are deemed to be tenants :-
“4. (1) Any person who is lawfully cultivating any land belonging to
a Barkhalidar shall for the purposes of this Act be deemed to be his
tenant :-
... ... ... ... ... ... ... ...
Explanation :- A person who is otherwise deemed to be a tenant shall
not cease to be a tenant only on the ground that he is also in mortgagee
in possession.
(6) The principal contention urged before us on behalf of the
petitioners on the other hand is that a mortgagee in possession of land from
a barkhalidar cannot be regarded as a person claiming through the barkhalidar.
In support of the contention Mr. Hathi learned Advocate for the petitioners,
has support to emphasize the distinction between a mortgagor and
mortgagee and he has drawn our attention to section 59(A) of the Transfer of

1960] VIGHAJI BAWAJI v. HIRJI NATHU (S.C.A.)-Desai, C.J. [21
Property Act. In our judgment nothing in that section can throw any light
on the present controversy. Then Mr. Hathi has leased heavily on a decision
of the Bombay High Court it Kanji Kurji v. Kala Gopal, 59 Bom.L.R 846.
The expression a mortgagee in possession in section 4 of the Bombay
Tenancy Agricultural Lands Act 1948 came up for consideration by the
Court in that case. Section 4 of the Bombay Act mentions persons who are
to be deemed tenants for purpose of the Act. In that case the point in dispute
was whether a tenant from a mortgagee in possession who derives title through
the mortgagee can acquire the status of a deemed tenant or a statutory tenant
under the Act and it was held that such a tenant cannot acquire the status of
a deemed tenant or a statutory tenant under the Act. We are in respectful agreement
with the observations there made by Mr. Justice Tendolkar as to the meaning
and effect of section 4 of that Act.
(7) Now if the determination of the question before us had to turn on
the meaning and effect of section 4 of the Barkhali Abolition Act we
would have certainly fallen in line with the same view as the two sections
which enumerate persons who are “deemed to be tenants” are in pari materia.
But the question Before us is not of the meaning and implication of the
expression a mortgagee in possession in section 4(i)(c) of the Barkhali
Abolition Act but of the words a person claiming through him that is
through the barkhalidar in the definition of the expression tenant in the Barkhali
Abolition Act. The definitions of tenant in the two enactments are not in pari
materia. The decision which is so strongly relied on by Mr. Hathi does not
in our opinion advance the case of the petitioner in any manner.
(8) Interpretation of one statute by comparison of any provision in it
with that in analogous legislation on principle of affinity with the subject or
the same class of persons or things is permissible and even of significance
when done with due care and caution and strictly within the framework of
the doctrine embracing statutes in pari materia. Comparison is permissible in
case of such provisions because they are framed upon one system and
having one object in view. The inherent worth of the doctrine is founded on
the realities of the process of harmony and consistency. Where however the
requisite degree of sameness is not present mere similarity is no criterion. By
way of contrast as inclusion or exclusion may show an intention even
contrary to that of the analogous provision. In our opinion the analogy relied
on by Mr. Hathi is not real and we must give the definition with which we
are concerned its full meaning and scope.
(9) Considered the light of these observations we must read the expression
“tenant” in the Barkhali Abolition Act to include not only an agriculturist who
holds land on lease directly from the barkhalidar but an agriculturist who holds
land from a mortgagee in possession with whom the land has been mortgaged
by the barkhalidar unless there is anything repugnant to the subject of the
matter art context of it. The barkhalidar puts the mortgage in possession
of the land and it becomes open to the mortgagee and is indeed necessary
for him at times to give the land on lease to tenants. It is difficult for us to
see why we should cut down the ordinary meaning and effect of the
expression “a person claiming through him.” And be it noted we are dealing

with in enactment the very purpose of which as may readily be gathered form
its provisions was to abolish the barkhali tenure. Section 5 of the in terms express
and explicit lays town that on the commencement of the Act all rights titled
and interest of barkhalidar in agricultural land comprised in barkhali estate shall
case and be vested in the State free from all encumbrances subject to the provisions
of the Act. It is in the background of the provisions of this acquisitorial legislation
that we have to gather the connotation of the expression tenant defined in section
2(iv) The Legislature although it enacted in section 5 that all lands of barkhalidars
shall be vested in the State did not however deem it necessary to render the
barkhalidar wholly land-less. It provides in section 6 for application by a
barkhalidar for allotment of land for personal cultivation and in section 7 for
enquiry by the Mamlatdar in the matter of allotment. Section 8 contains provisions
of some importance and relates to allotment of land for personal cultivation It
will be convenient to set out some material part of that section :-
“8. Allotment of land for personal cultivation (1) A Barkhalidar in whose estate
the agricultural land is equal to two economic holdings or less and who is not
a Chakariat Dharmada Institution or Jivaidar for life shall be allotted land for
personal cultivation in the following manner :-
(a) each of his tenants shah first be given half an economic holding
including any Khalsa Land in possession of such tenant;
(b) if there remains any Barkhali Land the Barkhalidar shall be given land
to make up half an economic holding including Gharkhed and Khalsa
Land in his possession if any;
(c) if there still remains any Barkhali Land it shall be divided half and
half between the Barkhalidar and the tenant. Provided that the maximum
land so allotted shall not exceed one economic holding.”
Section 15 rules inter alia that a barkhalidar shall become an occupant in
respect of his gharkhed and in respect to land allotted to him under section
7. It is Unnecessary to burden this judgment with some other provisions of the
Act and we need only mention that the definition has to be understood in the
context of the Act and applied with that context in mind.
(9) Comparison of provisions of one enactment with provisions of another
enactment even when they are similar is often unsafe guide to construction And
more so when the relevant and material provisions in the two enactment are not
in pari materia. Therefore any analogy drawn from the decision under the Bombay
Tenancy and Agricultural Lands Act, 1948 is apt to be misleading. We must
confine the examination of the question before us to the language used by the
Legislature and the definition of tenant which indubitably is not a restricted one
but in words of width and amplitude.
(10) One of the arguments urged by Mr. Hathis in support of his
contention is that if the words a person claiming through him in the definition
of tenant could apply to a mortgagee of a barkhalidar the provisions of sec.
4 of the Barkhali Abolition Act would be rendered redundant. A bare
examination of the provisions of Section 4 goes to show that such cannot be
the result. It seems unnecessary, therefore, to discuss the provisions of Section

1960] VASARAM KALA v. P. M. SHAH (S.C.A.)-Desai, C.J. [23
4 for the purpose of pointing this out. It is next urged that the words “a
person claiming through him” can only relate to the sons and other heirs of a
barkhalidar or to a purchaser from a barkhalidar. We see no reason for accepting
this limitative connotation of the expression and particularly since we must have
regard to the ambit and object to the whole enactment.
(11) For all these reasons we are satisfied that opponents 1 and 2 were tenants
within the meaning of the provisions of the Act relevant for the purpose of the
dispute between the parties and entitled to occupancy certificates asked for by them.
The petition fails and will be dismissed. The rule will be discharged with costs.
Rule discharged.
* * *
and the Hon’ble Mr. Justice N. M. Miabhoy.
VASHRAM KALA v. P. M. SHAH AND OTHERS*
Bombay Tenancy and Agricultural Lands Act, 1948 - Sec. (2)18-Main
ingredients of “Tenant” - Must be agriculturist - Mere grazing of land no
sufficient proof.
The petitioner filed a tenancy suit against opponent No. 4 praying that he was
not “tenant” under Sec. 70(B) of Bombay Tenancy and Agricultural Lands Act,
1948. Mahalkari decided that opponent was not tenant. Appeal to Collector was
rejected. Revenue Tribunal held that opponent was admittedly given land for one
year for grazing his cattle and that created tenancy rights. The petitioners filed
Special Civil Application to the High Court.
HELD THAT the definition of “agriculturist” postulates in the present context
of land used for grazing cattle, firstly, that the person claiming to be a tenant within
the ambit of the Act must be an agriculturist, and secondly, that he must use the
land for grazing his cattle. Both these requirements must, in our judgment, be
satified.
The more use of land by a person for grazing his cattle is not of itself sufficient
proof of his being an agriculturist.
If full meaning is to be given to the words “the use by an agriculturist of the
land held by him or a part thereof for the grazing of his cattle.” in the definition
of “agriculture,” we must satisfy ourselves that the person claiming to be a tenant
is an agriculturist.
Application praying under Articles 226-227 of the Constitution of India
that a writ setting aside the order dated 17-8-1959 passed by the Bombay
Revenue Tribunal, Rajkot Bench, Rajkot in Revision Application No. 29
of 1959 preferred against the order dated 5-5-1959 passed by the Deputy
(Under Articles 226-227 of the Constitution of India.)

Collector, for Tenancy Appellate Work, Amreli District, Amreli in Tenancy Appeal
No. 28 of 1957-1958 preferred against the decision dated 3-4-1958 passed by
the T. N. C. Mahalkari, Kodinar in Ten. Suit No. 764/1957-1958 be issued and
etc......
Mr. D. U. Shah, for the Petitioner.
Desai C. J.
(1) This petition raises a question of some importance and nicety And the
question relates to the connotation of the expression agricultural purposes. The
petitioner is the owner of land bearing survey No. 97 admeasuring 6 acres and
33 gunthas situated at Jamanvada in Amreli District. On 29-3-57 the petitioner
filed a tenancy suit against respondent No. 4 in the Court of the Tenancy Mahalkari
of Kodinar under section 70 of the Bombay Tenancy & Agricultural Lands Act
praying for declaration that the fourth respondent was not the tenant of the
petitioner in respect of survey No. 97. According to the petitioner the fourth
respondent had unauthorisedly and illegally managed to get his own name entered
in the record of rights as a tenant of the land it was common ground before
the Courts below that the land was used by respondent No. 4 for grazing his
cattle. An attempt has been made before us by Mr. Shah who appears for the
petitioner to show that such was not the position. We have looked at the record
and must proceed on the footing that the land was being used by respondent
No. 4 for grazing his cattle.
(2) The Tenancy Mahalkari decided that respondent No. 4 was not the
petitioners tenant in respect of the suit land and directed that the entry in his
favour should be deleted from the village record. An appeal to the Collector
by the fourth respondent was dismissed and the matter was carried in revision
to the Revenue Tribunal. The revenue Tribunal has stated in its judgment that
the opponent was admittedly given the land by the petitioner for one year for
grazing his cattle and that created tenancy rights between the petitioner and the
respondent No. 4 before us. In arriving at this decision the Tribunal laid stress
on a part of the definition of Agriculture in the amended section 2(1) of the
Act which runs as under :-
“agriculture include horticulture the raising of crops grass or garden produce
the use by an agriculturist of the land held by him or a part thereof for the grazing
of his cattle the use of any land whether or not an appanage to rice or paddy
land for the purpose of rab manure but does not include allied pursuits or the
cutting of wood only.”
The part of the definition stressed by the Tribunal is the words “the use
by an agriculturist of the land held by him or part thereof for the grazing of
his cattle”. Relying on the fact that the petitioner had given the land to respondent
No. 4 for grazing his cattle the Tribunal reached the conclusion that respondent
No. 4 was tenant of the land in question and the petitioner was therefore not
entitled to the declaration prayed for by him.
(3) Respondent No. 4 has not appeared before us to resist-this petition.
But Mr. D. U. Shah who has argued this matter with ability and zeal,

1960] VASARAM KALA v. P. M. SHAH (S.C.A.)-Desai, C.J. [25
has very fairly drawn our attention to the various aspects of curtain definitions
with which as we shall presently point out we are very much concerned.
(4) It has been argued by Mr. Shah that the Tribunal was in error in holding
that respondent No. 4 was a tenant of the land in suit simply on the ground
that the land had been given to him by the petitioner for grazing his cattle.
The crux of the argument is that the words use by an agriculturist of the land
held by him or a part thereof for the grazing of his cattle which is one of
the meaning of agriculturist under the definition of that expression in section
2(1) not only require that the land in dispute should be used for the grazing
of his cattle by the person holding the same but they also require that the person
holding the land must be an Agriculturist. It is said that this requirement of
the relevant part of the definition has not been considered by the Tribunal seems
to have assumed either that the respondent No. 4 before us was an agriculturist
or taken it for granted that no emphasis required to be laid on the word
agriculturist in the definition. In order to appreciate this argument it is necessary
to examine some of the definition given in the Act.
“2 (18)-tenant means a person who holds hand on lease and includes :-
(a) a person who is deemed to be a tenant under section 4;
(b) a person who is a protected tenant; and
(c) a person who is a permanent tenant;.
“2. (8) ‘land’ means-
(a) land which is used for agricultural purpose or which is so used but is
left fallow and includes the sites of farm buildings, buildings appur-
tenant to such land; and
(b) for the purposes of sections 11 16 17 17C 17B 18 19 20 26 28 29
29A 30 41 63 64 84 84 and 84C
(i) the sites of dwelling houses occupied by agriculturists agricultural
labourers or artisans and land appurtenant to such dwelling houses;
(ii) the sites of structures used by agriculturists for allied pursuits.”
“2 (2) Agriculturist’ means a person who cultivates land personally.”
(5) The expression agricultural purposes which appears in the definition of
land has not been defined in the Act. Founded on the definitions of tenant land
and agriculturist the argument ran that before a person can be held to be a
tenant in the context before us it must be established that he held some land
used for agricultural purposes on lease and which he cultivated personally and
it must also be established that he used the land in question for the grazing
of his cattle. The expression to cultivate and to cultivate personally are also
defined in the Act but it is not necessary here to set out those definitions. We
have already set out the definition of agriculture. The first of the two requirements
of that definition viz., use of the land by an agriculturist it is used has not
been established in this case and on that ground the decision of the Tribunal
must be set aside. There is in our opinion some force in his argument.
(6) The crucial question that arises for our determination is whether
in order that a person can be held to be a tenant it is sufficient to show

that he uses that land or a part of the land held by him on lease for grazing
his cattle or it is further necessary to establish that he is an agriculturist To
put it somewhat differently can every person who holds a lease of agricultural
land be said to be a tenant of such land and claim to be entitled to the
benefits and privileges conferred on a tenant under the Act simply by showing
that he used the land for grazing his cattle Now the very definition of ‘tenant
requires inter alia that the tenant must be a person who holds land on lease
and the expression land in that definition means land used for agricultural
purposes. To ascertain the connotation of this expression agricultural purposes
we must turn preferably to the definitions of agriculture and agriculturist in
the hot itself for that would be internal and facial evidence and afford the
best guidance in the matter.
(7) The definition of agriculture postulates in the present context of land
used for grazing cattle firstly that the person claiming to be a tenant I within
the ambit of the Act must be an agriculturist and secondly that he must use
the land for grazing his cattle. Both these requirements must in our judgment
be satisfied. Otherwise to mention only one reason the use of the expression
‘agriculturist in the definition of agriculture would be tautological and even
meaningless. The mere use of land by a person for grazing his cattle is not
of itself sufficient proof of his being an agriculturist. It must be established by
some evidence that he indulges in agricultural operations. Ordinarily this may
not require much evidence. That he should be an agriculturist is an element
postulated by the definition of ‘agriculture’ and that is a requirement which must
be satisfied. Its existence must not be a matter of assumption. For all these
reasons we are led to the conclusion that if full meaning is to be given to the
words the use by an agriculturist of the land held by him or a part thereof
for the grazing of his cattle in the definition of agriculture we must satisfy ourselves
that the person claiming to be a tenant is an agriculturist. In that view of the
matter we must accede to the argument of Mr. Shah that before respondent No.
4 could be held to be a tenant on the ground that the land was given to him
by the petitioner for one year for grazing his cattle it should have been established
that respondent No. 4 was an agriculturist within the meaning of that expression
as defined in the Act.
(8) In the result we will set aside the order of the Tribunal and remand
the matter to the Tribunal. The Tribunal will in the light of our judgment
give such directions in the matter for the purposes of recording evidence
and finding as deems proper.
Order accordingly.
* * *

1960] KANBI KURJI v. THE STATE GOVT. (C.A.)-Shelat, C.J. [27
CRIMINAL APPELLATE
Before The Hon’ble Justice J. M. Shelat and The Hon’ble Justice V. B. Raju
KANBI KURJI DUDA v. THE STATE OF GUJARAT*
Indian Penal Code (Act XLV of 1860)-Sec. 84-Plea of Insanity-Whether
accused was suffering at the time of the incident from such unsoundness
of mind that he did not know that the act he was doing was wrong or
it was contrary to law-Accused having purchased and cultivated lands in
the previous year-Whether these two facts disentitle him to claim benefit
under the Section - Legal test of unsoundness of mind laid down.
The accused was charged with the murder of his wife Jamna and his son Natha.
After the murder, while passing by the house of the Sarpanch of the village, the
accused called out to the witness as “Bhisma Pitamaha” and he told him that
he had killed “Bhangdi” and “Karna” meaning thereby his wife the deceased
Jamna and his elder son Natha. He repeated this thrice to the Sarpanch. The
accused was not on any hostile or incordial terms with the deceased Jamna and
Natha. He, in the past, used to murmur that he was Suryavansi Arjun. He appeared
as half mad and village children used to chase him as such. It was contended
on his behalf that he was protected under Sec. 84 I. P. C.
HELD THAT the evidence on record clearly indicated one of the three
alternatives provided for in Section 84 of the Indian Penal Code, namely, that
though conscious of the nature of the acts committed by him, the accused was
not in a position to appreciate and realise that the acts committed by him were
either wrong or contrary to law, and that under the circumstances, the accused
was entitled to the benefit of the provision of Sec. 84 Indian Penal Code.
It is not every person mentally diseased who, ipso facto, is exempted from
criminal responsibility. Such exemption is allowed only where the insane person
is incapable of knowing the nature of the act, or that he is doing what is either
wrong or contrary to law. Sec. 84 lays down the legal test of responsibility in
cases of alleged unsoundness of mind, and it is by that test, as distinguished from
the medical test, that the criminality of an act is to be determined. The provisions
of Sec. 84 are in substance the same as those laid down by the House of Lords
in Mc’ Naughton’s case.
To establish a defense on the ground of unsoundness of mind, the accused
must affirmatively prove that at the time of committing the act he was
labouring under such a defect of reason as not to know either the nature and
the quality of the act that he was doing or if he did know it, he did not realise
that what he was doing was either wrong or contrary to law. The mere fact
that on former occasions he had been occasionally subject to insane delusions
or had suffered from derangement of mind, and subsequently, he have
behaved like a mentally deficient person is per se insufficient to bring his case
within the exemption. The antecedent and subsequent conduct of the man is
relevant only to show what the state of his mind was at the time when the
act was committed. In other words, so far as Sec. 84 is concerned, the Court
*Criminal Appeal No. 63 of 1960 Decided 27/28 June, 1960.
Against the Order of Conviction and Sentence passed on him by Sessions
Judge, Junagadh.

is only concerned with the state of mind of the accused at the time of
the act.
It is thus clear that it is only that unsoundness of mind which materially
impairs the cognitive faculty of the mind that can form a ground for
exemption from criminal liability. The nature and the extent of the unsound-
ness of mind required must reach that stage as would make the offender
incapable of knowing the nature of his act or that he is doing what is either
wrong or contrary to law,
Mr. M. P. Thakkar, (appointed) for the appellant.
Mr. H. K. Thakore, Asstt. Govt. Pleader, for the State.
Kalicharan v. Emp. (1), Queen Empress v. Laxman Dagdu (2),
King Emp. v. Gedka Goala (3), distinguished.
Ashiruddin Amed v. The King (4), Approved.
SHELAT J.
[His lordship after narrating the facts leading to the murder and coming
to the conclusion on evidence that it was established beyond doubt that the accused
had committed the offence under Sec. 302 I. P. C. by causing the death of
his wife and his son deceased the plea of insanity raised in the trial Court and
in the appeal proceeded to observe.]
(1) The question that was raised in the trial Court and which has been raised
before us by Mr. Thakkar is whether the accused was suffering at the time of
the incident in question from such unsoundness of mind that be did not know
that the act which he was doing was wrong or that it was contrary to law.
In order to establish this defense Mr. Thakkar has relied upon certain portions
in the evidence of these witnesses. Apart from what we have already narrated
Keshav Ramji has stated that the accused was not on any hostile or incordial
terms with the deceased Jamna and Natha. Police Patel Naran has deposed that
the accused in the past used to murmur that he was Suryavansi Arjun and that
the village people of Bhandarda used to consider and treat the accused as a
person who was half mad. There is also the evidence of P. S. I. Jagjivan that
about a year prior to the date of the incident the accused had run away from
his house getting half mad and he had been brought back by his relations to
Pipalia. Similarly Ravji Keshav has deposed that during the year prior to the
date of the incident the accused had become like a mad man and the village
children used to chase him shouting that the mad man has come. Mr. Thakkar
has contended that this part of the evidence suggested that the accused was
suffering from certain hallucinations or delusions under which he considered
himself to be a Suryavansi and Arjun and regarded his wife Jamna as Bhangdi
presumably meaning thereby a woman who had given birth to an illegitimate
son and his eldest son Natha as Karna the inveterate enemy of Arjun Mr. Thakkar
has submitted that suffering as he was from these delusions and hallucinations,
(1) A.I.R. 1948 Nag. 20 (2) I.L.R. 10 Bom. 512
(3) I.L.R. (1937) 16 Pat. 333 (4) A.I.R. 1949 Cal. 182

the accused killed his wife Jamna and his son Natha believing that Natha
was Karna and he being Arjun there would be nothing wrong in causing
the death of his inveterate enemy Karna. Likewise he would not consider
killing his wife Jamna as anything wrong as he was suffering from a delusion
and hallucination that she was a woman who had given birth to an illegitimate
son and was therefore contemptible and regarded her and in fact called her
Bhangdi.
(2) The learned Assistant Government Pleader however submitted that
these facts assuming that the accused was suffering from these hallucinations,
were insufficient to constitute that unsoundness of mind by reason of which
the accused could be said to be incapable of knowing the nature of his act
or that what he was doing was either wrong or contrary to law and that therefore
the accused would not be entitled to the benefit of the general Exception laid
down in sec. 84 of the Penal Code He drew our attention to two other facts
which according to him indicated that the accused could not be suffering from
any hallucinations or any unsoundness of mind. These facts were the fact of
the accused having purchased lands in the previous year as deposed to by witness
Amrut Raghunath and the fact of the accused having cultivated these lands
According to the learned Assistant Government Pleader these two facts showed
that the accused was certainly no suffering from any defect or infirmity of
mind which would entitle him to the benefit of sec. 84. Now it is clear that
under sec. 84 it is not every person mentally deceased who ipso facto is exempted
from criminal responsibility. Such exemption is allowed only where the insane
person is incapable of knowing the nature of the act or that he is doing what
is either wrong or contrary to law. Sec. 84 lays down the legal test of responsibility
in cases of alleged unsoundness of mind and it is by that test as distinguished
from the medical test that the criminality of an act is to be determined. The
provisions of sec. 84 are in substance the same as those laid down by the
House of Lords in Mc Naughtons Case. Sec. 84 thus provides that a man
who is by reason of unsoundness of mind prevented from controlling his own
conduct and deprived of the power of passing a rational judgment on the moral
character of the act he meant to do cannot be legally responsible for the act.
Also if a man suffers under a partial delusion only but insane in other respects
he must be dealt with as if the facts with respect to which the delusion existed
were real. The fact therefore that the accused had in the preceding year purchased
lands and had cultivated those lands would not by itself mean that he would
Dot be suffering from delusions or hallucinations on certain matters or aspects
which would render him incapable of either knowing the nature of the act
or that the act which he was doing was wrong or contrary to law. There
can, however, be no doubt that to establish a defense on the ground of
unsoundness of mind the accused must affirmatively prove that at the time of
committing the act he was doing under such a defect of reason as not to
know either the nature and the quality of the act that he was doing or if
he did know it he did not realise that what he was doing was either wrong
or contrary to law. If he did know it, he would be responsible and would
not have the benefit of sec. 84. The mere fact that on former occasions he
had been occasionally subject to insane delusions or had suffered from derange-

ment of mind and subsequently he had behaved like a mentally deficient person
is per se insufficient to bring his case within the exemption. The antecedent
and subsequent conduct of the man is relevant only to show what the state
of his mind was at the time when the act was committed. In other words
so far as sec. 84 is concerned the Court is only concerned with the state of
mind of the accused at the time of the act. As stated in Russell on Crime (10th
Edition) p. 58 the function of the Court and jury in cases where insane but
whether the prisoner is or is not in law criminally responsible for his deed.
It is from this aspect that we have to decide whether on the facts and the
circumstances of this case the accused is entitled to the benefit under sec. 84
of the Penal Code.
(3) Mr. Thakkar laid considerable stress on the subsequent conduct of the
accused and there from sought to argue that conduct sufficiently indicated that
the accused was and must be suffering from unsoundness of mind so as to make
him incapable of distinguishing between right and wrong and of being unable
to realise that what he had done was either wrong or contrary to law. There
was as pointed out by him a complete lack of motive on the part of the accused
to commit such an extraordinary brutal act of killing his own wife and son
with whom he had been as the evidence discloses not on any hostile or unfriendly
relations. In the second place the evidence disclosed that there was no attempt
on the part of the accused to conceal from any one the fact that he had caused
the death of his wife and his son. On his way home he had stopped near the
house of the Sarpanch and in the presence of the other villagers he had openly
declared that he had caused the death of his wife and his son Natha. Even after
disclosing this fact there was no attempt on his part to run away from the village
or to conceal the incriminating items of evidence namely the blood-stained
crowbar and the blood-stained Chorna nor had he made any effort to abscond
from the village so as to escape the penalties of the law for the acts that he
had committed. Apart from this fact there was the evidence as to the eccentric
and unusual behavior on his part testified by the Police Patel of the village
which showed that even prior to the date of the incident the accused used to
murmur in the presence of others that he was Suryavansi and Arjun. The
cumulative effect of all these circumstances contended Mr. Thakkar was that the
accused could not have been aware either of the wrongness of his act or its
criminality. This conclusion is fortified by the fact that when the accused disclosed
that he had killed his wife and his son he had indicated neither the repentance
nor remorse for the acts which he had committed. These facts therefore argued
Mr. Thakkar constituted a set of circumstances which clearly indicated that the
accused was suffering from that infirmity of mind by reason of his being subject
to the aforesaid hallucination in consequence of which he was not in a position
to realise that what he was doing was either wrong or contrary to law.
(4) The learned Assistant Government Pleader on the other hand,
relied upon Kalicharan. V Emperor A.I.R. 1948 Nagpur 20 where it has
been observed :- A person is presumed to be responsible for his action and

the natural consequences thereof unless he affirmatively proves that he is

entitled to exemption from criminal liability. In order to bring the case within
the exemption under sec. 84 Penal Code the accused must prove that at the
time of committing the offence he was labouring under a defect of reason
which had been caused by unsoundness of mind with the result that he was
rendered incapable of knowing the nature of the act and that he was doing
what was either wrong or contrary to law. The learned Assistant Government
Pleader relied upon another passage in this judgment wherein it has been
observed : “A crime is not excused by its own atrocity. From the fact that
the accused killed four persons is succession without any motive no inference
can be drawn that his reason must have been affected by insanity temporarily.
One must look outside the act itself for the evidence as to how much the
accused knew about it.”
(5) Similarly in Queen-Empress v. Lakshman Dagdu, I.L.R. 10
Bombay 512 the facts were that the accused had killed his two children in
respect of which he was charged with the offence of murder. The evidence of
his wife was that he was fond of these two children. The accused had
fever for five days and had not been able to go to work. He had become very
irritable sensitive to noise and confused in his thoughts but he had not
become delirious. On the day in question his wife had left him at 2 p.m.
leaving the two children in his charge as usual one aged three and the
other aged one. After the wife left him the two children began to cry
which it was alleged annoyed him. He killed both the children. The evidence
however disclosed that he had not shown any symptoms of insanity
previously. After the killing of the two children the accused had made no
attempt to escape. He also expressed no sorrow or remorse and surrendered
himself to the police making a full confession before a Magistrate. It was held
that the accused was conscious of the nature of his act and must therefore be
presumed to have been conscious of his criminality. He was therefore found
guilty of murder.
(6) In comparing the facts this case with the facts before us we may
observe that the accused in Lakshman Dagdus case had himself assigned a
motive for his crime though it was found insufficient and even unreasonable.
It was therefore held that the fact that the accused had fever as a result of
which he had become very irritable and sensitive to sound the his thoughts
were confused was not sufficient to hold that he was not conscious to the nature
of his act. It was held that as the accused was conscious to the nature of his
act he must be presumed to have been conscious of its criminality. In both the
Nagpur and Bombay cases the defence mainly was of a sudden irresistible
homicidal impulse on the part of the accused which caused a temporary
intellectual aberration tat the time of the perpetration of the crime. That
argument was negatived on the ground that a Court of law would look for
some clear and distinct proof of mental delusion or intellectual aberration
existing previously to or at the time of perpetration of the crime. In King Emperor
v. Gedka Goala, I.L.R. (1937) 16 Patna 333, a decision relied upon by the
learned Assistant Government Pleader it was held that a person is not entitled
to exemption from criminal liability in case in which it is only shown that

he is subject to insane impulses while the cognitive faculties remain so far

as can be judged from his acts and words unimpaired. It was also held
that where the Sessions Judge drew an inference of derangement of brain
from the very nature of the act done by the accused such a test was inadequate
and one must look outside the act itself for the evidence as to how much the
accused knew about it. In the case of Gedka Goala absence of any motive a
sense of secrecy want of prearrangement and want of accomplices were not
found sufficient to constitute a defence under sec. 84. It was held that
these circumstances by themselves wore Insufficient to support the inference
that the accused suffered from unsoundness of mind of the kind referred to
in sec. 84.
(7) It should be remembered that in all these three cases what was herd
was that the facts found therein were Dot sufficient for a conclusion that the
accused was suffering from some delusion-or intellectual aberration which would
deprive him of the faculty of appreciating the nature of his act there being
no evidence as to the symptoms of any insanity or infirmity of mind previously
or at the time of the crime in question. It is thus clear that it is only that
unsoundness of mind which materially impairs the cognitive faculty of the mind
that of form a ground for exemption from criminal liability. The nature and
the extent of the unsoundness of mind required must reach that stage as would
make the offence incapable of knowing the nature of his act or that he is
doing what is wrong or contrary to law. Two illustrations commonly cited to
distinguish the two different conditions of mind may here be set out. A person
strikes another and in consequence of an insane delusion believes that he is
striking a bird. In such a case he does not know the nature of his act. In
the other case he may kilt a child under an insane delusion that he is saving
him from sin and sending him to heaven. Here he is incapable of knowing
by reason of his insanity that he is doing what is morally wrong though he
is aware of the nature of the act.
(8) In Ashiruddin Ahmed v. The King, A.I.R. 1949 Calcutta 182, the
accused in his dream was commanded by someone in paradise to sacrifice his
own son of five years. The next morning the accused took his son to a mosque
and killed him by thrusting a knife in his throat. He then went straight to his
uncle but finding a chowkidar nearby took the uncle to a tank at some distance
and slowly told him the story. It was held that of the three elements necessary
to be established under Sec. 84 any one of which must be established by an
accused to obtain the benefit of the provisions the first, the nature of the act
was clearly known to the accused the accused also knew that the act was contrary
to law but he certainly did not know that the act was wrong. The accused was
clearly of unsound mind and acting under the delusion of his dream he had
made the sacrifice of his son believing it to be right. He was therefore entitled
to the benefit of sec. 84.
(9) The facts in the case before us are different from those to be
found in tie aforementioned cases decided by the High Courts of Nagpur Patna
and Bombay. There is evidence of symptoms of the accused mind suffering
previously from infirmity and delusions. There is the evidence that in the
preceding year the accused had left his home and family suddenly and had

to be brought home by his relations. There is also the evidence that his
behaviour was such that the children of the village used to chase him calling
him ‘half mad’; and as the Police Patel has deposed the accused used to regard
himself as Suryavansi and Arjun. Thus it is clear that he was suffering from
a delusion or a hallucination that he was a pure blooded Suryavansi and Arjun
of the Mahabharat. Coupled with this evidence as to this delusion there is the
evidence that nothing had happened on the day of the incident to provoke the
accused to commit the brutal act of killing his own wife and his eldest son
with whom his relations were by on means unfriendly or uncordial. Immediately
after killing them he openly told the Sarpanch addressing the latter as Bhisma
Pitamaha again a famous and significant name in Mahabharat that he had killed
Bhangdi meaning his wife and Karna meaning his son. Since the accused thought
him self to be Arjun he could not have regarded the deceased Jamna the mother
of his eldest son Natha as his wife. He called her and presumably regarded
her as Bhangdi a term of absolute contempt presumably considering her as a
person who had given birth to a son before marriage. Likewise he thought himself
to be Arjun and regarded Karna in the form of his eldest son Natha as his
inveterate enemy whom he must kill in self-defence not only of himself hut
of his imaginary family. It would seem therefore that under the impact of this
delusion the accused came back to the village just after committing the brutal
deed and declared before the Sarpanch his terrible acts and if he was conscious
or capable of knowing that his act was wrong or contrary to law he could have
well concealed it. There was however no attempt on his part to conceal what
he had done. Instead of concealing the deed that he had committed he declared
openly before the Sarpanch and the other villagers that he had killed the persons
whom he then believed as Bhangdi and Karna. He did not even conceal the
two incriminating pieces of evidence against him namely the blood-stained
crowbar with which he obviously committed the crimes and the blood-stained
Chorna on his person. He obviously felt no remorse nor repentance He must
have believed that what he had done was neither wrong nor contrary to law.
There can thus be no question that the accused at this time was suffering and
was subject to delusions which incapacitated him from being conscious that what
he had done was wrong though he was aware of the nature of the acts committed
by him. These facts thus are not on the same footing as the facts in the cases
before the High Courts of Nagpur Bombay and Patna where the defence was
based merely on a sudden homicidal impulse said to have been suffered by the
accused and the insanity which was sought to be traced from the criminal acts
committed by the accused in those cases. Unlike those cases we have before
us evidence to suggest that the accused was suffering from symptoms of
unsoundness of mind as a result of the delusions and hallucinations suffered by
him. In these circumstances we are of the view that the evidence on record clearly
indicates one of the three alternative provided for in sec. 84 of the Penal Code
namely that though conscious of the nature of the acts committed by him the
accused was not in a position to appreciate and realise that the acts committed
by him were either wrong or contrary to law. In these circumstances the accused
is entitled to the benefit of the provisions of sec. 84.

The order of conviction and sentence passed therefore by the learned Sessions
Judge Sorath on the accused must be set aside and the appeal must be allowed.
Though we acquit the accused he cannot be discharged at this stage from the
custody he is in. For his own security and that of others we propose that the
accused should be continued in jail until Government gets him examined by
the medical authorities of the State and till he is found by them sufficiently
fit to be released from jail custody. Under sec. 471 Criminal Procedure Code
the action that we have proposed and the order which we are making accordingly
should be reported to Government.
Order accordingly.
* * *
CRIMINAL APPELLATE
Before The Hon’ble Mr. Justice J. M. Shelat
and The Hon’ble Mr. Justice V. B. Raju
BABAR BECHAR & OTHERS v. THE STATE OF GUJARAT*
Indian Penal Code, 1860 - (Act XLV of 1860), Sec. 401 :-
What the prosecution should prove-Whether mere association of one
accused with the gang in the commission of only one offence sufficient-
Whether any offence of theft or robbery should be proved-Whether direct
proof by direct evidence necessary, and that all the members should be
members of the gang from the beginning-What is meant by ‘belong to’.
On the complaints of villagers of round about 12 villages, 53 persons were
tried for belonging to a gang of persons associated for the purpose of habitualy
committing offences of thefts, robberies and decoities committed regarding their
cattle by different accused on different dates between June, 1957 and Nov. 1958,
stolen cattle were resorted by some accused after payment of heavy ransom. The
Additional Sessions Judge, Kaira, convicted 12 accused and the rest were
acquitted. It was contended in appeal that as none of the appellants were
prosecuted for any theft or robbery, and as no express or implied agreement to
habitually commit thefts was proved by direct evidence, the convictions of the
appellants under Sec. 401 Indian Penal Code was bad in law.
HELD negativing the contentions, that to prove offence under Sec. 401 the
prosecution has merely to prove that the accused person belongs to a gang of
persons and that the gang of persons is associated for the purpose of habitually
committing theft or robbery. The word ‘belong’ implies something more than
casual association. But it is not necessary to prove the actual commission of any
offence of theft or robbery. It is also not necessary that the members of the gang
should be members right from the beginning.
Sec. 54 — Indian Evidence Act, 1872 (Act of 1872) and exception I
& II to that Section-When evidence of bad character relevant to prove
offence under Sec. 401 I. P. Code.
*Criminal Appeal Nos. 9 and 10 of 1960 decided on 23rd-27th June, 1960.

1960] BABAR BECHAR v. STATE OF GUJ. (C.A.)-Shelat, C.J. [35
HELD THAT if certain type of evidence is relevant ordinarily it does not matter
whether that evidence is tendered before or after other admissible evidence.
In cases under Sections 400 and 401 of I. P. C. general bad character of accused
is not a fact in issue. In such cases, evidence can be given of bad character insofar
as it is a fact in issue. The fact in issue in a case under Sec. 401 is a particular
trait of bad character namely association for the purpose of habitually committing
offences of robbery and theft. Evidence can be given of that particular trait of
bad character but not of general bad character.
Mankura Pasi and others v. Queen Empress (1), not approved.
Bhona v. Emperor (2), approved with Comments.
Emp. v. Tukaram (3), followed.
Emp. v. Motiram Hari (4), Bhima Shaw v. State (5), not approved.
Shri C. G. Shastri, for the appellants (appointed).
Shri B. R. Sompura, Assistant Government Pleader for the State.
RAJU J.
(1) His Lordship after narrating the facts in details and after considering
the defence of each individual appellant proceeded to discuss what the prosecution
should prove in a charge under sec. 401 I. P. Code.
(2)Before we deal with the evidence it would be desirable to state what
the prosecution has to prove in a charge under sec. 401 Indian Penal Code which
reads as under :-
“Whoever at any time after the passing of this Act shall belong to any
wandering or other gang of persons associated for the purpose of habitually
committing theft or robbery and not being a gang of Thugs or dacoits shall be
punished with rigorous imprisonment for a term which may extent to seven years
and shall also be liable to fine.”
As the section clearly mentions the prosecution has to prove that the accused
person charged under section 401 belong to a gang of persons and that the
gang of persons is associated for the purpose of habitually committing theft
or robbery. The word being implies something more than casual association
it involves the notion of continuity and requires the proof of more or less
intimate connection with a body of persons extending over a period of time
sufficiently long to warrant the inference that the person affected had
identified himself with the gang the common purpose of which was the habitual
commission of either theft or robbery. It would therefore not be sufficient
for the prosecution merely to rely upon the fact that an accused person had
associated himself with the gang in the commission of only one offence. The
prosecution must also prove that the members of the gang were associated
for the purpose of habitually committing theft or robbery. It is not necessary
for the prosecution to prove the actual commission of any offence of theft or
robbery. If the prosecution is able to prove that the common purpose for
(1) I.L.R. 27 Cal. 139 (2) I.L.R. 38 Cal. 408 (3) 14 Bombay L.R. 375
(4) 26 Bom. L.R. 1223 (5) A.I.R. 1956 Orissa 17

which the members of the gang were associated was to habitually commit the
offence of theft or robbery then the prosecution would succeed even though it
dose not lead evidence to prove the actual commission of an offence of theft
or robbery. But the purpose for which the members of the gang were associated
is usually not a matter of direct proof by direct evidence and is generally a
matter of inference from the facts circumstances proved and acts done by the
accused. Usually if the prosecution proves that the members of the gang were
associated in the commission of several offence of thefts or robbery an inference
may well be drawn that the purpose of the gang was to habitually commit offences
of theft or robbery. It is also not necessary that the members of the gang should
be members right from the beginning. An accused person may join a gang
sometime after the gang had been formed. But if it is proved that a person
subsequently joined and belonged to a gang of person associated for the purpose
of habitually committing theft or robbery he would be guilty under sec. 401
I. P. Code although he may not have been a member of the gang from the
beginning. As already observed the association of the members must be for the
purpose of habitually committing offences of theft or robbery. The evidence of
the prosecution that a person was associated with the gang for the purpose of
committing other offences for instance offence of demanding or taking ransom
or of being in possession of stolen property would not be sufficient to justify
his conviction under sec. 401 Indian Penal Code.
(3) (After narrating the fact his Lordship then considered whether
the evidence of general bad repute is admissible or not and proceeded.)
Evidence of general bad repute is a type of evidence of general bad character.
It is provided in Sec. 54 of the Evidence Act that in criminal proceedings
the fact that the accused person has a bad character is irrelevant unless
evidence has been given that he has a good character in which case it becomes
relevant. Exception 1 to section 54 provides that this section does not
apply to cases in which the bad character of any person is itself a fact in issue.
Exception 2 to Sec. 54 provides that a previous conviction is relevant as
evidence of bad character. It is therefore. clear that evidence of bad character
is relevant only when evidence has been given of good character of the accused
and in cases where the bad character of the accused is itself a fact in issue.
In Mankura Pasi and others Vs. Queen Empress I.L.R. 27 Calcutta 139 it is
held relying on 17 W. R. Cr. 50 that the character of the accused not being
a fact in issue in the offence of belonging to a gang of persons associated
for the purpose of habitually committing theft punishable under sec. 401 of
the Indian Penal Code evidence of bad character or reputation of the
accused was inadmissible for the purpose of proving the commission of
that offence. But in Bhona Vs. Emperor I.L.R. 38 Calcutta 408 it has
been observed that in cases where the other evidence has established association
for the purpose of habitually committing theft evidence of previous convictions
whether for offences against property or for bad livelihood has always
been admitted not as evidence of character but as evidence of habit. It was also
observed that Such evidence must of course be weighed. A single instance
of theft for instance would count for little or nothing. There must be at

1960] BABAR BECHAR v. STATE GUJ. (C.A.)-Shelat, C.J. [37
least two or more cases against the same individual to show habit. It was also
observed that to hold that the evidence of such previous convictions was
inadmissible is clearly against the weight of authority in the Calcutta High Court.
But even in I.L.R. 38 Cal. the question which was considered was whether
evidence of previous convictions was admissible and it was held that the evidence
of previous convictions was admissible in the case of an offence under sec. 401
of the Indian Penal Code not as evidence of character but as evidence of habit.
Imliedly therefore even in this the it was held that in a case under sec. 401 I. P.
Code evidence of bad character is not admissible but it was held that because in
a case under section 401 I. P. C. habit has to be proved previous convictions may
be admissible to prove habit of committing offences of theft. The case reported
in I.L.R. 38 Cal. 408 was referred to in Emperor v. Tukaram Malhari, 14 Bombay
Law Reports p. 373 and the same view was taken in Emperor Vs. Motiram Hari
26 Bombay Law Reporter 1223 The evidence of Ramanbhai Devjibhai is not
evidence of previous convictions for theft but of general reputation or of general
bad character of the accused referred to by the witness and is therefore
inadmissible in evidence. The decision of the Calcutta High Court (I. L. R. 38 Cal
408 was partly commented on in 14 Bombay Law Reporter 373 and particularly
the following passage in the Calcutta decision :-
“In cases where the other evidence has established association for purposes of.
habitually committing theft evidence of previous convictions whether for offences
against property or for bad livelihood has always been admitted not as evidence
of character but as evidence of habit.”
(4)The learned Judges of the Bombay High Court observed that for the
purpose of the appeal before them it was not necessary that they should go a
step further than the Calcutta High Court when in I. L. R. 38 Cal. 408.
Their Lordships were however of the view that it was not necessary for the
admission of evidence of previous convictions that the prosecution should have
first affirmatively established the association for the purpose of habitually
committing theft. Their Lordships of the Bombay High Court were also of the
view that where the question is as it is under sec. 401 Indian Penal Code whether
a party of accused persons constituted a gang of persons associated for the
purpose of habitual theft evidence that each individual of that party is a convicted
theft is relevant evidence for the purposes of that question and whether that
evidence is tendered before or after the prosecution have established the association
is a matter of no particular moment. With respect we agree that if certain type
of evidence is relevant ordinarily it does not matter whether such evidence is
tendered before or after other admissible evidence but at the same time evidence
of previous convictions being evidence of bad character is admissible under sec.
54 of the Evidence Act only when bad character of the accused is a fact in issue
or when evidence has been given of good character. Under sec. 401 Indian Penal
Code bad character of the accused is not a fact in issue. In view of sec. 54 of
Evidence Act in cases where evidence of good character has been given evidence
cannot be given of bad character when bad character is merely a relevant fact
and not a fact in issue of course to prove the purpose of association of the gang
or habit of committing thefts evidence can be given of commission of other

thefts. In such cases under Explanation 2 to sec. 54 of Evidence Act

evidence can be given of previous convictions for theft.
(5) In some cases the view was taken that in a prosecution under sec. 400
or 401 Indian Penal Code the bad character of the accused is a fact in issue.
Vide A.I.R. 1956 Orissa 177 and the cases cited there. With great respect even
in cases under sec. 400 or 401 Indian Penal Code the general bad character
of the accused is not a fact in issue but only a particular trait of bad character
namely association with others for the purpose of habitually committing offences
of dacoity or robbery or theft. The effect of explanation I to sec. 64 Evidence
Act is to cancel the effect of sec. 54 in cases where the bad character of the
accused is a fact in issue. In the absence of Explanation 1 to sec. 54 Evidence
Act evidence of bad character of an accused would not have been admissible
even when at was fact in issue because the main part of sec. 54 Evidence Act
provides that the bad character of an accused is irrelevant in criminal proceedings.
The effect of Explanation 1 to sec. 54 is to allow evidence of fact in issue
to be given even in cases where the fact in issue happens to be the bad character
of an accused. In criminal proceedings evidence of general bad character of an
accused cannot be given unless general bad character of the accused is a fact
in issue or unless evidence has been given of his good character. In cases under
Sec 400 and 401 Indian Penal Code general bad character of accused is not
a fact in issue In such cases evidence can be given of bad character in so far
as it is a fact in issue The fact in issue in a case under sec. 401 is a particular
trait of bad character namely association for the purpose of habitually committing
offences of robbery or theft. Evidence can be given of that particular trait of
bad character bug not of general bad character. In such a case evidence cannot
be given that the accused is a murderer or immoral person or a cheat.
(The rest of judgment is not material for this reports).
* * *
Before The Hon’ble Mr. S. T. Desai, Chief Justice
and the Hon’ble Mr. N. M. Miabhoy
MADANLAL MATHURDAS v.
MR. CHUNILAL, INCOME TAX OFFICER*
Indian Income Tax Act-Section 34-Notice for reopening assessment-Notice
issued before expiry of 8 years-Effect of amendment of Sec. 34(1) by
Amending Act of 1956-Expression “issue” and “notice” cannot be equated-
Notice held valid.
The notice under Sec. 34 of the Indian Income Tax Act was issued
on 24th March, 1958 and served on the petitioner-assessee on 2nd
April, 1958 for reopening the assessment for the assessment year 1949-
1950 and to make a new return thereof. The petitioner contended that
in the substantive part the Section lays down that the Income Tax Officer
*Decided on 14-6-1960. Special Civil Application No. 9 1960.
(Under Article 226 of the Constitution of India)

1960] MADANLAL v. CHUNILAL INCOME-T. O. (S.C.A.)-Desai, C.J. [39
shall serve the notice on the assessee and the proviso states that he shall not
issue the notice if 8 years have expired after the year of which the assessment
is to be reopened and therefore the notice must not only be issued but also be
served within the statutory period of 8 years.
HELD THAT after the amending Act of 1956 the relevant parts of Section
34(1) read with their proviso relating to time limit - seem to us to be plain and
certain and we do not read in them any uncertainty or obscurity. We have to read
this expression “issue” in the initial part of the proviso in the context and the
setting in which it finds place. The proviso must be read as a whole and in a
manner as would give fullest effect to sub-clauses of the proviso what is more
important in the collocation of and in a manner harmonious with the substantive
part of the Section which states that the notice must in any such case be served
on assessee in time. This is sufficient to show that notice served on petitioner
was valid and effective.
Commissioner of Income Tax, Bombay South, Bombay v. D.V. Curve
1957 (59 Bombay Law Reporter 433 distinguished as it was based on the
provisions of the Act before its amendment in 1956).
Debbi Datt Moody v. Belan & Ors. (35 Income Tax Reports 781), followed.
Special Civil Application no. 9 of 1960 , decided on 14-6-1960. Application
praying under Article 226 of the Constitution of India that a writ setting aside
the Order dated 26-11-1958 passed by the Income Tax Officer,
Ward ‘C’, Rajkot be issued etc.
Mr. H. C. Shah, for the Petitioner.
Mr. J. M. Thakore, Advocate General for the Opponent.
The following Judgment was delivered by :-
DESAI C. J.
(1) A question of some importance has been raised before us on this
petition and the question relates to the interpretation of the provision
imposing time-limit for issuance of a notice under Section 34 of the
Income-tax Act. A notice under that Section was served on the petitioner on
2-4-1958 intimating that his income for assessment year 1949-1950 had escaped
assessment and the competence of the Income-tax Officer to issue the
same is challenged on the ground that the notice was served after the
expiry of the statutory period of eight years. The petitioner is a resident of
the former Gondal State which become a part of Saurashtra on 1st April, 1948
The State of Saurashtra promulgated any Ordinance (IX of 1949) dated 19th
March, 1949 whereby income-tax was imposed in that States as there in laid
down. The petitioner was doing business in the name of Messrs. Indian Industries
at Gondal and was also carrying on business at Rajkot. For the assessment year
1949-1950 he was assessed under the Saurashtra Income-tax Ordinance by the
Income-tax Officer, Madhya Saurashtra Circle Rajkot. The State of Saurashtra

became a part of the State of Bombay after the Constitution came into operation
on 26th January 1950. The Indian Finance Act 1950 was enacted by the Central
Parliament and received assent of the President on 31 March, 1950. The
integration of the State of Saurashtra with the Union of India came into effect
on and from 1st April 1950. It is not now disputed before us that the present
case is governed by the Indian Income-tax Act. But what is disputed is that
the notice served on the petitioner under sec. 34 of the Act is beyond the period
of limitation prescribed in that section. It is not necessary therefore to discuss
the applicability of the Indian Income-tax Act to the case of the assessee or
to refer to section 3 of the Indian Income-tax Act which extended the Indian
Income-tax Act to the State of Saurashtra.
(2) the Income-tax Officer Ward-B Rajkot issued a notice on the petitioner
on 24th March 1958 intimating that he had reason to believe that the income
of the assessee for the year 1949-50 had escaped assessment and he therefore
intended to reopen the same and by that notice he also required the petitioner
to make a new return for the assessment year 1949-50. The notice which was
issued on 24th March 1958 was served on the petitioner on 2nd April 1958.
These two dates as we shall presently point out have material bearing on the
contention pressed before us by Mr. Hiralal Shah learned Counsel for the
Petitioner. On receipt of the notice the petitioner carried on some correspondence
with the Department and in that correspondence he raised two contentions. One
contention was that the Income-tax Officer who issued the notice was not the
officer duly authorized to do so. That point of authority of the Income-tax Officer
has been raised in the petition but Mr. Shah has not pressed it before us in
view of certain Notification to which our attention has been drawn by the learned
Advocate General who appears for the Revenue.
(3) The other point and one which has been strenuously urged before us
by learned Counsel is that the notice is bad and inoperative as it was given
after expiry of eight years which is the period of limitation for the same laid
down in section 34. A notice served on an assessee under sub-section (1) of
section 34 after eight years for any year if eight years have elapsed after the
expiry of that year it is urged would be beyond the period prescribed by the
section and therefore beyond the competence of the Income-tax Officer. It will
be convenient to set out here the relevant part of section 34(1) and the first
Proviso to that Subsection.
“34(1)- If
(a) the Income-tax Officer has reason to believe that by reason of
the omission or failure on the part of an assessee to make a return
of his income under section 22 for any year or to disclose fully
and truly all material facts necessary for his assessment for that year
in come profits or gains chargeable to income-tax have escaped
assessment for that year or have been under-assessed or assessed at
too low a rate or have been made the subject of excessive relief under
the Act or excessive loss or depreciation allowance has been computed
or

1960] MADANLAL v. CHUNILAL INCOME-T. O. (C.A.)-Desai, C.J. [41
(b) ...he may in cases falling under clause (a) at any time and in cases year serve
on the assessee or if the assessee is a company on the falling under
clause (b) at any time within four years of the end of that principal
officer thereof a notice containing all or any of the requirements which
may be included in a notice under sub-section (2) of section 22 and
may proceed to assess or re-assess such income profits or gains or
recomputed the loss or depreciation allowance and the provisions of
this Act shall so far as may be apply accordingly as if the notice were
issued under that sub-section :-
Provided that the Income-Tax Officer shall not issue a notice under
clause (a) of sub-section (1)
(i) for any year prior to the year ending on the 31st day of March 1941
unless the income profits or gains chargeable to income-tax which
(ii) for any year if eight years have elapsed after the expiry of that year
have escaped assessment or have been under-assessed or assessed at too
low a rate or have been made the subject of excessive relief under this
Act or the loss or depreciation allowance which has been computed in
excess amount to or are likely to amount to one lakh of rupees or more
in the aggregate either for that year or for that year and any other year
or years after which or after each of which eight years have elapsed not
being a year or years ending before the 31st day of March 1941.
(iii) for any year unless he has recorded his reasons for doing so and in
any case falling under clause (ii) unless the Central Board of Revenue
and in any other case the Commissioner is satisfied on such reasons
recorded that it is a fit case for the issue of such notice.”
(5) Now the argument on behalf of the petitioner is that in the substantive
part the section lays down that the Income-tax Officer shall serve the
notice on the assessee and the proviso states that he shall not issue the notice
if eight years have expired after the year assessment for which is to be reopened,
and therefore, the notice must not only be issued but also be served within the
statutory period of eight years. The argument has proceeded that the notice having
been served on the assessee after 31st March 1958 is outside the time-limit and
therefore invalid and inoperative.
(6) In the substance and in effect therefore the argument requires us
to equate the expression “issue” in the first proviso to sub-section (1) of
section 34 with the expression “serve” in substantive part of that sub-section
support of this argument Mr. Shah has leaned heavily on a decision of
Chief Justice Chagla and Mr. Justice Tendolkar in Commissioner of Income-tax
Bombay South Bombay v. D. V. Ghurve, (1957) 59 Bombay Law Reporter 433.
He has in particular drawn our attention to certain observation of the
learned Chief Justice where he has stated that it was more appropriate that
the expression “issued” used in the first part of the first proviso to section 34(3)
of the Income-tax Act should be equated with the expression “serve” used
in section 34(1), of the Act. Unquestionably the expression “issued” has
been used in the first part of the first proviso to section 34(3) and the
expression serve is used in section 34(1) of the Act. Unquestionably again,
the two expression “issued” and “serve” have been there held to be such

as could be equated one with the other. But it does not follow from that decision
nor could it possibly have been intended in that decision to suggest that the
expression issue in the first proviso to sec. 34(1) could be equated with the
expression serve and that for the obvious reason that this proviso did not and
could not apply to that case and had not to be considered when that decision
was given Even so it is urged that the decision in that case supports the contention
of the petitioner when he asks us to equate the expression issue in the initial
part of the proviso to sec. 34(1) with the expression serve in the substantive
part of that sub-section. In that decision the notice that came up for consideration
was in respect of escaped income for the year 1943-44 and had been issued
on March 20 1952 and served on the assessee on April 16 1952 and the notice
had to be examined by applying the law prior to the amendments made in the
section in 1956. The language of sec. 34(1) which we have set out above is
now different in a material respect from the language of sec. 34(1) as it stood
prior to the amending Act of 1956. Moreover the proviso which we have set
out above was not part of sec. 34 and had not to be considered by the Court
in that case. It is not necessary to set out the language of sec. 34(1)(a) as it
stood prior to its amendment in 1956 as nothing turns on the same. The crucial
change is in the words which prior to that amendment followed upon Clause
(b) of sec. 34 (1) and we shall only set out the same :-
“....he may in cases falling under clause (a) at any time within eight years
and in cases falling under clause (b) at any time within four years of the end
of that year serve on the assessee a notice containing all or any of the requirements
which may be included in a notice under sub-section (2) of section 22 and may
proceed to assess.”
It is significant to note that in terms express and explicit that
latter part of sec. 34(1) laid down that in a case falling under clause (a)
the notice had to be served on the assessee at any time within eight years.
The relevant and material part of sec. 34(1) after the amendment of 1956,
it will be noticed leaves out the word “within eight years”, and it is these
words which have been left out in the section as amended which make
all the difference and go to defeat the argument of Mr. Shah. It was
necessary in a case to be determined by applying sec. 34(1), prior to the
amendment of 1956, that the notice in a case falling under clause (a) of
the sub-section should be served on the assessee within eight years of the
end of the year of which assessment was intended to be reopened. It
will be seen from the dates relating to that case that the notice under
consideration though it was issued on March 20 1952 i.e. within eight
years of the end of the relevant year had in fact been served on the
assessee on April 16 1952, that is after eight years of the relevant year
1943-44. The decision of their Lordships in that case turned primarily
and principally on the crucial words “at any time within eight years..... of
the end of that year.” An argument however was there urged on behalf
of the Revenue that the assessment had in fact been completed within
eight years as required by sec. 34(3). Here also we may point out there

is an amendment in the language of the section but it is not necessary to

discuss the same and it will suffice to state that the first proviso to
section 34(3) considered in that case ruled that where a notice under sub-
sec. (1) had been issued within the time therein limited the assessment to
be made in pursuance of such notice must be made before the expiry of
one year from the date of the service of the notice even if such period
exceeded the period of eight years or four years as the case may be It was
in negativing the argument advanced by the learned Advocate General on
behalf of the Revenue that the Court expressed the view that the expression
issue in the proviso to sub-sec. (3) should be equated with the expression “serve”.
It is true that the expression “issue” in the proviso to sub-section (3) of sec.
34 has been interpreted in that decision of the Bombay High Court relied on
by Mr. Shah. It is also true that as far as possible the same expression should
receive the same interpretation in the other parts of the same section. But the
Court in that case was considering the expression issue as used in section 34(3)
and in a different context and different collocation and that decision is therefore
clearly distinguishable. Any opinion of the learned Chief Justice and Mr. Justice
Tendolkar would be considered by this Court with the greatest respect; but the
provision which we are called upon to construe was not the provision which
they had to examine. Not only that but we are here though dealing with the
same section concerned with provisions which have been materially modified
and altered by the law-maker. It is not a question merely of some modification
of little importance in the section as it stood.
(6) We are here called upon to construe a very important proviso
which was incorporated in the section for the first time in 1956 and
which engrafted some important limitative provisions on the power of the
Income tax Officer to issue a notice under section 34(1)(a). We have before
us a provision which in terms states that the notice contemplated by section
34(1) in a case falling under clause (a) may be served on the assessee at any
time. Therefore, there is nothing in this part of the section which can be said
to lend the slightest support to the argument of Mr. Shah. Indeed it goes a
long way to negative that argument. Mr. Shah had therefore to fall back on
the sheer argument that the expression issue in the initial words of the proviso
should be equated with the expression serve notwithstanding the amendments
in the section and the insertion of the new proviso to sub-section (1). The
decision so strenuously relied on in support of the petitioners case cannot
advance the argument canvassed before us as the expressions “issue” and “serve”
had there to be read in a wholly different context. In the context and collocation
before us we must read the words as used correctly and exactly and not loosely
and inexactly and in the present context there is nothing to show that we should
prefer the loose and inexact meaning of these words by an impermissible
equation. As they now stand after the amendments of 1956, the relevant parts
of the section relating to time-limit seem to us to be pain and certain and we
do not read in them any uncertainty or obscurity. We have to read this expression
“issue” in the initial part of the Proviso in the context and the setting

in which it finds place. Then again the Proviso must be read as a whole
and in a manner as would give fullest effect to all the sub-clauses of the
Proviso and what is more important in the collocation of and in a
manner harmonious with the substantive part of the section which states that
the notice may in any such case be served at any time. These considerations
are sufficient to show that the notice served on the petitioner was valid and
effective.
(7) A feeble attempt was made by Mr. Shah to rely on clause (ii) of
the proviso. It was suggested that the words in the beginning of that
sub-clause for any year if eight years have elapsed after the expiry of that year
refer to the expiry of the accounting year of the assessee and not the assessment
year. In our judgment there is no warrant for this contention. Reading of sec.
34 as a whole as well as the meaning of the expression year in the present
context and the present setting necessarily lead to the conclusion that the year
contemplated is the assessment year and not the accounting year or the previous
year of the assessee.
(8) The scheme and the object of these limitative provisions of section
34 even if it were necessary to examine the same go to support the conclusion
reached by us. Confining our observations to clause (a) of sec. 34 the scheme
of that sub-section is that if Income-tax Officer has reason to believe that
any income has escaped assessment in cases falling under the same he may
at any time serve the requisite notice on the assessee and proceed to assess
such escaped income. The proviso engrafts certain safeguards on that rule. Clause
(a) puts an embargo of time on the exercise of the very wide power conferred
on the Income-tax Officer. Obviously there had to be a limit to the exercise
of this power in case of old assessments and some reasonable limit had to
be prescribed and the limit enacted by the Legislature is that assessment for
any year prior to the 31st of March 1941 is not to be disturbed. Clause (ii)
of the proviso is intended to lay down another safeguard against the exercise
of the wide power conferred on the Income-tax Officer. In case of any year
later than 1941 the question may arise of assessment of escaped income after
10 or 15 or even more years. Such cases would not be covered by clause
(i). The Legislature has divided such cases of escaped income by reference
to the amount of escaped income. The power to issue a notice in case of
any such year can only be exercised if the amount of income which has escaped
assessment or in respect of which excessive relief has been granted or excessive
depreciation granted amounts or is likely to amount to rupees one lakh or
more in the aggregate. Where it is not likely to amount to one lakh of rupees
or more i.e. is less than one lakh of rupees the time-limit of eight years
would operate. In such a case the matter would be governed by the initial
words of the proviso read with the first part of clause (ii) for any year if
eight years have elapsed after the expiry of that year with the result that in
any such case the Income-tax Officer would not have the power to issue any
notice under clause (a) of sub-section (1). Clause (iii) of the Proviso imposes
a further safeguard against any arbitrary exercise by an Income-tax Officer
of the power conferred on him by section 34. In any case the Income-tax

1960] GANDA KALA v. BOM. STATE R. D. (S.C.A.)-Desai, C.J. [45
Officer must record his reasons and in every case falling under clause (ii)
i.e. where he wants to issue a notice under clause (ii), he must get the
sanction of the Central Board of Revenue and in any other case that of
the Commissioner, that it is a fit case for issuance of such notice.
(9) The learned Advocate General has drawn our attention to a decision
of Mr. Justice D. N. Sinha in Debi Dutt Moody v. Belan & Ors., reported in
35 Income Tax Reports 781. The learned Judge has there taken the same view
which we are taking in this case.
(10) For all these reasons, the contentions urged before us must be negatived.
(11) In the result, the petition will stand dismissed and the rule will be
discharged with costs. Costs are fixed at Rs. 200/-.
Rule Discharged.
* * *

Before the Hon’ble Mr. S. T. Desai Chief Justice,
PA, GANDA KALA AND OTHERS v.
THE BOMBAY STATE (REVENUE DEPTT.) AND OTHERS*
Saurashtra Land Reforms Act, 1951-Sec. 44(3)-Bombay Govt. Notification
No. 52 R 1058-11 dated 12th Dec. 1958-Not ultra vires powers of State
Govt. though it operates retrospectively-Intention of legislature-No conferment
of unlimited and unfettered right.
Petitioners, grantee of Chau-Hak rights under Saurashtra Land Reforms Act,
were directed by Bombay Govt. Notification dated 12th Dec. 1958 that the lands
be surveyed and the assessment as determined by such survey shall from 1-8-
1953 levied at the rate at which the assessment is fixed by the Mamlatdar under
Sec. 30(1) of the said Act. The petitioners challenged the Notification as ultra
vires the powers of the State as it operates retrospectively and also Sec. 44(3)
on the ground of discrimination between tenants and girasdars.
HELD THAT every Statute which takes away or impairs vested rights acquired
under existing laws or creates a new duty or touches a new disability in respect
of transactions already passed, must be presumed, out of-respect of the legislature
to be intended not to have retrospective operation.
The Court would lean in favour of prospective operation as against
any retrospective effect being given to the notification. This does not
mean that a provision of the nature under consideration must inevitably

(Under Article 226 and 14 of the Constitution of India).

have prospective consideration. The Court has to ascertain that intention

primarily from the language itself of the enactment and where there is
available intrinsic evidence of that intention, the Courts must be preferably guided
by the same.
The legislature has in sub-sec. 44 authorised the State Govt. to direct
that the assessment could be levied from a date prior to the date of the
notification, provided of course that the date was subsequent to the completion
of survey.
Sec. 44(3) is not ultra vires the Constitution and does not offend against
Art. 14 of the Constitution of India. relating to equality before law, as there
is nothing in the sub-section which can be said to bring the impugned
provision within the scope of the doctrine of conferment of unlimited and
unfettered powers, and which powers can be said such as to permit arbitrary and
capricious exercise of the same.
The differentiation between the position of tenant and girasdars is natural and
must be regarded as rational classification.
Application praying under Articles 226 and 14 of the Constitution of
India that a writ declaring that the Notification No. 52 R. 1058-111 of 1988
28 dated 12th December, 1958 by the Bombay Government is ultra vires be
given etc.
M/s. M. P. Thakkar and D. D. Vyas, for the Petitioners.
Mr. J. M. Thakor, Advocate General, with Mr. B. R. Sompura, A.G.P., for the Opponent
No. 1.
Mr. A. V. Mody for Mr. G. B. Joshi and Mr. N. B. Dave, for Opponent Nos.
2 and 3.
The following judgment delivered by :-
DESAI C.J.
(1) The principal question that arises on this petition lies in a narrow
compass and relates to the construction of Section 44(3) of the Saurashtra
Land Reforms Act, 1951 (No. XXV of 1951) That Act as is clear from its
various provisions was enacted primarily for the purpose of putting an end
to the Girasdari system and to regulate the relationship between the
Girasdar and their tenants to enable the latter to become occupants of the
land held by them and to provide for the payment of compensation to the Girasdars
for the extinguishment of their rights. Petitioners who are 73 in number cultivated
lands situated in Charkha in the Babra Taluka. Madhya Saurashtra District of
the State of Bombay. They were grantees from talukdars of what are known
as ‘Chav Hak’ rights, which put them in a status higher than that of an
ordinary tenant. Respondent Nos. 2 and 3 are Girasdars of the lands
cultivated by the petitioners within the meaning of the expression ‘Girasdar’
in Section 2(15) of the Land Reforms Act to be referred to by us as the
“Act”. According to the petitioners they had become full and absolute owners

1960] GANDA KALA v. BOM. STATE R. D. (S.C.A.)-Desai, C.J. [47
of the land by virtue of the grant in their favour and enjoyed full and
exclusive right as ‘Chav-Hak’ holders in respect of the land held by them. The
Act came in force in September 1951 and by operation of it all rights title
and interest of the Girasdars were extinguished and became vested in the State
and the tenants became occupants of the State in accordance with the provisions
laid down in the Act. Section 25 of the Act provides for the acquisition of
the occupancy rights by tenants on payment of the amount equal to six times
the assessment in respect of land held by them subject to certain restrictions
regarding Gharkhed etc. contained in Chapter IV of the Act. The petitioners
being grantees of ‘Chav-Hak’ rights enjoyed a status higher than that of ordinary
tenants and in various provisions of the Act reference is made to the higher
status of a grantee of such rights. Proviso to section 28 rules that a tenant who
has acquired ‘Chav-Hak’ shall acquire occupancy rights without any payment
as laid down in that section.
(2) It is the case of the petitioners that being ‘Chav-Hak’ holders they
applied for and obtained occupancy certificate without any payment of
compensation and became direct occupants of their holdings from the State. It
is also their case that as such direct occupants their rights and obligations began
to be governed by the provisions of Bombay Land Revenue Code and they became
liable to pay assessment only to the State.
(3) It will be convenient to set out here the provisions of section 44
in extenso. Although the point before us is really a short one considerable
argument has been advanced before us on behalf of the petitioners Girasias.
Section 44 is under :-
“Assessment :-
(1) For the purposes of this assessment shall mean in relation to any land until
the village in which such land is situated is surveyed and settled assess-
ment calculated on an arithmetic average of assessment leviable in the
surrounding and adjoining Khalsa or Assessed non Khalsa lands or villages.
(2) For the purpose of determining the assessment on any land the
Mamlatdar may hold an inquiry in the prescribed manner and fix the
assessment on such land and the assessment so determined shall be
published in such manner as may be prescribed :-
(3) Where any land is surveyed Government may by notification in the
Official Gazette direct that the assessment on the area of such land
as determined by such survey shall be levied at the late at which the
assessment is fixed by Mamlatdar under clause (b) of sub-section (1)
of section 30 from such date and in such manner as may be specified
in such notification and notwithstanding anything contained in this
Act the term assessment shall be construed accordingly in respect of
payment of compensation to be made under section 33 after the date
specified in such notification.
(4) Nothing contained in sub-section (3) or in any notification issued
thereunder shall affect -
(a) the land allotted to a Girasdar as respects its area or
(b) the land in respect of which an occupancy certificate has been
issued to a tenant as respects its area;

Before the date specified in the notification issued under sub-section (3)
(5) Where the amount of six times the assessment is paid by a tenant in re-
spect of such land and where after survey it is found that the land in re-
spect of such payment was actually less than that declared by the
Girasdar the amount so overpaid by the tenant shall be refunded to such
tenant and if it is found that such land actually more than that declared
by the Girasdar then the tenant shall be liable to pay to the Girasdar the
difference on account of the larger area.
Provided that where the assessment so calculated is manifestly unfair the
Government may modify it keeping in view the above principle.”
(4) Rules were framed entitled Saurashtra Land Reforms Rules 1951 relating
to the enquiry to be held by the Mamlatdar and the procedure to be followed
by him in the matter of determination of the assessment of any land under section
44. It is not necessary to refer to any of those rules since no argument before
us has turned of the same.
(5) The Act was amended by the amending Act XXXV of 1954 whereby
sub-sections (3) and (5) were added to section 44. Of this more hereafter. There
was a further amendment of section 44(3) whereby the words and settle in section
44(3) were omitted.
(6) On 12th December 1958 the State of Bombay promulgated a Notification
in exercise of the powers conferred on it by sub-section (3) of section 44. That
notification is as under :-
“Where as the lands in villages specified in the Schedule appended hereto
which the Saurashtra Land Reforms Act 1951 (Saurashtra Act No. XXV of 1951)
applies are surveyed;
Now therefore in exercise of the powers conferred by sub-section (3) of section
44 of the Saurashtra Land Reforms Act 1951 (Saurashtra Act XXV 1951 the
Government of Bombay hereby directs (1) that the assessment on the area of each
such lands as determined by such survey shall from the 1st August 1955 be levied
at the rate at which the assessment is fixed by the Mamlatdar under clause (b)
of sub-section (1) of section 30 of the said Act and (2) that such assessment shall
be levied of agricultural manner in which land revenue in respect of agricultural
land is levied and recovered in accordance with the provisions of the Bombay
Land Revenue Code as adopted and applied to Saurashtra and the rules
thereunder.”
It is evident and not disputable that the Notification promulgated on
12 December 1958 lays down that the assessment on the lands in specified
villages including lands of tenants who were Chav-Hak holders was to be
levied at the rate mentioned therein from 1st August 1955. It is equally
evident that the Notification was promulgated after the survey of the land
has been completed. There was some suggestion that there might have been
a survey of some of the lands after 1st August 1955 but there is nothing
on the record to show that the survey of any land took place after 1st August
1955 nor has any such contention been seriously raised before us on behalf
of the petitioners.

(7) It has been argued before us by learned Counsel for the petitioners
in this petition and also in petition No. 45 of 1960 in which identical contentions
are raised that section 44 (3) of the Act does not empower the Government
to direct that the assessment on the area of the land determined by the survey
shall be levied from any date prior to the promulgation of the Notification.
Considerable stress is laid on the words shall be levied in sub-section (3).
It is urged that the assessment could be levied on the area as surveyed only
from the date of the Notification and not from any earlier date and the
Government having done so by the Notification acted in excess of its powers.
In substance and in effect we are asked to read the sub-section in a limitative
manner and prospectively. There was a feeble suggestion at one stage of the
argument that section 44 (3) itself was ultra vires the Constitution as it enacted
a Provision which had retrospective operation. That was however not persisted
in and the argument before us has principally centered round the point that
the Notification operates retrospectively and is on that ground ultra vires the
powers of the State Government.
(8) At first blush this argument of retroactivity may seem rather attractive
but loses all force when one has regard to the scheme and object of the provisions
of the Act relating to assessment and particularly to the provisions of sec. 44
itself which expressly deal with the topic of assessment.
(9)The learned Advocate General has taken us through a number of
sections of the Act for the purpose of pointing out the scheme of the Act and
also the object of the relevant provisions relating to assessment. We shall mention
only some of those sections. Section 10 relates to land revenue payable by a
Girasdar and lays down that Girasdar shall in respect of any land for which
rent is payable to him by a tenant be liable to pay to the Government as land
revenue a sum equal to twelve and half per cent of the assessment on that land.
Section 28(1) relates to acquisition of occupancy rights by tenants and rules that
: “Subject to the provisions contained in Chapter IV of this Act a tenant shall
at any time be entitled to acquire occupancy rights in his holding on payment
of such amount as shall be equal to six times the assessment payable in respect
of the agricultural land included in such holding and may apply in the prescribed
form to the Mamlatdar for acquiring such right”. The proviso to the sub-section
lays down that : “Provided that a tenant who has acquired chav or buta hak
shall acquire such rights without any payment”. Section 28(2) relates to
an application to be made under section 28(1) and prescribes the particulars
to be given in the application. Clause (f) of sub-section (2) of section 28
requires a tenant to state to state in his application whether he holds
‘Chav-Hak’ or Buta Hak in respect of any land and if so the area of such
land. A tenant of a holding having Chav or ‘Buta-Hak’ also had to make
an application to the Mamlatdar as required by sec. 21 and state therein
the area of his holding. Sec. 29 relates to enquiry in the matter of
these applications by the Mamlatdar and sec. 30 relates to issuance of occupancy
certificate to tenants. Sub-sec. (1) of sec. 30 rules that the Mamlatdar may,
after making such enquiry as may be deemed necessary pass an order specifying
therein the holding or the part thereof in respect of which the tenant may

be declared to be an occupant i.e. in respect of his occupancy holding and

inter-alia the assessment on such occupancy holding. This assessment
obviously could be on the footing of the area mentioned by the tenant himself
in his application under section 28 for the purpose of acquisition of occupancy
rights. The lands had not been surveyed and the area for the purpose of assessment
had to be taken from the declaration made by the tenant himself since the survey
under the Act was to take place later in accordance with the provisions of the
Act. Section 31 relates to the consequences of issuance of an occupancy certificate.
It rules inter-alia that the tenant shall in respect of the holding become an
occupant holding directly from the State and shall have all the rights and
obligations of an occupant under the Act and under the Code in respect of the
holding. Section 33 relates to payment of compensation. We do not here refer
to any provisions of that section since as we have already mentioned the
petitioners being ‘Chav-Hak’ holders had not to pay any compensation. Section
36 enacts that on payment by the Government of compensation the rights of
the Girasdar were to become extinguished. Since we are examining the scheme
of the provision of the Act relating to assessment we may also mention that
section 39 relates to Girasdars rights vis-a-vis the State as occupants of certain
lands in respect of which they were entitled to occupancy certificate. That was
in respect of Gharkhed lands. Section 2(14) defines Gharkhed to mean “any
land reserved by or allotted to a Girasdar before the 20th May 1950 for being
cultivated personally and in his personal cultivation”.
A further argument urged before us by Mr. Nanavati in assailing the
constitutionality of provisions of section 44(3) is that there is discrimination
created and for which discrimination there is no reasonable basis.
(10) The argument of the learned Advocate General has proceeded that
when one has regard to the relevant provisions of the Act it becomes clear
that in section 44 the Legislature has enacted for determination of assessment
which legislation cannot really be said to operate retrospectively. Reliance has
been placed on sub-section (1) for the purpose of showing that until the village
in which the land of a tenant is situated is surveyed and settled assessment
is to have the meaning therein given. Then there is the stage of enquiry to
be held by the Mamlatdar in the prescribed manner and the Mamlatdar has
to fix the assessment on the land of the tenant. All this it has been urged
would be prior to the survey of the land. Sub-section (3) which is the crucial
provision speaks that the assessment ‘shall be levied’, but that, it is argued
is because the assessment is to be levied after the land is surveyed. The
argument ran that such being the position some date had of necessity to be
fixed for the purpose of levy of assessment. The levy could be after the
survey of all the land was completed and the survey was bound to
take considerable time. In such circumstances it was felt by the Legislature
that the Government should have the power to levy the assessment from
such date and in such manner as may be specified in the Notification
and the power could be validly exercised so long as the date fixed was after
the completion of the survey. In such a case it would not be quite accurate
to say that the Notification has operated in any retrospective manner and

to the prejudice of the tenant by subjecting him to any additional levy of

assessment. Reliance has also been placed by learned Counsel on sub-section (4)
and in particular on the words before the date specified in that sub-section.
Reference has also been made to sub-section (5) for the purpose of
showing that it was realised that the area as ascertained after the survey
would in some cases vary from that mentioned in the application for
occupancy certificate and the amount of compensation which was to be six
times the assessment would ultimately have to depend on the area as
actually ascertained as a result of the survey. There is in our opinion considerable
force in the argument advanced on behalf of the State.
(11) The argument on the other hand is that we are dealing with a
taxing provision and the provision must therefore be strictly construed that is
in favour of the citizen and against the taxing authority where a provision
is capable of more than one meaning. Of course we should prefer that
which would favour the subject. This position has been questioned by the
learned Advocate General and it is urged that the provision in sub-section (3)
cannot be regarded as a taxing enactment. In our opinion it makes no difference
whether the provision can be strictly described as a taxing provision or not.
In any case it deals with the levy of an assessment and we would prefer to
interpret it rather strictly than otherwise. There is also in our judgment the
element of some retroactive operation in the Notification and that is a factor
which must be borne in mind by the Court.
(12) Every statute it has been said which takes away or impairs vested rights
acquired under existing laws or creates a new obligation or imposes a new duty
or touches a new disability in respect of transactions already passed must be
presumed out of respect to the Legislature to be intended not to have retrospective
operation. Any such law is offensive to the principle of sound and just legislation.
This rule embodies the maxim omins nova constitution futures foreman imponere
debet non practeretes. We would lean in favour of prospective operation as against
any retrospective effect being given to the Notification. This does not however
mean that a provision of the nature under consideration must inevitably have
prospective operation. Our task being one of ascertainment of the intention of
the law-maker as expressed we have to ascertain that intention primarily from
the language itself of the enactment and were there is available intrinsic evidence
of that intention we must preferable be guided by the same. We make this
observation at this stage because in our opinion there is some such intrinsic
evidence furnished by sub-section (4) of the section.
(13) We must look at the general scope and purview of the Act and
also bear in mind the object of it albeit to be gathered in a manner consonant
with established canons of construction. We must have regard to the remedy
if any created by the section and also to the position as to assessment as it
abided and to the change or modification sought to be made therein by the
law-maker. The assessment mentioned in the occupancy certificate in case of
the petitioners before us as in case of all other tenants who applied for
occupancy certificate quod area could only be on the footing of what was

stated by the tenants in their application There would be no justification for

assessment on the footing of that area once the land was actually surveyed and
it was precisely for that reason that in our judgment the Legislature
authorize the Government by sub-sec. 3 of sec. 44 to direct that the
assessment shall be levied from a specified date after there was survey of
the land. The language of section 44(3) read in the background which we have
already summarized and the context of the relevant provisions relating to
assessment which we have mentioned leads in our judgment to the conclusion
that the Legislature has in subsection (3) of section 44 authorized the State
Government to direct that the assessment could be levied from a date prior to
the date of the Notification provided of course that the date was subsequent to
the completion of the survey. The present contention of the petitioner must
(14) The constitutionality of section 44(3) has been assailed before us
on the ground that it is ultra vires the Legislature. It is said that by this
section the legislature has given unlimited power to the Government and
the power is capable of arbitrary exercise. It is also said that the power
has been granted without any rule of guidance and any rule regulating the
same and is therefore in violation of the constitutional guarantee in Article 14.
It is also said that sub-section (3) left the fixing of the date to the unfettered
discretion to the State Government. We do not think the argument to be tenable
if regard is had to the setting in which sub-section (3) to section 44 has been
enacted. We need not repeat what we have already said which examining the
principal argument urged on behalf of the petitioner and it will suffice to say
that we are unable to read anything in the sub-section which can be said to
bring the impugned provision within the scope of the doctrine of conferment of
unlimited and unfettered powers and which powers can be said to be such as
permit arbitrary and capricious exercise of the same. The present contention urged
on behalf of the petitioner must also be negatived.
(15) The constitutionality of section 44(3) has also been assailed be fore
us on the ground that the survey included both Khalsa and non Khalsa lands
but the Notification does not affect Khalsa lands. It is urged that there is
no reasonable basis for this discrimination and on that ground the section is
ultra vires the Constitution. This contention has not been raised in the present
petition but it has been raised in the Special Civil Application No. 45 of 1960.
It is true that the Notification does not embrace occupants of Khalsa villages
of which there was a survey. But we do not agree that the fact that Khalsa
villages has also been surveyed results in any unreasonable classification. The
occupants of Khalsa villages became liable to pay assessment as and when their
villages were surveyed and those villages are not shown in the schedule annexed
to the Notification to the Land Reforms Act does not apply to the occupants
of Khalsa villages.
(16) It is lastly urged on behalf of the petitioner that discrimination has
resulted between tenants and Girasdars. It is true that three categories of
occupants have arisen as a result of the legislation. We have already mentioned
that persons who are tenants of Khalsa lands are not governed by the
Land Reforms Act. The Girasdars have been occupancy holders in respect of

1960] RAMJI v. MANILAL SOLANKI (S.C.A.)-Niabhoy, C.J. [53
certain lands. They have to pay assessment on the land allotted to them. The
positions of tenants has already been discussed by us in giving a resume of
the scheme of the Act. Both the tenants of the Girasdars as well as Girasdars
in respect of the lands reserved or allotted to them become occupants
under the provisions contained in the Act. From the very nature of things
and the incidents of their respective titles there was bound to be some
difference between the position of the tenants and that of the Girasdars.
Obviously, they could not be equated. That being the position, we cannot
see how it could have been possible to equate the tenant and the Girasdars
in every respect. The differentiation that is pointed out to us is natural and
must be regarded as rational classification. The present contention also must
(17) These are all the questions which have been canvassed before us in
this petition as well as in Special Civil Application No. 45 of 1960.
(18) In the result, the petition fails and will be dismissed with costs. Rule
discharged. The costs of respondent No 1 is fixed at Rs. 250/-. The costs of
respondent Nos. 2 and 3 is fixed at Rs. 100/- in one set.
Petition dismissed.
* * *

RAMJI UKABHAI PARMAR v. MANILAL PURUSHOTTAMDAS
SOLANKI & OTHERS*
Bombay Municipal Boroughs Act, 1925-Sec. 28(2)(b)-Does not abrogate
Rule of Natural Justice-Presumption-Quasi judicial officer bound to give
each of the parties opportunity to state his case-Dictum-Audi alterm partem.
‘A’ voter of Baroda filed an application against ‘B’, the Municipal Councillor
alleging that he had incurred disqualification to continue as a member of the
Municipality under Sec. 12 sub-sec. 2(b) of Bombay Municipal Boroughs Act.
After hearing the parties, the Collector of Baroda held that petitioner had incurred
disqualification. Against this order ‘ B ‘ preferred an appeal to the State of Bombay.
The Government without issuing any notice to the petitioner allowed the appeal
and set aside the order of the Collector of Baroda. Against that order of the
Government, petitioner filed a Special Civil Application in the High Court
claiming that the Government had voilated the fundamental principle of natural
justice. The Government objected to this application on the ground that though
function of the Government was of a quasi-judicial nature, it was not bound to
hear the party at every stage of the proceedings. The Government further
contended that the rule was applicable only to appellant and advantage of the
Rule could not be taken by the respondent.

HELD THAT the presumption is that the Legislature intended to respect

the rule of natural justice and if the contention is that the rule was in-
tended to be abrogated, then the provision must be either express or
necessarily implied.
That, there is nothing in sub-section (2) of Section 28 of Bombay Municipal
Boroughs Act, 1925, which justifies the submission that the Legislature intended
that the rule of natural justice should be abrogated except in the case of a
councillor in proceedings before the Collector.
That though a quasi- judicial officer acting in his appellate jurisdiction is not
bound to give a personal hearing to the appellant, he is bound to give an
opportunity to the appellant to state his case. This duty arises because, as a quasi -
judicial officer, the appellate authority is bound to act fairly and to give an
opportunity to each of the parties to correct any prejudicial statement, which have
been made by the lower authority against it.
That respondent has at least as much right to be heard and to state his own
case and to meet the case made out in the memo of appeal as the appellant has
a right of stating his case against the impugned order of the lower authority. In
fact, if the appellate authority were to decide the appeal without giving a notice
to the respondent, then, the appellate authority would be violating another and
equally important limb of the said principle which states that no adverse order
shall be passed against any person without that person being given an opportunity
of being heard.
Local Government Board v. Arlidge (1), Board of Education v. Rice (2),
Shivji Nathubhai v. Union of India (3), followed.
F. N. Roy v. Collector of Customs, Calcutta (4), The New Prakash Transport
Co. Ltd. v. The New Swarna Transport Co. Ltd. (5), distinguished.
Mr. S. N. Patel, for the petitioner.
Mr. M. R. Barot, for respondent No. 1.
Mr. B. R.. Sompura, A.G.P., for respondent No. 2.
MIABHOY J. The petitioner, Ramjibhai Ukabhai Parmar has obtained a
rule calling upon the respondent No. 2 to show cause why a writ of certiorari
should not issue to remove into this Court an order made by it allowing
an appeal preferred by respondent No. 1 on the ground that it had
violated a fundamental principle of natural justice. Respondent No. 1
Manilal Purshottam Solanki is a Councillor of the Baroda Borough
Municipality thereafter called the Municipality). Petitioner is a resident of
Baroda and claims to be a voter in the ward from which respondent No. 1
has been elected as a councillor. Petitioner case was that respondent No. 1 had
incurred a disqualification to be a member of the Municipality under Section
(1) 1915 Appeal Cases 120 (132) (2) 1911 Appeal Cases 179
(3) A.I.R. 1960 Supreme Court 606 (4) A.I.R. 1957 Supreme Court 648
(5) A.I.R. 1957 Supreme Court 232

1960] RAMJI v. MANILAL SOLANKI (S.C.A.)-Miabhoy, C.J. [55
12 sub-sec. (2) clause (b) of the Bombay Municipal Boroughs Act 1925
(hereafter called the “Act”) and has thus become disabled from continuing as
a councilor of the Municipality. Section 12 sub-section (2) clause (b) enacts
inter alia that no person who has directly or indirectly 9 by himself or his
partner any share or any interest in any employment with a Municipality
shall be a councilor of such Municipality. Section 28 sub-section (2) of the Act
mentions the authority who is competent to decide whether disqualification has
been incurred by a Municipal councilor or not and also prescribes the procedure
which is to be followed in any enquiry instituted for the purpose. The collector
has given to the power to decide such a question and sub-section (2) states that
the Collector may give his decision either on an application made to him by
any person or on his own motion. The case of the petitioner was that though
respondent No. 1 had given an ostensible divorce to one Bai Harkor in fact
Bai-Harkor was still his wife. It is an admitted fact that Bai Harkor was employed
by the Municipality as a “Safai Kamdar” in Babajipura Ward of the Municipality.
Petitioner alleged that Bai Harkor and respondent No. 1 resided and messed
together and that the income which Bai Harkor derived by way of salary from
the Municipality was the sole source of maintenance of respondent No. 1 and
his family. Petitioner also alleged that Bai Harkor had borrowed certain loans
from an institution which was run by the Municipality and that one of the loans
was taken by respondent No. 1 for reconstructing and repairing a certain house
belonging to him. Petitioner also alleged that respondent No. 1 had taken part
of procuring the loans for Bai Harkor and that some of the loans were granted
in contravention of the relevant rules of the institution run by the Municipality.
Acting on these allegations the Collector of Baroda decided to issue a notice
against respondent No. 1 to show cause why be should not be disqualified from
acting as a Municipal councilor and why a declaration should not be made that
a vacancy had arisen. Respondent No. 1 appeared before the Collector and
contested the petition. He denied all the important allegations made by petitioner
in his application to the Collector. The Collector held an enquiry and though
he found some of the important allegations not proved he came to the conclusion
on the basis of some facts which he held to have been proved that respondent
No. 1 was interested in the employment of Bai Harkor by the Municipality.
The Collector held that the petitioner had incurred the disqualification
mentioned in sec. 12 sub-sec. (2) clause (b) and therefore was disabled
from acting a Municipal councilor under sec. 28 sub-sec. (2) of the Act. On
these findings he declared that the seat of respondent No. 1 had become vacant
and that respondent No. 1 was disabled from sitting as a member of the
Municipality. Aggrieved by this order respondent No. 1 preferred an appeal to
the State of Bombay which figures as respondent No. 2 in this petition. A copy
of the memo of Appeal was not on the record of the present proceedings. Such
a copy was produced by respondent No. 1 at the time of the hearing and that
copy shows that the petitioner was joined in the memo of appeal as one of
the respondents along with the Collector of Baroda District. The respondent No.
2 however did not issue any notice to petitioner nor did it take any step to
hoar petitioner or any one else before deciding the appeal. By its order, dated

5 respondent No. 2 allowed the appeal and set aside the order of the
Collector of Baroda. The present writ petition is directed against this order of
respondent No. 2.
The main attack of petitioner against the impugned order is that respondent
No. 2 had violated a fundamental principle of natural justice in making the order.
The grounds on which the order is challenged are two. The second ground is
a corollary to the first. It is urged that it was the duty of respondent No. 2
to issue a notice of appeal to the petitioner before deciding the appeal and that
by its failure to do so the petitioner had been deprived of an opportunity of
meeting the case which respondent No. 1 had made out in his memo of appeal
it was urged that therefore respondent No. 2 had decided the appeal without
hearing the petitioner on the merits.
It is not disputed that an appeal lay to the respondent No. 2 from the decision
arrived at by the Collector under sub-sec. (2) of sec. 28 already referred to
above. In order to understand the contentions of the parties urged in this petition
it is necessary to reproduce sub-sec. (2) of sec. 28 :-
“In every case the authority competent to decide whether a vacancy has arisen
shall be the Collector. The Collector may give his decision either on an application
made to him by any person or on his own motion. Until the Collector decides
that the vacancy has arisen the councilor shall not be disabled under sub-section
(1) from continuing to be a councilor. Any person aggrieved by the decision of
the Collector may within a period of fifteen days from the date of such decision
appeal to the State Government and the Orders passed by the State Government
in such appeal shall be final :-
Provided that no order shall be passed under this sub-Section by the Collector
against any councilor without giving him a reasonable opportunity of
being heard.”
It is contended by the learned Assistant Government Pleader and by Mr.
Barot the learned Advocate for respondent No. 1 that the functions which the
State Government has to perform in an appeal under sub-sec. (2) of sec. 28
are quasi-judicial function. The contention of Mr. Patel the learned Advocate
for the petitioner is that this being so the State Government was bound to
give a notice of appeal to petitioner and give him a hearing before upsetting
the order of the Collector. On the other hand the learned Assistant Government
Pleader contended that though a quasi-judicial officer is bound to give an
opportunity to a person who is likely to be aggrieved by his decision to be
heard that rule does not apply at every stage of a quasi-judicial proceeding.
The contention was that this rule applies only at the first stage of any
quasi-judicial proceeding and that it did not apply at the further stages of
either an appeal or a revision. Secondly he contended he it even if the
rule applied to an appeal the rule was applicable only to an appellant and
the advantage of that rule cannot be taken by a respondent. It was
contended that as petitioner was in the position of respondent in the appeal
the Government was not bound to give an opportunity to the petitioner of
being heard. Mr. Barot raised a further contention. He Urged that though
petitioner was named as a respondent in the memo of appeal in the fact he
was not in the position of respondent and that he was not a necessary party

at all. He urged that the matter was between respondent No. 1 and
respondent No. 2 that the proceedings under sub-sec. (2) of sec. 28 are
not proceedings inter-parties that those proceedings are initiated before
the Collector not to vindicate any private or individual right but to ensure
the purity of Municipal administration and that if any order happens to be
passed in such proceedings the ordinary citizen even though he may be a
voter is not entitled to be heard.
It is well settled that it is the duty of a quasi-judicial officer to act without
any bias in the discharge of his duties and that he must act in fair and proper
manner when dealing with any matter which he is called upon by law to decide
in a quasi-judicial manner. In other words it is the duty of the quasi-judicial
officer to act judicially. This duty has been interpreted to be one which requires
the quasi-judicial office to give each of the parties to a dispute an opportunity
of adequately presenting his case. Viscount Haldane has described this duty in
Local Government Board v. Arlidge, 1915 Appeal Cases 120 at page 132 as a
duty which requires the officer concerned to decide the case 4 in a proper spirit
and with the sense of responsibility of a Tribunal whose duty it is to meet
out Justice. This well settled rule of English Law is based upon a well-known
maxim audi alteram partem which in some text books has been loosely translated
as meaning that no person shall be condemned unheard. Broom in his well-
known work on Legal Maxims has described this rule as one which requires
that no one shall be condemned punished or deprived of his property in any
judicial proceeding unless he has had an opportunity of being heard. As already
stated these well-known principles are not challenged either by the learned
Assistant Government Pleader or by Mr. Barot. It is equally well settled that
though the Courts act on the fundamental principle of natural justice when
scrutinizing the decisions of quasi-judicial officers that rule is subject to a
provision to the contrary being enacted by the Legislature. It is open to the
Legislature in any particular case to prescribe that the aforesaid rule of natural
justice may not be followed in a particular case or kinds of case and if the
Legislature so enacts the Court whatever may be its own personal view in the
matter has got to respect a direction of the Legislature. This is also a well-
known rule and is not challenged by Mr. Patel on behalf of petitioner. However
before it can be held that the Legislature has prescribed a rule to the contrary
it is necessary that the rule must be explicit or must follow by a necessary
implication. In the absence of any such explicit or implied rule the presumption
shall always be that the Legislature intended the quasi-judicial Tribunals to follow
the rule of natural justice. Therefore if any person alleges that the rule of natural
justice was not intended to be followed by the Legislature the burden is on
that person to prove that the Legislature so intended. The contention of learned
Assistant Government Pleader and Mr. Barot was that though this rule had not
been abrogated by the Legislature in express terms the same was abrogated by
necessary implication by the Legislature enacting the proviso reproduced above
so far as the appeal stage of proceedings under sub-sec. (2) of sec. 28 was
concerned. The argument of the learned Advocates ran as follows : It was

contended that the Legislature had expressly enacted in the proviso that an
order shall not be passed by the Collector against any councilor without
giving the councilor a reasonable opportunity of being heard. It was contended
that the express enactment of the proviso by the Legislature in respect of any
appeal before the State Government indicated that the Legislature did not intend
that the State Government should not give an opportunity of hearing to either
the appellant or the respondent before it. We cannot accept this argument.
The fact that the Legislature has enacted the proviso as aforesaid doe not
necessarily indicate that the Legislature wanted to abrogate the rule of natural
justice. As we have already mentioned, the presumption is that the Legislature
intended to respect the rule of natural justice and if the contention is that
the rule was intended to be abrogated then the provision must be either express
or necessarily implied. If the Legislature wanted to make such a radical
change as is contended for it is hardly probable that the Legislature would
have done this by enacting a proviso and not by using appropriate language
that no person except the councilor was to be given an opportunity of being
heard. It is not improbable that the Legislature enacted the proviso for a
purpose different from the one for which it is contended by the learned
Assistant Government Pleader and Mr. Barot. The sub-sec. (2) confers jurisdiction
upon the Collector to start these proceedings not only on a motion by any
person but also on his own motion. The proviso may well have been
introduced to warn the Collectors that even though they have powers to institute
proceedings suo motu they shall not pass orders therein without giving a
reasonable opportunity of being heard to the councilor concerned. It is not
improbable that the Legislature might have done this out of caution and may
not have thought it necessary to give a similar direction to the State Government
presuming that the State Government is not likely to commit a breach of this
fundamental principle of natural justice. Moreover as we shall presently
point out there is clear distinction between an opportunity of stating ones own
case and an opportunity of personal hearing. Though it is not necessary for
us to decide that point in the present proceeding it is not improbable that
the Legislature introduced the proviso with a view to make it clear that the
Municipal councilor was to have a right of personal hearing before any adverse
order could be passed against him under sub-sec. (2). There is one important
consideration which should lead us to negative this contention of the respondents.
If the respondents were right in their contention it would mean that if an
appeal is preferred to the State Government can pass an order adverse to the
councilor merely on the basis of the memo of appeal preferred by the opponent
of the Municipal councilor even if no opportunity were granted to the councilor
to meet the case made out by the opponent of the councilor ill appeal proceedings.
Before any such radical conclusion can be drawn from the proviso we
would like to have strong and cogent reasons for reaching such a conclusion
and except that the Legislature had thought it fit to introduce a proviso
which as we have already pointed out may have been done for a variety
of reasons no convincing reason has been adduced by the learned Advocates

for the respondents for holding that the rule of natural justice was intended
to be abrogated.
Therefore in our judgment there is nothing in sub-sec. (2) of sec. 28 which
justifies the submission that the Legislature intended that the rule of natural justice
should be abrogated except in the case of a councilor in proceedings before
the Collector.
The next contention which requires to be examined is that the rule of natural
justice does not apply at the stage of appeal proceedings. This question arose
for decision in Board of Education v. Rice, 1911 Appeal Cases 179 Lord Loreburn
in delivering the judgment laid down that in disposing of a question which was
the subject of an appeal to it the Board of Education was under a duty to act
in good faith and to listen fairly to both sides inasmuch as that was a duty
which lay on every one who decided anything. These observations of Lord
Loreburn were approved of by Viscount Haldane L. C. in Local Government
Board v. Arlidge, 1915 Appeal Cases 120 already cited above in another
connection. In the latter case the main point for determination was whether an
appellant was or was not entitled as of right as a condition precedent to the
dismissal of his appeal to be heard before the deciding officer. While negativing
this contention the House of Lords definitely decided that though this was so
it was the duty of the deciding officer to listen fairly to both sides. It was
stated that whilst there was no duty on the deciding officer to give a personal
hearing to the party concerned the deciding officer was under an obligation to
give a fair opportunity to those who were parties in a controversy to correct
and contradict any statement prejudicial to their view. Thus the English authorities
have made a clear distinction between an opportunity to state ones case so as
to be able to correct or contradict any relevant statement prejudicial to ones
view and an opportunity of being given personal hearing. Whilst the House of
Lords negatived the latter right it definitely laid down that the duty of the deciding
officer to give a fair opportunity to the parties to state its case remained. The
same question was considered by the Supreme Court in Shivji Nathubhai v. Union
of India and others, A.I.R. 1960 Supreme Court 606. The principal question
which arose for determination of the Supreme Court was whether the Central
Government to which a review application was preferred under rule 52 of the
Mineral Concession Rules 1949 was a quasi-judicial body or an administrative
body. After examining the statutory on the rules the Supreme Court came to
the conclusion that the Central Government was a judicial Tribunal. In that case
a review application had been granted by the Central Government without giving
notice to the appellant. The State Government had passed an order for grant
of a mining lease After holding that the Central Government was a quasi-judicial
tribunal the Supreme Court posed the question which it had to decide and then
discussed as to how such cases are to be approached when a quasi-judicial body
is called upon to decide a proceeding even at a latter stage.
“The next question is whether there is anything in the Rules which negatives the duty
to act judicially by the reviewing authority. Mr. Pathak urges that R. 54 gives full

power to the Central Government to act as it may deem just and proper and that
it is not bound even to call for the relevant records and other information from
the State Government before deciding an application for review. That it undoubt-
edly so. But that in our opinion does not show that the statutory rules negative
the duty to act judicially. What the rules require is that the Central Government
should act justly and properly and that is what an authority which is required
to act judicially must do.”
The learned Assistant Government Pleader however strongly relied upon the
case reported in F. N. Roy v. Collector of Customs Calcutta and Ors., A.I.R.
1957 Supreme Court 648. In that case the petitioner had preferred an appeal
to the Central Board of Revenue from an order of the Collector of Customs
confiscating certain goods and imposing a penalty on the petitioner and the Central
Board of Revenue dismissed the appeal without giving a personal hearing to
the petitioner. The contention which was raised on behalf of the petitioner was
that thereby the Central Board of Revenue had violated the principle of natural
justice. This was negatived by Their Lordships of the Supreme Court and the
passage which is relied upon by the learned Assistant Government Pleader is
at page 652. Their Lordships observed :-
“It was then stated that the petitioner had not been given personal hearing
of the appeal that he preferred to the Central Board of Revenue and the application
in revision to the Government. But there is no rule of natural justice that at every
stage a person is entitled to a personal hearing.”
The learned Assistant Government Pleader very strenuously contended that
this case was an authority for the proposition that an appellant was not entitled
to an opportunity of being heard in the same manner as an original petitioner
was entitled to. We cannot agree. The contention which Their Lordships of
the Supreme Court were examining in this case was whether an appellate had
or had not a right of personal hearing. In this case it is quite clear that the
appellate had presented an appeal and the Central Board of Revenue had considered
the memo of appeal before disposing of the appeal. Therefore in this case
clearly an opportunity was granted to the petitioner to state his case and the
only question which Their Lordships had to consider was whether the petitioner
had a further right of insisting upon a personal hearing being granted to him
before the disposal of the appeal. In our view therefore this decision is not
an authority for the proposition that a quasi-judicial appellate officer is not
bound to give an opportunity to the parties to state their case and that he
can dispose of the matter without even issuing a notice to the person who
was to be affected by the order of the appellate tribunal. In our judgment
though a quasi-judicial officer acting in his appellate jurisdiction is not bound
to give a personal hearing to the appellant he is bound to give an opportunity
to the appellant to state his case. This duty arises because as a quasi judicial
officer the appellate authority is bound to act fairly and to give an opportunity
to each of the parties to correct any prejudicial statement which may have
been made by the lower authority against it.
The second contention which requires to be examined is whether
this rule applies to the case of respondent. We do not see any distinction

in principle between the case of an appellant and a respondent in this

matter. The learned Assistant Government Pleader relied upon the case of
The New Prakash Transport Co. Ltd. v. The New Suwarna Transport Co. Ltd.,
A.I.R. 1957 Supreme Court 232. In this case the right of a respondent to
be heard was sustained on the ground that the relevant rule which required
notice to be given to any other person interested in the appeal conferred a
right upon the respondent to receive notice of appeal. It was contended that
therefore whilst an appellant may have a right of stating his case a respondent
had no such inherent right unless the statute or the relevant rule conferred
such a right upon the respondent. We do not find anything in the judgment
of Their Lordships which supports this broad contention. In that case the relevant
rule conferred a right to receive notice. Therefore Their Lordships naturally
rested their judgment upon that fact but Their Lordships were not called upon
to decide nor did they decide that the respondent had no such right. On principle
it appear to be difficult to agree with the submission that the case of a respondents
stands on a different footing from that of an appellant. In our judgment, a
respondent has at least as much right to be heard and to state his own ease
and to meet the case made out in the memo of appeal as the appellant has
a right of stating his case against the impugned order of the lower authority.
In fact in our judgment if the appellate authority were to decide the appeal
without giving a notice to the respondent then the appellate authority would
be violating another and equally important limit of the said principle which
states that no adverse order shall be passed against any person without that
person being given an opportunity of being heard. To permit the appellate authority
to do so would be to deny a fair opportunity in the words of Viscount Haldane
L. C. in Arlidges case of correcting or contradicting any relevant statement
prejudicial to his view. In the present case the petitioner had obtained an order
against respondent No. 1. If the State Government were to decide the appeal
only on the basis of the memo of appeal filed by the respondent No. 1 without
issuing a notice to the petitioner it is quite clear that the letter would be
deprived of an opportunity of correcting any error or contradicting any statement
which may have been made in the memo of appeal by respondent No. 1 and
before this court could be asked to subscribe to a view so unjust as this court
would like to have some convincing reason or to know the principal or some
binding authority on which the submission is supported. The learned Advocates
for the respondents were unable to give any cogent or convincing reason or
state any principle or cite any authority in support of this view.
The next question for consideration which is urged by Mr. Barot is
whether the petitioner was or was not entitled to notice of the appeal
proceedings. As already mentioned petitioner was cited as a respondent
by respondent No. 1 in the memo of appeal But if in fact petitioner was
not entitled to any notice that would not make any difference and the
question has still to be considered on its merits whether petitioner was in such
a position vis-a-vis the present proceedings held by the Collector that he was
entitled to receive a notice of the appeal proceedings. It may be conceded

that if the petitioner was a total stranger he would not be entitled to

receive any notice. The contention of Mr. Barot was that the true position
of the petitioner was such. We are unable to accept this broad contention.
It was urged that under sub-section (2) of section 28 any person was entitled
to move the Collector and that the expression does not exclude from its
purview a non-voter or a resident in the Municipality. Assuming that this is
so in our judgment that does not make any difference. If once a person
makes a petition under sub-section (2) and notice is issued to the Municipal
councilor and an issue is joined between that person and the Municipal councilor
as a result of which proceedings are started by the Collector then it is quite
clear that a lis or a dispute arises between the parties and if in that dispute
any order happens to be passed prima-facie it appears that the person who
had taken the trouble of making the allegations and of adducing evidence and
spent his time and energy in proving these allegations cannot be regarded as
a stranger to the proceedings. But the matter does not rest here only. It is
conceded by Mr. Barot that sub-section (2) of section 28 itself gives a right
of appeal to a person aggrieved by the decision of the Collector and he conceded
that expression will include the petitioner. He concedes that If an order favourable
to the Municipal councilor had been made in the present proceedings by the
Collector the petitioner would have a right of preferring an appeal to the State
Government. In our judgment this position makes all the difference in the
position of the present petitioner. That provision shows that the petitioner is
not a stranger but that he is a person who is entitled to carry the matter
to the State Government and to state his case to the Government for its decision
on the merits. Under the circumstances in our opinion though no right of petitioner
or petitioners liberty is involved in the present proceedings petitioner who is
a voter having made certain allegations and having been conferred by the statute
a right of appeal is a person between whom and respondent No. 1 a lis had
been created and as held by the Supreme Court in Shivji Nathubhai v. Union
of India and others., A.I.R 1960 Supreme Court 606 When a lis is created
between one party and another prima-facie the petitioner has acquired a right
of representing his own case and meeting the case made out by the respondent
No I in the appeal and in as much as this was not done the proceedings
which resulted in the passing of the impugned appellate order were vitiated
on account of the fact that notice was not given to the petitioner of the appeal
proceedings.
For the aforesaid reasons the present petition deserves to be granted.
However the petitioner has prayed not only for quashing the impugned
appellate order but also for restoring the order of the Collector. It is quite
obvious that this cannot be done. The correctness or otherwise of the
Collectors order must be determined by the State Government and it is not
the function of this Court to do this. Consequently the order that will be
passed will be that the State Governments impugned order will be quashed and
the State Government will be directed to proceed further with the appeal of
respondent No. 1 from the stage at which it was left after the presentation

1960] THE STATE v. DUNGARIA (Cri.Ref.)-Raju, J. [63
of the memo of appeal by issuing a notice of the appeal to the

petitioner. Rule made absolute with costs to the extent mentioned in
this judgment.
Order accordingly.
* * *
CRIMINAL REFERENCE
Before the Hon’ble Mr. Justice J. M. Shelat
and the Hon’ble Mr. Justice V. B. Raju.
THE STATE v. DUNGARIA MAHALA (ORIGINAL ACCUSED No. 3)*
Bombay Children Act (Bombay Act No. LXXI of 1948)-Sec. 4(e)-Case
committed to the Court of Sessions for trial-Proof of age of the “child”-
Whether the burden is on the prosecution to prove the age of the offender-
Jurisdiction of the Court.
HELD THAT under the Bombay Children Act, when the accused appears to
be a child, Juvenile Court should try the case. Similarly, if the accused happens
to be an adult, a Juvenile Court should not try the case. In such cases, it would
not be correct to say that it is for the prosecution to prove that the accused before
the Court is not a child. It is the duty of the Court to see that it does not exercise,
jurisdiction which it does not possess. Therefore, the Court has to make a thorough
inquiry into the age of the accused.
Mr. H. M. Chokshi, Government Pleader for the State...Appellant.
Opponent-accused absent.
RAJU J.
This is a reference by the learned Sessions Judge of Baroda, recommending
that the committal of Dungaria Mahalal who is accused No. 3 in Sessions Case
No. 3 of 1960 should be quashed as he was a child under the Bombay Children
Act.
In his order, the learned Sessions Judge observed that the offence had
taken place in September, 1959 and the accused in question was arrested on
27-9-1959. Two Medical Officers examined him about 4 months later and the
doctors were of the opinion that he was about 16 years of age. The
learned Sessions Judge thought that in such cases it was for the prosecution
to prove that the accused was not a child. According to the learned Sessions
Judge the accused appears to have been less than 16 years of age on the
*Decided on 15-7-1960. Criminal Reference No. 22 of 1960 by the Sessions Judge
of Baroda.

day of the offence, and therefore, he must be held to be a child within the
meaning of the Bombay Children Act. Under the Bombay Children Act
child is defined as a boy or a girl who has not attained the age of 16
years. When the accused appears to be a child a Juvenile Court should try the
case. Similarly, if the accused happens to an adult a Juvenile Court should not
try the case. In such case, it would not be correct to say that it is for the
prosecution to prove that the accused before the Court is not a child. It is the
duty of the Court to see that it does nor exercise jurisdiction which it does not
possess. Therefore, the Court has to make a thorough inquiry into the age of
the accused. The opinion of the doctors that the accused was about 16
years of age when they examined him does not help. The learned Sessions
Judge should get more precise evidence if available on the questions of the
age of the accused on the date of the offence. If after making a further inquiry
and without putting the burden of proof on the prosecution of the accused
the learned Sessions Judge comes to a finding that the accused had not attained
the age of 16 years on the date of the offence, he can make a reference for
quashing the committal of the accused.
Order accordingly.
* * *
CRIMINAL REFERENCE
Before the Hon’ble Mr. Justice V. B. Raju.
THE STATE v. MOHAN HIRA (ORIGINAL ACCUSED)*
Sec. 154 — Indian Evidence Act (Act No. 1 of 1872)- Permission to
the person who calls a witness to put any question which might be put
in cross-examination of the Adverse party-Whether the witness to be declared
hostile before such permission is granted-Contradicting such witness under
Section 145 Evidence Act, proviso to Sec. 162(1) Criminal Procedure Code.
Discretion of the Court when to be exercised-Nature of cross-examination.
HELD THAT there is nothing in Sec. 154 of the Evidence Act to require that
before the Court exercises its discretion to permit the person who calls a witness
to put questions in the nature of cross - examination, the witness should be
declared as hostile by the party calling him.
Held, further that without declaring him hostile, he should give
sufficient reasons to satisfy the Court that it is proper, in the circumstances, to
exercise its discretion. The word “cross-examination” found at the end of the
proviso to Section 162(1) Criminal Procedure Code refers to the cross-
examination of a witness by the accused and not put under Section 154 of the
Evidence Act.
*Decided on 8-7-1960. Criminal Reference No. 3 of 1960 by the Additional
Sessions Judge, Gondal.

1960] THE STATE v. MOHAN HIRA (Cri.Ref.)-Raju, J. [65
Mr. B. R. Sompura, Assistant Government Pleader for the State.

Mr. D. U. Shah, Advocate for the Opponent.
The following judgment was delivered by :
RAJU, J.
This is a reference by the learned Additional Sessions Judge,
Gondal recommending that the order dated 18-7-1959 passed by the First
Class Magistrate, Gondal in Criminal Case No. 190 of 1959 holding that he
would not allow the prosecution to contradict the evidence given by its
witness under the proviso to Sec. 162 (1) Cri. Procedure Code “without
declaring him hostile and save in his cross-examination” be set aside as it is
wrong.
Section 137 of the Evidence Act provides that the examination of a witness
by the party who calls him shall be called his examination-in-chief and the
examination of a witness by the adverse party shall be called his cross examination.
Sec. 142 of the Evidence Act provides “Leading questions must not if objected
to by the adverse party be asked in any examination in-chief or in a re-examination
except with the permission of the Court”. Sec. 143 of the Evidence Act provides
that leading questions may be asked in cross-examination. Sec. 154 of the
Evidence Act provides :- “The Court may, in its discretion, permit the person
who calls a witness to put any questions to him which might be put in cross-
examination by the adverse party”. The procedure of examining a witness as
to previous statements made by him in writing is found in Sec. 145 of the
Evidence Act. Sec. 146 of the Evidence Act enumerates the questions which
are lawful in cross-examination.
As provided in Sec. 154 of the Evidence Act the Court may in its
discretion permit the person who calls a witness to put-any questions to him
which might be put in cross-examination by the adverse party. When the Court
exercises such a discretion, the party who calls a witness may put questions in
the nature of cross-examination, although the witness is under examination by
the party who calls him. But there is nothing in Sec. 154 of the Evidence Act
to require that before the Court exercises its discretion to permit the person who
calls a witness to put questions in the nature of cross-examination the
witness should be declared as hostile by the party calling him. But, although
the party calling a witness need not declare the witness to be hostile he should
give sufficient reasons to satisfy the Court that it is proper in the circumstances
to exercise its discretion and permit the person who calls a witness to put questions
to him in the nature of cross-examination. The learned Magistrate was therefore
wrong in laying down a requirement which is not found in the Evidence Act.
He was therefore wrong in ordering that unless the prosecution declares its witness
hostile it would not be permitted to contradict him under the proviso to sec.
162(1), Cri. Procedure Code.
(4) Moreover, when permission is given under Sec. 154 of the Evidence
Act, the party calling a witness is permitted to put questions which might be

put in cross-examination by the adverse party; but that does not alter the
nature of examination and the party who calls a witness can contradict him
only in the manner as provided in sec. 145 of the Evidence Act. Merely
because permission is given under sec. 154 of the Evidence Act the nature
of the examination of a witness by the party who calls him is not changed
from examination-in-chief to cross-examination. It is true that in the proviso
to sec. 162(1) it is provided.
“When any witness is called for the prosecution it such inquiry or trial whose
statement has been reduced into writing as aforesaid any part of his statement
of duly proved may be used by the accused and with the permission of the Court
by the prosecution to contradict such witness in the manner provided by sec. 145
of the Indian Evidence Act 1872 and when any part of such statement is so used
any part thereof may also be used in the re-examination of such witness but for
the purpose only of explaining any matter referred to in his cross-examination.”
Ordinarily the statements of a person taken in the course of investigation
by the police are used by the accused to contradict the evidence given by
the witness in his chief-examination. They could also be used with the
permission of the Court by the prosecution to contradict its witnesses. The
contradiction must be in the manner provided in sec. 145 of the Evidence
Act which requires that the attention of the witness should be drawn to those
parts of his statement in writing which are to be used for the purpose of
contradiction him. When an accused person uses the police statement of a
witness to contradict his evidence, the prosecution can in the re-examination
of such witness use any part thereof for explaining any matter referred to in
the ‘cross-examination’ of the prosecution witness by the accused. The word
‘cross-examination’ found at the end of the proviso to sec. 162(1) Cri. P. C.
refers to the ‘cross-examination’ of a witness by the accused and not to the
questions put under sec. 154 of the Evidence Act. If a party who calls a witness
is permitted under sec. 154 of the Evidence Act to put questions to him in
the nature of cross-examination the examination of the witness in which such
questions are asked and answered still remains the examination-in-chief and it
would be open to the adverse party in cross examination to explain any matter
referred to in the answers given to questions put under sec. 154 of the Evidence
Act. It is therefore clear that the answers to questions put to a witness after
permission is obtained by the party who calls him are answers given in the
examination-in-chief although they party in the nature of cross-examination. The
proviso to sec. 162(1) Cri. P. C. does militate against this view. The learned
Magistrate was therefore rogue in holding that except in the cross-examination
the prosecution would not be entitled to contradict the statement of its witness
under the proviso to sec. 162(1) of the Criminal Procedure Code. For these
reasons the order of the learned Magistrate is erroneous.
(5) I therefore set aside the order of the Magistrate. But before permission
is granted by the Magistrate under sec. 154 of the Evidence Act there must
be good grounds for doing so and the prosecution must satisfy the Court that
there are good grounds for doing so.
Reference Accepted.
* * *

1960] SHRI KASTURBHAI v. G. UNI. (S.C.A.)-Desai, J. [67

and the Hon’ble Justice Mr. P. N. Bhagwati.
SHRI KASTURBHAI LALBHAI & OTHERS v.
GUJARAT UNIVERSITY AND ANOTHER*
Gujarat University Act, Sec. 4(27) read with Statute 22-No bar to Senate
members to request Govt. to amend Act-Necessary corrollary to express
powers-Duty of respondent to allow the Senate entertain and discuss
proposal.
Section 4(27) of the Gujarat University Act read with its proviso provides inter-
alia that English shall not continue to be the medium of instruction after 10 years
from the date on which Sec. 3 of the Act came into force i.e. after November,
1960. But in view of the non-availability of the standard text books for higher
studies, particularly in faculties of Law, Medicine and Technology, several
members of the Senate decided to move a resolution recommending the State
Government to extend the said period for further 10 years. Notice of proposed
Resolution was duly given and a Special Meeting of the Senate of the University
was convened. The Vice-Chancellor Shri Maganbhai P. Desai on a point of order
that the Resolution was not in confirmity with Statute 22 of the Gujarat University
upheld the point of order and the discussion on the said Resolution was not
allowed. Aggrieved by this, the petitioner Shri Kasturbhai Lalbhai and others
applied to the High Court for a writ of mandamus to treat the ruling of the Vice-
Chancellor as void and ineffective and directing him to continue the requisition
meeting. The University did not adopt any contentious attitude. The main
contention of Respondent No. 2 was whether it was within or without the ambit
and scope of the powers of the Senate to discuss and pass a Resolution requesting
the State Government to amend the Act in the manner suggested and whether
it was the duty of the Vice-Chancellor to allow the discussion on the Resolution.
HELD THAT the Sec. 4(27) of Gujarat University Act rules that English was
to continue as medium of instruction for a period not exceeding ten years. But
that is a limit of time and there can be nothing sacrosanct or absolutely unalterable
about any such limit. It would be always competent to the Legislature to shorten
or extend this period of time, and it remains always open to the Senate to make
any request to the law-maker in the matter of the alteration of the time-limit, if
occasion arises for doing so.
The second respondent failed to perform his duty and actually exercised his
power in a manner which was wholly impermissible. It was clearly incumbent upon
him to allow the Senate to entertain and discuss the proposal.
Mr. M. P. Amin with Mr. P. M. Amin and Mr. A. H. Mehta with
Mr. I. M. Nanavaty and Mr. T. J. Patel, for the petitioners.
Mr. J. C. Bhatt with Mr. J. D. Pandya and Mr. R. C. Bhatt for
Respondent No. 2.
Respondent No. I served.


DESAI C.J.
This is a rule taken out at the instance of the petitioners, members of
the Senate of the Gujarat University against the University the first respondent
before us and the Vice-Chancellor of the University who is the second
respondent before us. The petition arises out of a resolution sought to be
brought before the Senate by a number of requisitionists and which
resolution was not allowed to be debated in wake of a point of order
raised by one of the members of the Senate. The relief which the petitioners
seek from this Court in this petition is as under :-
“....will be pleased to issue a writ of or in the nature of mandamus or
any other appropriate writ, direction or order requiring the respondents to treat
the ruling of the second respondent as void and ineffective and directing the
respondents to continue the requisitioned meeting of the Senate held on
28-6-1960 and further directing them to put the resolution contained in item No.
2 of the agenda of the said meeting for consideration treating the said resolution
as in order and/or directing the respondents to reconvene the meeting of the Senate
immediately for the purpose of considering the said Resolution.”
The facts which are not in dispute or disputable require to be stated in
some detail, though there is nothing complex about the question that have been
raises on this petition. They are simple and easy of solution. The petitioners
and a number of members of the Senate who claim to be deeply interested in
the case of education in Gujarat and in the welfare of the students studying
in the various colleges affiliated to the University felt that in view of the non-
availability of standard text books in Gujarati particularly for higher studies in
colleges and the difficulties experienced by the teachers and students particularly
in Faculties of Law, Medicines and Technology including Engineering and all
post-graduate studies it was necessary to extend the period of change-over to
Gujarati medium for teaching in Colleges affiliated to the University which period
has been limited to ten years by the proviso to clause 27 of Sec. 4 of the
Gujarat University Act to be referred to by us hereafter as the Act. In view
of the situation aforesaid the petitioners and a number of members of the Senate
decided to recommend to the State Government and the State Legislature to
suitably amend the proviso to clause 27 so as to achieve the change-over to
Gujarati medium within a period of twenty years instead of ten years as laid
down in that proviso. The proposed resolution was as under :-
“Resolution”
“The Senate requests the State Government and the State Legislature to take
early steps to amend clause 27 of Section 4 of the Gujarat University Act so as
to read as under :-
‘to promote the development of study of Gujarati and Hindi in Devnagari script
and the use of Gujarati or Hindi in Devnagari script or both as a medium of
instruction and examination :-
Provided that English may continue to be the medium of instruction and examination
in such subjects and for such period not exceeding twenty years from the date on which
Section 3 comes into force as may from time to time be prescribed by the Statutes.”

A notice of the proposed resolution was duly given by the required number
of requisitionists and a Special meeting of the Senate of the University was
convened on 28th June 1960. The second respondent included in the agenda of
that requisitioned meeting other business including proposed resolutions by Shri
Thakorebhai M. Desai and Shri Chandravadan C. Shah. It is not necessary to
set out here the substance of those resolution and it will suffice to observe that
in effect they went counter to the proposed resolution of the Petitioners.
All resolutions proposed to be moved at a meeting of the Senate have
to be submitted for the opinion of the Syndicate and accordingly the resolution
sought to be moved by the petitioners was placed before the Syndicate at its
meeting held on 18th June 1960. The Syndicate expressed it opinion in favour
of the proposed resolution by what is mentioned as a big majority. There was
some discussion at the meeting of the Senate held on 22nd June 1960 about
determination of priority of the resolution proposed to be brought by the
requisitionists and the other two resolution proposed by Shri Thakorebhai M
Desai and Shri Chandravadan C. Shah. A motion to the effect that priority
should be accorded to the resolution proposed by Shri Thakorebhai Desai was
declined by the second respondent and he ruled that priority should be given
to the resolution proposed by the requisitionists since it was a proposal
recommending amendment in the Act. There is a special provision in Statute
31 relating to such priority and we shall advert to the same a little later.
Then when the proposed resolution of the requisitionists was moved and seconded
as required by the Statutes. Shri G. C. Oza one of the members of the Senate
raised a point of order contending that the resolution was vague and indefinite
in character and not in conformity with Statute 22. Some discussion took place
on the point of order and the second respondent upheld the point of order
stating that the proposed resolution was not in accordance with Statute 22 and
directed the meeting to proceed with other business on the agenda. A numbers
of members of Senate present at the meeting requested the second respondent
to give his ruling in writing and supply a copy of the same but the second
respondent refused to do so. Nothing turns on this petition either on that request
or that reply and it will not be necessary for us to go into that matter. We
mention this here because in the petition the petitioners have also made a
grievance in that behalf. It is the case of the petitioners that they and the
other members of the Senate had a statutory right not only to requisition the
meeting of the Senate but to move and to vote on the proposed resolution
at that meeting and the second respondent had a statutory duty cast upon him
to convene the requisitioned meeting of the Senate and to permit the proposed
resolution to be moved and voted upon at that meeting. It is also their case
that inasmuch as the second respondent prevented that by his ruling he failed
to perform the statutory duty cast upon him by the provisions of the Act
and the Statutes made thereunder. In their petition they draw attention to some
of those provisions to which we shall presently refer. It is also the case of
the petitioners that the second respondent had not bona fide exercised the powers
vested in him as Chairman of the meeting There is an averment in the

petition that the proposed resolution if put to vote was bound to have been
carried with substantial majority and the second respondent with the ulterior object
of defeating the successful carrying out of the proposed resolution took shelter
under Statute 22 and disallowed the resolution from being considered by the
Senate. They point out that after the consideration of the proposed resolution
was disallowed the meeting refused even to consider the subject matter of item
No. 3 on (he agenda viz., the proposed resolution of Shri Thakorebhai Desai
by an overwhelming majority of 65 to 19 votes. The petitioners have also stated
in their petition that the second respondent acted in the performance of his duties
arbitrarily and arrived at a conclusion which no reasonable man would have
come to and that his decision is erroneous on the face of it. On all these averments
the petitioners submit that this Court should quash the ruling given by the
second respondent gave the directions asked for in prayer (a) of the
petition which prayer we have set out above.
The University the first respondent before us has not put in any contentions
affidavit and has stated in the affidavit of the Registrar that it adopts a non-
contentions attitude and submits to the orders of this Court.
In opposition to the rule the second respondent has put in an affidavit and
therein raised various contention. Some of those contentions are not relevant
to the points which arise for determination and it is not necessary to burden
this judgment with a recital of the same. In this affidavit the second respondent
has drawn attention to some of the provisions contained in the Act and the Statutes
to which we shall presently be referring. He has denied the allegations of lack
of bona fides and arbitrariness in the matter of the ruling challenged on this
petition. The petitioners have stated in their petition that standard text books
are not available in Gujarati particularly for higher studies in Faculties of Law
Medicine Technology including Engineering and post graduates studies In his
affidavit in reply the second respondent has stated that reference to non-availability
of text-books for higher studies is a principle which is incorrect in theory and
found utterly untenable in practice. We confess we find it difficult to appreciate
this answer. We do not however intend to express any opinion on this controversial
subject and are only concerned with the rival contentions.
Section 3(1) of the Gujarat University Act 1949 relates to incorporation of
the University and is as under :-
“The Chancellor the Vice-Chancellor of the University and the members of
the Senate the Syndicate and the Academic Council of the University and all
persons who may hereafter become such officer or members so long as they
continue to hold such office or membership are hereby constituted a body
corporate by the name of The Gujarat University.”
Section 4 relates to the powers of the University and is divided into 28
clauses. The relevant and material clauses are as under :-
“(1) to provide for instructions teaching and training in such branches of
learning and courses of study as it may think fit to make provision for research
and dissemination of knowledge;

(2) to make such provision as would enable affiliated colleges and recognised
institutions to undertake specialization of studies;
(3) to organize common laboratories libraries museums and other equipments
for teaching and research;
(4) to establish maintain and manage departments and institutes of research
or specialised studies;
... ... ... ... ... ... ... ...
(23) to co-ordinate supervise and control the conduct of post-graduate research
work and teaching in the affiliated colleges and the institutions recognised by
the University;
... ... ... ... ... ... ... ...
(27) to promote the development of the study of Gujarati and Hindi in
Devnagari script and use of Gujarati or Hindi in Devnagari scripts or both as a
medium of instructions and examination;
Provided that English may continue to be the medium of instruction and
examination in such subjects and for such period not exceeding ten years from
the date on which section 3 comes into force as may from time to time be
prescribed by the Statutes.”
Section 10 rules that the Vice-Chancellor shall be nominated by the chancellor
from amongst four persons recommended by the Senate. Section 11 relates to the
powers of the Vice-Chancellor. Mention need only be made here of sub sections
(1) and (3) to which our attention was particularly drawn by counsel :-
“(1) The Vice-Chancellor shall be the principal executive and academic officer
of the University and shall in the absence of the Chancellor preside at meetings
of the Senate and any convocation of the University. He shall be an ex-officio
member and the Chairman of the Syndicate and of the Academic Council. He
shall be entitled to be present with the right to speak at any meeting of any other
authority or body of the University but shall not be entitled to vote thereat unless
he is a member of that authority or body.
... ... ... ... ... ... ... ...
(3) It shall be the duty of the Vice-Chancellor to ensure that this Act the Statutes
Ordinances and Regulations are faithfully observed and he shall have all powers
necessary for this purpose.”
Section 18 relates to the powers and duties of the Senate. The relevant and
material parts of the section may be stated :-
“8(1) Subject to such conditions as may be prescribed by or under the provision
of the Act the Senate shall exercise the following powers and perform the following
duties namely :-
(i) to make provision for instruction teaching and training in such branches
of learning and courses of study as it may think fit for research and for the
advancement and dissemination of knowledge;
(ii) to make such provision as will enable affiliated colleges and recognised
institutions to undertake specialization of studies;
(iii) to organize and make provision for common laboratories libraries museums
and other equipments for teaching and research;
(iv) to establish and maintain departments and institutes of research and
specialised studies;
** ** ** **
(ix) to make amend or repeal the Statutes :-
** ** ** **
(xiv) to make provision relating to the use of Gujarati or Hindi in Devnagari
Script or both as a medium of instruction and examination.”

Section 28 rules that subject to such conditions may be prescribed by or

under the provisions of the Act the Statutes may provide for all or any of the
matters there enumerated. Sections 58 which relates to disputes as to constitution
of the University authority or body is as under :—
“If any question arises regarding the interpretation of any provision of this fact
or of any Statute Ordinance Regulation or Rules or as to whether a person has been
duly elected or appointed as or is entitled to be or ceases to be entitled to be a member
of any authority or other body of the University the matter may be referred to the
Chancellor and shall be so referred to him if twenty members of the Senate so require.
The Chancellor shall after taking such advice as he deems necessary decide the
question and his decision shall be final.”
Statute 22 which is one of the group of Statutes headed Procedure at Meetings
of the Senate is as under :-
“such proposals and amendments only as are connected with the Gujarat
University and are in accordance with the Act shall be entertained and debated in
the Senate.”
Statute 31 contains a fascicules of rules relating to the order of business.
Sub-clause (8) of that Statute is as under :-
“31 At every meeting the business to be entertained shall unless the meeting
by special vote otherwise determine be taken in the following order :-
** ** ** **
(8) the consideration of ordinances motions for making amending and repealing
Statutes and proposal recommending amendments in the Act.
The contentions gave rise to interesting arguments before us some of which
were rather elaborate. The questions that arise for our determination however
lie in a narrow compass and we have to determine whether it is within or without
the ambit and scope of the powers of the Senate to discuss and if the majority
of the members so decide to pass a resolution requesting the State Government
and the State Legislature to amend section 4 of the Act in the manner suggested.
The other question that arises for our determination is whether it was the duty
of the second respondent to allow discussion on the resolution and if so whether
this Court in exercise of its discretion should direct a mandamus in that behalf
as prayed for by the petitioners.
It has been argued before us by Mr. M. P. Amin learned counsel for
the petitioners that the relevant provisions of the Act and the Statutes make
it abundantly clear if not in express words certainly by necessary implication
that the Senate of the University has the power to entertain and debate
upon a resolution requesting the State Government and the State Legislature
to make suitable amendments in the Act as may be found necessary from
time to time. Particular reliance is placed by counsel on section 18 sub-
sections (i) (ix) and (xiv). Reliance is also placed on Statute 31 (8). The
argument succinctly stated is that the Senate exercises very wide powers
under the Act. It is said that it is unnecessary in any enactment of this
nature to state that the Senate should have liberty of making recommendations
to the State Government or the State Legislature and suggest amendments in
the Act. Such power would be implicit in any such enactment. It is also said
that if any intrinsic support was necessary for this proposition that is to be

found in clause (8) of Statute 31 which is one of the provisions relating to

order of business and in terms states that the Senate would consider ordinances
motions for making amending and repealing Statutes and proposals recommending
amendments in the Act.
On the other hand it has been argued by Mr. J C. Bhatt learned counsel
for the second respondent that the Senate is a creature of the Act and it cannot
make any recommendation to the Legislature to amend the Act unless there is
any specific authority to do so conferred on it by the Act itself. It is said that
the second respondent acted in a bona fide manner and was merely trying to
throw up the shackles of English. Our attention has been drawn by Mr. Bhatt
to some provisions in addition to those we have already set out but we do not
think they advance the argument urged oh behalf of the second respondent and
his case primarily rests upon an insistence that every proposal and amendment
that is brought before the Senate must be connected with the Gujarat University
and in accordance with the Act. Otherwise it cannot be entertained and debated
in the Senate. Learned Counsel has also rested the case for the second respondent
on sec. 4(27) which relates to promotion of the study of Gujarati and Hindi
and the use of Gujarati or Hindi or both as a medium of instruction and
examination the proviso to which as we have already stated rules that English
may continue to be the medium of instruction and examination for a period
not exceeding ten years from the date of which section 3 came into operation.
It is said that this proviso to clause (27) of section 4 read with Statute 22 in
express terms forbids the Senate from discussing any request to the Legislature
which is not in agreement with and which does not conform with the period
of ten years prescribed by the proviso for the continuation of English as the
medium of instruction.
We are unable to see in section 4(27) any express prohibition nor any implied
prohibition of the nature emphasised by learned counsel. Indubitably the clause
rules that English was to continue as medium of instruction for a period not
exceeding ten years. But that is a limit of time and there can be always competent
to the Legislature to shorten or extend this period of time and the way we
read the relevant provisions it re rains always open to the Senate to make any
request to the law-maker in matter of the be nothing sacrosanct or absolutely
unalterable about any such limit. It would alteration of the time-limit if occasion
arises for doing so. Mr. Bhatt has drawn our attention to a passage from Halsburys
Laws of England Third Edition Volume 9 page 62 which is as under :-
“The powers of a corporation created by statute are limited and circumscribed
by the statutes which regulate it and extend no further than is expressly stated
therein or is necessarily and properly required for carrying into effect the purposes
of its incorporation or may be fairly regarded as incidental to or consequential
upon those things which the legislature has authorized. What the statute does
not expressly or impliedly authorise is to be taken to be prohibited.”
The statement of law quoted above in our opinion accurately summarises
the legal position. Applying the principles there summarized we are of

the opinion that the power to make a recommendation or request to the State
Government or the State Legislature of the nature under consideration must be
regarded as something incidental to and consequential upon the things which
the Senate is empowered to do under the Act. Indeed such power emerges from
these provisions as a necessary implication. It seems to us that it would be very
strange and incongruous if such power did not exist in the Senate. Of course
we are not concerned with the propriety of these matters. We are only concerned
with an enquiry into ten question whether such power does or does not exist
and as we have just mentioned, the power to make a request to the State
Government and the State Legislature dons exist in the Senate. It is a necessary
corollary to its express powers. In our judgment it is within the statutory machinery
and the Act and the coverage of the wide powers of the Senate to initiate and
discuss a resolution requesting the State Government and the State Legislature
to extend the deadline of ten years to that of twenty years.
It is axiomatic that the foundation for an application for a writ of mandamus
is the failure to do some public duty. The duty of the Vice Chancellor to allow
introduction of and discussion by the Senate of matters within the powers of
the Senate is an absolute duty. It is not a matter of discretion. A feeble attempt
was made by Mr. Bhatt to show that there was no duty on the Vice-Chancellor
to entertain and permit discussion of any such request even if the proposal was
otherwise in order. The suggestion was that he had a discretion in the matter
and he relied upon Statute 67 which is one of the Statutes under the had points
of order. It reads as under :-
“Sec. 67. The Chairman shall be the sole judge on every point of order and
may call any member to order and if the member so called to order shall in
speaking disregard such call the Chairman may direct him to sit down and
thereupon another member may speak.”
We are unable to see here even a vestige of any discretionary power of
the nature suggested by counsel and said to vest in the Vice-Chancellor who
as Chairman normally presides over meetings of the Senate. We have no doubt
that duty to permit the introduction of and debate on any such proposal which
is otherwise in order is an absolute duty cast upon the Vice-Chancellor under
the Act and the Statutes. Therefore where a proposed resolution relates to a
matter “connected with the Gujarat University” it becomes the bounden duty
of the person who presides over the meeting of the Senate to permit and regulate
discussion of the same unless there is some legal impediment to that being done.
Now the impediment fell by the second respondent was that the proposed
amendment was not in accordance with the Act. It has not been urged before
us that the resolution did not relate to a matter connected with the University.
Indeed Mr. Bhatt accepts that position. Obviously the resolution related to a vital
factor and a matter of grave importance connected with the University. The sole
contention here is that a proposal for an amendment in any provision of the
Act cannot be regarded as something in accordance with Act.”

The contention is fallacious. It would be a totally incorrect view

of the matter to say that by discussing a resolution of the nature under
consideration the Senate would be arrogating to itself a power it did not possess.
We have already considered this question. It is obvious from the language of
the relevant provisions of the Act and the Statutes already set out above
including Statute 22 on which the second respondent so heavily leans that it
is within the competence and powers of the Senate to entertain and discuss any
matter connected with the University so long it is accordance with the Act. In
our judgment all matters however diverse they may be logically or naturally
connected with and germane to the subject and object of the Act must properly
be regarded as being in accordance with the Act. Of course the subject matter
of the proposal or any amendment to it must be connected with the Gujarat
University and the transaction of the business of the Senate and within the ambit
and powers of the Senate. Of course again the proposal or any amendment to
it must embrace a matter really connected with the University and not be a
cover or disguise for something de hors the Act. It must not be incongruous
with the provisions of the Act and must be such that by fair intendment can
be considered as having a necessary or proper connection with the University
education and the State. The connection or nexus must be real and the proposal
must be pertinent to a object or matter which is within the matrix of the Act.
Considered in the light of these observations it is extremely difficult to see how
a resolution by the Senate embodying a request of the nature under consideration
to the State Government add the State Legislature is not in accordance with
the Act. It does not violate or go counter to any provision of the Act. The
whole fallacy of the contention sought to be founded on Statute 22 lies in equating
a request and a right to make a request to the law-maker to amend the relevant
section of that enactment with the Act itself or carrying out such amendment
and the power to do so . We fail to see how in the context of the powers
of the Senate it can be said that a proposal by way of a request to so amend
the Act is not in conformity with the Act. That if we may so describe it was
the burden of what the Senate by a resolution sought to voice. It must be
concluded therefore that the second respondent failed to perform his duty and
actually exercised his power in a manner which was wholly impermissible. It
was clearly incumbent upon him to allow the Senate to entertain and discuss
the proposal. He however ruled otherwise. It must follow that his ruling affords
the foundation for the application by the petitioners for a writ of mandamus
and the writ must go unless there is some cogent reason for withholding
the same.
It has been argued before us by learned counsel for the second
respondent that no such writ should issue and the submission is really two-
fold. It is urged that section 58 of the Act affords an equally effective and
sufficient remedy to the petitioners and the petitioners should have gone to
the Chancellor before rushing to this Court with this petition. We have already
set out section 58. That section confers on the Chancellor a special power
of giving certain decisions and it renders those decisions final. It does not
confer on very aggrieved person a right to have a matter referred to the

Chancellor. It is only when such reference is requested to be made at the instance

of 20 members of the Senate that the reference is to be granted as a matter
of right. Mr. Bhatt has relied on two decisions. It is not necessary to burden
this judgment with an examination of those decisions for they do not lend any
support to the present contention.
It is familiar law that mandamus will not be granted where there is another
sufficient and effective remedy such as for example a right of appeal or revision.
But it is abundantly clear from the language of section 58 that it does not confer
any alternative remedy-which would debar a petitioner from coming to this Court.
Therefore the contention that the petitioner not having availed of a remedy under
section 58 the petition is liable to be dismissed must be negatived.
It is next urged that in any view of the matter mandamus should not issue
in the case before us and that we should exercise our discretion in favour of
with holding the same rather than in favour of granting the same. It is said
that at the highest the matter before us raises questions the solution of which
is doubtful. At the very outset of our judgment we have observed that the questions
raised on this petition are simple and easy of solution. Of course is any of
these questions left any pertinent matter in dubio we would lean in favour of
the respondent against the petitioners. It is not necessary to refer to a decision
of the Bombay High Court to which our attention has been drawn by Mr. Bhatt.
Agreeing with Chainani C. J. I therefore stated that no-mandamus would issue
in respect of an act on which two views are possible for it cannot then be
stated that the authority is transgressing the limits of his power.
There is another petition on our list which we directed to be placed before
us immediately after the present petition. The question that arise for determination
in that petition are the same. Mr. C. N. Shah learned counsel for the Vice-
Chancellor who is the first respondent in that petition has advanced before us
certain arguments. His principal argument is that Statute 31(8) speaks of a proposal
recommending amendment in the Act. Such proposal must be in accordance with
the Act and we have been asked to compare the language of Statute 22 and
Statute 31(8). We do not think that the effect of Statute 31(8) or any such
comparison is to prevent any recommendation of the nature before us being made
by the Senate to the State Legislature or the State Government. It is then said
that the result of the proposed amendment requested by the Senate would be
to retard the object of the University to promote Gujarati and indeed negative
and undo that object. We are unable to share Mr. Shah’s permission. A period
of ten years in a matter of this type cannot be regarded as resulting in undoing
of the effect of the enactment. Besides it is a matter solely for the determination
of the Legislature and all that the resolution seeks to do it to request the law-
maker to consider the request and if satisfied after due consideration to make
an amendment as proposed in the proviso to section 4(27).
All these considerations inevitably lead us to the conclusion that

1960] STATE v. RAIJIBHAI SOLANKI (C.R.)-Raju, J. [77
this is a fit case for the exercise of our powers in the matter of issuance of
a writ of mandamus. Moreover, it seems to us that in upholding the point
of order the second respondent acted in a manner which must be characterised
as arbitrary. It is not necessary to rehearse the facts which we have already
stated. They are not in dispute and not disputable. The point of order seems
to have been decided by the second respondent, no doubt after some discussion
but substantially the decision rests on his mere ipse dixit. No reason which can
be regarded as even plausible has been established in support of that decision.
It was in course of the arguments as we have already mentioned that it was
urged before us that there was some discretion vested in the second respondent
in the matter of deciding the point of order. Even if we had taken the view
that there was some such discretion vested in him we should have on the facts
of this case held not without some reluctance that he acted in ruling out that
resolution in an impermissible manner and a manner which was arbitrary.
In the result, the petition succeeds and the rule will be made absolute. A
mandamus will issue against the respondents-requiring them to treat the ruling
of the second respondent as void and ineffective and directing them to continue
the requisitioned meeting of the Senate held on 28th June, 1960 and further
directing them to put the resolution contained in item No. 2 on the agenda of
the said meeting for consideration and treating the said resolution as in order.
Mr. Nanavati for the petitioners states that he does not press for the costs of
this petition. There will be no order for costs.
Petition allowed.
* * *
CRIMINAL REFERENCE
Before the Hon’ble Mr. Justice V. B. Raju
STATE v. RAIJIBHAI CHATURBHAI SOLANKI*
Criminal Procedure Code, 1898 (Act No. V of 1898) — Section 103-
Search obligatory in presence of Panchas-Evidence of Police Officer must
be corroborated-Panchnama cannot be used for corroboration.
HELD THAT where the presence of the Panchas is obligatory at the time of
search, the evidence of the Police Officer conducting the search much ordinarily
be corroborated, and that if there is no such corroboration, ordinarily, a conviction
should not rest solely on the uncorroborated testimony of the Police Officer who
conducted the search.
A panchnama cannot be used either to corroborate the evidence of the
Police Officer or the evidence of the Panch. A certificate attached to the
panchnama by the Panchas is part of the panchnama and cannot be used
to corroborate.
*Decided on the 8-7-1960. Criminal Reference No. 14 of 1960 by the Sessions
Judge, Kaira, at Nadiad.

Mr. B. R. Sompura, Assistant Government Pleader for the State,

Accused absent.
Emperor v. Shanwar Manu Koli (1), Emperor v. Kisan Narayan (2),
Aher Raja Khima v. State of Saurashtra (3), referred to.
RAJU J.
This is a reference by the learned Session Judge, Kaira at Nadiad
recommending that the conviction of one Raijibhai in Summary Case No.
1164 of 1959 tried by the III joint Civil Judge J. D. and Judicial Magistrate,
First Class, Nadiad under Section 69 of the Bombay Prohibition Act and
sentence of fine of Rs. 200/- in default rigorous imprisonment for 3 months
should be set aside.
The prosecution case was that when the house of Raijibhai in the
village of Dabhan was raided by the Head Constable of Nadiad Rural Police
Station at about 7 a.m., on 9-7-1959 in the presence of two Panchas, 25
sears of Mhowra flowers in a gunny bag were found inside the house and as
he had no pass or permit for the possession of Mhowra flowers he was prosecuted.
At the trial, the evidence of the head constable was not supported by the two
Panchas both of whom were treated as hostile. According to the two Panchas,
the Mhowra flowers were not found inside the house but outside the house
of the accused. Following the principles laid down by the Bombay High
Court in Emperor v. Shanwar Manu Koli, 52 Bombay Law Reporter 38 and
Emperor v. Kisan Narayan, 52 Bombay Law Reporter 280, the learned Magistrate
observed that no Court should convict the accused on the uncorroborated
testimony of the Police Officer whenever it was obligatory to make a search
in the presence of the Panchas. He however held that in the case tried by
him there was corroboration in the fact that the Mhowra flowers were
lying outside the house of the accused and that in the certificate appended
to the panchnama it was stated that the Mhowra flowers were found in the
house of the accused i.e. therefore, held that there was sufficient corroboration
to the evidence of the Police Head Constable and he thereupon convicted
Raijibhai under Sec. 69 of the Bombay Prohibition Act for having been in
possession of Mhowra flowers.
In revision, the learned Sessions Judge realised that the case turned
on appreciation of evidence but according to him the appreciation of
evidence by the Magistrate was so unreasonable that it amounted to miscarriage
of justice. According to the learned Sessions Judge the search in this case was
one to which Section 103 Criminal Pro. Code applied, and therefore, it was
obligatory in the police to make the search in the presence of two
independent Panchas. It was conceded before the learned Sessions Judge by the
learned Public Prosecutor appearing before him that in this case the presence
of the Panchas at the time of the search was obligatory. But as the Panchas
did not support the prosecution case, the learned Sessions Judge was of the
(1) 52 Bom.L.R. 38 (2) 52 Bom.L.R. 280 (3) 1956 SC 217

view that unless there was corroboration to the Police Officers evidence, the
latter cannot be accepted by the Court. The learned Sessions Judge then
considered the view taken by the learned Magistrate that there was corroboration
to the Police Officers evidence in the fact that the Mhowra flowers were
outside the house of the accused in the fact that the Panchnama was signed
by the Panchas and in the fact that the certificate was appended to the
Panchnama stating that the Mhowra flowers were taken from the house of
the accused. In the view of the learned Sessions Judge these circumstances
did not amount to corroboration of the Police Officer. He also held that the
certificate had not been proved by the prosecution and was inadmissible
in evidence. For these reasons the learned Sessions judge took the view
that the learned Magistrate was wrong in holding that the evidence of the
Police Head Constable had been corroborated. The learned Sessions Judge also
rejected the contention of the learned Public Prosecutor that there was also
corroboration in the fact that the Panchnama had been signed by the Police
Officer. The learned Sessions judge was of the view that a Panchnama is
nothing but a statement made by the Panchas to the Police Officer and cannot
be used to corroborate the Police Officers evidence but it can be used only
to corroborate the evidence of Panch witnesses. The learned Sessions Judge
therefore held that the learned Trial Magistrate had wrongly observed that the
Police Head Constables evidence had been corroborated while in fact it had not
been. For these reasons he was of the view that the conviction resulted in
miscarriage of justice and he therefore made a reference to the High Court
recommending that the conviction be set aside.
Before me the learned Assistant Government Pleader stated that he does not
support the reference and he mainly relied upon the following observation of
one of the Judges of the Supreme Court in Aher Raja Khima v. State of Saurashtra,
1956 Supreme Court 217. “It is the duty of the Court not to presume
misconduct on the part of the Police Officer and the presumption that a person
acts honestly applies as much in favour of a Police Officer as of other persons
and it is not a judicial approach of district and suspect the Police Officer without
good grounds therefore.” As regards the two Bombay cases 52 Bombay Law
Reporter 38 and 52 Bombay Law Reporter 280 it is argued that in those cases
searches had not been made in the presence of the Panchas whereas in the instant
case the search was made in the presence of the Panchas who however did not
support the prosecution when they gave evidence at the trial. His contention
is that the principles laid down in the two Bombay cases do apply to a case
where a search was made in the presence of the Panchas even if they do not
support the prosecution case. It is also contended that in the Bombay cases no
rigid rule has been laid down that where the presence of the Panchas is
obligatory at the time of the search the sole testimony of a Police Officer should
not be acted upon. These are the only ground on which the Assistant Government
Pleader does not support the reference.
The Supreme Court judgment in Raja Khima v. State of Saurashtra,
A.I.R. 1956 Supreme Court 217 was delivered by three judges and His

Lordship Venkatarama Aiyar J. was in a minority. The other two judges

held that the appeal should be allowed whereas Venkatarama Aiyar J. was
of the view that the appeal should be dismissed and the order of conviction
passed by the High Court in appeal from acquittal should be confirmed. But
the case before the Supreme Court was not a case of a search it was a
case where an axe which was alleged to be the weapon used for the commission
of a murder had been recovered from the house of the accused after he
had pointed it out. In his examination under sec. 342 of the Code of
Criminal Procedure the accused admitted the recovery of the axe but stated
that there was no blood on it when he showed it to the police and the
argument urged before the learned Sessions judge was that the evidence of
blood stains on the axe were fabricated by the police subsequently. The
learned Sessions Judge held that there was some suspicion on this point. But
His Lordship Venkatarama Aiyar J. held that the learned Sessions Judge had
taken up an attitude of distrust towards the police. The majority judgment
of the Supreme Court was delivered by Bose J. The majority judgment
however differed from the view of Venkatarama Aiyar J. and Their
Lordships decided that the appeal should be allowed and the conviction by
the High Court in an appeal from acquittal should set aside. They did not
make any observations with regard to the distrust shown by the learned Sessions
judge towards the police. They rejected the prosecution case on the ground that
even though there were blood stains on the axe there was no proof that the
stains were of such a nature as to be incompatible with the innocence of the
accused. Their Lordships were not considering a case in which it was obligatory
on the part of the police to keep Panchas at the time of a search. That was
not a case of a search under sec. 103 Criminal Procedure Code. The observations
of His Lordship Venkatarama Aiyar J. do not apply to the facts of the present
case which is concerned with a search made by a Police Officer to which
provisions of sec. 103 Criminal Procedure Code apply. In certain cases the
Legislature has thought fit to make special provisions with regard to the police
for instance sec. 25 of the Evidence Act. Again in sec. 103 Criminal Pro. Code
the Legislature has provided that when a search is made to which the section
applies it is obligatory on the police to keep two respectable Panchas. In Emperor
vs. Shanwar Manu Koli 52 Bombay Law Reporter 38 the following principles
were laid down :-
“Where the law makes it obligatory for a search to take place in presence of
Panchas and the only evidence on which the prosecution ask for a conviction
of the accused is police evidence the Court will not ordinarily act on that
evidence.”
This case was followed in Emperor v. Kisan Narayan, 52 Bombay Law
Reporter 280, by two other judges of the Bombay High Court who
made similar observations. It is true that word ordinarily has been used in
both these cases. What they have laid down is that where the law makes it
obligatory for a search to take place in presence of Panchas and the only
evidence on which the prosecution ask for a conviction of the accused is

police evidence the Court will not ordinarily act on that evidence. With respect,
I agree with this view. It is true that this rule is not a rigid and
inflexible rule to be applied in all cases. Even in cases where the presence of
the Panchas is obligatory for special reasons such as the high rank of the
Police Officer the evidence of the Police Officer may be accepted even if
there is no corroboration but ordinarily in such cases there must be corroboration
of the evidence of the Police Officers. Both the learned Magistrate and the
learned Sessions Judge were aware of this principle.
There is no merit in the contention of the learned Assistant Government
Pleader that the principles laid down in the two Bombay cases do not apply
where a search has been made in the presence of Panchas even if the Panchas
did not support the prosecution. The real principle is that where the presence
of the Panchas is obligatory at the time of search the evidence of the Police
Officer conducting the search must ordinarily be corroborated and that if
there is no such corroboration ordinarily a conviction should not rest solely
on the uncorroborated testimony of the Police Officer who conducted the search.
The real question is whether there is corroboration or not. The absence of
corroboration may be due to two factors the failure of the police to keep
Panchas or the fact that Panchas do not support the prosecution. Whatever
be the reason if there is no corroboration then ordinarily conviction should
not rest on the uncorroborated testimony of the Police Officer conducting
the search in such cases. There is therefore no merit in the contention of the
learned Assistant Government Pleader that no corroboration is necessary in
cases where a search had been made in the presence of Panchas. In this case
the search had been made in the presence of the Panchas but as the Panchas
did not support the prosecution case that Mhowra flowers were found inside
the house of the accused the evidence of the Police Officer, who made the
raid, lacks corroboration.
Although the learned Magistrate was alive to the principles of the law
that when a search is made in the presence of the Panchas it is necessary
that there should be corroboration of the Police Officers evidence, he
erred in applying this principle. He held that there was corroboration of the
Police Officers evidence. The fact that the Mhowra flowers were lying outside
the house of the accused cannot corroborate the Police Officer’s evidence
that the Mhowra flowers were found inside the house of the accused. Nor can
the fact that the Panchnama was signed by Panchas or by the Police Officer
amount to corroboration of the evidence of the Police Officer that the
Mhowra flowers were inside the house of the accused. The learned Magistrate
also thought that the Police Officers evidence was corroborated by the certificate
appended to the panchnama to the effect that Mhowra flowers were found in
the house of the accused. The learned Sessions Judge observed that the
certificate had not been proved as the second Panch who was the only person
to be asked about the certificate had denied having written the certificate
which in the opinion of the learned Sessions Judge was a repetition of the
panchnama. The learned Session Judge also rejected the contention of the Public
Prosecutor that the panchnama corroborated the evidence of the Police Officer.

The learned Sessions Judge observed that on first principle a panchnama is nothing
but a statement made by the Panchas to the Police Officer as to what they had
seen in company of the Police Officer. He also observed that the signature of
a Police Officer on the panchnama only means that it has been written and
signed in his presence and that a panchnama can be used to corroborate the
Panch witness and none else.
His view that a panchnama cannot be treated as corroboration of the evidence
of a Police Officer is correct. The corroboration that would justify a conviction
in cases where it is obligatory to make a search in the presence of Panchas
is usually the evidence of one of the Panchas. At any rate, the corroboration
must be from a source independent of the Police Officer who made the search.
Further, a panchnama is not and does not purport to be a statement made by
the Police Officer to Panchas. If a panchnama is regarded as a statement made
by the Panch to the Police Officer, it may in many cases be hit by Sec. 162
Criminal Pro. Code because in the course of investigation the Police make
panchnamas. If it is statement made by a Panch to the Police Officer in the
course of investigation, it cannot be signed by the Panchas in view of Sec. 162
Cri. Pro. Code. A careful analysis will show that a panchnama is neither a
statement made by the Panchas to the Police Officer nor a statement made by
the Police to the Panchas. Panchas can make a panchnama of a scene of offence
in the absence of any Police Officer. It is therefore clear that a Panchnama
is not a statement but a note made by the Panchas of what they had seen at
the time of the panchnama. Sections 159 to 161 of the Evidence Act would
apply to a panchnama and a Panch witness can refresh his memory by referring
to the panchnama as provided in Sections 159 to 161 of the Evidence Act.
A panchnama cannot be used either to corroborate the evidence of the Police
officer or the evidence of the Panch. A certificate attached to the panchnama
by the Panchas is part of panchnama and cannot be used to corroborate.
There was therefore no corroboration to the evidence of the Police Officer
that Mhowara flowers were found inside the house of the accused. The learned
Sessions Judge was right in observing that therefore there has been a failure
of justice. I therefore agree with the learned Sessions Judge and hold that
fundamental principles of criminal law have been misapplied in this case resulting
in a miscarriage of justice.
I therefore accept the reference and set aside the conviction and sentence
passed on Raijibhai Chaturbhai Solanki.
Reference accepted.
* * *
FULL BENCH
Before : Hon’ble Mr. S. T. Desai, Chief Justice
Hon’ble Mr. Justice N. M. Miabhoy
Hon’ble Mr. Justice P. N. Bhagwati
THE ANAND MUNICIPALITY v. THE UNION OF INDIA
& OTHERS*
The Bombay State Reorganisation Act, I960 -Section 87-Decisions of the
*Decided on 28-7-1960. Special Civil Application No. 119 of 1960 against the order
dated 28-8-59 passed by the District Judge of Kaira at Nadia in Civil Misc. Appl. No. 48/56.

1960] ANAND MUNI. v. UNION OF INDIA (S.C.A.)-Desai, C.J. [83
High Court of Bombay before the appointed day i.e. 1st May, 1960 are
binding on Gujarat High Court-Gujarat High Court though a successor
to the High Court of Bombay is not a Court of co-ordinate jurisdiction.
In this petition, the question arose whether the Gujarat High Court was bound
by the decisions of the Bombay High Court, delivered before the 1st May, 1960.
The petition came up for consideration before a Division Bench of Hon. Chief
Justice and Hon. Mr. Justice Miabhoy. Having regard to the importance of this
question, their Lordships directed that the matter should be heard by a Full Bench
of this Court. It was contended by the petitioners that the effect of Section 3
of the Bombay State Reorganisation Act brought into existence altogether a new
State and there is nothing in any of the provisions of the said Act which could
be interpreted to mean that the entire “ law in force” in the territories formerly
constituting the State of Bombay including decisions of the Bombay High Court,
is to continue to apply to the territories in the newly constituted State of Gujarat.
HELD that decisions of the High Court of Bombay given prior
to the appointed day i.e. 1st May, 1960 are binding on the High Court of Gujarat.
Judicial precedents are within the extensive ambit of Sec. 87 of the Bombay
Reorganisation Act.
Simply because the Gujarat High Court is in a sense successor to the High
Court of Bombay in respect of the territories of the State of Gujarat it cannot
be said that it is a Court of co-ordinate jurisdiction with that predecessor.
M. Subbaravudu v. State (AIR {1965} Andh 87), referred to.
Mr. Vithalbhai B. Patel, for the Petitioner.
Mr. J. M. Thakore, Advocate General, with M/s. Little & Co.,
for Respondent No. 2.
Mr. J. M. Thakore, Advocate General, with Mr. R. H. Dharu
for Respondent Nos. 1 & 3.
Respondent No. 4 served.
Per DESAI C. J.
The question of considerable importance and consequence that has to be
decided by this Full Bench relates to the binding nature of the precedents of
the Bombay High Court on this High Court. The question is whether the
Gujarat High Court is bound by the decisions of the Bombay High Court
delivered before the 1st May, 1960. The petition which gave rise to it came
up for consideration before my brother Miabhoy and myself when in the
course of the arguments at the Bar the learned Advocate General relied on a
decision of the High Court of Bombay Learned Counsel on the other side
argued that this Court was not bound by any decision of the High Court
of Bombay. Our attention was drawn to a decision of the Andhra High Court.
M. Subbaravudu v. State, A.I.R. (1955) Andhra 87 decided by a Full
Bench of that High Court. It was there held that the binding nature of the
precedents of one Court on another depended upon the fact whether such
Courts are Courts of co-ordinate jurisdiction and the Andhra High Court
and the Madras High Court prior 5-7-1954, it was held, were Courts of
co-ordinate jurisdiction. We found some difficulty in agreeing with some
the reasons which found favour with the learned Judge who decided that
case. We were however inclined to take the view, though on a different ground
that the decisions of the High Court of Bombay should be binding on this Court
provided they were given before 1st May, 1960.

Having regarded to the importance of the question we fell the necessity

of having it fully argued and it was directed that the matter should be
heard by a Full Bench of this Court.
The learned Advocate General has argued before us that the effect of section
87 read with some other sections of the Bombay Reorganisation Act 1960 is
to make those decisions binding on this Court. He has principally relied on section
87 of that Act which is as under :-
“87 The provisions of Part II shall not be deemed to have effected any change
in the territories to which any law in force immediately before the appointed day
extends or applies and territorial reference in any such law to the State of Bombay
shall until otherwise provided by a competent Legislature or other competent
authority be construed as meaning the territories within that State immediately
before the appointed day.”
Considerable stress is laid on words any law in force immediately before
the appointed day and it is urged that the first part of the section lay down
the rule that the law in force in the State of Bombay immediately before the
appointed day continues to be the law to he applied in the territories which
now form the State of Gujarat. The next step of the argument is that a decision
of the High Court of Bombay on any matter is part of the law within the
connotation of the expression law in force and it is said that the expression
law in force should be interpreted not in a rigid but in a comprehensive manner
and the comprehensive meaning it is said would include decisions of the High
Court of Bombay on any point of law whether of construction of an enactment
or otherwise. In support of the argument reliance is also placed on the scheme
of the Act and a number of sections of the Act. It is not necessary to examine
all those sections and we shall be referring only to some of them. Sec. 2(b)
gives the definition of law as under :-
“2 (d). Law includes any enactment ordinance regulation order by-law rule
scheme notification or other instrument having immediately before the appointed
day the force of law in the whole or in any part of the State of Bombay.”
Section 3 of the Act is as under :-
“3. (1) As from the appointed day there shall be formed a new State to be
known as the State of Gujarat comprising the following territories of the State
of Bombay namely:-
(a) Banaskantha Mehsana Sabarkantha Ahmedabad Kaira Panchmahals Baroda
Broach Surat Dangs Amreli Surendranagar Rajkot Jamnagar Junagadh Bhavnagar
and Kutch Districts and
(b) the villages in Umbergaon Taluka of Thana District the villages in Nawapur
and Nandurbar Talukas of West Khandesh District and the villages in Akkalkuva
and Taloda Talukas of West Khandesh District respectively specified in Parts I
II and III of the First Schedule;
and thereupon the said territories shall cease to from part of the State of
Bombay and the residuary State of Bombay shall be known as the State of
Maharashtra.
(2) The villages in Umbergaon Taluka specified in Part I of the First Schedule
shall form a separate taluka of the same name and be included in Surat District
and the remaining villages in the said taluka shall be included in and from Part
of Dehanu Taluka of Thana District and the villages specified in Parts II and III
of the First Schedule shall respectively be included in and form part of Songadh
Taluka of Surat District and Sagbara Taluka in Broach District.”

Section 30 relates to the jurisdiction of the High Court of Gujarat. It is

as under :-
“30 The High Court of the Gujarat shall have in respect of any part of the territo-
ries included in the State of Gujarat all such jurisdiction powers and authority as
under the law in force immediately before the appointed day are exercisable in re-
spect of that part of the said territories by the High Court of Bombay.”
The expression law in force appears in sections 32 34 35 and 36. Those
sections deal respectively with Practice and Procedure in the High Court of Gujarat
with form of writs and other processes with powers of judges of the High Court
of Gujarat and with procedure as to appeals to the Supreme Court. We have
already set out the provisions of Sec. 87. Sections 88 and 89 are as under:-
“88 For the purpose of facilitating the application in relation to the State of
Maharashtra or Gujarat of any law made before the appointed day the appropriate
Government may before the expiration of one year from that day by order make
such adaptations and modification of the law whether by way of repeal or
amendment as may be necessary or expedient and thereupon every such law shall
have effect subject to the adaptations and modifications so made until altered
repealed or amended by a competent Legislature or other competent authority.”
Explanation :- In this action the expression appropriate Government means
as respects any law relating to a matter enumerated in the Union List the Central
Government and as respects any other law the State Government.
“89 Notwithstanding that no provision or insufficient provision has been
made under section 88 for the adaptation of a law made before the appointed day any
Court tribunal or authority required or empowered to enforce such law may for the
purpose of facilitating its application in relation to the State of Maharashtra or
Gujarat construe the law in such manner without affecting the substance as may be
necessary or proper in regard to the matter before the court tribunal or authority.”
It has been argued on the other hand by Mr. Patel learned advocate for
the Petitioner that the effect of section 3 is to bring into existence altogether
a new State and there is noting in any of the provisions of the Reorganisation
Act which can be interpreted to mean that the entire law in force in the territories
formerly constituting the State of Bombay including decisions of the Bombay
High Court is to continue to apply to the territories now constituting the State
of Gujarat. As to section 87 the argument is that it deals simply with territorial
extent and nothing else. It is said that sec. 88 only empowers the two States
to adopt and modify the Statutes made before the appointed day and there is
nothing in secs. 88 & 89 even to suggest that decisions of the High Court of
Bombay should have the force of binding laws in the territories now constituting
the State of Gujarat.
Section 87 of the Reorganisation Act in our opinion deals not merely
with territorial extent of the new State but with territorial extent therein of
laws is force immediately before the appointed day. It may be divided into
two parts. The first part relates to the extent and application of laws in
force immediately before the appointed day. The second part does not
reach all the laws in force immediately before the appointed day but only such
laws as contained any references to the territories and their territorial extent.
Now the initial words of sec. 87 refer to the provisions of Part II. Part II
is untitled “Reorganisation of Bombay State” and contains three sections. Section
3 which is the first section in that part has already been set out by us.

Section 4 relates to amendment of the First Schedule to the Constitution and

sec. 5 relates to certain saving powers of the State Government. For all
practical purposes it is sec. 3 in Part II which is the material section. It
will conduce to clarity and simplicity when ascertaining the meaning and
effect of sec. 87 if we read section 87 immediately after sec. 3. But
before we do so we shall be referring to sections 3 28 and 34 of the Act.
Stripped of details sec. 3 lays down that as from the appointed day the
enumerated territories which hitherto are in the State of Bombay shall form a
new State known as the State of Gujarat and thereupon those territories shall
cease to form part of the State of Bombay. Then in section 28 the Legislature
has enacted the constitution of a separate High Court for the State of Gujarat.
Having created a new State and a new Court the Act proceeds in section 30
to lay down that the jurisdiction powers and authority of the newly constituted
High Court shall in respect of the territories included in the State of Gujarat
be the same as those exercised by the High Court of Bombay under the law
in force immediately before the appointed day in the whole State of Bombay.
Reference in this section to law in force is significant. It is made on the assumption
that the law in force is to continue apply to the territories forming the new
State. But section 3 relates only to the jurisdiction of the new High Court in
respect of those territories and therefore when Part IX of the Act proceeds to
enact Legal and Miscellaneous Provisions it lays down a rule relating to the
extent and application in those territories of the law in force immediately before
the appointed day. There is to be no change in the territorial extent and application
of that law. The Legislature evidently felt that there might be scope for the
contention that those territories having ceased to be part of the State of Bombay
and having formed a new State the law previously in force in those territories
had ceased to apply in the territories of the new State. The initial words of
section 87 in terms express and explicit rule that the provisions of Part 11 which
we may for the present purpose read as the provisions of section 3 shall not
be deemed to have effected any change in those territories. The argument of
Mr. Patel here is that the emphasis is on territories and not on the law in force.
We are unable to accede to that argument. The emphasis is both on the territories
and the law in force in those territories immediately before the appointed day
and also on extent and application of that law. The position will become still
more clear if we now turn to read section 3 with section 87. Section 3 as we
have already pointed out enacts that the territories there mentioned cease to be
part of the State of Bombay and form a new State to be known as the State
of Gujarat and section 87 enacts that this formation of a new State and the
cessation of the territories form the State of Bombay is not to effect any change
in the territories to which any law in force immediately before the appointed
day extends or applies”. The meaning of this first part of section 87 in our
judgment must necessarily be that the territorial extent of those taws which were
in force in all the territories of the State of Bombay immediately before the
appointed day is to continue and the reorganisation of the territories of the two
States is not to effect any change in that position.
On our part we see no particular difficulty in interpreting the first part

of section 87. It may be that the intention of the Legislature that the laws in
force immediately before the appointed day in the State of Bombay are to continue
to be in force in the territories which now form part of the State of Gujarat
might have been expressed in a more satisfactory manner if not in a more
elegant manner. Even assuming that there is some ambiguity or uncertainty about
the words used by the legislature in the first part of section 87 we do not find
any reason for acceding to the argument urged by Mr. Patel. Those words need
not produce any ambiguous result in any manifest absurdity or uncertainty.
But such would be the result it we accede to Mr. Patel’s argument.
It is familiar law that everything being equal in other respects that
interpretation should be accepted by the Court as constituting the legislative intent
which operates justly and reasonably so long as it accords with accepted standards
of interpretation. It would be erroneous in any such case to disregard those
standards and lean heavily on the principle of literal construction. Where two
meanings are possible it is always open to the Court to prefer that meaning
which is consonant with the scheme and object of the Statute and is supported
by the inherent fitness of the matter. To accede to the argument of Mr. Patel
would result in certain a situation which would be unreasonable absurd and
mischievous. It would open the doors of this Court for rising over again of
all disputed questions and matters relating to which doubt and difference had
been set at rest. The object of the relevant provisions is manifest. It was to
preserve continuity and certainty in the application of existing law. That was
the legislative purpose and it can be gathered from the Act read as a whole.
Moreover there is in our opinion sufficient intrinsic evidence to suggest that unless
the legislature of the State of Gujarat acting within its competence altered or
changed any rule of substantive or procedural law by legislation the law hitherto
in force in the territories now constituting the State of Gujarat should continue
to be applied in those territories as if there had been no reorganisation of the
States.
But we need not further pursue this subject. For reasons already given we
are of the opinion that the relevant sections tend to reveal the intent of the
law-maker that the law in force immediately before the appointed day in the
territories which now form the State of Gujarat is to continue to be in force
in those territories until altered by the Legislature.
It is next necessary to consider in turn whether decisions of the Bombay
High Court are to be regarded as law in force in the territories which
constituted the State of Bombay. On this point Mr. Patel had little to say.
We on our part find no difficulty in giving a comprehensive connotation to
the expression “any law in force immediately before the appointed day. The
words should not in our judgment receive any technical meaning but should
be understood in a sense which gives them a fair measure of amplitude. The
crucial words so read must lead to the conclusion that decisions of the High
Court of Bombay given before the appointed day are binding on this Court.
It may be that some of those decisions may later on be overruled by that
High Court. In any such case it would be open to this Court to decide and
state for itself the law on the subject. No such position has arisen in the
case before 3 and we need not linger on that aspect of the matter. One way
of dealing with any such situation would be for a Full Bench of this High
Court to consider the question and decide the matter for itself. Nor need we
discuss the importance of judicial precedents and their place in the corpu juris.

In any case we are of the opinion that judicial precedents are within the
extensive ambit of section 87 of the Act.
We turn to the second argument pressed for our acceptance by the learned
Advocate General. It is said that this High Court is in a real sense an off-
spring of the pre-reorganisation High Court of Bombay. We contemplate the
pedigree with filial sentiment and gratitude. Then it is said that we are a Court
of co-ordinating jurisdiction with the High Court of Bombay as regards citation
of decisions of the High Court of Bombay prior to the appointed day and it
is in support of this proposition that the Advocate General has relied on the
Full Bench decision of the High Court of Andhra of which we have made mention.
We should have examined the argument here in some detail and also referred
to the views expressed by the learned Judges who decided the Full Bench case
but it will not be necessary to do so in view of the conclusion already reached
by us on the construction and meaning of section 87 of the Reorganisation Act.
The learned Chief Justice of the Andhra High Court as he then was has in his
judgment in that case expressed the opinion at page 91 of the report that it
would not be inappropriate to call a successor Court a Court of co-ordinate
jurisdiction with its predecessor if their jurisdictions at the point of time they
exercised it are similar to or co-extensive with each other. The learned Chief
justice has applied the test which is as follows :-
“Whether the two Courts are of equal rank status or of equal authority and
exercised similar jurisdiction.”
Applying that test His Lordship reached the conclusion that the two Courts the
High Court of Andhra and the High Court of Madras were courts of co-ordinate
jurisdiction and therefore the decisions of Madras High Court at the relevant time
were binding on the Andhra High Court. We find considerable difficulty in
agreeing with that view. We say this with some hesitation. Co-ordinate jurisdiction
in the ordinary connotation of that expression is that which is exercised by
different courts of equal rank and status over the same subject matter and within
the same territory and ordinarily at the same time. Each Court must have
jurisdiction to deal with same subject matter. We do not intend to suggest that for
all purposes co-ordinate jurisdiction is to be equated with concurrent jurisdiction
or simultaneous jurisdiction but we are unable to see our way to the conclusion
that simply because this Court is in a sense a successor to the High Court of
Bombay in respect of the territories which now form part of the State of Gujarat
it is a Court of co-ordinate jurisdiction with that predecessor.
It is lastly argued by the learned Advocate General that decisions of the
Bombay High Court prior to the appointed date are binding on this Court because
the systems of law in the new State of Maharashtra and Gujarat are derived
from the parent State of Bombay of which each formed a part. That decisions
of the predecessor Court of the parent Court in any such situation should be
accepted with all the respect due to them is not in doubt or dispute. The question
is whether the decisions of that Court are binding as precedent. We should have
pursued the matter but since we have already reached our conclusion on a reading
of the sections of the Reorganisation Act and particularly that of section 87 we
need not burden this judgment with any discussion of the same.
For reasons already given it is the opinion of this Court that decisions of
the High Court of Bombay given prior to the appointed day are binding on
this High Court.
* * *

1960] PARSHOTTAMDAS v. STATE (S.C.A.)-Desai, C.J. [89

and the Hon’ble Mr. Justice P. N. Bhagwati.
SHRI PARSHOTTAMDAS RATANLAL v. STATE OF BOMBAY
(NOW GUJARAT) AND ANOTHER*
The Bombay Land Requisition Act, 1948 (Act No. XXXIII of 1948)-
Sections 5 & 6-Bombay Land Requisition (Exemption) Rules, 1948-Rules
4 and 5 and Schedule thereof-Extent of exemption to Co-operative Societies-
Whether applies to a building, the whole or part of which was let out before-
Whether additional construction by itself is a building.
Exemption granted to a Co-operative Society and its members from the
provisions of Section 5 and 6 of the Bombay Land Requisition Act, 1948 did
not and does not attach to any building the whole of which or part of which
was let out when the relevant provisions came in force in 1948.
The exemption must attach to the building as a whole and cannot attach to
any part of the building. A single room put up on the terrace cannot enjoy an
exemption which cannot attach to that part of property which has already been
let out.
The facts appear in the judgment.
Mr. I. M Nanavaty, Advocate for the Petitioner.
Mr. J. M. Thakore, Advocate General, with the Assistant Government pleader
and Messrs. Little and Co. for the respondents.
S. T. DESAI C. J. The petitioner is the owner of a bungalow in Gujarat
Middle Class Co-operative Housing Society Ltd. (Shantinagar Society) at
Wadaj Road in Ahmedabad. It was purchased by him in 1942. In his
petition, he has stated that since 1942 he has been occupying “the said
bungalow with his family in the south wing there”. It is also stated that he
and his brother constitute a Joint Hindu Family and that he has no issue and
his brother has three sons and seven daughters. Some of his brother’s
children according to the petitioner reside with him in the bungalow. One
of the petitioner’s brother’s son got married some time before the petition
and the petitioner constructed an additional bed-room on the terrace of the
bungalow. That was done solely for the purpose of accommodation the newly
married couple. The size of the room is 23’x16’ and the new construction
cost him Rs. 7,000. In December, 1959 the petitioner applied to the Ahmedabad
Municipal Corporation for permission to occupy the newly constructed bed-
room. The petitioner has also stated in his petition that “The Municipal
Corporation while granting permission to occupy asked the petitioner to fill
the form for permission of the second respondent to occupy the newly
constructed bed-room for themselves and in view of that without understanding
the legal implication thereof, the petitioner applied to the second
*Decided on 22-7-1960. Special Civil Application No. 244 of 1960 under Articles
226 and 227 of the Constitution of India for a writ setting aside order No. 122 of
1960 dated 12-3-1960 by Accommodation Officer.

respondent for permission to occupy the newly constructed bed-room some-

where in February 1960 in the prescribed form and the petitioner has
stated in the said prescribed form that the newly constructed room is required
by the petitioner for personal occupation. Then it appears that the Requisition
Department made inquiries in the matter and a statement of the petitioner
was recorded. On 10th March 1960 the second respondent the Accommodation
Officer made an order requisitioning the room for public purpose viz., for
housing a Bombay State Government Servant and the petitioner was required
to hand over possession of the room to the Inspector. The petitioner thereupon
came to this Court on this petition.
The order of requisition made on 10th March 1960 was under section 6
of the Bombay Land Requisition Act 1948 and the premises requisitioned are
there stated to consist of “One room newly built on first floor....”
Three contentions have been urged before us by Mr. Nanavati who appears
for the petitioner. Firstly it is said that the room cannot constitute premises within
the meaning of section 6 (1) of the Bombay Land Requisition Act 1948 It is
said that there is no independent passage to the room there is no both-room
or lavatory attached to the room and there is no kitchen available for the room.
It is also said that the petitioner and the members of his family have for a
long time been in occupation of what has been described as southern wing of
the bungalow.
In opposition to the rule the Accommodation Officer has made an affidavit
and in his affidavit he has stated as under :-
“I say that in the course of the enquiries caused to be made by Government
the petitioner unequivocally stated that he has been residing with his
brother in House No. 175/176 at Patasa Pole. He also admitted that he has
ration cards on those premises. He further admitted that the address of the
bungalow in question does not appear on any ration card. In the course of the
enquiries the petitioner also admitted that the said bungalow 30 in Shantinagar
Society Wadaj consists of 4 rooms on the ground floor and two rooms on
the first floor. Out of the said two rooms on the first floor the petitioner has
newly constructed one large room admeasuring 23’x16’ and he gave an intimation
of vacancy in respect of this newly constructed room. The enquiries caused to
be made by Government have further shown that the entire ground floor of
the said bungalow has remained vacant and further investigation into the said
vacancy is being made by Government asset is believed that said vacancy is
a suppressed vacancy.”
We are satisfied with the correctness of the statement made by the
petitioner on his petition that he has been occupying the ground floor of
these premises and prefer to rely on the statement in that behalf made in
the affidavit by the Accommodation Officer. Nor are we satisfied about
the statement of the petitioner that the newly constructed room is so situated
that it is not capable of being let out. Here also we prefer to rely on the

affidavit of the Accommodation Officer. Now we could have decided the

disputed questions of fact only after recording evidence. Mr. Nanavati has
strongly urged before us that this is a fit case in which we should record
evidence and permit the petitioner to establish the facts alleged by him and the
correctness of which has been denied by the Accommodation Officer. In
our opinion this is not a fit case in which any evidence should be recorded.
We do not intend to be understood to say that this court will not permit
evidence to be led in every case which comes before us under Articles 226 and
227 of the Constitution. Of course there are cases where it would be desirable
and indeed necessary in the interest of justice that evidence should be
recorded in order to determine the disputes raised on the petition. This however
is not one of those cases in which we would permit evidence to be recorded.
On the facts 35 stated in the affidavits it is not possible to accede the contention
that the room is not capable of being let out and therefore not premises. The
contention must therefore be negatived.
It is next urged by Mr. Nanavati that the Department has not determined
that the newly constructed bed-room amounts to premises within the meaning
of that expression in the Bombay Land Requisition Act 1948 In our opinion
there is no substance in this contention. As a part of the same contention it
is urged that the petitioner had not given any intimation of vacancy. It is pointed
out that in the form filled in by the petitioner he has stated that the room was
not going to be let out and was constructed for personal occupation. It is some
what difficult to see the sequitur of these facts. Moreover no contention of the
nature now sought to be urged before us has been set out in the petition. The
contention set out in the petition to which our attention was drawn by Mr. Nanavati
relates to failure on the part of the Accommodation authorities to determine the
question whether the bed-room in question is premises within the ambit of the
Act. We have already held that there is no substance in that contention.
The third and last contention urged before us by Mr. Nanavati is that the
room in question is exempted premises to which the Act does not apply meaning
thereby that the authority had no power and jurisdiction to requisition the room.
Section 19 of the Act relates to the rule-making powers of the State Government.
Clause (iv) of sub-section (2) of that section authorises the State Government
to provide for :-
x x x x x x x
“(iv) exemption of any land from the provision of section 5 or 6 or both and
the terms and conditions on which the land shall be exempted.”
The Rules intituled “The Bombay Land Requisition (Exemption) Rules 1948”
were framed by the State Government in exercise of the powers conferred by
clause (iv) of sub-section (2) of section 19 of the Act on 5th November 1941.
The rules which are material for the purpose of examining the present contention
are rules 4 and 5 and they are as under :—
“4. The buildings specified in the first column of the Schedule hereto appended are
exempted from the provisions of the section or sections of the Act specified against

them in the second column of the terms and conditions specified against them
in the third column of the said Schedule.”
“5 If any of the terms and conditions specified in rule 4 are not complied
with the State Government may withdraw the exemption granted under rule 4.
The decision of Government shall be final.”
The schedule annexed to the rules when they were framed in 1948 has been
amended in some parts. Amended entry No. 1 of the Schedule with which we
are here concerned is as under :—
The Schedule
Description of Buildings ‘Section or sec- Terms and conditions of
exempted tions of the Act exemption.
from which
from which
exempted.
1 2 3
1 Buildings owned by a Co- 5 and 6 (1) The members entitled to occupy or
operative Housing Society use the premises may with the premis
or the members thereof sion of such Officer as the State
under the bye-laws of Government may authorized in this
the Society. behalf occupy the same and they
shall not let out or part with the
possession of the premises or any
part thereof.
(2) No premises shall be kept vacant for
more than one month. If any pre
mises remain vacant for a longer
period the vacancy shall be reported
within seven days of the expiry of
the month to the officer authorized
under section 6 of the Act.
It is not necessary to discuss at this stage clause (1) of the entry in the
third column of the Schedule relating to entry No. 1. We shall however
turn a little later to the same when we examine one of the arguments urged
before us by Mr. Nanavati.
One argument under this head urged by Mr. Nanavati is that the exemption
attaches to every building owned by a Co-operative Housing Society as also
to buildings owned by members of any such Society under the byelaws of the
Society. It is said that clauses (1) and (2) of the third column read together
go to establish that the conditions mentioned therein are conditions subsequent
and do not prevent the exemption attaching to any such building. The argument
of the learned Advocate General on the other hand is that the two clauses read
as a whole and in the context of section 19(2) and the rules made thereunder
show that it is condition precedent to the attaching of the exemption that an
Application should in any event be made by the member who claims to be entitled
to occupy or use the premises. It is argued that the exemption cannot attach
before the permission is granted.
It is not necessary to examine the rival condition as the matter is
capable of being disposed of on a point which lies in a very narrow compass.

When one reads section 19(2) and the rules made thereunder along with
the relevant part of the schedule the question must arise as to what is the coverage
of the exemption. Reading the entry in the manner indicated above it seems
to us abundantly clear that the exemption did not and does not attach to any
building the whole of which or part of which was let out at the time of the
coming into operation of the entry. In the view we take of the matter the result
does not hinge upon whether the conditions mentioned in clauses (1) and (2)
are conditions precedent or conditions subsequent. This is for the simple reason
that the crucial question is as to the purview of the exemption. Clause (1) brings
out in language express and explicit that the exemption was not intended by
the Legislature to attach to any properties of which the whole or any part was
let out or of which possession had been parted with by the member. It is also
abundantly clear from the provisions set out above that the object of granting
this exemption to buildings owned by a Co-operative Housing Society or members
of the Society was to give protection to the Society itself or to the members
of the Society who being owners of the building wanted personally to occupy
and use the entire building and who had not and did not intend to let out the
same or part of the same. One answer to this given on behalf of the petitioner
is that the letting out was before 1948 and the statutory exemption came into
force only in that year. Therefore the condition about letting out of the property
or part of the same could not embrace that part of the building which had been
let out before 1941. It is said that to hold otherwise would be giving retrospective
operation to the relevant provisions. In our opinion there is here no question
of giving any retrospective or prospective operation to the provisions when we
are examining the scope and purview of the exemptions. Then it is said that
the condition is of occupation and not of exemption. It is impossible to read
clauses (1) and (2) of the Schedule in that manner.
It is then argued that additional construction is by itself building within
the meaning of section 19(2). There is no substance in this argument. We fail
to see how can be said that a single room put up by the petitioner on the terrace
can enjoy an exemption which admittedly cannot attach to that part of the property
which has been let out by the petitioner himself. In our opinion the exemption
must attach to the building as a whole and cannot attach to any part of the
building. To put it differently the exemption would not embrace the case of
any building a part of which had already been let out when the relevant provision
came in force in 1948. There is noting in the language of any of the relevant
provisions which would warrant a different meaning being ascribed to them.
In the course of the argument we put it to Mr. Nanavati that if his present
argument were to be accepted it would mean that the exemption could apply
to a building owned by a member of Co-operative Housing Society even if he
had already let out the building. The answer was in the affirmative. It is difficult
to see how the relevant provisions can be interpreted to extend the exemption
to any such building.
It is of some significance to note that the exemption is from the operation
of not only section 6 of the Act but also section 5. The argument relating to

vacancy cannot touch a case of requisitioning falling under Sec. 5. We put it

to Counsel if he could say why the exemption is also from operation of Sec.
5 even though that section does not deal with any vacancy. Very little could
be said in answer to this. All that was said was that Sec. 5 speaks of a building
as also a part of the building. In our opinion, this does not meet the difficulty
in the way of the petitioner.
Reliance has also been placed on behalf of the petitioner on clause (1) of
the third column of the Schedule to the Rules as they were framed in 1948.
That clause which has now been amended in the manner set out by us, was
as under :-
“(1) The premises may be occupied by the members owning the same or may
be let to members of the Society in accordance with the bye-law of the Society.”
The suggestion here is that there could be letting out of the whole or
even a part of the building to a member of the Society in accordance with
the bye-laws of the Society before the amendment of this clause in 1959.
We agree that clause (1) did rule that letting out of the premises was permitted
provided it was confined to members of the Society. But we fail to see how
this restricted letting out which was permitted under that sub-clause can affect
or throw any light on the construction of sub-clause (1) as it now abides
and the relevant provisions with which we are concerned. There is no substance
in this argument.
In the result, the petition fails and will be dismissed. Rule will be discharged
with costs.
Rule Discharged.
* * *
CIVIL APPELLATE
Before the Hon’ble Mr. Justice J. M. Shelat.
THE MUNICIPAL CORPORATION OF CITY OF AHMEDABAD. v.
PATEL PRABHUDAS DHANJIBHAI*
The Bombay Provincial Municipal Corporations Act, 1949 (Act No. LIX, of
1949)-Sec. 260-Point of construction-Shed etc. constructed before the Act came in
force on 1st of July, 1950-Whether notice issued by the Municipal Corporation under
Section 260 of the said Act valid- Whether Section 260 retrospective-Section 493 of
the Bombay Provincial Municipal Corporations Act and clause 4(2) of Appendix IV
of Act considered.
The Plaintiff, Patel Prabhudas had been running a hotel in a shop
constructed before the Bombay Provincial Municipal Corporations Act
came into force and had made no additions and alterations in the said
shop after the Act came into force. Defendant Corporation issued notice
under Section 260 under the Act of 1949 to the plaintiff for making construc-
*Second Appeal No. 20 of 1960 decided on 18th August ,1960 against the decision
of M. K. Thakore, Esq. Third Extra Assistant Judge at Ahmedabad in Appeal No. 53 of
1955 from the decision of Shri S. M. Vyas in Civil Suit No. 878 of 1952.

1960] MUNI. CORP. AHMED. v. PRABHUDAS (C.A.)-Shelat, J. [95
tion contrary to building bye-laws 5A and 23 framed under the Bombay Municipal
Boroughs Act, 1925 and for removing the said construction. Prior to issuing the
said notice, he had been prosecuted by the Ahmedabad Municipality under Section
123 of The Bombay Municipal Boroughs Act on the ground that the said
constructions were made by the plaintiff contrary to the provisions of Section
123 of The Bombay Municipal Boroughs Act, 1925, and was convicted. Main
contention of the plaintiff was that the Corporation could not issue notices under
Section 260 of the Bombay Provincial Municipal Corporations Act for a construc-
tion completed before 1-7-1950 when the said Act came into force.
HELD that Section 260 of the Bombay Provincipal Municipal Corporations Act
was not of a retrospective nature but was meant to be prospective. Hence, any
proceedings in respect of a default under any of the provisions of The Bombay
Municipal Boroughs Act, 1925, could only be continued under the provisions of
that Act, provided that such provisions of the Act fell within the scope of Appendix
IV of the Act of 1949 and are saved under section 493 or Appendix IV.
So, a notice issued under sec. 260 of the Bombay Municipal Corporations
Act, 1949, in respect of construction made prior to the Act came into operation,
is not a valid notice.
R. M. Shah, for the Appellant.
N. C. Shah, for the Respondent.
SHELAT J. This appeal raises a point of construction of Sec. 260 of the
Bombay Provincial Municipal Corporations Act, 1949.
The plaintiff filed a suit against the Municipal Corporation of Ahmedabad
for a declaration that the notice issued by the Corporation dated the 30th
April, 1952 under sec. 260 of the Bombay Provincial Municipal Corporations
Act, 1949 was vague illegal and ultra vires and for an injunction restraining
a shed and a pan-galla constructed by the plaintiff and in respect of which
the notice was issued.
The plaintiff has been running a hotel in Survey No. 163 in Saraspur Ward
Ahmedabad for the last several years. It was the case of the plaintiff that he
had made no additions or alterations in his shop and yet the State and the City
Improvement Officer of the Corporation sent him the said notice under Sec.
260 to the effect that he had made constructions contrary to buildings bye laws
5-A and 23. It was also his case that he had constructed the shop prior to the
coming into force of the Act of 1949 and that therefore Sec. 260 of the 1949
Act would not apply and that the notice issued thereunder would be misconceived.
He contended that the notice was in any event vague unauthorised and inoperative.
The case of the Defendant Corporation was that as the plaintiff had
constructed a shed and a pan-galla without a prior permission and in
contravention of bye-laws 5-A and 23, the Estate and City Improvement Officer
called upon the plaintiff to show cause and they by a further notice dated
the 2nd of June, 1952 called upon the plaintiff remove the construction. It
may be mentioned that prior to the issue of these two notices, the plaintiff

had already been prosecuted by the Ahmedabad Municipality under sec. 123 of
the Bombay Municipal Boroughs Act of 1925 which was then in force on the
ground that the shed and the pan-galla had been constructed by him contrary
to the provisions of that section without having obtained prior permission of
the Chief Officer of the Municipality. It was in connection with that construction
that the defendant Corporation issued these two notices calling upon the plaintiff
to remove the said construction.
The question that arises for determination is whether the notice dated the
30th of April 1952 Ex. 31 is a valid notice. Both the courts below held that
the notice was invalid and inoperative and decreed the suit as prayed for by
the plaintiff. This appeal has been preferred by the defendant Corporation against
the judgment and decree passed by the learned Trial Judge and confirmed by
the learned Assistant Judge Ahmedabad.
Now it is not in dispute that the construction of the shed and the pangalla
in respect of which the plaintiff had been prosecuted by the Ahmedabad
Municipality under sec. 123 of the Bombay Municipal Boroughs Act of 1925
and in respect of which the notice Ex. 31 was issued by the defendant Corporation
on the 30th of April 1952 was commenced and completed prior to the 1st of
July 1950 when the Act of 1949 came into operation. The question is whether
in view of the fact that the construction complained of was completed prior
to the 1st of July 1950 and the prosecution in respect thereof having been launched
by the Municipality under the old Act a notice in respect of the same construction
could be validly issued under sec. 260 of the 1949 Act. As I have said before
both the courts below held that such a notice was misconceived and therefore
was not valid.
Mr. R. M. Shah who appears for the defendant Corporation first argued
that sec. 260 of the Act of 1949 was of a retrospective nature and therefore
any act contrary to the provisions of sec. 254 of the Act of 1949 would fall
under the scope of sec. 260 and therefore a notice under sec. 260 would be
a valid notice. In order to appreciate the contention of Mr. R. M. Shah it is
necessary to turn to sec. 260. The relevant portion of that section is as follows:-
“If the erection of any building or the execution of any such work as is
described in section 254 is commenced or carried out contrary to the provisions
of the rules or byelaws the Commissioner shall
(a) by written notice require the person who is erecting such building or execut-
ing such work or has erected such building or executed such work on or before
such day as shall be specified in such notice by a statement in writing subscribed
by him or by an agent duly authorized by him in that behalf to show sufficient
cause why such building or work shall not be removed altered or pulled down or
(b) shall require the said person to attend personally or by an agent duly
authorized by him in that behalf and show sufficient cause why such building
shall not be removed altered or pulled down.
(2) If such person shall fail to show sufficient cause....why such building or work
shall not be removed altered or pulled down the Commissioner may remove alter of

pull down the building or work and the expenses thereof shall be paid by the
said person.”
It will be noticed that Sub-sec. (1) of sec. 260 uses the words is commenced
or carried out contrary to the provisions of the rules or byelaws. These words
would clearly mean that if the erection of a building or the execution of any
work is commenced or is carried out after this Act came into operation and
which erection of the building or execution of such work is contrary to the
rules or bye-laws made under this Act then the Commissioner would be entitled
to issue the notice under sec. 260.
Mr. Shah however argued that in clause (a) of sub-sec. (1) of sec. 260
the Legislature has also used the words has erected such building or executed
such work and these words would mean that a notice can be validly issued under
sec. 260 even though the erection of a building or the execution of a work
was already commenced and completed before the date of the coming into force
of this Act. In my view the construction suggested by Mr. Shah cannot be
sustained. What is provided for by sub clause (a) of sec. 260 is that if a building
had been commenced or a work has been carried out contrary to the provisions
of the rules or bye-laws framed under this Act and such erection or execution
of work has been completed prior to the date of the notice the Commissioner
would still have the power to issue such a notice provided that such erection
or execution of work is contrary to the rules and bye-laws framed under the
Act. Though Mr. Shah submitted that sec. 260 is of a retrospective character
he has not been able to point out anything in this section or any other section
of the Act whereby the Legislature made this Act retrospective either by express
words or by necessary implication. There is in fact intrinsic evidence in sec.
260 it self to show that the Legislature did not intend that section to be
retrospective but meant it to be prospective. The words quoted above afford
sufficient indication of the intention of the Legislature to make this section
prospective. There is therefore no validity in the submission made by Mr. Shah
that sec. 260 is of retrospective character and that therefore a notice issued under
that section in respect of a construction made prior to the Act came into operation
would be a valid notice.
The notice Exh. 31 dated the 30th of April 1952 is in fact factually
incorrect. It is clear from the notice itself that the Officer who issued that
notice had not applied his mind to the facts of this case and also to the
questions as to under which Act the notice had to be issued. As is admitted
by Mr. Shah the alleged construction of the shed and the pan-galla was
completed long prior to the 1st of July 1950 and it was in connection
with that construction that the Ahmedabad Municipality as it then was had
launched prosecution against the plaintiff and for which he was duly convicted
yet in the first para of the notice a complaint is made as regards that very
construction as being in breach of rule 6 of Chapter XII of the Building
Regulations framed under the Act of 1949. It is true that in that very para

building bye-laws Nos. 5-A and 23 are referred to Mr. Shah informs me that
those rules were framed under the Bombay Municipal Boroughs Act of 1925.
Nevertheless it is quite clear that the notice was issued not under the Bombay
Municipal Boroughs Act 1925 but under the Act of 1949. If there was any breach
of bye-laws 5-A and 23 framed under the Act of 1925 then prima-facie the
offence would be not under the Act of 1949 but under the 1925 Act. The very
fact that the notice was however issued under section 260 of the 1949 Act shows
that the defendant Corporation considered the 1949 Act and not the 1925 Act.
Therefore the notice should have been issued not under section 260 of the Act
but under section 123 of the 1925 Act.
Mr. Shah however relied upon section 493 of the Bombay Provincial
Municipal Corporation Act 1949 under which in Appendix IV of that Act certain
provisions of the previous Act and certain things commenced or remaining
pending under that Act have been saved. Appendix IV deals with certain
transitory provisions. The clause with which I am concerned in the Appendix
for the purpose of this appeal is clause 4 (2). Clause 4 (2) provides that
all proceedings pending before any authority of the said Municipality or local
authority on the said day which under the provisions of this Act are required
to be instituted before or undertaken by the Commissioner shall be transferred
to and continued by him and all other such proceedings shall so far as may
be transferred to and continued by such authority before or by whom they
have to be instituted or undertaken under the provisions of this Act. In order
that this clause may apply it would be necessary for the defendant
Corporation to establish that a proceeding was pending before an authority of
the Ahmedabad Municipality on and prior to 1st of July 1950 and such a
proceeding was transferred to and continued by the Commissioner of the defendant
Corporation under the new Act. Mr. Shah contended that the prosecution
launched by the Ahmedabad Municipality prior to the 1st of July 1950 was
such a proceeding as contemplated by clause 4 (2) of Appendix IV that
proceeding was continued on and after the 1st of July 1950 that proceeding
was thereafter transferred to the Municipal Commissioner and that being so
the defendant Corporation was in right in issuing the notice under section 260.
Consequently the notice Exh. 31 was a valid and binding notice. A prosecution
launched however by the Ex-Municipality under section 123 of the 1925
Act was a proceeding before the Magistrate who tried that prosecution.
That prosecution cannot by any stretch of imagination be considered to be
a proceeding pending before any authority of the said Municipality nor can
such a proceeding be said to have seen continued on and after the 1st of
July 1950 or which can be said to have been transferred to the Commissioner
of the defendant Corporation.
The proceeding contemplated under clause 4 (2) of Appendix IV is
something different from the prosecution which was launched by the Ex-
Municipality against the plaintiff. It can perhaps be argued however that
prior to the launching of that prosecution by the Ex-Municipality against the

plaintiff the Municipality had taken cognizance of the construction made by the
plaintiff contrary to the provisions of section 123 of the 1925 Act that although
a prosecution was launched by the Municipality against the plaintiff that did
not preclude the Municipality from taking other steps permissible under the 1925
Act and that therefore that proceeding which was commenced by the Ex-
Municipality can be said to be pending on the 1st of July 1950 and was transferred
to the Municipal Commissioner of the defendant Corporation. There is however
considerable difficulty in the way of Mr. Shah in maintaining that the notice
Ex. 31 was a valid notice. Clause 5 of Appendix IV lays down that save as
expressly provided by the provisions of this Appendix any appointment notification
notice tax order rule bye-law or form made issued imposed or granted under.....the
Bombay Municipal Boroughs Act 1925 shall in so far as it is not inconsistent
with the provisions of this Act continue in force until it is superseded by any
appointment notification notice rule bye-law etc...Under clause 5 therefore a rule
or a bye-law made under the Act of 1925 can be said to have been saved
notwithstanding the repeal of the 1925 Act and therefore if a default was
committed by a person under such a rule or bye-law framed under the provisions
of the 1925 Act and if that default continued even after the plaintiff was convicted
then a proceeding pending before the authority of the Ex-Municipality can be
said to have continued on and after the 1st of July 1950 and must be transferred
or be deemed to have been transferred to the Municipal Commissioner appointed
under the Act of 1949. But then upon that footing a notice under section 260
of the Act of 1949 cannot be considered to be a valid notice. If the default
is by reason of a breach of a rule or bye-law saved under clause 5 of Appendix
IV the default or the offence would be by reason of and under such a rule
and bye-law. Likewise if there is a proceeding pending before an authority of
the Ex Municipality and that proceeding was continuing on and after the 1st
of July 1950 such a proceeding would be under the provisions of the Act of
1925 and not under the Act of 1949. If such a proceeding is in respect of Some
default or offence it could obviously be under the Act of 1925 and not under
the Act of 1949 and therefore if such a proceeding is transferred to the Municipal
Commissioner by virtue of clause 4 (2) then a notice to be issued in respect
of such a proceeding or such a default or offence must necessarily be under
the Act of 1925 and not under the Act of 1949.
In the present case the prosecution launched by the Municipality against
the plaintiff and in respect of which he was convicted was in respect of a
breach of the provisions of section 123(7) of the Bombay Municipal Boroughs
Act 1925 Assuming that besides that prosecution there was a proceeding
pending before any authority of the Ex-Municipality that proceeding would
against under section 123 viz a construction alteration addition or
reconstruction without giving the notice required by sub-section (1) of that
section or without furnishing a plan information or particulars as required
under sub-section (5) or without awaiting or in any manner contrary to
such legal orders of the Chief Officer as may be issued etc. Assuming that such
proceeding under section 123(7) was instituted and was pending on the 1st

of July, 1950 before any authority of the Ex-Municipality then again a notice
issued by the defendant Corporation must be under Section 123 of the 1925
Act and not under Section 260 of the Act of 1949. Sub-section (7)(b) of
Section 123 of the 1925 Act in fact provides that upon a conviction being
obtained, the Municipality can require the construction etc. complained of to
be altered or demolished in accordance with the provisions of such a notice
such Section 260 is not retrospective any proceeding in respect of a default under
any of the provisions of the 1925 Act would have to be continued under the
provisions of that Act provided that such provisions of the Act fall within the
scope of Appendix IV of the Act of 1949 and are saved under Section 493
of Appendix IV. Therefore, even if it is assumed that there was a proceeding
pending before any authority of the Ex-Municipality on the 1st of July, 1950
when this Act come into operation and assuming that such a proceeding under
the provisions of the 1949 Act is required to be instituted before or undertaken
by the Commission of the defendant Corporation and is therefore transferred
or continued by him that proceeding is liable to be continued not under the
Act of 1949 but under the Act of 1925.
In my view, the Courts below for the reasons aforesaid were right in the
conclusion arrived at by them that the notice was invalid and inoperative.
The appeal therefore fails and is dismissed with costs.
Appeal dismissed.
* * *
CRIMINAL REVISION
Before Hon’ble Mr. Justice V. B. Raju.
PUNJALAL MOHANLAL AND ANOTHER v. THE STATE*
Indian Evidence Act, 1872 (Act No. 1 of 1872)-Sec. 27-Statement by
accused leading to discovery articles-Whether can be used against a co-
accused.
A statement made by an accused before the Police and Panchas which resulted
in the discovery of articles, may be evidence against him under Sec. 27 of the
Evidence Act, but cannot be used as evidence against a co-accused.
Mr. P. B. Desai and Mr. N. C. Trivedi, Advocates, for the applicants- accused.
Mr. H. M. Chokshi, Government Pleader for the State-opponent.
RAJU J. This is a revision application by the two applicants who were
original accused Nos. 7 and 8 at the trial by the Judicial Magistrate, First Class,
Dakor in Criminal Case No. 622 of 1959. They were both convicted for an
offence under Sec. 411 I.P. Code in respect of certain gold ornaments which
had been stolen. The ornaments had not been recovered and it was the
prosecution case that upon the information given by accused No. 5, the shop
*Decided on 5-8-1960 in Cri. Rev. Application No. 141 of 1960 against the
conviction by judicial Magistrate, First Class, Dakor.

1960] STATE v. SEPOY BHAIMIA NATHU (C.A.)-Raju, J. [101
of accused Nos. 7 and 8 was discovered and it was ultimately found that accused
Nos. 7 & 8 had sold certain gold on 7-9-1959 the offence for theft having
been committed on 5-9-1959. The learned Magistrate convicted the applicants
who were original accused Nos. 7 and 8 under Sec. 411 Indian Penal Code
and their convictions were confirmed by the learned Sessions Judge in appeal.
In revision three points have been urged :- (1) that the provisions of Sec.
27 Evidence Act had been misapplied in the present case; (2) that the learned
Sessions Judge has observed in his judgment that the second Panch supports
the prosecution case whereas the second Panch had in fact not been examined;
and (3) that the learned Sessions Judge also erred in observing that the account
books of the accused do not show any entry relating to the transaction of
sale, although, it was the defence case that they sold their ornaments which
had been converted into gold. The convictions of the applicants cannot be sustained
for the following reasons :- The statement made by accused No. 5 before
the Police and the Panchas which resulted in the discovery of article may
be evidence against him under Sec. 27 of the Evidence Act but cannot be
used as evidence against a co-accused. This position is conceded by the learned
Government Pleader Mr. Chokshi. Mr. Chokshi also concedes that the second
Panch was not examined and the learned Sessions Judge was wrong when he
observed that the second Panch supports the prosecution case. Moreover, this
is not a case where the stolen ornaments were discovered. What was proved
is that accused Nos. 7 and 8 had sold certain gold on 7-9-1959 and there
is no evidence to prove that it was the stolen ornaments that had been converted
into this gold. It is of course very difficult to prove such a fact but merely
because the proof of such a fact is difficult the fact cannot be presumed.
There is no evidence to connect the gold which admittedly the two applicants
had sold on 7-9-1959 with the stolen ornaments. These grounds are enough
for setting aside the convictions and sentences passed upon the two applicants.
The convictions of the two applicants under Sec. 411 Indian Penal Code
and the sentences passed upon them are therefore set aside. Fine, if paid, should
be refunded. Bail bond should be cancelled.
Conviction set aside.
* * *
CRIMINAL APPELLATE
and the Hon’ble Justice Mr. V. B. Raju
STATE v. SEPOY BHAIMIA NATHU & OTHERS*
Indian Penal Code, 1860 (Act XLV 1860)-Section 34-Sections 141 and
149-Distinction between common intention and common object-If there is
common intention, common object may be assumed and vice-versa.
*Decided on 11-7-1960. Criminal Appeal No. 54 of 1960, against the conviction
by the Sessions Judge at Surenagar in Sessions Case No. 14 of 1959.

The Sessions Judge, Surendranagar convicted all the 6 accused under Sec. 302
read with Sec. 149 I.P.C. In appeal against the conviction, it was contended that
there may have been similar object but there was no evidence to show that there
was any pre-concert and common object.
HELD that if there is common intention to commit an offence, it must also
be assumed that the common object was to commit that offence. A distinction
can therefore be made been similar object and common object just as a distinction
has been drawn between common intention and similar intention.
Mr. C. N. Shah and D. D. Vyas, for the Appellant.
The Government Pleader for the State.
RAJU J. This is an appeal by six persons who are accused Nos. 1 to 6
in Sessions Case No. 14 of 1959 against their conviction by the Sessions Judge
at Surendranagar under Section 302 read with Section 149 I.P.C. Accused No.
1 was also convicted under Section 147 I. P. C. and accused Nos. 2 to 6
under Sec. 148 I.P.C. Accused No. 2 was also convicted under Section
324 I.P.C.
[His Lordship after narrating and discussing the facts of the case further
observed :]
It is next contended that the six accused may not have shared the
common object and that their object may have been similar and not common.
Mr. Shah wants to make the same distinction between similar object and
common object which Their Lordships of the Privy Council have made
between similar intention and common intention. Section 34 I. P. C. deals
with common intention and Secs. 141 and 149 I.P.C. deal with common
object of an unlawful assembly. There are no doubt important points of
distinction between Section 34 which deals with common intention and
Section 149 which deals with constructive liability for offences committed by
any member of an unlawful assembly in prosecution of the common object
of the assembly or such as the members of that assembly knew to be
likely to be committed. It is not necessary in this case to set out the points
of difference between Section 34 and Section 149. But although there is a
distinction between Section 34 which deals with common intention and
Section 149 which deals with constructive liability based on common object
there may not be much difference between intention and object because if there
is common intention to commit an offence it must also be assumed that the
common object was to commit that offence. Similarly, if the common object
of a group of persons be to do an act that would be a case of the group
of a persons having a common intention to do that act although the act
may be such that Section 141 would apply to an assembly of five or more
persons with the common object of doing that act but Section 34 would not
apply. That is so because for the application of Section 34, the common intention
must be to do a criminal act whereas the common object falling under Section
141 need not necessarily be a criminal act. For instance, the common object
of an unlawful assembly may be to take or obtain possession of any property
or to deprive any person of the enjoyment of right of way or of the use of
water of which he is in possession or enjoyment although in such cases the

1960] STATE v. KACHARA SADA (C.A.)-Raju, J. [103
the common object must be to do so by means of criminal force or show of

criminal force. But if the common object of a group of persons be to do a
criminal act, their common intention would also be to do that criminal act. But
if some members of an assembly share a common intention to commit an offence
it can also be assumed that their common object was to commit that offence.
In this view, it may be possible to make a distinction between similar object
and common object just as a distinction has been drawn between similar intention
and common intention. But in this particular case, it is clear that this is not
a case of merely a similar object of the six accused but a case of common
object namely to assault and cause the death of Koli Moti Natha. of the six
accused Nos. 1, 4 and 6 are brothers and they are also the first cousins of
accused Nos. 3 and 4 who are full brothers. They had a common motive to
attack the deceased Koli Moti Natha the Sarpanch of Jagdishan and they actually
surrounded the deceased and caused him numerous injuries. In these circumstances,
it cannot be said that the object was merely similar and not common and that
the object was not shared in common by the six accused.
Appeal dismissed.
* * *
CRIMINAL APPELLATE
Before the Hon’ble Justice Mr. J. M. Shelat
and the Hon’ble Justice Mr. V. B. Raju.
STATE v. HAR1JAN KACHARA SADA*
Principles relating to corroboration-Evidence of one eye-witness-Whether
corroboration necessary.
WHETHER corroboration of the testimony of a single witness is or is not
necessary, must depend upon the facts and circumstances of each case and no
general rule can be laid down in a matter like this and much depends upon the
judicial discretion of the Judge before whom the case comes.
Criminal Procedure Code, Sec. 364. - Examination of accused and its
record in full to be read over-Whether certificate that examination was read
over is necessary.
As the Rojnama for the date on which the accused was examined
shows clearly that the examination of the accused was read and record
ed, it is a sufficient compliance with the requirements of Section 364 of
Criminal Procedure Code. But it is advisable to include a statement in
the certificate that the record has been shown or read over to
the accused.
Criminal Procedure Code, Section 342-Sole purpose of examination of
an accused-Opportunity to explain incriminating circumstances against him.
It is not necessary that important parts of the entire evidence given
by a witnees should be put to the accused in his examination. Only the
*Decided on 4th/5th August 1960. Confirmation Case No. 1 of 1960 and Cri.
Appln. No. 282 of 1960 against judgment of the learned Sessions Judge at Mehsana.

portions of the evidence on which the accused can give explanation should be
put to him in his examination. If a prosecution witness has not given evidence
of incriminating circumstances requiring explanation, portions of the evidence of
such a witness need not be put to the accused.
Question should be put in such a manner as to be easily understable and
should not be lengthy.
A.I.R. (1956) Supreme in Court, 379, distinguished.
Vandivelu Thevar v. The State of Madras, 1957 S.C.R. 981, followed.
Mr. B. R.. Sompura, Assistant Government Pleader for the State.
Mr. V. J. Desai, for the accused.
RAJU J. This judgment will dispose of Confirmation Case No. 1
of 1960 and Criminal Appeal No. 282 of 1960 arising out of the
judgment of the learned Judge at Mehsana convicting the applicant Kachara Sada
Dhed-Harijan under Section 302 I. P. Code for having murdered Bai Mangu
aged 17 years wife of one Ishwar and under Sec. 394 and 397 I. P. Code for
having robbed her of her ornaments and for having used a deadly weapon while
committing robbery.
It is contended that Keshavlal is the only eye-witness, who according to
the prosecution, had seen the appellant at the scene of offence and that when
the prosecution case depends on the evidence of only one eye-witness his evidence
requires to be corroborated and for this purpose the learned Counsel for the
appellant relied on a ruling reported in A.I.R. 1956 Supreme Court, 379
This case is distinguishable from the present case, because in that case a
person who had seen the perpetrator of a crime had not given information of
it to any one else and it was held that such a person can be regarded in law
as an accomplice. But, in the instant case, Keshavlal who had seen the crime
at about 11-30 a. m. went immediately to the house of Amichand and had given
information to Bai Pashi. The remarks of Their Lordships therefore do not apply
to the facts of the present case. The principles relating to corroboration have
been laid down in Vadivelu Thevar v. The State of Madras (1957) Supreme Court
Reports 981 at p. 991 as follows :-
The following propositions may be safely stated as firmly established :-
(1) As a general rule, a Court can and may act on the testimony of
a single witness though uncorroborated one credible witness outweights
the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, Courts should not
insist on corroboration except in cases where the nature of the
testimony of the single witness itself requires as a rule of prudence
that corroboration should be insisted upon for example in the case
of a child witness or of a witness whose evidence is that of an
accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is
not necessary must depend upon facts and circumstances of each case

and no general rule can be laid down in a matter like this and much
depends upon the judicial discretion of the Judge before whom the
case comes.
At this stage it would be convenient to deal with the contentions of the
learned counsel for the appellant that the answers given by the appellant in his
examination at the Sessions trial cannot be taken into consideration for two
reasons; firstly because in the certificate attached to the examination of the
appellant it has not been stated that the questions and answers had been read
over to the appellant and secondly because the learned Judge put lengthy questions
sometimes covering 16 to 17 lines of the printed page and this has caused prejudice
to the accused. It is also contended that even in the case of the evidence of
witnesses the Court records a certificate that the deposition had been read over
to the witness. It is therefore urged that in the case of the examination of an
accused such a certificate is all the more necessary. Sec. 360 Cri. Pro. Code
requires that the evidence of each witness should be read over to him in the
presence of the accused or of his pleader if he appears by pleader. Similarly
sec. 364 Cr. P. C. requires that the whole of the examination of an accused
person including every question put to him and every answer given by him shall
be recorded in full and such record shall be shown or read over to him or
wherever necessary the answer shall be interpreted to him in a language which
he understands. Sub-sec. (2) of sec. 364 Cr. P. C provides that when the whole
is made conformable to what he declares is the truth the record shall be signed
by the accused and the Magistrate or Judge of such Court and such Magistrate
or Judge shall certify under his own hand that the examination was taken in
his presence and hearing and that the record contains a full and true account
of the statement made by the accused. Although sub-section (1) of sec. 364 Cr.
P. C. requires that the record of the examination of an accused person should
be shown or read over to him the certificate referred to in sub-sec. (2) does
not require that this fact should be stated in the certificate. Of course there
is no harm in including this fact also in the certificate and it would perhaps
be advisable to do so. It is urged that as the certificate does not contain a statement
that the record of the examination of the accused person was shown or read
over to the accused the examination is vitiated and the record cannot be looked
at. The notes of proceedings at the Sessions trial are signed by the learned Sessions
Judge and the Rojnama for the date on which the accused was examined shows
clearly that the examination of the accused was read and recorded. This is a
sufficient compliance with the requirements of sec. 364 of the Cri. Pro. Code.
As the procedure of attaching a certificate to the examination of an accused
person is to be followed under sub-section (2) of sec. 364 Criminal Procedure
Code it may be advisable to include a statement in the certificate that the record
has been shown or read over to the accused person.
The next contention is that the manner of the examination of the accused
is most unsatisfactory and he caused serious prejudice to the accused. The
examination of the accused by the learned Sessions Judge covers 10 printed

pages. Some of the questions run into 17 to 18 printed lines. The length of
questions appears to be due to the fact that several portions of the evidence
of the witnesses are summarized and then the accused is asked whether he
wished to say anything in relation to the evidence referred to in the question.
No doubt the examination of an accused person must be as complete as the
law requires but there appears to be some misunderstanding as to the scope
of sec. 342 of the Criminal Procedure Code. The relevant portion of this section
reads as follows :-
“342. (1) For the purpose of enabling the accused to explain any circumstances
appearing in the evidence against him the Court may at any stage of any inquiry
or trial without previously warning the accused put such questions to him as the
Court considers necessary and shall for the purpose aforesaid question him
generally on the case after the witnesses for the persecution have been examined
and before he is called on for his defence.”
It is therefore clear that the whole purpose of the examination of an
accused person is to enable him to explain any circumstance appearing in the
evidence against him. For this purpose the Court may at any stage of an inquiry
or trial put such questions to him as the Court considers necessary. It is also
provided that for the aforesaid purpose namely for enabling the accused to
explain any circumstances appearing in the evidence against him the Court shall
question him generally after the evidence for the prosecution has been examined
and before he is called for his defence. It is therefore clear that the sole purpose
of the examination of an accused person is to enable him to explain any
circumstances appearing in the evidence against him. If the prosecution witnesses
have deposed to any incriminating circumstances from which the guilt of the
accused person can be inferred the accused person must have been given an
opportunity to explain the incriminating circumstances because in case of
circumstantial evidence if the circumstances are open to a reasonable explanation
consistent with the innocence of an accused person he is entitled to an acquittal.
But sometimes the prosecution witnesses give evidence which does not
relate to incriminating circumstances. For instance in this case Bai Pashi has
stated that Bai Mangu had come to her house 12 days prior to the date of the
offence and that she had sent Prahlad to fetch Bai Mangu home. Again a witness
might say that he had got prepared certain ornaments for the father of the
deceased. No doubt these facts are relevant but they are not incriminating
Circumstances and in relation to such points it is impossible for an accused person
to offer any explanation. It is not necessary that important portions of the entire
evidence given by a witness should be put to the accused person in his
examination and that he should be questioned about every important statement
made by a witness in the witness box. It is only the portions of the evidence
of the witness on which the accused person can give an explanation that should
be put to the accused in his examination. Of course the accused should be asked
whether he wishes to say anything about every one of the prosecution witnesses.
If a prosecution witness has not given evidence of any incriminating circumstance
requiring explanation of the accused portions of the evidence of such a witness
need not be put to the accused in his examination.

Moreover questions should be put in such manner as to be easily

understandable and they should not be lengthy. Long questions and questions
which are omnibus or composite or complicated should not be put. Referring
to 10 to 20 statements made by a witness and asking the accused whether the
evidence is true is also not proper. It may be that when the accused answered
in the affirmative he was referring to only the last portion of the question put
to him. If to such a question the accused answered yes it would not be proper
to interpret the answer as meaning that the entire evidence given by the witness
and put in the question is true. When such a lengthy question is put and the
answer is given in the affirmative such answer should not be considered in fairness
to the accused person. We no not propose to consider such answers whenever
the question is lengthy.
[His Lordship then discussed the evidence.]
We are therefore satisfied that the guilt of the appellant is proved beyond
reasonable doubt in respect of the offence of causing the death of Bai Mangu
notwithstanding the fact that the name of the assassin was not mentioned in
the first information report. The evidence proving the guilt of the accused consists
of the evidence of Keshavlal the evidence of Prahlad the corroborative evidence
of Bai Pashi and Bai Rai the circumstantial evidence relating to the possession
of the ornaments of the deceased immediately after the death of Bai Mangu
their disposal by the appellant by way of pledge or sale and the finding of
human blood on the sweater (Art. 15) which was worn by the appellant on
the morning in question. There are also the additional circumstances that the
accused had absconded after 1 p. m. on the day in question and that the appellant
stayed at various hotels under assumed names. No doubt the last two circumstances
do not have much value but even if these circumstances are excluded the other
circumstantial evidence is sufficient to justify the inference that it was the accused
only and none else who bad committed the murder of Bai Mangu. As already
observed we have considered only those answers given by the accused in his
examination at the Sessions trial about which there is no ambiguity. We therefore
confirm the conviction of the appellant under sec. 302 Indian Penal Code for
the murder of Bai Mangu. But as regards the offence under sec. 397 Indian
Penal Code the prosecution has not led evidence to show that Bai Mangu was
alive when the ornaments were removed from her body. For a conviction under
sec. 397 I. P. Code a deadly weapon must be used of grievous hurt caused
or an attempt to cause death or grievous hurt must be made at the time of
committing robbery or dacoity and not before the commission of the robbery
or dacoity. Therefore we acquit the accused under sec. 397 I. P. Code.
Sentence confirmed.
* * *

CRIMINAL REVISION III

STATE v. MEMON GAFAR TARMOHMED*
The Bombay District Municipal Act, 1901, (Ill of 1901), Sec. 122(1) -Condi-
tional Order of fine-Whether can attract application of Sec. 161(2) of the Act.
THE passing of a conditional order of fine that if the accused continues to
break the law he would be liable to pay a certain amount of fine cannot attract
the application of sub-section (2) of Sec. 161 of the Bombay District Municipal
Act, 1901.
The report made by an officer of the Municipality is not admissible in evidence
as he was not examined as a witness.
Mr. M. P. Thakkar for Mr. P. G. Oza, Advocate for the Applicant-Accused.
Mr. H. K. Thakore, Assistant Government Pleader for the State-Opponent.
RAJU J. In Criminal Case No. 445 of 1959 on a complaint filed by the Gondal
Municipality, the applicant was convicted under Sec. 122(1) of the Bombay District
Municipal Act; 1901 for not having removed certain goods. In the order dated 15-
6-1959 the learned Magistrate observed :- “The accused is fined Rs. 2 and in case
the misance is not removed, the accused shall be liable to pay a fine of Rs. 2/-
per diem.”
On an application made by the Municipality, the First Class Magistrate, Gondal
passed an order on 20-10-1959 holding that it was proved by the report of the Chief
Officer, Gondal Municipality that the accused had not removed the goods upto 1-
10-1959. He therefore ordered that warrant to recover the fine of Rs. 172/- for total
86 days at the rate of Rs. 2/- per day for 86 days between 24-6-59 and 28-9-1959.
In revision, it is contended that this order passed by the learned Magistrate is
improper and should be set aside.
It is clear that the order is improper. Under Sec. 122(1) of the Bombay District
Municipal Act when an offence is committed, the accused person
shall be punished with fine which may extend to twenty-five rupees and
with further fine which may extend to Rs. 5/- for every day on which such projection
encroachment obstruction or deposit continues after the date of the first conviction
for such offence. The function of Magistrate is to impose a sentence of fine in
appropriate cases and not merely to observe that an accused person is liable to pay
fine. The liability to pay fine is created by the Legislature. When the learned
Magistrate passed an order on 15-6-1959 that the accused would be liable to pay
a fine of Rs. 2/- per diem in case he did not remove the nuisance he passed a
conditional order. The order of the learned Magistrate dated 15-6-1959 is therefore
not an order imposing a fine of Rs. 2/- for every day after 15-6-1959.
*Decided on 29-7-1960. Criminal Revision Application No. 41 of 1960 against
is find Rs. 2/- and in case the misance is not removed, the accuased shall be the
order of First Class Magistrate, Gondal in Criminal Case No. 445 of 1959

1960] STATE v. MEMON GAFAR (C.A.)-Raju, J. [109
The learned counsel for the State has argued that in view of sub-section
(2) of sec. 161 of the Act the order of the learned Magistrate could be
executed by an application. Sub-section (2) of sec. 161 of the Act reads as
follows :-
“Any prosecution under this Act or under any bye-laws thereunder may
save as therein otherwise provided be instituted before any Magistrate and
every fine or penalty imposed under or by virtue of this Act or any bye-
law thereunder and also all claims to compensation or other expenses for
the recovery of which no special provision is otherwise made in this Act
may be recovered on application to such Magistrate by the distress and sale
of any movable property within the limits of his jurisdiction belonging to
the person from whom the money is claimable.”
The meaning of this sub-section is that if there is an order of a Magistrate
imposing a fine or penalty may be recovered by an application under sub-section
(2) of sec. 161 of the Act. But in the instant case the order passed by the
learned First Class Magistrate Gondal on 15-6-59 is an order imposing a fine
of only Rs. 2/-. The rest of the order is only a conditional order providing
that if the accused continued to break the law he would be liable to pay a
fine of Rs. 2/- for every day. Such a conditional order cannot attract the
application of sub-section (2) of sec. 161 of the Act.
It is true that in view of sub-section (1) of sec. 122 it is open to the
prosecution to approach the Magistrate a second time after the conviction
for an offence for an order under that sub-section for a fine in respect of
encroachment obstruction or deposit which had continued after the date of first
conviction for such offence and the application made to the First Class
Magistrate Gondal in October 1959 can be treated as such an application. It
was open to the First Class Magistrate Gondal to pass an order under sec.
122(1) of the imposing a fine extending to Rs. 5/- for every day on which
the projection encroachment obstruction or deposit had continued after the
date of the first conviction. But before doing so he must be satisfied by evidence
that the projection encroachment obstruction or deposit had continued after the
date or the first conviction. For this purpose the prosecution merely relied
on a report made by the Chief Officer Gondal Municipality. The Chief Officer
of the Gondal Municipality has not given evidence and his report is not admissible
in evidence. The Chief Officer or any other officer of the Municipality should
have been examined to prove that the projection encroachment obstruction or
deposit had continued after the date of the first conviction. If it has been
proved by admissible evidence then it was open to the learned Magistrate to
pass an order under sub-section (1) of sec. 122 of the Act in respect of the
period after the date of the first conviction and it was then open to the
Municipality to make an application for the recovery of fine or penalty
under sub-sec. (2) of sec. 161 of the Act. In this case the report of the Chief
Officer Gondal Municipality not being admissible in evidence there is no proper
proof of the fact that the nuisance continued to be committed after the

date of the first conviction for such offence. The learned First Class Magistrate,
Gondal was therefore wrong in ordering the issue of a warrant of the
recovery of fine of Rs. 172/-.
The revision application is therefore allowed and the order of the First
Class Magistrate, Gondal is set aside. Fine, if paid should be refunded.
Revision allowed.
* * *
CRIMINAL REVISION
SINDHI FATANDAS CHIMANLAL AND OTHERS v. STATE*
Bombay Prevention of Gambling Act, 1887 (Act IV of 1887)-Sec. 3-
Definition of common gaming house-A valid warrant issued under Sec. 6-
Presumption under Sec. 7 viz., that the house is a common gaming house
and persons found present then, are there for the purpose of gaming-
Presumption rebuttable-Presence of the owner or occupier or keeper whether
necessary at the time of the raid, for the conviction under Sec. 4-Actual
gaming whether necessary to be seen when the raid is carried out.
HELD that under Sec. 7 of the Act when any instrument of gaming has been
seized in any house, room or place entered under Sec. 6, the seizure of such
instrument or thing shall be evidence, until the contrary is proved, that such house,
room or place is used as a common gaming house, and the persons found present
therein were then present for the purpose of gaming although no gaming was
actually seen by the Magistrate or Police Officer or any person acting under the
authority of either of them.
Held further that to justify a conviction under Sec. 4 of the Act, it is not
necessary to prove that the owner or occupier or the person who has the care
and management of the house was present at the time of raid. If any of the
ingredient of sec. 4 is proved, the person would be guilty under Sec. 4. When
presumption implies it is not necessary to prove that he received “ Nal” or makes
any profit out of gaming.
Mr. H. M. Chinoy, Advocate for the applicant-Accused.
Mr. H. M. Choksi, Government Pleader for the State-Oppanent.
Mohd. Dawood v. Emperor (1), Emperor v. Kalappa Gurappa (2), Ismail Varyo
and Others v. Emperor (3), and Mani Ram v. State (4), referred to and explained.
*Decided on 5-8-1960. Criminal Revision Application No. 89 of 1960 against
the judgment of Sessionns Judge, Junagadh who confirmed the judgment of J.M.F.C.
Junagadh.
(1) A.I..R. 1948 Bombay 47 (2) A.I.R. 1939 Bombay 481
(3)A.I.R. 1934 Sind 130 (4)1954 Cri. LJ 1209

1960] FATANDAS AND OTHERS v. STATE (C.A.)-Raju, J. [111
RAJU J. This is a revision application by nine persons, who were convicted

by the Judicial Magistrate, First Class, Junagadh under Secs. 4 and 5 of the
Bombay Prevention of Gambling Act which will hereinafter be referred to as
the Act. Application No. 1 Fatandas Chimanlal was convicted under Sec. 4 and
the others under Sec. 5 of the Act. Holding that the conditions of Sec. 6 of
the Act had been satisfied and relying on the evidence that applicant No. 1 was
the Secretary of the Club known as “Swastik Club” in respect of which
warrant had been issued, the learned Magistrate convicted that application No.
1 under Sec. 4 and he convicted the other under sec. 5 of the Gambling
Act, because they were found in the house when the raid was conducted.
In appeal the learned Sessions Judge confirmed the conviction, and hence this
revision application.
In regard to applicant No. 1, it has been contended that he was not present
at the time of the raid, that there was no proof that the was living in the premises
and that as he was the Secretary of the Swastik Club, he cannot be convicted
under sec. 4 of the Act, which it is contended does not apply to clubs. As regards
the other applications, it is contended that at the time of the raid admittedly
gaming was not going on in the premises and that therefore the conviction of
the other applicants under sec. 5 of the Act is improper. It is also conteded
that the presumption has been rebutted because he club was a registered club
Reliance has been placed by the learned Counsel for the applicants on the
following cases : (1) Mohd. Dawood v. Emperor, A.I.R. 1948, Bombay 67; (2)
Emperor v. Kallappa Gurappa, A.I.R. 1939 Bom. 481; (3) Ismail Varyo and
other v. Emperor, A.I.R. 1934 Sind, 130; and (4) Mani Ram v. State, 1954
Criminal Law Journal, 1209.
“Common gaming house” is defined in sec. 3 of the Act, sec. 4 of the
Act punishes certain persons like owners or occupiers of a common gaming house
and persons who have the care or management of a common gaming house.
Section 5 punishes persons found in any common gaming house either gaming
or present for the purpose of gaming. Under sec. 7 of the Act, when any
instrument of gaming has been seized in any house, room or place entered under
Sec. 6 or about the persons of any one found therein, and in the case of any
other thing so seized if the Court is satisfied that the police officer who entered
such house, room or place had reasonable ground for suspecting that the thing
so seized was an instrument of gaming, the seizure of such instrument or thing
shall be evidence, until the contrary is proved, that such house, room or place
is used as a common gaming house and the persons found therein were then
present for the purpose of gaming although no gaming was actually seen by
the Magistrate or the Police Officer or any person acting under the authority
of either of them.
In this case it has not been contended that the warrant is defective. The
finding that instruments of gaming were found in the house at the time of
the raid is also not challenged. Rebuttable presumption must therefore be
drawn under Sec. 7 that the house was a common gaming house and there-
fore the burden of proving the contrary is on the accused. Under Sec. 7 of
the Act, there is a presumption that the house in question was a common gaming

house, but there is no presumption that any particular person was the owner
or occupier of a comming gaming house. The Bombay case Mohd. Dawood
v. Emperor, A.I.R. 1948. Bombay 67, explains this position. The allegation
of the prosecution that applicant No. 1 was the Secretary of the Swastik Club
has been proved by evidence and is admitted. This fact, is not challenged
in revision. To prove that applicant No. 1 was the Secretary of the house,
which was known as Swastik Club, the prosecution did not rely on any
presumption, but on actual evidence. This Sind case also does not help
him because that was a case of defective warrant, while the instant case is not
a case of defective or irregular warrant. The case of Emperor v. Kallappa Gurappa,
A.I.R. 1939 Bom. 481, was cited in support of the proposition that
the presumption under Sec. 7 of the Act cannot be drawn in the case of
Clubs. But such proposition has not been laid down in this Bombay Case.
The case merely explains the distinction between a respectable Club and a
common gaming house. The points of distinction are (1) that in the case
of a respectable Club, it is open only to Members, and the second point of
distinction is that in the case of a club, profit is not made by the owner or
occupier of the premises. But, it is nowhere alid down in this Bombay
case that the presumption under Sec. 7 cannot be drawn or should not be
drawn if a respectable Club is raided under a warrant issued under sec. 6 of
the Act. But, in the case of a respectable Club, it may be easy to rebutthe
presumption that it is a common gaming house. In the instant case, although
the place raided is what is known as Swastik Club, in view of the facts found
at the time of the raid which are mentioned in Paras 10 and 11 of the judgment
of the learned Magistrate, his view that presumption is not rebutted cannot be
interferred with in revision.
The last case relied on by the learned Counsel in the case of Mani Ram
and others v. State, 1954 Cri. Law Journal 1209, where, on the evidence,
it has been held that the presumption was rebutted. As the raid was made
two days before the Diwali day when Hindus indulge in gaming which is
considered auspicous, it was held that there was no evidence to show that
in that house gaming had taken place on any previous occasion, that it had
not been shown that the these circumstances were quite sufficient to rebut the
presumption arising under sec. 6. This case was therefore dealing with facts
from which the presumption under Sec. 7 of the Act can be rebutted. In the
said case the place was raided two days before the Diwali day, and playing
cards are found, under the law a rettubable presumption under Sec. 7 of the
Act would arise, but ordinarily it would be held that the presumption that
the house was a common gaming house is easily rebutted, if the raid is conducted
on such days as Diwali days. Therefore the case does not help the learned
Counsel for the applicants.
It is true that applicant I was not present at the house when it was raided,
but in order to justify a conviction under sec. 4 of the act it is not necessary
to prove that the owner or occupier or the person who has the case or

1960] AMBALAL MOTIBHAI v. STATE (C.A.)-Raju, J. [113
management of the house was present at the time of the raid. For a conviction
under Sec. 4 of the Act, the prosecution has to prove (1) that a person opens,
keps or uses any house, room or place for the purpose of a common gaming
house; or (2) that being the owner or occupier of any such house, room or
place he knowingly or wilfully permits the same to be opened, occupied, kept
or used by any other person for the purpose aforesaid; or (3) that he has the
care or management of, or in any manner assists in conducting the business
of, any such house, room or place opened, occupied, kept or used for the purposes
aforesaid. If any of these ingredients is proved, the persons would be guilty
under Sec. 4 of the Act, although, he was not present at the time of the raid.
Where the presumption applies it is not necessary to prove that he receives ‘nal’
or makes any profit out of the gaming. There is therefore no merit in the
contention of the learned Counsel in regard to applicant No. 1.
As regards the other applicants also, it is contended that admittedly gaming
was not going on at the time of the raid and that therefore the other applicants
cannot be held to be guilty. For a conviction under Sec. 5 of the Act, it is
not necessary that the person should be actually found gaming. A person who
is present in a house for the purpose of gaming would be guilty under Sec. 5,
even though none may be actually gaming at the time of the raid. In view
of the presumption under Sec. 7, however, a person found in the house, room
or place in question is presumed, unless the contrary is proved, to be present
therein for the purpose of gaming, although no gaming was actually seen at
the time of the raid. Sec. 7 even makes it clear that the presumption can be
drawn, although gaming may not be actually seen. There is therefore no merit
in the contention of the learned Counsel for the applicants.
The revision application is therefore, dismissed.
Revision dismissed.
* * *
CRIMINAL APPELLATE
AMBALAL MOTIBHAI PATEL v. STATE*
Indian Penal Code, 1860 (Act XLV of 1860) Sec. 161-The Prevention
of Corruption Act, 1947 (II of 1947) - Sec. 5(2)-Tests to prove use of
anthracene powder-Evidence of partisan witness-When to be relied upon-
Independent corroboration if necessary.
The Sub-Registrar of Borsad in August, 1959, it was alleged, asked one
Ranchhodbhai who came to register a document to pay a sum of Rs. 25/- by
way of bribe. Ultimately, the amount was fixed at Rs. 10/- to be paid after 2
days. Ranchhodbhai approached anti-corruption branch which laid a trap and
anthracene powder was applied to currency notes of Rs. 10/-. It was alleged these
notes were given to the accused who took them with his left hand and put them
into an empty cover. During search sparkling powder was seen on all the fingers
of the accused but no notes were found on his person or on his table. One
*Decided on 30-6-1960. Criminal Appeal No. 169 of 1960, from the judgment
of the Special Judge of Kaira at Nadiad, in Case No. 8 of 1960.

bond-writer had entered the office and left before police party reached the place.
Currency notes were produced by this bond-writer. The Special Jadge convicted
the accused under Section 161 1. P.C. and Sec. 5(2) of the Prevention of Curruption
Act. In appeal preferred to the High Court’, it was contended that anthracene
powder cannot be seen except under the light of the ultra violet lamp and no
such test was taken and a person agreeing to pay a bribe being in the position
of an accomplice, his evidence requires to be corroborated independently.
HELD that the two tests required to be satisfied by the prosecution to prove
the presence of anthracene powder are, (1) that no powder was detected with the
naked eye, and (2) that when ultra violet light was focussed there was emission
of light blue fluorescent light.
That in the case of an interested witness, the Courts must always weigh the
evidence with particular caution, and if after scrutinising the evidence of an
interested witness, the Court finds it safe to accept such evidence, then independent
corroboration is not necessary.
That the evidence of a partisan witness, which is unsatisfactory, cannot be
relied upon for implicating an accused person without independent corroboration.
Shivbahadur Singh v. State of Vindhya Pradesh (1), Ramchand Tolaram Khatri v.
The State (2), Jairamdas v. State (3), Kamalkhan v. Emperor (4), referred to.
Mr. Ghaswala, Advocate for the Appellant.
Mr. H. M. Chokshi, the Government Pleader for the State.
RAJU J. This is a criminal appeal by one Ambalal Motibhai Patel who in
Special Case No. 8 of 1960 was convicted by the Special Judge of Kaira at Nadiad
under section 161 I. P. C. and section 5(2) of the Prevention of Corruption Act.
Although the circumstance of the finding of the notes with bribe taker is
absent in this case the prosecution wants to rely on the finding of the anthracene
powder on the fingers of the left had of the accused immediately after the alleged
bribe was taken. It is the evidence of all the witnesses Ranchhodbhai Panch
Ghanashyam Panch Motibhai Head Constable Bharatsing and P.S.I. Jadeja that
when they entered the room of the accused they asked the accused to stretch
out his hand and marks of white powder were seen on all the fingers of the
left hand of the accused. The evidence regarding the anthracene powder has been
strongly commented upon by Mr. Ghaswala. His criticism is that marks of powder
could not be seen even under the light of the ultra violet lamp that no witness
speaks of any bluish glow or fluorescence on the fingers of the left hand of
the accused that there is no evidence that the glow on the fingers of the left
hand of the accused was similar to the glow noticed at the time of the
demonstration made by Bharatsing by applying anthracene powder to his own
hands. Bharasting has deposed that he brought anthracene powder from Baroda
and gave a demonstration as to how to detect anthracene powder by using an
ultra violet lamp Anthracene powder is one of many fluorescent substances. There
are more than 200 to 300 fluorescent substances the names of which are found
in hand book of Chemistry and Physics by C. D. Hodgman M. S. 30th Edition
(1) A.I.R. 1954 S.C. 322 (2) 1956 I.L.R. Bombay 343
(3) A.I.R. 1956 Bombay 426 (4) 1935 IL.R. Bombay 230

pages 2283 to 2294. Fluorescent substances emit light under the influence of
an exciting agent such as ultra violet rays. Ultra violet light is used with most
success in detection fluorescent substances. Ultra violet light is used to excite
the substance in question. When a fluorescent substance is excited in such a
manner it emits light of a particular hue. Some fluorescent substances emit green
light some brown some blue some yellow some light blue etc. There are only
3 or 4 substances emitting light blue light under the influence of the exciting
agent ultra violet light. All these fluorescent substances are rare substances and
ordinarily therefore it the prosecution case is that anthracene powder was applied
and that under the influence of the ultra violet lamp light a light blue light
was found emitting from the hand of as particular person it can be fairly inferred
that anthracene powder was present on the hand of such a person. According
to the experiment made by Bharatsing anthracene powder is not visible to the
naked eye but visible only under the light of the ultra violet lamp. In such
cases in order to enable a court to draw the inference that what was found
on the person was anthracene powder the prosecution must establish that the
tests for the detection of anthracene powder had been properly made and had
yielded positive results. The main test is the emission of light blue fluorescent
light under the influence of ultra violet rays. It is therefore essential for the
prosecution to prove that there was light blue emission of light under the influence
of ultra violet light. It is not sufficient for the prosecution to prove that under
the ultra violet light witnesses saw stains of white powder or even that under
the ultra violet light they saw some sparking or some shimmering. None of
the witnesses have deposed that when ultra violet light was focused on the left
and of the accused there were any sings of sparking. The only witness to talk
of sparkling is the Panch Motibhai who talks of sparking when ultra violet light
was focused on Bharatsings hand at the time of the experiment. This witness
does not speak of the sparkling on the fingers of the hand of the accused when
ultra violet light was focused on it. Mere sparkling is not a positive result. There
must be emission of light blue light. None of the witnesses says that when the
accused stretched out his hands they failed to notice any marks of white powder.
According to the prosecution anthracene powder cannot be detected by the naked
eye but only under the influence of ultra violet lamp. The two tests required
to be satisfied by the prosecution to prove the presence of anthracene powder
are therefore (1) that no powder was detected with the naked eye and (2) that
when ultra violet light was focused there was emission of light blue fluorescent
light. If evidence proved positive results for both these tests then it would be
right to infer that anthracene powder was present but evidence of this type is
completely absent in the present case.
Mr. Ghaswalla drew our attention to the book “Fluorescence Analysis in
Ultra Violet Light” by Radley Julius Grant wherein the following observations
are made at page :-
“Pure distilled water has practically no fluorescence. The faint blue colour observed has
been attributed by S. J. Vavilov and L. A. Tummermann to oxygen or carbon dioxide,

since it is also shown by many liquids with similar spectral features (e.g. sulphuric
acid ether acetone and benzene). Ordinarily tap water has generally a faint bluish
fluorescence due in all probability to small traces of dissolved organic matter;”
It is therefore contended that even the presence of a faint bluish fluorescence
does not necessarily prove the presence of anthracene powder because even tap
water according to these authors has generally a faint bluish fluorescence. It
may be that tap water in sufficiently large quantities might show traces of faint
bluish fluorescence when ultra violet light is focused. But Mr. Ghaswalla has
not pointed out to us any authority for the statement that even a trace of water
on the fingers would cause a faint bluish fluorescence to emit from the fingers.
We therefore reject the contention that the presence of bluish fluorescence does
not necessarily prove the presence of anthracene powder. However as already
observed the prosecution has not led evidence in the manner required to prove
the presence of anthracene powder on the fingers of a person viz., by proving
that under the naked eye no marks of any powder were seen and secondly that
when ultra violet lamp light was focused on the hands there was an emission
of light blue fluorescence. In the absence of the evidence of this type we have
to exclude the circumstance on which the prosecution relies namely that anthracene
powder was present on all the fingers of the left hand of the accused. In this
view of the matter it is unnecessary to refer to the explanation of the accused
in regard to the stains on the five fingers of his left hand.
Although this circumstance is excluded there is in our opinion abundant
oral evidence of the prosecution witnesses fortified by the conduct of the accused
to prove the fact that a bribe of Rs. 10/- had been taken by the accused.
We have already referred to the oral evidence of the witnesses’ viz. Ranchhodbhai
Panchas Ghanashyam and Motibhai Constable Bharatsing and P. S. I. Jadeja.
There is no reason to reject the evidence of these witnesses in view of the
fact that the conduct of the accused makes the prosecution story highly probable.
It is however contended that in a case like this Ranchhodbhai is an accomplice
and his evidence requires to be independently corroborated. It is urged that
he had agreed to pay bribe of Rs. 10/- to the accused and that therefore he
was in the position of an accomplice. In the present case according to the
prosecution when on 17-8-59 Ranchhodbhai went to the office of the accused
to get the sale deed registered the accused took objection and put obstacles
in the way of the smooth registration of the document. It was he who
demanded a bribe of Rs. 25/- and it was he who agreed to reduce the
demand to Rs. 10/-. It is not the case of a person offering a bribe to a
person in order to get an underserved favour but it was a case of a registrar
refusing to do his duty unless a bribe was paid to him. Ranchhodbhai was
therefore not a willing party. The idea of paying bribe did not originate with
him and he was therefore forced to agree to give a bribe because he thought
that otherwise his document would not be registered. As observed by Their
Lordships of the Supreme Court such a person cannot be treated as an accomplice.
As observed by Their Lordships of the Supreme Court, a person who is

not a willing party to giving of bribe and who is only actuated by the motive
of trapping another cannot be regarded as an accomplice but the evidence of
such a witness is that of a partisan witness who was out to entrap another. Although
Their Lordships observed that a person was a partisan witness they did not lay
down the principle that as he was a partisan witness his evidence requires to
be corroborated by independent evidence. A partisan witness merely means a
person who is interested in the prosecution and in bribery cases in the successful
laying of a trap and in the successful prosecution of the alleged bribe-taker.
In other cases also there may be interested witnesses. If a person is murdered
the relative of the deceased person may by regarded as interested witnesses but
there is no rule that in the case of an interested witness there must always be
independent corroboration. In the case of an interested witness the courts must
always weigh the evidence with particular caution and if after scrutinizing the
evidence of an interested witness the court finds it safe to accept such evidence
then independent corroboration is not necessary. It may be found in some cases
that after scrutinizing the evidence of an interested witness it is found to be
unsatisfactory in some respects. In such cases independent corroboration would
be necessary before the prosecution case can be accepted. This is the principle
laid down by Their Lordships of the Supreme Court in Shiv Bahadur Singh
v. State of Vindhya Pradesh, A.I.R. 1954 S.C. page 322. In that case before
the Supreme Court the evidence of two witnesses viz Nagindas and Sir Chinubhai
was under consideration. Their Lordships observed that a perusal of the evidence
of Nagindas and Sir Chinubhai leaves in the mind the impression that they were
not witnesses whose evidence could be taken at its face value and then their
Lordships observed that the evidence of these two witnesses was not satisfactory
and could not be relied upon for implicating the appellant without independent
corroboration. Their Lordships referred to independent corroboration because the
evidence of the witnesses was unsatisfactory. Their Lordships did not say that
even if the evidence of such witnesses is satisfactory and found to be trustworthy
and credible independent corroboration is necessary. The head note that the
evidence of a partisan witness cannot be relied upon without independent
corroboration requires to be qualified. The evidence of a partisan witness which
is unsatisfactory cannot be relied upon for implicating an accused person without
independent corroboration.
It is also contended by Mr. Ghaswalla that the evidence of Panch
Ghanashyam also requires corroboration as the Panch was interested in the
success of the trap laid against the accused. He also relies on the admission
of the Panch that he did not go inside the office of the accused but stood
out side near the window but in a position to see what was going on
inside the room. It is therefore urged that the Panch had contravened the
instructions given to him by the P.S.I. Jadeja because he was particularly
interested in the success of the trap. The P.S.I. was interested in the
success of the trap and the fact that the Panch Ghanashyam disobeyed the
P.S.I. does not therefore show that the Panch Ghanashyam was particularly
interested in the success of the trap. Ordinarily when a bribe is given or

taken it is not done in the presence of strangers and in the presence of Panchas.
In gambling case ordinarily the punter goes alone. He is not accompanied by
a Panch. It would be unreasonable to accept that bribe taker would take the
bribe in the presence of a Panch or a stranger. What the Panch did was quite
natural in the circumstances and it does not show that he was particularly
interested in the success of the trap. He was called as a Panch only after the
P.S.I. Jadeja decided to lay a trap. Whether a Panch acted as a Panch witness
after the raid is over or during the course of the raid he cannot be treated
as a partisan witness unless the idea to make a raid original from him. In
order to provide independent evidence of what happened in the course of a raid
it is always necessary that the police should get the assistance of independent
Panchas and it is not reasonable to stigmatise Panchas as not independent
but interested simply because they do their duty of providing independent
evidence as to what happened in the course of the raid. As observed by the
learned Judge of the Bombay High Court in Ramchand Tolaram Khatri v. The
State 1956 I.L.R. Bombay page 343 at page 348.
“Panchas whom the police take with themselves before going for a raid cannot
be called members of a raiding party. The Panchas have nothing to do with the
raid or the operations of the raid. They are not participators in the act of raiding.
The decision to effect a raid is the decision of the police. The Panchas are not
parties to that decision nor do they subsequently become parties to it at any stage
of the raid. The raid is decided upon the information supplied by the informant
who is generally the complainant and the Panchas have nothing to do with that
decision or the result of it viz the actual raid. Unless the Panchas are sharers in
the police intention to raid we fail to see how they can be characterised as
components of a raiding party. At no stage of the raid does the conduct of the
Panchas become the conduct of person actively interested in the result of the raid.
The police who are a raiding party carry out the raid and wish that the raid should
succeed. The informant who really initiates the police decision to make a raid
would also like that the raid should succeed. Therefore he too is a member of
the raiding party. He is really responsible for bringing about the raid. He would
accordingly be a partisan witness unless he is a willing participator in the crime
in which case he would even be an accomplice. But the Panchas who are taken
to accompany the police have nothing to do with the raid or the result of the
raid. They are indifferent about it. It matters nothing to them whether the raid
succeeds or fails. They have no partisan interest in the raid or its result. The police
do not take them with themselves in order that they should take any part in the
raid itself. They are taken merely to see and hear what takes place during the
raid which is carried out by the police with the help of the informant. They
dispassionately see what takes place during the raid and record...”
In an another case (A.I.R. 1956 Bombay page 426 Jairamdas v. State) it
was observed thus :-
“It cannot be said that the evidence of every Panch witness who takes part
in the laying of a trap in case of bribery can be regarded as evidence of partisan
witness Whether or not a Panch witness in a criminal case is a partisan witness
would always depend upon the circumstances of each case......”
Their Lordships of the Privy Council also approved of the observation of
Beaumont C. J. in Papa Kamalkhan v. Emperor, I.L.R. 1935 Bombay page 730
at page 232 which are as follows :—
“In cases where the payment of the bribe has not been voluntary very slight corroboration
would be sufficient make the evidence of accomplice admissible against the receiver of

1960] STATE v. KARSON ZAVER (C.A.)-Raju, J. [119
the bribe. The rule of the Court which requires corroboration of the evidence of
an accomplice as against each accused if it applies at all, applies with very little
force to a case in which the accused is charged with extorting a bribe from other
persons. The objections which usually arise to the evidence of an accomplice do
not really apply where the alleged accomplice that is the person who pays the bribe
is not a willing participant in the offence, but is really a victim of that offence.”
For these reasons, we hold that in the present case, it is not necessary that
there should be independent corroboration of the evidence of Ranchhodbhai, Panch
Ghanashyam and Panch Motibhai if their evidence is found to be satisfactory.
For the reasons already given, we hold that the evidence of these witnesses is
quite satisfactory. In fact, there is corroboration to the evidence of these witnesses
viz., the conduct of the accused in welcoming Ranchhodbhai when he entered
the office of the accused in offering him a cup of tea and showing him the
document which had already been registered on the 17th two days earlier.
The oral evidence is quite satisfactory and the conduct of the accused is
inconsistent with his innocence. We, therefore, confirm the conviction of the
appellant under Section 161 I. P. C. and Section 5(2) of the Prevention of
Corruption Act because the act of receiving a bribe would amount to criminal
mis-conduct as defined in sub-section (1) of Section 5 of the Prevention of
Corruption Act.
Appeal Dismissed.
* * *
CRIMINAL APPELLATE
STATE v. KARSON ZAVER*
The Prevention of Food Adulteration Act, 1954, (XXXVII of 1954) -
Sec. 8 - Appointment of Public Analyst - Whether certificate given by an
officer appointed by Sanitary Committee of a Municipality admissible in
evidence -Sec. 13-Whether special rule of evidence can abrogate the general
rule of evidence.
A PERSON appointed as an Acting Officer-in-charge of the Public Health
Laboratory by the Sanitary Committee of a Municipality cannot be regarded as
a “ Public Analyst” duly appointed under the provisions of sec. 8 of the Prevention
of Food Adulteration Act and so a certificate given by him cannot be admissible
in evidence.
Though, a special rule of evidence of proving the adulteration of” milk has
been laid down in Sec. 13(5) of Act, it cannot abrogate the general rule of evidence.
Facts can always be proved by oral evidence and by the evidence of experts.
Mr. H. K. Thakore, Assistant Government Pleader for the State.
Mr. A. D. Desai with Mr. G. T. Nanavaty, for the respondent.
*Decided on 27-7-1960. Cri. Appeal No. 79 of 1960 by the State
against the judgment of Sessions Judge, Surat.

RAJU J. This in an appeal by the State of Gujarat against the acquittal

by the learned Sessions Judge of Surat who set aside the conviction and sentence
passed upon one Karson Zaver under sec. 16(1)(a)(ii) of the Prevention of Food
Adulteration Act. The learned Special Judicial Magistrate First Class Surat
convicted the respondent under sec. 16(1)(a)(ii) of the Prevention of Food
Adulteration Act which will be hereinafter referred to as the Act for having
sold adulterated milk to the complainant Food Inspector D. K. Desai of Surat
on 4-8-58. The respondent was going with 15 seers of milk for sale. The
complainant Food Inspector who was accompanied by two Panchas asked the
respondent about the quality of milk and he was told that it was buffalo’s milk.
He purchased 1 1/2 seers of milk from the respondent and after following the
procedure laid down in the Act he took samples of milk and sent one sample
to the Public Analyst. He gave one bottle of sample milk to the respondent
and sent the other to the Public Analyst. According to the prosecution the result
of the analysis by the analyst was that the milk was found to have contained
6.3% of fat and 8.6% of solids other than fat whereas according to the standard
laid down in the rules under the Act buffalos milk should contain in the territories
of Bombay State 8.6% of fat and 9% of solids other than fat. The respondent
was thereupon prosecuted and convicted by the learned Magistrate who relied
on the certificate issued by the Public Analyst and also on the evidence of the
Public Analyst Shri S. S. Bhatt who was examined as a witness. The learned
Magistrate also considered the fact that the respondent had a previous conviction
under the same Act and passed sentence of three months rigorous imprisonment
and a fine of Rs. 500/- in default rigorous imprisonment for one month.
The appeal filed by the respondent before the learned Sessions Judge Surat
was allowed by the Sessions Judge on the grounds that Shri S. S. Bhatt was
not a Public Analyst when he examined the sample of milk which was sent
to him as Shri Limdi who had been appointed by the State Government as
Public Analyst had gone on leave and Shri Bhatt had merely been appointed
acting officer-in-charge of the Public Laboratory at Surat by the Sanitary
Committee of the Surat Borough Municipality and had not been appointed a
Public Analyst. The learned Sessions Judge referred to the Notification by the
State Government dated 17-7-58 issued under sec. 8 of the Act appointing
the officer-in-charge of the Public Health Laboratory Surat Borough
Municipality to be the Public Analyst for the Surat Municipal area. The
learned Sessions Judge thought that the officer-in-charge of the public Health
Laboratory would not include any person who is temporarily holding charge
of such public Health Laboratory. The learned Sessions Judge also observed
that the State Government had not delegated the power of appointing Public
Analyst to the Sanitary Committee of the Surat Borough Municipality and he
therefore came to the conclusion that the report Ex. 5 of the Public
Analyst could not be considered in evidence. As regards the oral evidence of
Shri Bhatt the learned Sessions Judge observed that there is no material on
record to hold that Shri Bhatt was appointed by the Government a Public

Analyst and so the opinion of Shri Bhatt cannot be said to be that of a Public
Analyst or of a person competent as such. The learned Sessions Judge therefore
came to the conclusion that the prosecution had failed to prove that the milk
in question was adulterated milk. He thereupon set aside the conviction and
sentence passed upon the respondent.
The State has now come in appeal against the acquittal and the learned
Assistant Government Pleader for the State has challenged the reasoning of the
learned Session Judge on both the points namely that Shri S. S. Bhatt was not
a Public Analyst and (2) the evidence of Shri S. S. Bhatt is also not admissible
to prove that the milk in question was adulterated. Mr. Desai the learned counsel
for the respondent has contended that Shri Bhatt was acting officer-in-charge
of the Public Health Laboratory and that there was no appointment by the State
Government appointing him as Public Analyst. It is also contended that the State
Government had not considered whether Shri S. S. Bhatt was qualified to be
appointed as a Public Analyst and whether he could be appointed as a Public
Analyst under the rules framed under sec. 23 of the Act. It is also urged that
the State Government must appoint Public Analyst by name. He therefore supports
the finding of the learned Sessions Judge that the report Ex. 5 Shri Bhatt is
not a report of a Public Analyst under the Act and is therefore inadmissible
in evidence. As regards the oral evidence of Shri Bhatt the contention of Shri
Desai the learned counsel for the respondent is that the Act is a self-contained
Act and provides the only method of proving the fact that milk was adulterated.
According to him the Food Inspector has to take a sample and to send one
part of the sample to the Public Analyst. According to him this is the only
method of proving the fact that milk was adulterated and it is not open to the
prosecution to rely on the oral evidence of person who is not a Public Analyst.
In order to decide the questions raised before us it is necessary to refer
to the relevant provisions of the Act. The expression adulterated is defined in
sec. 2 of the Act as follows :-
(i) “Adulterated an article of food shall be deemed to be adulterated.”
(a) It the article sold by a vendor is not of nature substance or quality demanded
by the purchaser and is to his prejudice or is not of the nature substance or quality
which it purports or is represented to be;
x x x x x x x x x
(l) If the quality or purity of the article falls below the prescribed standard or
its constituents are present in quantities which are in excess of the prescribed limits
of variability.”
“Prescribed” in sec. 2(xii) of the Act is defined as meaning prescribed
by rules made under the Act. Sec. 7 of the Act prohibits amongst other things
the sale by himself or by any person on his behalf of any adulterated food.
Sec. 8 provides that the State Government may by notification in the
official Gazette appoint persons in such number as it thinks fit and possessing
such qualification as may be prescribed to be Public Analysts and define
the local areas over which they shall exercise jurisdiction. Rule 6 of the

Rules framed under sec. 23 of the Act prescribes the qualification of

Public Analysts.
The proviso to this rule provides that for a period of four years from the
commencement of the Act persons whose qualifications training and experience
are regarded by the State Government as affording subject to such further training
if any as may be considered necessary a reasonable guarantee of adequate
knowledge and competence may be appointed as Public Analysts. Rule 5 of the
said Rules provides that standards of quality of the various article of food specified
in Appendix B to these Rules are defined in that Appendix. Appendix B to the
Rules prescribes that buffalo milk shall contain not less than 5.0 per cent of
milk fat except in Delhi Punjab Pepsu Uttar Pradesh Bihar West Bengal Assam
Bombay and Saurashtra where it shall be not less than 6 per cent. The milk
solids other than milk fat shall be not less than 9 per cent. The powers of
a Food Inspector are laid down in sec. 10 of the Act and the procedure to
be followed by him is contained in sec. 11 of the Act. Sub-sec. (5) of sec.
13 of the Act provides that any document purporting to be a report signed by
a Public Analyst unless it has been superseded under sub-section (3) or any
document purported to be a certificate signed by the Director of the Central
Food Laboratory may be used as evidence of the facts stated therein in any
proceeding under this Act or under sec. 272 to 276 of the Indian Penal Code
(Act XLV of 1860).
Provided that any document purporting to be a certificate signed by the
Director of the Central Food Laboratory shall be final and conclusive evidence
of the facts stated therein. Sec. 16 of the Act is a penalising section which
provides penalty for the offences committed under the Act.
Under sec. 8 it is for the State Government to appoint a Public Analyst.
In the instant case the State Government has passed a general order by the
notification dated 17-7-58 whereby in exercise of the powers conferred by section
8 of the Act the Government of Bombay appointed the officer-in charge of
Public Health Laboratory Surat Borough Municipal to be the Public Analyst
for the Surat Municipal area. It is contended by Mr. Desai the learned counsel
for the respondent that the State Government must appoint the Public Analyst
by name after making sure that he possesses such qualification as are prescribed
by rule 6 of the Rules made under the Act and he relies in particular on
the use of the word person in sec. 8 of the Act. The word person does not
necessarily mean that the person should be described by name. It is open to
the State Government to appoint a person holding a particular office as a Public
Analyst but at the same time it can do so provided the other requirements
of sec. 8 of the Act are satisfied because sec. 8 requires that the state Government
can appoint a person possessing such qualifications as may be prescribed to
be a Public Analyst. If the State Government appoints a person holding a
particular office as Public Analyst it can do so only if it is satisfied that
a person who holds that office is bound to possess the necessary qualification
for appointment as Public Analyst. In this case the State Government has appo-

inted the officer-in-charge of the Public Health Laboratory Surat Borough

Municipality without specifying the name of the officer-in-charge. No pro vision
has been pointed out which requires that the officer-in-charge of Public Health
Laboratory Surat Borough Municipality should possess the qualifications
prescribed by the Rule 6 of the Rules framed under the Act for appointment
as Public Analyst. By passing such a general order the State Government
runs the risk of finding that the officer-in-charge of the Public Health
Laboratory of the Surat Borough Municipality may happen to be a person
who does not hold the necessary qualification for appointment as a Public
Analyst. The previous officer-in-charge of the Public Health Laboratory Mr.
Limdi had proceeded on leave during the period from 14-7-58 to 13-9-58
and during his absence on leave the Sanitary Committee of the Surat borough
Municipality passed a resolution appointing Shri Bhatt to be Acting Officer
-in-charge of the Public Health Laboratory. The notification by the State
Government refers to officer-in-charge of the Public Health Laboratory Surat
Borough Municipality and there is no merit in the contention of Mr. Desai
that officer-in-charge does not include an acting officer-in-charge. An acting
officer-in-charge means an officer-in-charge for a short period and such an
officer would be an officer-in-charge albeit for a short period. But the order
appointing Shri Bhatt as officer-in-charge of Public Health Laboratory was made
by the Sanitary Committee of the Surat Municipality and not by the State
Government. Sec. 8 of the Act requires that Public Analysts should be
appointed by the State Government. The State Government has not delegated
its powers of appointment of Public Analysts to the Surat Municipality.
Nor has the Surat Municipality appointed him as Public Analysts. After having
issued the notification dated 17-7-58, the State Government did not issue any
further notification appointing Shri Bhatt as Public Analyst during the absence
on leave of Mr. Limdi. The prosecution relied only on the-notification dated
17-5-58. Mr. Bhatt has stated in his evidence that he is B.Sc. of the Bombay
University one of his subject being Chemistry and that he had served in Public
Health Laboratories as Technical Assistant and it was his duty to help the officer-
in-charge of Public Health Laboratory in the analysis of food and water. But
there is no evidence on record to show that the post graduate experience of
Shri Bhatt was such as is required by Rule 6 of the Rules namely experience
in the Analysis of food in a Laboratory under the control of a Public Analyst
appointed under the Act or a Chemical Examiner to Government or a Fellow
of the Royal Institute of Chemistry of Great Britain (Branch E) or the head
of an institution specially approved for the purpose by the State Government.
It is therefore conceded by the learned Asstt. Government Pleader for the State
that Shri Bhatt is not qualified to be a Public Analyst under sec. 7 of the
Act and could not have been appointed as Public Analyst except by the
application of the proviso to that section. The proviso to that section
lays down that for a period of four year from the commencement of the Act
persons whose qualification training and experience are regarded by the State
Government as affording subject to such further training if any as may be
considered necessary reasonable guarantee of adequate knowledge and competence

may be appointed as Public Analysts. The date of the commencement of the

Act is 1-4-1955 and Shri Bhatt was appointed as officer-in-charge of the Surat
Municipal Public Health Laboratory in July 1958 that is within fours years from
the commencement of the Act. But the proviso requires that the State Government
should consider the qualifications training and experience and if the State
Government regards the training qualifications and experience as affording a
reasonable guarantee of adequate knowledge and competence such a person may
be appointed by the State Government as Public Analyst. But the prosecution
did not contend that the State Government considered the case of Shri S. S.
Bhatt. If it had it would have appointed him by name. The prosecution relied
merely on the fact that Shri Bhatt had been appointed by the Sanitary Committee
of the Surat Borough Municipality as Acting officer-in-charge of their Public
Health Laboratory. Shri S. S. Bhatt cannot therefore be regarded as Public Analyst
and the certificate given by him cannot be admissible in evidence.
But in this case the prosecution has actually examined Shri S. S. Bhatt
who has deposed that he had analysed the sample in question. He also proved
the certificate Ex. 5 given by him which shows that the same sample contained
6.3% of fat and 8.6% of solids other than fat. Shri Bhatt has also deposed
that the sample was adulterated with water to the extent of 4% and was
deficient in fat to the extent of 7% under the standard prescribed by the rules
framed under the Act. Under the Act the percentage of fat in Bombay in
buffalo’s milk should be 6% and the percentage of solids other than fat
should be 9%. As the actual percentage of fat was only 5.3% the fat deficiency
would be 7% that is 7/10% and the deficiency in solids other than fat would
be 4/10%. But it is contended that the oral evidence of Shri Bhatt is not
admissible and that the Act provides the only method of proving the
adulteration of milk. It is true that the Act provides for the appointment of
Food Inspectors who are authorized to take samples of milk. But for the provisions
of the Act it would not be open to the Sanitary Inspector of any Municipality
to take samples to milk from any vendor. It is also provided that the Food
Inspector has to send a sample to the Public Analyst and that the report of
a Public Analyst if admissible in evidence. Although such a special rule of
evidence has been laid down in the Act it cannot abrogate the general rule
of evidence regarding proof of facts. Facts can always be proved by oral evidence
and by the evidence of experts Mr. S. S. Bhatt is no doubt an expert in
the analysis of food and milk. He has actually analysed the sample in question
and there is no reason not to accept his evidence that the sample in question
contained 5.3% of fat and 8.6% of solids other than fat. In view of this
evidence it is clear that the sample in question was a sample of adulterated
buffalo’s milk. Standard buffalo milk as prescribed by the Act must contain
6% of fat and 9% of solids other than fat. It does however appear that the
opinion of Shri Bhatt given in his deposition and also in his certificate that
the sample of adulterated milk was adulterated with water to the extent of
4% is not correct. If standard buffalo’s milk should contain 6% of fat buffalo’s

milk, which is adulterated with water to the extent of 4% would contain 5.77%
of fat and not 5.3% of fat. However, it is clear from the evidence of Shri
Bhatt that the sample in question was a sample of adulterated milk. Under Sec.
7 of the Act a person is prohibited from selling milk which is adulterated and
to sell such milk is an offence under Sec. 16 (1) (a) of the Act. The learned
Sessions Judge was therefore wrong in setting aside the conviction and sentence
of the respondent passed by the learned Magistrate. We, therefore, set aside the
acquittal and restore the conviction of the respondent passed by the Magistrate
under Sec. 16(1)(a)(ii) of the Act. In view of the admitted fact that he had
a previous conviction for a similar offence, he is liable to a sentence of
imprisonment of not less than one year and a fine of not less than two thousand
rupees. But the learned Magistrate has sentenced him to three months rigorous
imprisonment and a fine of Rs. 500/- and the State of Gujarat has not made
any application for enhancement of the sentence. In these circumstances, we feel
that the sentence passed by the learned Magistrate is sufficient.
We, therefore, allow the appeal set aside the order of the learned Sessions
Judge acquitting the respondent and convict him under Sec. 16(1)(a)(ii) of the
Act and sentence him to rigorous imprisonment for three months and a fine
of Rs. 500/- in default rigorous imprisonment for one month. Warrant to issue.
Appeal Allowed.
* * *
CRIMINAL APPLICATION
DINKERRAY RUGANATH MEHTA v. STATE*
Criminal Law (Amendment) Act, 1952 (XLVI of 1952)-Sec. 6-Jurisdiction
of Special Judges-Whether transfer of a case from one Special Judge to
another permissible.
IN the case of offences specified in Sec. 6 of the Criminal Law (Amendment)
Act, it is only Special Judges who have jurisdiction. A Special Judge appointed for
one area cannot try such an offence in another area.
Mr. K. N. Mankad, Advocate for the petitioner-accused.
Mr. H. K. Thakore, Assistant Government Pleader for the State-opponent.
RAJU J. This is an application for transfer of Special Case No. 1 of 1960
from file of the Special Judge having that case to the file of Special Judge, Rajkot.
Under Sec. 526(1)(e) Criminal Procedure Code, the High Court may,
for the reasons stated in that Section, order (1) that any offence be
inquired into or tried by any Court not empowered under Sec. 177 to 184
(both inclusive), but in other respects competent to inquire into or try such
offences; (2) that any particular case or appeal or class of cases or appeals,
be transferred from a Criminal Court subordinate to its authority to any other
*Decided on 29-7-1960 Criminal Application No. 130 of 1960 for Transfer.

such Criminal Court of equal or superior jurisdiction; (3) that any particular
case or appeal be transferred to and tried before itself; or (4) that an
accused person be committed for trial to itself or to a Court of Session.
Where the order is passed under cl. (i) of sub-sec. (e) or cl. (ii) of sub-sec.
(e) of sec. 526 (i) Criminal Procedure Code a case can be transferred to a
Court which has jurisdiction to hear such case. In the case of offences
mentioned in sec. 6 of the Criminal Law (Amendment) Act it is only Special
Judges who have jurisdiction. Sec. 6 of the Criminal Law (Amendment) Act
reads as follows :-
“The State Government may by notification in the official Gazette appoint
as many Special Judge as may be necessary for such area or areas as may be
specified in the notification to try the following offences namely :-
(a) an offence punishable under sec. 161 sec. 162 sec. 163 sec. 164 sec. 165
or sec. 165 of the Indian Penal Code (Act XLV of 1860) or sub-sec. (2) of sec.
5 of the Prevention of Corruption Act 1947 (11 of 1947);
(b) any conspiracy to commit or any attempt to commit or any abetment
of any of the offences specified in clause (a).
............................................................................................................”
Special Judges are appointed for an area or areas specified in the notification
of the State Government. A Special Judge appointed for one area cannot try
such an offence in another area. The disqualification to try such an offence
in another area does not spring from sections 177 to 184 of the Criminal
Procedure Code. If the incompetency of a person to try a case was merely
due to sections 177 to 184 Criminal Procedure Code the case could nevertheless
by transferred to him in view of sec. 526 (1) Criminal Procedure Code. but
if incompetency of a Judge to try a case was due to sec. 6 of the Criminal
Law (Amendment) Act sec. 526 (1) Criminal Procedure Code does not have
the effect of removing that incompetency. A case like the present one can
be transferred from one Special Judge to another only if the latter is competent
to try the case as provided in sec. 6 of the Criminal Law (Amendment) Act
in other words if he is a Special Judge for the area in question. The Special
Judge of Rajkot has therefore no jurisdiction to try a Special Case arising
out of the area of Kutch unless he is appointed a Special Judge for the area
of Kutch by the Government under sec. 6 of the Criminal Law (Amendment)
Act. The question whether or not to transfer a Special Case from the area
of Kutch to the file of the Special Judge of Rajkot can only be considered
after the State Government appoints the Special Judge of Rajkot as a Special
Judge for Kutch where the offence is alleged to have taken place. Unless this
is done the High Court cannot pass an order of transfer. The application is
therefore rejected.
Application Rejected.
* * *

1960] ISMAIL v. KHOJA HABIBBHAI (C.A.)-Raju, J. [127
CRIMINAL REVISION
Beforez the Hon’ble Mr. Justice V. B. Raju.
ISMAIL NOORMOHMAD v. KHOJA HABIBHAI ZAVERBHAI
AND ANOTHER*
Criminal Procedure Code, 1898 (Act V of 1898) Sec. 439-No irregularity
or defect in trial-Whether re-trial can be ordered.
A re-trial should not be ordered if there is no irregularity or
defect in the trial.
Mr. H. M. Chokshi, Government Pleader for the State.
Mr. Z. F. Bootwala, Advocate for the opponent No. 1-accused.
Mr. M. R. Barot, Advocate for the applicant (Orig. Complainant).
Motiram v. Emperor (1), referred to.
(1) AIR 1936 All, 758.
RAJU J. These revision applications are in respect of an acquittal of one
Khoja Habibhai Zaverbhai, who was charged under sec. 480 Indian Penal Code.
The learned Judicial Magistrate, First Class, Radhanpur acquitted him in Criminal
Case No. 49 of 1959 and the Revision application was filed before the Bombay
High Court which was No. 2013 of 1959. In that application, it was ordered
by the High Court of Bombay that a revision application should be filed before
the Sessions Judge and the matter was sent back. A revision application had
accordingly been filed before the Sessions Judge, who has however dismissed
it. The complainant has therefore made another application before the Gujarat
High Court which is No. 254 of 1960.
In both these petitions the prayer is that the acquittal of opponent No. 1
under Sec. 408, Indian Penal Code should be set aside and he should be convicted.
Session Judge agreed with the finding of the trying Magistrate that the accused
was a partner of the complainant. But he was of the view that there was not
a shadow of doubt that the finding of acquittal which was recorded by the learned
Magistrate was wrong and that the case ought to have ended in the conviction
of the accused under Sec. 408 I. P. Code. The learned Counsel for the applicant
has conceded that in view of sub-sec. (4) of Sec. 439 Criminal Procedure Code,
it is not open to the High Court under that section to convert a finding of
acquittal into one of conviction. His prayer is merely therefore that the High
Court should order a re-trial. He has however conceded that there is no irregularity
or defect in the trial. But his contention is that although there is no irregularity
or defect in the trial, the order acquitting the accused is a perverse one and
a retrial should be ordered on that ground. In view of the fact that there is
no irregularity or defect in the trial, it would be most irregular for the High
Court to order a re-trial. No authority is pointed out for this proposition that
even if there is no irregularity or defect in the trial, a re-trial may be ordered.
may, however, refer to Motiram v. Emperor, A.I.R. 1936 Allahabad 758, where
the contrary proposition was laid down as follows :-
*Decided on 5-7-1960. Cri. Rev. Application Nos. 22 of 1960 and 254 of 1960,
against the order of acquittal by J.M.F.C. Radhanpur.

“An Appellate Court has a power to order a re-trial, but it can pass such
an order only upon proper grounds such as the ground that the original trial
has been vitiated by some irregularity. An Appellate Court is not entitled to
order a re-trial merely because it disagrees with the finding of the lower
Court that the accused had not committed the more serious offence but
a lesser offence.”
The prayer of the learned Counsel for the applicant that the High Court
should order a re-trial in this case is therefore rejected, and Criminal Revision
Application No. 22 of 1960 is rejected. Criminal Revision Application No. 254
of 1960 is rejected summarily.
Revision rejected.
* * *
CRIMINAL REVISION
BACHU LAKHMAN v. STATE*
The Suppression of Immoral Traffic in Women and Girls Act, 1956 (CIV
of 1956)-Sec. 15-Notification appointing Special Police Officers by designa-
tion whether valid-Sec. 4(2)-Presumption whether can be drawn against
husband-Evidence Act, 1872 (I of 1872)-Sec. 114-Official Act presumed to
be properly done-Whether Panchas should be of same street.
The notification issued by the Government appointing Special Police Officers
for the purposes of the supression of immoral Traffic in Women and Girls Act,
1956, for every sub-division of a district is a prefectly valid notification and a
Deputy or Assistant Superintendent of Police in charge of the sub-division would
be a Police Officer for the purpose of Sec. 15 of Act.
It is not necessary for the Asstt. Superintendent of Police to depose that he
had recorded grounds of his belief, for under Sec. 114 of the Evidence Act, when
an official act is done it is presumed to have been properly done.
The word “Locality” does not necessarily mean that the street in which the
house is situated. If the Panchas belong to different parts of the same town, it
cannot be said they do not belong to the same locality.
Emperor v. Udho S/o. Chandumal and another (1), distinguished
Mr. H. M. Chinoy, Advocate for the Applicatin-accused.
RAJU J. The applicant was convicted under Sec. 3(1) and Sec. 4(1)
of the Suppression of Immoral Traffic in Women and Girls Act, 1956,
which will be hereinafter referred to as the Act. The judgment of the
Judicial Magistrate. First Class, Junagadh was confirmed by the Sessions Judge,
Junagadh in appeal. Hence, this revision application.
*Decided on 22-7-1960. Cri. Rev. Application No. 90 of 1960 against the
judgment of Sessions Judge at Junagadh confirming the conviction by J. M. Junagadh.

(1) A.I.R. 1943 Sind 107.
1960] BACHU LAKHMAN v. STATE (C.A.)-Raju, J. [129
The prosecution case was that the Assistant Superintendent of Police sent
a bogus punter Lalji by name to the house of the applicant with a five rupee
currency note that Lalji gave this currency note to the applicant who thereupon
asked Lalji to select a girl for the purpose of prostitution. Lalji selected the
wife of the applicant Jaya alias Indumati by name and both were allowed to
go into a room. The Police and Panchas then made a raid and found the punter
in the company of Jaya in a compromising attitude on a cot. The Five rupee
currency note was found in the pocket of the applicant. The applicant was
prosecuted. He denied that he was guilty but admitted that he had received Rs.
5/- from Lalji but according to him he was given that amount in connection
with the sale of a horse. The Trying Magistrate rejected the defence accepted
the prosecution evidence and convicted the applicant as stated above and the
conviction was confirmed by the learned Sessions Judge in appeal.
In revision the following points were raised by the learned counsel for
the applicant:— (1) The Assistant Superintendent of Police was not specially
empowered by the Government; (2) under the Act a Police Officer must be
specially empowered. He relies on Emperor v. Udho S/o. Chandumal and others
A.I.R. 1943 Sind 107 It is next contended that the Asst. Superintendent of Police
did not record the grounds for his belief as required under sec. 15 of the Act
and therefore the raid is vitiated; and the third point argued is that the Panchas
selected did not belong to the locality namely Bukar Falia where the house was
situated but they belonged to others localities in the same town. It is next
contended that there is no proof that the house was used as a brothel. Another
contention urged is that there is no corroboration of the evidence of Lalji the
bogus punter. It is lastly contended that at any rate the offence would fall under
sec. 3(2) and not under sec. 3(1) of the Act.
Under sec. 15 of the Act a Special Police Officer is authorised to enter
and search a premises without a warrant if he has reasonable grounds for believing
that an offence punishable under the Act is or is being committed in respect
of a woman or girl living in any premises and that search of the premises with
warrant cannot be made without undue delay. Special Police Officer is defined
in sec. 2(i) of the Act as follows:-
“Special Police Officer means a Police Officer appointed by or on behalf of
the State Government to be in charge of police duties within a specified area
for the purpose of the Act.”
The Government of Bombay issued a notification in exercise of the
powers conferred by sec. 13 of the Act appointing the Deputy Assistant
Superentendent of Police in charge of sub-division of District or any
Police Officer not below the rank of the Dy. S. P. temporarily holding the
additional charge of the Deputy or A. S. P. of a Sub-division of a District
for the Sub-Division of a District constituted for the purpose of the Code of
Criminal Procedure 1898 It is therefore clear from this Notification that for
every Division of District constituted for the purpose of the Code of Criminal
Procedure the Deputy or Assistant Superintendent of Police in charge of that
Division is appointed as a Special Officer. The learned counsel for the applicant
contends that the special appointment must be by name and he relies on Emperor
v. Udho S/o. Chandulal and others, A.I.R. 1943 Sind 107. That was a case

under sec. 6(ii) of the Bombay Prevention of Gambling Act which provided
that entry by Police Officers in gaming houses can be made amongst other persons
by Taluka Magistrate specially empowered by the State Government or by an
Assistant or Deputy Superintendent of Police specially empowered by the State
Government. Having regard to these expressions it has been held in the Sind
case that when a Deputy Superintendent of Police is especially empowered by
Government under sec. 6 (ii) of the Gambling Act he should be specially
empowered by name and not merely by virtue of his office because the words
or by an Assistant or Deputy Superintendent of Police specially empowered by
the Government in this behalf clearly implied the exercise by Government of
a certain selection or discrimination as regards an individual on which this special
power is to be conferred. The scheme of sec. 6(ii) of the Gambling Act is that
although there may be several Assistant and Deputy Superintendents for the
purpose of search under sec. 6(ii) it is only that Assistant Superintendent or
Deputy Superintendent of Police specially empowered by Government who can
issue a warrant for the search. The wards specially empowered are not found
in the definition of Special Police Officer in section 2(i) or in sec. 15 of the
Act. In view of the definition of expression Special Police Officer in sec. 2
(i) of the Act what is required is that the State Government should appoint
a particular Police Officer to be in charge of police duties within a specified
area for the purpose of this Act. But in the Gambling Act for the purpose of
issuing a warrant when an Assistant or Deputy Superintendent of Police is specially
empowered by Government under sec. 6 (ii) of that Act he should be specially
empowered by name as there may be many such Police Officer. In the instant
case the Government has appointed only one Police Officer for the sub-division
of a district as constituted for the purpose of the Code of Criminal Procedure.
In the area of the sub-division it is the Deputy or Assistant Superintendent of
Police in charge of the sub-division who is appointed as a Police Officer.
Ordinarily there would be only one Police Officer in charge of the sub division
of that District. There is therefore no question of selection between Police Officers
in charge of the sub-division of a District. In my opinion therefore the Notification
issued by the Government appointing Special Police Officers for the purpose
of the Act for every sub-division of a District is a perfectly valid notification
and a Deputy or Assistant Superintendent of Police in change of the sub-division
of a District would be a Police Officer for the purpose of sec. 15 of the Act
in regard to the area of the sub-division of that District of which he is in charge
There is therefore no merit in the contention of the learned counsel for the
applicant that the appointment of the Special Police Officer is not by name and
that therefore the Assistant Superintendent of Police had not been specially
empowered.
As regards the contention that the Assistant Superintendent of Police
had not recorded grounds for his belief while acting under sec. 15 of the
Act no question has been put to the Assistant Superintendent of Police in
his examination. In such cases it is not necessary for the Assistant
Superintendent of Police to depose that he had recorded the grounds for
his belief when acting under sec. 15 of the Act. When an official act is
done under sec. 114 of the Evidence Act it is presumed to have been properly

done. In the absence of an admission by the Assistant Superintendent of
1960] BACHU LAKHMAN v. STATE (C.A.)-Raju, J. [131
Police and in the absence of any other evidence it cannot be held that it has
been proved that the Assistant Superintendent of Police did not record the grounds
for his belief when acting under sec. 15 of the Act. This contention of the
learned counsel must also be rejected.
Similarly the contention that the Panchas do not belong to the same locality
as the house searched with is in Bukar Falia in Junagadh while the Panchas
come from other parts of the same town has no substance. Locality does not
necessarily mean the street in which the house is situated. Whether the Panchas
belong to the same locality or not has to be decided on the facts of each case.
Of course if the Panchas belong to a different and distant town they cannot
be said to belong to the same locality; but it is not necessary that they should
be residents of the same street or the same Falia. As the Panchas belong to
different parts of the same town it cannot be said Oat they do not belong to
the same locality.
Regarding the contention that the evidence of the bogus punter Lalji is not
corroborated there is evidence that the five rupee currency note which had been
given to Lalji the bogus punter was found in the pocket of the applicant. This fact
corroborates the evidence of the punter. Of course it is open to the accused person
to rebut the inference to be drawn from the evidence of the punter and from the
fact that the evidence of the punter has been corroborated. The explanation of the
defence that Rs. 5/- had been accepted by the accused as earnest money in regard
to the sale of a horse has not been accepted by the courts below and in revision
it would not be proper for me to accepted the explanation of the defence when it
bad not been accepted by the two courts below. The evidence of the punter is also
corroborated by the fact that the bogus punter was found in the company of Jaya
the wife of the applicant in a compromising attitude.
As regards the argument that there is no evidence to prove that the house
of the accused was a brothel it is true that there is no direct evidence. A brothel
is defined in sec. 2(a) of the Act as follows :-
“‘Brothel’ includes any house room or place or any portion of any house room
or place which is used for purposes of prostitution for the gain of another person
or for the mutual gain of two or more prostitutes.”
“(2) Where any person is proved -
Sub-section (2) of sec 4 of the Act provides:-
(a) to be living with or to be habitually in the company of a prostitute; or
(b) to have exercised control direction or influence over the movements of
a prostitute in such a manner as to show that such person is aiding abetting or
compelling her prostitution; or
(c) to be acting as a tout or pimp on behalf of a prostitute it shall be presumed
until the contrary is proved that such person is knowingly living on the earnings
of prostitution of another person within the meaning of subsection (1):-
Provided that no such presumption shall be drawn in the case of a son or
daughter of a prostitute if the son or daughter is below the age of eighteen years.”
In the instant case on the evidence it is clear that Indumati the wife
of the applicant was a prostitute and that the applicant her husband was
living with her. The presumption mentioned in sec. 4(2) of the Act may
therefore be drawn. But it is contended that the presumption should be

drawn only in the case of strangers living with or habitually in the company of
a prostitute and that such a presumption should not be drawn in the case of the
husband of the prostitute who is living with her. There is no reason to restrict the
scope of the presumption provided in sec. 4(2) of the Act. If a stranger lives with
a prostitute a rebuttable presumption may be drawn that such person is knowingly
living on the earnings of a prostitute. If the husband lives with his wife and allows
his wife to be a prostitute there is no reason for not believing that the husband was
doing so for the purpose of living on the earnings of prostitution of his wife. If
the husband allows his own wife to be a prostitute the presumption would be
stronger that he was doing so for the purpose of living on her earnings of
prostitution. There is therefore no reason not to apply the presumption mentioned
in sec. 4(2) of the Act to the case of the husband living with his prostitute wife.
In this case therefore such a presumption can be drawn and when such a
presumption is drawn until the contrary is proved it can be presumed that the
applicant was knowingly living on the earning of the prostitution of Indumati his
wife. When such a presumption is drawn that would be sufficient to constitute the
house of the applicant a brothel because brothel includes any house room or place
with is used for purposes of prostitution for the gain of another person. That the
house in question was a brothel is therefore proved by the evidence on record and
the presumption to be drawn from sec. 4(2) of the Act.
It is lastly contended that the conviction of the applicant under sec. 3 (1)
of the Act is erroneous and that the conviction should have been under sec.
3(2) of the Act. Two sub-sections of sec. 3 are as follows :-
“(i) Any person who keeps or manages or acts or assists in the keeping or
management of a brothel shall be punishable on first conviction with rigorous
imprisonment for a term of not less than one year and not more than three years
and also with fine which may extend to two thousand rupees and in the event
of a second or subsequent conviction with rigorous imprisonment for a term of
not less than two years and not more than five years and also with fine which
may extent to two thousand rupees.
(2) Any person who-
(a) being the tenant lessee occupier or person in charge of any premises uses or
knowingly allows any other person to use such premises or any part thereof as A
brothel or
(b) being the tenant lessor or landlord of any premises of the agent of such
owner lessor or landlord lets the same or any part thereof with the knowledge
that the same or any part thereof is intended to be used as a brothel or is wilfully
a party to the use of such premises or any part thereof as a brothel;
shall be punishable on first conviction with imprisonment for a term which may
extend to two years and with fine which may extend to two thousand rupees and
in the event of a second or subsequent conviction with rigorous imprisonment
for a term which may extend to five years and also with fine.”
It is proved by the evidence that the bogus punter Lalji approached the
applicant himself for the services of a woman for the purpose of prostitution
and that it was the applicant himself who had offered two girls to Lalji
one of whom was Indumati the wife of the applicant. In view of this evidence
it must be held that the applicant himself was keeping or managing the brothel.
His conviction under sec. 3(1) would be quite proper provided there has
been a charge under sec. 3(1) of the Act. But it is contended that the charge
1960] STATE v. RASULKHAN CHANDKAHN (C.A.)-Raju, J. [133
does not relate to keeping or managing or acting or assisting in the keeping

or managing his house as a brothel, and that the charge merely relates to using
a house as brothel; and that the charge does not fall under Sec. 2(1) of the
Act. The charge is clearly under Sec. 3(2) of the Act. I, therefore, alter the
conviction from Sec. 3(1) to one under Sec. 3(2) of the Act.
It is next urged that as the convictions of the applicant are under Sec.
3(2) and Sec. 4(1) of the Act, under Sec. 10 of the Act, the applicant should
be released on probation of good conduct and detention in protective home.
But, I do not think that this is a case to which provisions of Sec. 10 of the
Act should be applied.
I, therefore, reject the revision application except to the extent that the
conviction of the applicant under Sec. 3(1) of the Act is altered to one under
Sec. 3(2) of the Act. The sentence passed is noT interfered with in revision.
Revision Rejected.
* * *
CRIMINAL APPELLATE
STATE v. RASULKHAN CHANDKHAN*
Criminal Procedure Code, 1898 (V of 1898)-Sec. 170(2), 516A and 517(1)
-Articles produced by Police whether can be returned to Police. Muddamal
articles produced under Sec. 170 of the Criminal Procedure Code before the
Criminal Court cannot be returned to the Police during the trial.
Mr. H. M. Chinoy, for the Opponent.
RAJU J. This is a reference by the Additional Sessions Judge of Kaira
recommending that the order passed by the First Class Magistrate, Nadiad rejecting
the application by the prosecution for the return of the Muddamal liquor to
the Police for being sent to the Chemical Analyser. The prosecution filed an
application before the learned Magistrate for the return of the Muddamal Liquor
to the Police in order to enable the Police to send the Muddamal to the Chemical
Analyser as the prosecution had only relied on the hydrometer test but in view
of the recent ruling of the Bombay High Court, it is necessary to get the liquor
examined by the Chemical Analyser. The Magistrate was of the view that once
the prosecution submitted a charge-sheet it is to be considered that the police
investigation has been completed. The Police cannot resume the investigation.
He, therefore, thought that the request of the prosecution was not supported by
any provision of law and he rejected the application.
The State filed a revision application before the learned Additional
Sessions Judge, who thought that this was not a case where the prosecution
is seeking to lead any additional evidence, but as the prosecution have
realised that hydrometer test alone was not sufficient and it was necessary to
have the liquor tested by the Chemical Analyser, it would be in the interest
of justice to return the Muddamal to the Police for being sent to the Chemical
Analyser. He, therefore, thought that the order of the learned Magistrate rejecting
the application was not correct and therefore, referred the matter to the High
*Decided on 14-6-1960. Cri. Ref. No. 8 of 1960 by the Additional Sessions Judge
of Kaira at Nadiad against the Order of J.M.F.C. Nadiad.

Court for setting aside the order passed by the learned Magistrate.
In my opinion, the view taken by the learned Magistrate is correct. Under Sec.
170 of the Criminal Procedure Code when an officer in charge of a police station
finds that there is sufficient evidence against a person he should forward the
accused under custody to a Magistrate empowered to take cognizance of the offence
upon a police-report and he should further send to such Magistrate any weapon or
other article which it may be necessary to produce before the Magistrate. Once,
an article or a document comes into the custody of a Court, it cannot be returned
except according to rules of law. Rules regarding the disposal of property produced
before any Criminal Court are found in Sections 516A and 517(1) Criminal
Procedure Code. Muddamal articles produced under Sec. 170 of the Criminal
Procedure Code before the Criminal Court cannot be returned to the Police during
the trial. In view of the provisions of the Criminal Procedure Code it is not proper
for a Criminal Court to return to the Police the article produced before it under
Section 170(2), Criminal Procedure Code.
The reference is therefore rejected.
Reference rejected.
* * *
and the Hon. Mr. Justice P. N. Bhagwati.
SHAH CHINUBHAI JIVANLAL v. THE STATE OF GUJARAT.*
The Bombay Tenancy and Agricultural Lands Act, 1948 (LXVII of 1948)
as amended by Act No. XIII of 1956-Section 32(h) read with Section 2 sub-
section 2(c)-Definition of backward area-expression “predominate”-Test of
numerical majority unsound-Only comparative or relative predominance.
Section 32 of the Bombay Tenancy and Agricultural Lands Acts as amended
by the Bombay Act XIII of 1956 provides that on the “ tiller’s day”, i.e. 1st April,
1957, every tenant shall be deemed to have purchased land from his landlord
subject to certain conditions. Section 32(h) relates to the maximum and minimum
purchase price and Sec. 32(h)(2) empowers the State Government to fix different
minima and maxima for different backward areas. On 31st March, 1957. The
Government of Bombay issued a notification under sub-section 2(c) of Section
2 of the Bombay Tenancy and Agricultural Lands Act, 1948, declaring a large
number of villages as backward area. On the sale day, the Government issued
another notification fixing the maxima of sale price for the villages notified as
backward. The village of Vasna in Sankheda Taluka of Baroda District was
included in the said two notifications and 80 multiples of assessment were fixed
as the maximum purchase price for the said area. The petitioner challenged the
two notifications on the ground that in the village Vasna backward citizens do
not predominate as it has a total population of 1750 persons of which, number
of non-backward citizens is 1100 and number of backward citizens is 650.
HELD that the test of numerical majority seems to be unsound in
interpreting the expression “predominate.” The expression “predominant”
in the definition of “backward area” in sub-section 2(c) of Section 2 of the
Bombay Tenancy and Agricultural Lands Act, 1948, must be read in a
comparative sense and a relative sense, relatively with more than one
class and comparatively with more than one class. It envisages
*Decided on 29-7-1960. Spl. Civil Application No. 205 of 1960 under Art.
226 of the Constitution of India for a writ setting aside Government notification
No. T.N.C. 5755-10466 (a) M dated 31-3-1957.
1960] SHAH CHINUBHAI v. STATE (S.C.A.)-Desai, C.J. [135
nothing more than a comparative predominance or a relative predominance and not

a numerical predominance nor an absolute predominance.
Rule of Interpretation : It is a firmly established priniciple of construction that
expresssions appearing in an enactment must be interpreted contextually and also in
a manner which supports and accords with the object of the enactment. It is an
equally well established principle that in case of a broad general expression the Court
bears in mind the spirit and reason of the law for that is closely connected with the
intention of the law-maker.
Chintaman Gajanan Kamath v. The State of Bombay (1), distinguished.
(1) Spl.C.A. No. 829 of 1959
Mr. B. K. Amin, Advocate for the petitioner
Mr. J. M. Thakore, Advocate General with the Assistant Government
Pleader for the respondents.
S. T. DESAI, C. J. This petition raises a question of considerable importance.
Section 32 of the Bombay Tenancy and Agricultural Lands Act rules that on
the first day of April, 1957 known as the “tillers day” every tenant shall subject
to certain conditions and provisions of the Act, be deemed to have purchased
from his landlord, free of all encumbrances, the land held by him as tenant.
The effect of that Section is that as from the “tillers day” tenants are deemed
to have purchased and become owners of land of which they were tenants. Section
32H relates to the purchase price and its maxima. Clause (ii)(a) of sub-section
(1) of section 32H lays down that in the case of tenants other than permanent
tenants, the purchase price is to be the aggregate of such amount as the Tribunal
may determine not being less than 20 times and not more than 200 times the
assessment. That sub-section it will be noticed fixes a minima and maxima, as
to the quantum of the purchase price to be paid by the tenant to the landlord.
The controversy before us turns on the meaning and effect of sub-section
(2C) of Section 2. It will be convenient to refer also to Section 32H(2) which
is as under :-
“(2) The State Government may, by general or special order fix different minima
and maxima for the purpose of sub-clause (a) of clause (ii) of sub-section (1) in
respect of any kind of land held by tenants in any backward area. In fixing such
minima and maxima the State Government shall have regard to the rent payable
for the land and the factors in specified sub-section (3) of Section 63A.”
Section 63A lays down certain rules to be applied in aid of fixation of
reasonable price of land for the purpose of its sale and purchase. Sub-section
(3) of Section 63A lays down certain criteria to be applied when fixing the
price of land for the purpose of its sale and purchase. Sub-section (2) of Section
32H which we have set out above is obviously intended to help tenants in
backward areas by laying down that in their case the ordinary standard of minima
and maxima fixed under clause (ii)(a) of Section 32H(1) is not to apply and
the minima and maxima may be fixed by the State Government in case of such
tenants, of course, having regard to the rent payable for the land and factors
specified in sub-section (3) of Section 63A.
The expression ‘backward area’ has been defined in Section 2(2C) of the
Act. The definition runs as under :-
“Backward area” means any area declared by the State Government to be a backward
area, being an area in which, in the opinion of the State Government, socially, econo-

mically and educationally backward classes of citizens predominate; and includes

an area declared to be a Scheduled area under paragraph 6 of the Fifth Schedule
to the Constitution of India.”
The State Government issued a notification dated 31st March 1957 under
clause (2C) of section 2 of the Act and declared by that notification a number
of villages to be backward areas. The enumeration there given includes the village
of Vasna in Sankheda Taluka as a backward area. The notification recites :-
“The Government of Bombay is of opinion that the area..are area in which socially
economically and educationally backward classes of citizens predominate.”
On the same day the State Government promulgated another notification
under clause (ii)(a) of section 32H(1) and fixed 80 multiples of assessment as
the maximum purchase price in the specified areas. The enumeration of backward
areas in that notification includes the village of Vasna.
In the petition the petitioner has challenged the vires of section 32H (1)(ii)(a)
and section (2C). But Mr. B. K. Amin learned counsel for the petitioner has
not challenged the vires of those sections before us. He has confined his arguments
to the validity of the two notifications mentioned above in so far as they embrace
the village of Vasna. The brief argument of counsel is that the State Government
was patently in error in declaring the village of Vasna as backward area and
the challenge is levelled on the ground that admittedly in the village of Vasna
having a total population of 1 750 persons the number of non-backward citizens
is 1 100 and that of backward citizens only 650. Therefore so the argument
has proceeded the State Government has committed an error of law apparent
on the face of the record when it has declared the village of Vasna as a backward
area for it cannot be said that the 650 backward citizens preponderate in the
area. The argument has run that there must be a numerical majority and the
number of citizens belonging to backward classes must be preponderately large.
It is said that when the number of citizens belonging to backward classes socially
economically and educationally is less than half the population the notification
declaring that particular village as backward area would be ultra vires. In support
of his contention Mr. Amin has strongly relied on a decision of the High Court
of Bombay in Special Civil Application No. 829 of 1959 (Chintaman Gajanan
Kamat v. The State of a Bombay) delivered on 15th December 195. We shall
refer to that decision a little in our judgment.
It has been argued on the other hand by the learned Advocate General who
appears for the State and the Agricultural Lands Tribunal that the notification
are valid and effective and they rightly include the village of Vasna in the list
of backward areas for the purposes of the relevant sections of the Act. It is
said that division of citizens in a village only between backward classes
and nonbackward classes would not be accurate or in accordance with the
relevant provisions of the Act. An area is to be declared as backward area when
in the opinion of the State Government the number of citizens belonging to
classes socially economically and educationally backward can be said to
predominate but says the Advocate General predominate in the present context
does not connote numerical majority. The number of citizens belonging to
Backward classes is not to be compared with the rest of the citizens in the village
or area. Counsel relies on the dictionary meaning of the expression “predominate”

1960] SHAH CHINUBHAI v. STATE (S.C.A.)-Desai, C.J. [137
which according to Webster means; to have ascendancy influence or authority

(over others) be superior hold sway. It also means to be dominant over all others
prevail or preponderate. It is also urged that in a given area persons may belong
to classes which are backward socially economically and also educationally. There
may be persons belonging to classes which may be only socially or only
economically or only educationally backward. There may also be for instance
persons belonging to classes which may be socially and educationally backward
but economically not so.
It is a firmly established principle of construction than expressions appearing
in an enactment of the nature before us must be interpreted contextually and
also in a manner which supports and accords with the object of the enactment.
It is an equally well established principle that in case of a broad general expression
of the nature under consideration the Court bears in mind the spirit and reason
of the law for that is closely connected with the intention of the law-maker.
The object of the enactment in so far as it relates to citizens belonging to backward
classes is to lay down the rule that the amount of compensation payable by
them when they become owners on the tillersday should not be beyond their
means and should be less than that payable by other citizens. The test of numerical
majority seems to us to be unsound in interpreting the expression predominate.
There would have been some substance in the contention pressed on behalf of
the petitioner if the citizens in a village or area could logically be divided only
into persons belonging to backward classes i.e. those who are backward socially
economically and educationally and the rest. But that dichotomy in our opinion
would be an arbitrary classification. The citizens may readily fall under more
than two categories and certainly in at least three categories. The categories may
consist of those of whom it may legitimately be said that they belong to backward
classes those who may be said to belong to advanced classes i. e. persons who
have progressed socially economically and educationally and in between must
always remain a third class of persons whom we may describe as an intermediate
class. In this intermediate class may very well fall persons who cannot be regarded
as falling under the head of backward classes nor under the head of advanced
classes. Therefore the test of numerical majority cannot be permitted to dominate
the construction of the relevant sections. The expression in our judgment must
be read in a comparative sence and a relative sense relatively with more than
one class and comparatively with more than one class.
But says Mr. Amin the matter is not res integra and this court as held in
a Full Bench decision* is bound by decisions of the Bombay High Court. He
relies on an unreported decision of the Bombay High Court in Special Civil
Application No. 829 of 1959. In that case question similar to that before us
did arise in respect of a declaration relating to the village of Povale in Alibag
Taluka as a backward area. The contention that was urged on behalf of the
State Government in that case was that the majority of the persons residing in
that village were backward. The major part of the judgment deals with an
examination of that argument which was negatived by the Court. There is an
observation in the judgment in that case as follows :-
*Anand Municipality v. The Union of India, 1960 (1) GLR 82

“Under clause (2C) Government can declare a village to be a backward area, only
if a large majority of the citizens belong to backward classes. All that has been shown
in this case, by the affidavit filed on behalf of the State Government, is that the
majority of persons residing in Povale village are backward. It is not shown that in the
opinion of Government they belong to backward classes. On the other hand, the
publication issued by Government, to which I have referred above, as well as the
letter received by the petitioner from the Director of Social Welfare Poona, show that
the majority of the citizens in this village do not belong to backward classes.”
These observations must be read in the context of the argument advanced
before the Court and so reading these observations we do not think we would be
justified in agreeing with Mr. Amin that the ratio decedendi of that case is that the
word predominate must mean that there must be a numerical majority of citizens
belonging to backward classes.
There is neither principle nor authority for confining the connotation of the
expression predominate in the definition of ‘backward area’ to a numerical major-
ity. As we have already observed on a point of the nature under consideration, it
is legitimate for the Court to bear in mind and indeed incumbent on it to have
regard to the object of the enactment. Some arbitrary rule had to be laid down for
the guidance of the State Government and also some criteria had to be furnished.
The declaration obviously would affect a number of villages and areas. The leg-
islature very well knew that ordinarily in an area or village there would be a fairly
large number of persons who would be earning their livelihood as tenant and also
knew that there would be a number of persons in any village or area who would
have nothing to do with agricultural lands or tenancy rights. We mention this only
to illustrate one of the reasons which could well have weighed with the law-maker.
Considered in the light of what we have already stated, it seems to us that what
is envisaged by the expression ‘predominate’ in the definition of ‘backward area’
is nothing more than a comparative predominance or a relative predominance and
not a numerical predominance nor an absolute predominance.
In the result, the petition fails and will be dismissed. The rule will be discharged
with costs.
Petition Dismissed.
* * *
CRIMINAL APPELLATE
RAMSING BHADRASING v. STATE*
The Prevention of Corruption Act, 1957 (ll of 1957)-Use .of Anthracene
powder-Duty of prosecution to prove its nature by expert evidence or books of
science.
In cases under the Prevention of Corruption Act, 1957 (II of 1957), the
prosecution must lead positive evidence by way of expert evidence or books of
science to prove the method of detection of anthracene powder, the nature of the
test to be applied, the nature of the result to be expected and whether a layman
can detect anthracene powder when such test is applied. The tests must be such
that if these are applied and the results are positive, the positive results lead to
one and only conclusion namely the finding of anthracene powder.
*Decided on 7-7-1960. Criminal Appeal No. 118 of 1960.

1960] RAMSING BHADRASING v. STATE (Cri.A.)-Raju, J. [139
Mr. H. P. Mehta and Mr. J. C. Bhatt, for the Applicants.

Mr. H. K. Thakore, Assistant Government Pleader for the State.
RAJU J. This is a case in which the Police resorted to the technique of
anthracene powder and ultra-violet rays. According to the prosecution anthracene
powder was applied to the currency notes and was found on the hands of the
appellant. This circumstance is sought to be used to prove that the appellant had
received the notes. When the prosecution wants to prove the presence of anthracene
powder on the hand of the appellant it is the duty of the prosecution to prove by
means of expert evidence or books of science the nature of anthracene powder the
manner in which its presence can be detected and the tests to be applied for the
purpose. The tests must be such that if after they are applied and results are
positive the positive results lead to one and one conclusion namely the finding of
anthracene powder. It is for the prosecution to prove that positive results are a
conclusive proof of the find of anthracene powder. This is a matter on which
experts should give evidence. The prosecution can also rely on books of science.
In this case, the prosecution has not led any evidence of this type as to the nature
of anthracene powder and the means of detecting presence anthracene powder. It
is true ultra-violet lamp was used but there is no evidence as to the result to be
expected when ultra-violet rays are applied. The complainant has merely deposed
that when Vithaldas gave Rs. 100/(10 notes of Rs. 10)/each to the complainant
powder was applied and the Jamadar put them in his pocket. He does not speak
of any demonstration being given at that time. According to this witness, when the
police party arrived at the house of the appellant, the Saheb asked the accused
about the money and then applied light to his hands and the witness saw the
powder which was shining and greenish. As regards the Jhaba the complainant
merely says that the Jamadar held the Jhaba in his hands and looked inside the
pocket. The complainant does not say that he noticed anything on the Jhaba. The
complainants brother Kakandia has deposed that at the Society the Jamadar applied
something to the Notes and said that it was powder. The witness does not speak
of any demonstration or experiment having been made. He was only told that
powder had been applied. He deposed that the hands of the appellant were
examined but did not say what the result of the examination was. He does not
speak of alleged examination of the Jhaba under ultra-violet light. According to
the Panch Kanchanlal when the first Panchnama was made, powder was applied
to the 10 notes which were put in the pocket of Kadva. He does not speak of any
demonstration or experiment having been made. According to the witness when
the Saheb saw the hands of the appellant with the lamp they had something
like powder marks. When the Jhaba was examined, powder like marks were
also seen in the pocket. According to the Panch Jamnadas when the Police
Officer applied to the notes he showed them to the witness in the light of
ultra-violet lamp. The witness found some stains and some slight change of
colour. The stains were neither bright nor faint. When the hands of the
appellant were seen in the light of the ultra-violet lamp he saw stains on his
hands of the type which he had seen on the notes. When he saw the Jhaba in
the light of the lamp he saw stains in the pocket of the Jhaba. Even the Police

Inspector Gohil has not stated how the presence of anthracene powder could
be detected. He merely deposed that Head Constable Jaswantsinh explained the
working of the lamp to the Panchas and applied anthracene powder to the notes
and then showed them to the Panchas. But he had not deposed as to what he
had seen under the light of the lamp. According to this, Police Inspector when
the hands of the appellant were seen with the lamp he saw marks of powder.
When the pocket of the Jhaba was examined, it had powder marks. It is therefore
not clear from the evidence of these witnesses as to whether they understood
the method of detection of anthracene powder. One witness speaks of marks
of powder another witness speaks of powder like marks a third witness speaks
of change of colour and the fourth speaks of greenish shining. Head Constable
Jaswantsinh who is supposed to know something about the powder and the means
of detecting it has not been examined. Nor has any expert witness deposed that
when such stains or shining are noticed in the light of ultra-violet lamp that
is a sure indication of the presence of anthracence powder or that at least it
makes the presence of anthracene powder highly improbable. The prosecution
must lead positive evidence by way of expert evidence or books of science to
prove the sure methods of detection of anthracene powder the nature of the
test to be applied the nature of the result to be expected and whether a layman
can detect anthracene powder when such a test is applied. The prosecution must
also prove that if the test leads to a positive result, it conclusively proves the
presence of anthracene powder and nothing else. It is difficult to believe that
in this case illiterate persons like the complainant and his brother and Panchas
who were laymen not at all experts on this question were able to detect anthracene
powder on the hands of the appellant and on his Jhaba. Even the Police Inspector
does not claim to be an expert in detecting anthracene powder. Head Constable
Jaswantsinh has not been examined. In these circumstances, it would not be correct
to hold that the prosecution has succeeded in proving the presence of anthracene
powder on the hands of the appellant or in the pocket of the Jhaba. In the
present case, we hold that the prosecution has failed to prove beyond reasonable
doubt the presence of anthracene powder.
[Rest of the judgment discussed the evidence and is not important for this
Reports.]
* * *
CRIMINAL APPLICATION
DHARAMDAS SHAMLAL v. DISTRICT MAG. AHMEDABAD*
The Constitution of India-Article 226-The Criminal Procedure Code,
1898 (V of 1898) Sec. 491-The Preventive Detention Act, 1950 (IV of 1950)
Section 3-Power of detention not subject to objective test by Judicial
Tribunal-Whether High Court will investigate into the truth or otherwise
of the facts or whether authority on merits was justified-if grounds
furnished are vague or indefinite or the order is mala fide-Burden of proving
that fact upon the detenu.
*Decided on 26-7-1960. Criminal Application No. 149 of 1960 against the order
of detention by the District Magistrate, Ahmedabad on 4th March, 1960.

1960] DHARAMDAS v. DISTRICT MAG. (Cri.Appl..)-Shelat, J. [141
The power to pass the order of detention under Section 3 of the Preventive
Detention Act depends on the subjective satisfaction of the authority, and hence,
it is not subject to the objective test of Judicial Tribunal. It is apprehension in the
mind of the authority that the detenu will act in a manner prejudicial to the
maintenance of public order which is the basis of such a detention order. Once, the
authority is satisfied on the materials available to it, it is not for the High Court
to examine the order as an Appellate Authority or to institute an investigation into
the truth or otherwise of the facts on which such satisfaction is based.
A Habeas Corpus Bench of the High Court has no doubt the right to consider
the question of jurisdiction of the authority or the question whether that authority
applied its mind properly to the question of detention, but it is not open to the
High Court to go into the question whether the authority on merits was justified
to pass the order. That is the sole responsibility imposed by the legislature on
the authority, and unless that authority acts, for intsance, mala fide or in abuse
or fraud of the Act or the object and scope of the Act, the High Court is not
entitled to interfere with the order of detention.
In order to challenge an order of detention on the ground that the grounds
furnished to the detenue person are vague or indefinite it would be necessary
for the detenue to show that the vagueness or indefiniteness of the grounds
furnished to him either embarassed him or affected his right of making an effective
representation. Where the detenu alleges that the order is mala fide, the burden
of establishing the mala fides is upon him.
Mr. A. M. Barot, Advocate for the petitioners.
Mr. H. M. Chokshi, Govt. Pleader for the opponent-State.
Machhindar Shivaji v. the King (1), B. N. Mukerjee v. the State (2), Rex. v.
Halliday (3), Mohd. Athar Rizvi vs. the State (4), State of Bombay v. Atma
Ram (5), Dayanand Modi v. State of Bihar (6), referred to.
The petitioner was detained in the Sabarmati Jail at Ahmedabad under an
order dated March 4, 1960 passed by the District Magistrate, Ahmedabad under
Sec. 3 of the Preventive Detention Act. The grounds upon which this order
was issued were furnished to the detenu on the same day. On 12th March, 1960,
the then Government of Bombay approved the said order. The said order together
with a representation made by the detenu were sent to the Advocate Board and
after a personal hearing was given to the detenue, the Board gave its approval
to the order. On 22nd April, 1960, the State Government passed an order
confirming the order of detention of the petitioner. The petitioner submitted to
the High Court a petition under Art. 226 of the Constitution of India and Section
491 of the Code of Cri. Pro. for the issue of writ in the nature of habeas
corpus for setting him at liberty.
SHELAT J. The order of detention has been challenged by the petitioner
principally on two grounds viz. that the grounds upon which the order is
based and which were furnished to the detenue are vague and indefinite, and
therefore, the detenue was not in a position to make an effective representa-
tion and secondly that several of the grounds were false, and therefore, the
(1) A.I.R. 1950 F.C. 129 (2) I.L.R. 1951 Nag-1 (3) 1917 A.C. 260
(4) A.I.R. 1951 ALL. 456 (5) A.I.R. 1951 Bombay 157 (6) A.I.R. 1951 Pat. 47

order passed by the District Magistrate was mala fide. it was submitted on these
grounds that the order of detention should be declared illegal and the detenue
should be set at liberty.
Section 3 of the Preventive Detention Act inter alia states that the State
Government may if satisfied with respect to any person that with a view to
preventing him from acting in any manner prejudicial to the maintenance of
public order it is necessary so to do make an order directing that such a person
be detained. Section 3 thus gives wide powers to the executive to detain a person
without any trial on the appropriate authority being satisfied that such detention
is necessary. Thus the power to pass the order of detention depends on the
subjective satisfaction of the appropriate authority. The satisfaction required under
section 3 being a subjective one it is obvious that it is not subject to the subjective
test of a Judicial Tribunal.
Under section 491 of the Code of Criminal Procedure the High Court however
has the power to issue directions in the nature of a habeas corpus whenever
it thinks fit directing inter alia a person detained either in public or private
custody within the limits of its appellate criminal jurisdiction to be set at liberty.
Though the power of the High Court Is expressed in this section in wide terms
sub-clause (b) of clause (1) of the section restricts these powers by providing
that such a person can be ordered to be set at liberty if he is illegally or improperly
detained. The power given to the High Court under section 491 is to issue a
direction to have the person detained brought before it for the purpose of
investigating whether he is being detained under a proper authority or not. Upon
such a detained person being brought before the High Court the authority who
has detained him has to show that he has been detained under a valid authority
or power. Once that is shown the onus shifts on to the detenue to show that
his detention is either illegal or improper.
Since the power to pass the order under section 3 of the Preventive Detention
Act depends on the satisfaction of the appropriate authority sufficiencY of the
grounds on which such satisfaction is or purports to be founded cannot obviously
be challenged in a court of law. However those grounds must have a probative
value and must not be extraneous to the scope and purpose of the Act under
which the detention has been ordered. The order nevertheless can be challenged
on the ground of its being mala fide which strictly speaking is the same thing
as showing that though the order on the face of it appears to be within the
scope and purpose of the Act. in reality it is not and the Act has been used
merely as a cloak for detaining wrongfully the individual concerned.
An application under section 491 of the Code of Criminal Procedure
being one for the court to test whether a person has been illegally or
improperly detained the High Court in such a proceeding is not entitled to
inquire into the truth of the facts set out as grounds of detention
communicated to the detenue. Consequently the propriety or the reasonableness
of the satisfaction of the authority on which an order under section 3
of the Act is based cannot be challenged. But that does not mean that the High
Court can in no circumstances examine those grounds. The High Court is in
fact entitled for the purpose of testing whether the detenue is illegally or impro-

1960] DHARAMDAS v. DISTRICT MAG. (Cri.Appl..)-Shelat, J. [143
perly detained to examine the grounds to see if they pertain to the object that
the legislature had in mind while enacting the statute under which it has conferred
the power on the executive. While examining the grounds the High Court must
be satisfied that those grounds have a rational connection with such object. In
the case before us the relevant object under section 3 of the Preventive Detention
Act is the maintenance of public order. In Machindar Shivaji v. The King, A.I.R
1950 F.D. 129 it was observed that the responsibility for making a detention
order rests on the provincial executive as the alone are entrusted with the duty
of maintaining public peace and it would be serious derogation from that
responsibility if the Court were to substitute its judgment for the satisfaction
of the executive authority and to that end undertake an investigation of the
sufficiency of the materials on which such satisfaction is grounded. It is true
that in that case the Federal Court was dealing with section 2 of the Public
Safety Act and not with section 3 of the Preventive Detention Act But while
making those observations Their Lordships of the Federal Court were
concerned with the word satisfied occurring in section 2 of the Public Safety
Act and which is in substance the same as occurring in section 3 of the Preventive
Detention Act. Similarly in B. N. Mukerjee v. The State, I.L.R. 1951 Nag. 1
the Full Bench of the High Court of Nagpur held that a reasonable apprehension
on the part of the authority concerned that the detenue if not detained would
act in a way prejudicial to the maintenance of Public order i.e. the basis of
all detention orders and if there is no reasonable foundation for that apprehension
or that apprehension does not in fact exist then the detention under section 3
Of the Act cannot be justified. Thus it is the apprehension in the mind of the
authority that the detenue will act in a manner prejudicial to the maintenance
of public order which is the basis of such a detention order. Consequently once
the authority is satisfied on the materials avialable to it it is not for the High
Court to examine the order as an appellate authority or to institute an investigation
into the truth or otherwise of the facts on which such satisfaction is based. As
Lord Finlay in Rex. v. Halliday, 1917 A. C. 260 at page 269 said a court is
the least appropriate tribunal to investigate the question whether circumstances
of suspicion exist warranting the restraint in a person. Therefore where a person
who has been detained under the Preventive Detention Act applies to the High
Court under section 491 of the Code of Criminal Procedure all that can be seen
in the proceedings would be whether the grounds communicated are
connected with the order of preventive detention and whether the order made
by the District Magistrate is made bona fide or mala fide. The question of
correctness of the grounds of detention cannot be inquired into by the High
Court. In Mohd. Athar Rizvi v. The State, A.I.R. 1951 Allahabad 456 the
question arose whether the grounds of detention of the applicant. viz. that
the disclosure in Pakistan by him of the secrets which the applicant had in
his possession was likely to affect the security of the State was the one
which the High Court could enquire. It was held that the question whether
the secrets in the possession of the applicant which could be declosed in
Pakistan were such that they would not affect the security of the State cannot
be inquired into in the proceedings. Mr. Justice Bhargava in that case stated

that since Art. 21 of Constitution permits deprivation of liberty by procedure

established by law it was obvious that the discretion of deciding what the
procedure should be and to what extent it needs to be prescibed has been given
entirely to the legislature. Obviously it cannot be necessary that every detailed
step of the procedure need be mentioned. While empowering the authorities to
make an order of detention on being satisfied that one of the conditions laid
down in sec. 3 of the Act exists the legislature has not laid down by what
process that satisfaction is to be arrived at by the relevant authority. It is entirely
at the discretion of the authority in making the order to satisfy itself in that
behalf by whether means may be available to it. The question whether activities
which are made the grounds for detention would in fact affect the public order
or not is not again a question which can be gone into in proceeding under section
491 of the Code of Criminal Procedure. All that can be gone into is to see
whether the grounds communicated to the detenue have a connection with the
order made and whether the order is bona fide or mala fide. The question of
the correctness of the grounds also cannot be inquired into by the High Court
in such a proceeding. The Preventive Detention Act has itself set up a forum
under section 9 where the truth of the grounds can be gone into. As we have
pointed out the Advisory Board has already examined the grounds as also
representation made by the detenue and has come to the conclusion that the
grounds are correct and on their decision the State Government has confirmed
the order under section 11(1) of the Act. A Habeas Corpus Bench of the High
Court has no doubt the right to consider the question of jurisdiction of the
authority or the question whether that authority applied its mind properly to
the question of detention but it is not open to the High Court to go in to the
question whether the authority on merits was justified to pass the order. That
is the sole resonsibility imposed by the legislature on the authority and unless
that authority acts for instance mala fide or in abuse or fraud of the Act or
the object and scope of the Act the High Court is not entitled to interfere with
the order of detention.
Article 22(5) of the Constitution confers two rights upon the detenue whose
liberty has been deprived of. The first part of clause (5) of that article gives
a right to the detained person to be furnished with the grounds on which
the order has been made. The second right given to such a person is of being
afforded the earliest opportunity if making a representation against the order.
It is obvious that the grounds for making the order as mentioned above are
the grounds on which the detaining authority was satisfied that it was necessary
to made the order. These grounds must therefore be in existence when the
order is made. But the question whether such grounds can give rise to the
satisfaction required for making the order is as observed above beyond the
scope of the inquiry under section 491 of the Code of Criminal Procedure.
On the other hand the question whether the vagueness or indefiniteness of
the statement furnished to the detained person is such as to deprive or
preclude him of the earliest opportunity to make a representation to the
authority is a matter within the jurisdiction of the High Court and subject
to the decision of the High Court. As observed in State of Bombay v.
Atma Ram, A.I.R. 1951 Bom. 157 the conferment of the right to make a

1960] OSWAL DAMJI TEJSI v. STATE (Cri.A.)-Miabhoy, J. [145
representation necessarily carries with it the obligation on the part of the detaining
authority to furnish grounds and the right given to the detained persons to have
an earliest opportunity to make the representation. The test to be applied in
respect of the contents of the grounds for the two purposes is quite different.
For the first, the test is whether it is sufficient to satisfy the authority and for
the second the test is whether it is sufficient to enable the detained person to
make the representation at the earliest opportunity. In order therefore to challenge
the order of detention on the ground that the ground furnished to the detained
person are vague of indefinite it would be necessary for the detenu to show
that the vagueness or the indefiniteness of the grounds furnished to him either
embarrassed him or affected his right of making an effective representation to
the authority concerned.
It was suggested by Mr. Barot in the course of his arguments that the order
of detention passed against the petitioner was also bad on the ground that it was
made mala fide. As we have said the High Court cannot enter into the question
whether the statements made in the grounds were true or not. The High Court,
however, has the jurisdiction to go into the question whether the order was made
mala fide. Where the detenu alleges that the order is made mala fide the burden
of establishing the mala fides is upon him. The facts proved by the petitioner must
amount to proof of mala fides. If the High Court however is satisfied that the order
in question is passed in conformity with the provisions of the Act and is not outside
the scope or the object and purpose of the Act, no question of mala fides would
arise. In other words, it must mean that it is not in abuse or fraud of the powers
conferred on the authority concerned by the Legislature. (See Dayanand Modi v.
The State of Bihar, A. I. R. 1951 Patna 47).
Petition Dismissed.
* * *
CRIMINAL APPELLATE
Before the Hon’ble Mr. Justice N. M. Miabhoy
and the Hon’ble Mr. Justice R. B. Mehta.
OSWAL DAMJI TEJSI & TWO OTHERS v. STATE*
Indian Penal Code, 1860 (XLV of 1860), — Sec. 34–Principle underlying
Joint Liability-Test of common intention-Formation of common intention-
Act or acts done in furtherance thereof–Proof that the criminal act was
committed by a specified person or persons whether necessary-Whether
common intention should be anterior to the criminal act.
The essence of the principle of joint liability is to be found in the existence
of common intention animating the accused and leading to the commission of
a criminal act in furtherance of such intention.
In order that Sec. 34 of Indian Penal Code may apply, first there must be the
formation of common intention, secondly, there must be some act done by one or
more persons, and thirdly, that act must be in furtherance of common intention of
all. It is not necessary that the prosecution must prove that the act was done by
a particular or a specified person. The common intention must be anterior to the
*Decided on 9-8-1960. Cri. Appeal No. 121, of 1960 (with Cri.Appeal No.
153of 1960 and of Review Application No. 55of 1960), against the judgment of
the Sessions Judge, Kutch.

criminal act and criminal liability can attach only to an act which is com-
mitted after formation of common intention. Common intention can be found
on the spot.
Rajaram Raghu Patil v. State (1), explained.
Nuklesur Rahman and another v. The King (2), referred to.
Mr. G. F. Bootwala, for the accused.
Mr. H. K. Thakore, Asstt. Government Pleader for the State.
The relevant facts appear in the judgment.
MIABHOY J. The appellants who were accused Nos. 1 2 and 3 in the
trial Court were convicted by the learned Sessions Judge, Kutch for the offences
under Section 325 read with Section 34 of the Indian Penal Code and each
has been sentenced to suffer rigorous imprisonment for two years. The charge
against the three appellants was one under Section 302 read with Section 34
of the I. P. C. The prosecution case was that on or about 21-9-1959 at about
3-30 A. M. in the village Vekara Taluka Rahpar, District Kutch in furtherance
of their common intention the accused committed the murder of one Charan
Rana Mulu. The deceased Rana was a resident of the village Vekara. His brothers
Desar and Samat also resided in the same village. The three accused are brothers.
The prosecution case is that they resided at the village Somani-Wandh which
is about half a mile from the village Vekara. On the night of 21-9-1959. some
crops were standing in the field of the three accused. The prosecution case is
that they had gone there for watching the crop in the field. On that night Rana
Mulu went to the ridge of that field for grazing his cattle thereon. The prosecution
case is that there was a custom in the village for people to take their cattle
for grazing on the ridges of fields. Some of the buffaloes of Rana Mulu strayed
into the crops of the accused and a part of their crop was damaged. Thereupon,
the three brothers came near the ridge and according to the prosecution there
was an exchange of words between Rana and the accused, and thereafter, all
the three accused persons attacked the deceased with sticks one of which was
shod with iron-rings. The prosecution alleges that at this time the witness Mera
Vala was grazing his bullock In a hillock nearby. On hearing the abuse and
exchange of words he came to the spot and remonstrated with the accused not
to beat Rana but he received threats from the accused No. 1, and thereupon,
he left the place. In all 21 injuries were caused on Rana. Two of these injuries
had caused fractures of 3 ribs and as a result, the right lung of Rana was punctured.
Rana after receiving these injuries went to his brother Disar and informed him
what had happened. Desar called Samat and the latter was also told about this
incident. Then Desar went to the Police Station at Rahpar. He reached the place
at about 8-45 A. M. and his First Information Report was recorded. The Police
thought that it was a case of simple hurt and consequently registered only a
non-cognizable complaint and instructed Desar to take further steps for filing
a regular complaint before a Magistrate. According to prosecution witness
Banesing was called in the morning and Rana also made a dying declaration
before him. However Rana died as a result of the injury on the right lung before
any medical treatment could be given to him. The information about his death
was sent to Desar who received it on his 0way back to the village. Thereupon,
(1) A.I.R. 1958 Bom. 469 (2) 51 Cri.L.J. 945

Desar went back to the Police Station at Rahpar and informed the Police about
the death of Rana. Thereupon an offence of murder was registered and the P.S.I.
came to the village on the night of 22-9-1959 and entered into investigation.
Ultimately the Police charge sheeted all the three accused for the offences under
sec. 302 read with sec. 34 of the I. P. C.
The case of all the three accused was one of total denial. The accused Nos.
1 and 2 alleged that they were at Ganithar and were not present at the scene
of offence or in the village. The accused No. 3 also pleaded alibi. He admitted
that he was at the village Somani-Wandh but according to him he was not present
at the scene of offence when the offence was alleged to have taken place.
The learned Sessions Judge accepted the prosecution case that the three
accused persons had attacked Rana and caused his death but he took the view
that the prosecution had not established as to which of the accused persons had
actually caused the fatal injuries. He came to the conclusion that the prosecution
had failed to establish that there was a common intention to commit murder.
He held that the evidence justified only the view that there was a common
intention to cause grievous hurt and on that view he convicted the accused persons
for the offences under sec. 325 read with sec. 34 of the Indian Penal Code.
[After discussing the evidence his Lordship proceeded]. The learned Sessions
Judge took the view that there was common intention but held that that the
common intention was not to commit culpable homicide not amounting to murder.
According to him the common intention was to commit grievous hurt and on
that view the learned Sessions Judge convicted the three accused persons of the
offences under sec. 325 read with sec. 34 I. P. C. Both the sides have felt
aggrieved by this decision of the learned Sessions Judge and preferred appeals.
Mr. Bootwala very strenuously contends that this was a case of sudden assault
that there was no common intention and that in any case there was no evidence
of such common intention. On the other hand the prosecution contends that not
only there was common intention which animated all the accused persons but
that the common intention was not merely to cause grievous hurt but it was
at least to cause culpable homicide not amounting to murder. Therefore the State
has preferred an appeal against that part of the order of the learned Sessions
Judge which has held the three accused persons guilty only for the offence under
sec. 325 read with sec. 34 of the I.P.C. thus acquitting them of the offence
under sec. 302 read with 34 I.P.C. At the time when this appeal was admitted
the Bench which admitted the same felt that the sentence which was awarded
was not a proper sentence and consequently it issued a notice to the three accused
persons to show cause why the sentence should not be enhanced and there is
thus a Review Application also to be disposed off.
Now the principle underlying sec. 34 of the I.P.C. is very well-known and
the law on the subject is now practically settled. That section embodies the
principle of joint responsibility in a criminal offence. The essence of the principle
of joint liability is to be found in the existence of common intention animating
the accused and leading to the commission of a criminal act in furtherance of

such intention. In order that section 34 may apply first there must be the formation
of common intention secondly there must be some act done by one or more
persons and thirdly that act must be in furtherance of common intention of all.
If all these conditions exist then the joint responsibility of the persons who
entertained the common intention arises.
Mr. Bootwalas main contention was that in order that section 34 may apply
it is necessary for the prosecution to prove that the criminal act was committed
by a specified person or persons. He submitted that unless this fact was proved
the provisions of section 34 I.P.C. are not attracted. We cannot agree with this
submission. In our judgment in order that section 34 I.P.C. may apply it is
not necessary that the prosecution must prove that the act was done by a particular
or a specified person. The language of the section does not bear out this
contention. In fact the section is intended to cover a case where a number of
persons act together and on the facts of the case it is not possible for the
prosecution to prove as to which of the persons who acted together actually
committed the crime. In support of this submission Mr. Bootwala relied very
strongly upon the case of Rajaram Raghu Patil vs. State reported in A.I.R. 1958
Bombay 469. He relied on the head-note of that case which is as follows:-
“It is therefore elementary that before one of the accused can be convicted
of the offence under section 326 read with sec. 34 it must be established that
some other specified person whose intention that accused shared committed the
act resulting in causing grievous hurt.”
However these observations of Their Lordships have got to be read in the
context of the facts which they were called upon to decide. In that case three
persons were prosecuted for an offence under section 326 read with section 34 of
the I.P.C. The finding which was recorded was that the accused Nos. 2 and 3 in
that case were not guilty and on that finding those two accused persons were
acquitted. After recording this finding the learned Sessions Judge proceeded to
convict the accused No. 1 for an offence under section 326 read with section 34
of the I.P.C. Their Lordships observed that on the finding of the learned Sessions
Judge conviction based on the principle of joint criminal liability could not have
been recorded. They observed that the moment the accused Nos. 2 and 3 were
acquitted the only person who was left in the field was accused No. 1 and as there
was no other person with him with whom he could share his intention for
committing an offence under section 326 I. P. C. the principle of joint
responsibility could not be applied. We do not think that these observations justify
the general proposition that in a case arising under section 34 of the I. P. C. it is
necessary for the prosecution to prove that a specified or a particular individual
committed the crime in respect of which joint liability is sought to be imputed.
Mr. Bootwala urged that common intention must be anterior to the
criminal act and that criminal liability can attach only to an act which is
committed after the formation of common intention. In support of this
Mr. Bootwala cited the case of Nuklesur Rahman and another v. The King,
reported in 51 Criminal Law Journal page 945. The observations on which Mr.
Bootwala relied were obiter dicta. However the aforesaid principle is well
known and can be accepted as a correct statement of the law on the subject.
But Mr. Bootwalas further extension of this principle cannot be accepted as a

true statement of law. The extension for which Mr. Bootwala contended was
that common intention cannot be formed on the spot and that common intention
cannot be inferred from acts committed in the course of the commission of the
crime. We cannot accept this broad statement. In our judgment though common
intention implies pre-arranged plan or concert between persons there is nothing
in the section which requires that per-arranged plan must come into existence
before the acts are dope and that it cannot come into existence whilst the acts
are being committed and that it cannot be inferred from such acts. Whether
there is common intention or not may also be proved by asking the court to
draw an inference from the various acts committed by the accused person. Whether
such an inference should be drawn or not in a particular case would depend
upon the facts of each case. No hard and fast rule can be laid down on the
subject. If there is any evidence that there was a per-arranged plan or concert
then the case is simple but if this is not the case and if the prosecution wants
the court to draw an inference from the acts which took place simultaneously
with the commission of the crime then the problem is a difficult one. But the
difficulty of a problem cannot jettison a true principle of law. The difficulty
arises because the guilt of the accused is to be inferred from circumstantial
evidence and the difficulty is no more or no less than the one which arises
in all cases which are dependent upon circumstantial evidence. Therefore in all
such cases the true rule of law which is to be applied is the rule which requires
that guilt is not to be inferred unless that is the only inference which follows
from the circumstances of the case and no other immocuous inference can be
drawn. If after bearing in mind this rule of the appreciation of circumstantial
evidence on the facts of a particular case the Court can reach the conclusion
that the events as they developed indicated a common intention then there is
no reason why in law the court should be deterred from drawing such an inference.
Bearing in mind the aforesaid propositions the question which arises for
our consideration is as to whether there was common intention on the part
of the accused persons. In this behalf the material evidence which requires
to be considered is the evidence of the eye-witness Mera Vala. The relevant
part of his testimony is that when he came to the scene of offence he found
that the accused were saying to the deceased that he was daily grazing his
buffaloes in their field He states that thereupon Rana stated that he had not
allowed his buffaloes to enter the field and further he said that as the
buffaloes had entered the field the accused could claim damages and take legal
steps. He stated that then all the three accused began to beat the deceased.
The contention of Mr. Bootwala is that this evidence shows that there was
only a sudden and simultaneous action on the part of the accused persons
without there being any pre-concert or pre-meditation. He contended that all
the three accused persons were acting on the spur of the moment and
there was no time for them to put their heads together and to determine any
particular course of action. On the other hand the learned Assistant Government
Pleader contended that the events which preceded the combined assault show
that there was a purpose or design amongst the three brothers which aminated
them before the joint attack was lodged. He submitted that all the three
brothers shared a common grievance viz. that Rana had damaged the crops

on more than one occasion. He contended that all the three brothers expressed
the same feelings and all the three of them rushed upon Rana and belaboured
him. Therefore the learned Assistant Government Pleader contended that they
had common intention and that that intention was shared by all the three just
before the joint attack was made. There is no doubt whatever that all the
three brothers intended to beat Rana. The question is whether that intention
was common between them. In order that intention may be common the test
which is applied is whether intention of one was known to the other and
shared by that other. The evidence shows that Rana was standing on the ridge
of the field and the three brothers were in the field. There was some distance
between them and that distance was covered by three brothers before Rana
was attacked. All the three brothers were armed with sticks. In the circumstances
in our judgment when each brother advanced for making an assault on Rana
he knew what the intention of the other brother was and each brother shared
the intention of the other. Having regard to the aforesaid circumstances in our
judgment the only inference which can be drawn is that each of the three
brothers was not acting on his own independently of the other but that they
were all acting conjointly and together being animated by an intention which
one shared with the other.
The next question is as to what the common intention was. The learned
Assistant Government Pleader very fairly conceded that the common
intention was not to commit murder. He conceded that the offence which had
taken place was the offence of culpable homicide not amounting to murder. He
contended that the inference should be drawn from the facts of the case that
the common intention of the three brothers was to beat Rana with a knowledge
that the blows given by them would probably result in the death of Rana and
therefore the offence which was committed was the one under section 304 Part
II read with section 34 of the I. P. C. He specially relied upon the fact that
in all 21 injuries were caused on Rana and that some of these injuries were
on the vital parts of the body like the head and the thoracic region. On the
other hand Mr. Bootwala contended that a great majority of these injuries
were on the non-vital parts of the body such as thigh knee arm and leg. He
contended that if really their intention was to kill or to cause fatal injuries it
is hardly probable that there should such a small number of serious
injuries on only a few vital parts of the body when three persons were attacking
together. In our judgment in order to discover the true common intention of
the parties all the circumstances and not merely a few should also be taken
into account and among such circumstances is the one that out of 21 injuries
only 2 injuries were fatal. The probability is that those two injuries were caused
with an iron-ringed stick. Only one out of the three culprits was armed with
such a stick. Having regard to the paucity of number of fatal injuries it
would not be proper to say that the three accused persons were necessarily
actuated with an intention of causing the death of Rana. In the alternative
the learned Assistant Government Pleader contended that in any case there
was common intention to ca use a serious or grievous injury or injuries.
In our judgment this would be not only a proper and reasonable inference but
the only inference to draw in the circumstances of the case. Having regard to

1960] DHOLIA RAVJI v. STATE (Cri.A.)-Raju, J. [151
the fact that three ribs of the deceased were broken and the parietal bone was
fractured and an iron-ringed stick was used, it would not be proper to draw
an inference that the common intention was only to cause simple hurt. In our
judgment, the proper and reasonable inference would be that the common intention
was to cause grievous hurt. Mr. Bootwala contended that as quite a majority
of the injuries were simple in nature, the common intention must be to cause
simple hurt and not grievous hurt. It is true that a number of these injuries
is simple but in our judgment, when the three brothers assaulted the deceased
with sticks and one of them had an iron-ringed stick they could not have intended
to cause only simple hurt specially when all of them attacked Rana jointly and
the total number of blows which was inflicted to the deceased was 21 in number
some of them being on vital parts of the body. Therefore, in our judgment,
the proper and only inference to be drawn from the facts of the present case
is that the common intention of the three brothers was to cause grievous hurt
to the deceased and grievous hurt was actually caused by one of the three brothers
is furtherance of common intention.
The learned Assistant Government Pleader contended that, that in view of the
case the proper Section that would apply would not be Section 325 I.P.C., but it
would be Section 326 I. P. C. He contended that the accused No. 1 had an iron-
ringed stick which is a dangerous weapon which was likely to cause death if used
as a weapon of offence. He contended that when one of the three brothers was
armed with such a stick the common intention must be presumed to be of causing
grievous hurt with such a stick. In our judgment, this submission is proper.
For the aforesaid reasons, we have come to the conclusion that the offence
which has been committed by all the three accused persons is the one under
Section 326 read with Section 34 of the I. P. C., and accordingly, the appeal
of all the three accused will be dismissed and the appeal of the State will be
partially allowed inasmuch as the conviction under Section 325 read with Section
34 of the I. P. C. will be changed into one under Section 326 read with Section
34 of the I. P. C.
State Appeal partly allowed sentence of accused Nos. 1 to 3 enhanced.
* * *
CRIMINAL APPELLATE
Before the Hon. Mr. Justice N. M. Miabhoy
and the Hon. Mr. Justice V. B. Raju
DHOLIA RAVJI v. STATE*
Indian Penal Code, 1860 (XLV of 1860) — Sec. 300, Exception II-Right
of private defence-Whether exception would apply if more harm than
necessary caused- Act must be without premeditation and no intention doing
more harm than necessary.
EVEN when the right of private defence is exceeded and even when more
harm was done than necessary for the purpose of private defence exception II to
Sec. 300 Indian Penal Code would apply, provided (1) the accused caused the death
of a person without premeiditation, and (2) provided that when the accused caused
the death of a person he had no intention of doing more harm than necessary
*Decided on 29-8-1960. Criminal Application No. 90 of 1960 against the
conviction by the Sessions Judge, Baroda.

for the purpose of private defence, even if he had caused more harm than was
necessary for the purpose of private defence. These provisos have reference to
the act which caused death.
Mr. S. B. Vakil (Appointed) for the appellant-accused).
Mr. H. K. Thakore, Assistant Government Pleader for the respondent.
RAJU J. Appellant who was accused No. 1 at the Sessions trial has been
convicted by the learned Sessions Judge of Baroda under Section 302, Indian
Penal Code, for having caused the death of one Vajiria Debra and under Section
326, Indian Penal Code for having voluntarily caused grievous hurt to one Bai
Pidi, wife of Vajiria Debra.
In his examination at the Sessions trial, the appellant made the the following
statement :-
“Vajiria was calling my wife a “Dakan”saying that her daughter had died. While
I was going towards the Kotardi, Vairia came from behind and he gave a blow with a
“Dinga” on my head. Vajiria was followed by his wife. I was thrown down by Vajiria
and his wife. Bai Pidi had caught hold of my testicles and Vajiria had caught hold of
my hair and that I was beaten. Dharia was lying nearby which I took and gave blows
to save my life, I beat them both. I then went to the Police Patel.”
He, therefore, admitted of having caused injuries with a “Dharia” to both
Vajiria and Bai Pidi, and his case was that he had done so in the exercise of
his right of private defence. In view of the admission made by the appellant
in his examination at the trial and in view of the evidence of the prosecution
witnesses, the learned Sessions Judge held that the appellant had caused the death
of Vajiria and had also voluntarily caused grievous hurt to Bai Pidi, although,
according to the learned Sessions Judge, the motive suggested by the prosecttion
was not true. But on the contrary, it was Vajiria and his wife Bai Pidi who
suspected the wife of appellant No. 1 to be a “Dakan” or Witch. The learned
Sessions Judge also disbelieved the prosecution case that the deceased Vajiria was
dragged out of the house. According to the learned Judge, the incident happened
outside the house of the deceased in the “Vada” of one Abhesang, which adjoins
the house of Vajiria in the North. Admittedly, there was an injury on the forehead
of accuswed No. 1 which was a bleeding injury. But the learned Sessions Judge
thought that the injury was of a minor nature, whereas injury No. 5 on the
deceased which was on the neck was sufficient in the ordinary course of nature
to cause death. The learned Sessions Judge, therefore, held that appellant did
more harm than was necessary for the purpose of private defence, and that
therefore, the case did not fall under Exception II to Section 300, Indian Penal
Code. As appellant admittedly had caused a number of injuries with his “Dharia”,
the learned Sessions Judge thought that appellant had an intention of doing more
harm than was necessary for the purpose of defence, and therefore, according
to him. Exception II to Section 300, India Penal Code, did not apply. The learned
Sessions Judge, therefore, convicted the appellant under Sec. 302, Indian
Penal Code, for having caused the death of Vajiria and under Section 326, Indian
Penal Code , for having voluntarily caused grievous hurt with a “Dharia” to
Bai Pidi. At the Sessions trial, the learned Advocate for the accused No. 1 had
merely argued that accused No. 1 was not guilty under Section 302, Indian

Penal Code, but only under section 304, Part I. In the appeal before us, the
learned Counsel for the appellant, has argued that the appellant is entitled to
an acquittal because he acted in the excercise of private right of defence because
he (the deceased) had given him a blow with his ‘Dinga’ and Bai Pidi had
also caught hold of him and had pressed his testicles. It is urged by the learned
Counsel for the appellant that the statement of the accused on this point would
justify the inference that the appellant was acting in the exercise of the right
of private defence, and therefore,he was entitled to acquittal. The findings of
the learned Sessions Judge that Vajiria died as a result of injuries cuased to him
by the appellant, that these injuries were five in number as testified to by the
Medical Officer, and that Bai Pidi had also received grievous hurt, were not
challenged by the learned Counsel for the appellant. The appellant had himself
admitted in his examination at the Sessions trial that he had cuaed injuries to
both Vajiria and his wife Bai Pidi with his ‘Dharia’, which according to him,
lay at the scene of offence.
In view of the admission made by the appellant in his examination at
the Sessions trial that he had caused injuries with a ‘Dharia’ to both Vajiria
and Bai Pidi, it is not necessary to discuss the prosecution evidence on this
point. The finding of the learned Sessions Judge that the appellant had caused
injuries with a ‘Dharia’ to Vajiria and Bai Pidi is not challenged in appeal
by the learned Counsel for the appellant. The only questions for consideration
are, whether the appellant had exercised the right of private defence, and whether
his case fell under Exception II to section 300. Indian Penal COde. As observed
by the learned Sessions Judge, the prosecution case that Vajiria was dragged
out of the house does not appear to be true in view of the fact that before
the Police, the prosecution witnesses have not stated that Vajiria had been dragged
out of the house. The prosecution witnesses have also admitted before the Police
that it was deceased Vajiria and his wife Bai Pidi who suspected the wife
of the appellant to be a witch. There was, therefore, motive on the part of
the deceased to attack the appellant and his wife. The learned Sessions Judge
rightly disbelieved the prosecution case regarding the motive suggested by the
prosecution, viz., that accused suspected Bai Pidi to be a witch and of having
caused the death of the bullock of the accused five years ago. It is not likely
that if the bullock had died, as a result of witchecraft, they would sleep over
the incident for five years and try to take action five years later. On the
contrary, there is positive evidence that it was deceased Vajiria and his wife
Bai Pidi that susppected the wife of the appellant to be a witch and of having
caused the death of their daughter. It, therefore, appears likely that it was
the deceased who had taken the aggressive although the prosecution witnesses
have not admitted that the deceased had caused any injuries to the appellant.
The statement made by the accused in his examination at the Sessions trial
does not appear to be improbable. But, even if the statement made by the
accused at his exaination is taken into account, it does not justify the acquittal
of the appellant. The statement would only prove that there was an occasion
for him to exercise the right of private defence. But, admittedly, he had caused
five injuries to the deceased Vajiria. It was for the appellant, therefore, to
prove that he was acting in the exercise of his right of private defence on

each of these five occasions when he caused the five injuries to the deceased.
One of the injuries was fatal one and was sufficient in the ordinary course of
nature to cause death. The accused had not in his examination at the Sessions
trial stated any circunstances to show that when he cause the fatal injury to
the deceased, he had a right of private defence which extended to the causing
of death. He merely stated vaguety that as the deceased caused an injury to
him with ‘Dinga’ and as Bai Pidi had caught hold of his testicles, he took up
a ‘Dharia’ and gave blows with a ‘Dharia’ to save his life. When an accused
relies on the right of private defence it is for him to show the circunstances
under which he was entitled to exercise the right of private defence to the extent
claimed by him and also to show that the circumstances were not such as to
lead one to the inference that he had exceeded the right of private defence.
No doubt, accused may have been entitled to the right of private defence at
the beginning of the occurrence after he had been injured by Vajiria. According
to the Medical Officer, the injury which was on the forehead of the appellant
was a minor one. It has not been suggested to Bai Pidi in her cross-examination
that she caught hold of the testicles of the appellant. In these circumstances,
even if the statement of the accused is relied upon, it would not show that
his right of private defence extended to the causing of death of Vajiria Debra
when he inflicted the fatal blow on the deceased and that he had not exceeded
his right of private defence.
The learned Sessions Judge held that the Exception II to section 300,
Indian Penal Code, did not apply to the case of the appellant because admittedly
the accused had inflicted five injuries to the deceased. But, according to
the Doctor, excepting one injury, the other four were not even likely to
cause death. To hold that Exception II to secton 300 does not apply, it is not
sufficient that more harm was done than was necessary for the purpose of private
defence. Even when the right of private defence is exceeded and even when
more harm was done than was necessary for the purpose of private defence.
Exception II would apply provided (1) the caused accused the death of a
person without premieditation and (2) provided that when the accused caused
the death of a person he had no intention of doing more harm than was necessary
for the purpose of private defence even if he had caused more harm than was
necessary for purpose of private defence. It is important to note that these two
provisos have reference to the act of causing death which amounts to culpable
homicide. As the deceased must have taken the aggressive and attacked the
deceased first, this was a case where the accused acted without premeditation.
In view of the fact that all the injuries excepting one were not likely to cause
death, we cannot say that the accused intended to do more harm than was
necessary for the purpose of his private defence when he dealt the only
fatal blow and thereby caused the death of Vajiria. We are inclined to
believe the statement of the accused that he was intially attacked by the
deceased with a ‘Dinga’ and that, therefore, he had a right of private defence.
It is clear from the nature of the injuries that the accused had exceeded the
right of private defence, but he had acted without premeditation and without
any intention of doing more harm than was necessary for private defence.
Exception II to section 300, I.P.C. therefore, applies. In the result, he would

1960] THE STATE v. KARAMSINH PUNA (Cri. Ref.) Raju J. [155
be guilty under Sec. 304, Part I, Indian Penal Code. We, therefore, alter the
conviction of the appellant under Sec. 302, Indian Penal Code, to one under
Section 304, Part I. Indian Penal Code, and reduce the sentence to sentence
of rigorous imprisonment for seven years.
As regardes the injuries caused to Bai Pidi, it is true that the appellant
in his examination had stated that Bai Pidi had caught hold of his testicles,
but he has not stated that even after he had inflicted some injuries on her, he
continued to have reasonable apprehension of hurt at her hands. Although, at
the beginning, the appellant may have had such reasonable apprehension it does
not appear from his statement that he continued to be under that reasonable
apprehension even after he inflicted some blows with a ‘Dharia’ on her. At least,
in regard to the second, third, fourth and fifth blows on Bai Pidi, the offence
of voluntarily causing grievous hurt has been made out against the appellant.
The learned Sessions Judge was therefore, right in convicting the appellant under
Section 326, Indian Penal Code, for having voluntarily caused grievous hurt to
Bai Pidi with a ‘Dharia’. The sentence of three years’ rigorous imprisonment
passed under Section 326, Indian Penal Code, does not require any interference.
We, however, order that both the sentences to run concurrently.
Sentence Reduced.
* * *
CRIMINAL REFERENCE
THE STATE v. KARAMSHI PUNA AND ANOTHER*
Bombay Childern Act, 1948 (Act LXXI of 1948)— Sec. 9-Commintment
of a “Chid” to the Court of Sessions for trial-Proof of age-Merely looking
at the medical certificate and coming to a finding that the person is
a child whether sufficient and coming to a finding the person is a child
whether sufficient legal proof of age- Evidentary value of a medical
certificate.
HELD that before the Court comes to the conclusion that an accused
person is a child, there must be proper evidence before it. If the doctor
who issued the certificate is alive he should ordinarily be examined. A finding
as to the exact age can be given only after the Doctor is examined in Court.
and he gives his precise opinion.
Emperor v. Ahilya (1), Ali Anwar v. Jawa (2), referred to.
(1) I.L.R. 47 Bom. 74 (2) I.L.R. 1937-2 Calcutta 744
Mr. H. M. Chokshi, Government Pleader for the State. Accused absent.
RAJU J. This is a reference by the learned Sessions Judge, Banaskantha
District Palanpur, recommending that the order of commitment of one Karamshi,
passed by the Judicial Magistrate, First Class, Deodar be quashed on the ground
that the accused person, who was committed to the Sessions Court was a child.
The learned Sessions Judge referred to the medical certificate wherein
it is stated that Karamshi is about 15 to 16 years of age. Under Sec. 9 of
the Bombay Children Act 1948, where a Juvenile Court has been established
for any local area, such Court shall try all cases in which a child is charged
with the commission of an offence and shall deal with and dispose of all
*Decided on August 12, 1960. Criminal reference No. 26 of 1960 by Shri
T.U. Mehta, Sessions Judge of Banaskantha Dist. Palanpur.

other proceedings under this Act, but shall not have power to try any case
in which an adult is charged with an offence under Part IV of the Act. Therefore,
if an accused person is a child, he cannot be committed to the Sessions Court
for trial but his case should be tried by a Juvenile Court. If the accused person
is not a child, an ordinary Court should try such an accused person and a Juvenile
Court has no jurisdiction to try him. ‘Child’ is defined in the Act as a boy
or a girl who has not attained the age of 16 years. In this case, the learned
Sessions Judge refers to the medical certificate issued by a doctor to hold that
Karamshi is a child. Before the Court comes to the conclusion that an accused
person is a child, there must be proper evidence before the Court. A medical
certificate is not evidence unless the conditions stated in Section 32 Evidence
Act apply. If an authority is needed for this proposition it is found in I. L.
R. 47 Bombay 74 (Emperor v. Ahilya) and I. L. R. 1937-2 Calcutta 714 (Ali
Anvar v. Jawa). If the doctor is alive and can be conveniently examined, he
must be examined and he must give his opinion in his evidence.
The learned Sessions Judge, should therefore, record the evidence of the
doctor and then give a finding whether the accused person is a child, that is
under the age of 16 years. The present reference is, therefore, rejected.
Reference Rejected
* * *
CRIMINAL REFERENCE
THE STATE v. MOHANLAL NARANDAS*
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (LVII of
1947)-Sec. 26(2)-Giving of a receipt-Cheque given by tenant in lieu of rent
returned by the landlord-Whether receipt should have been given at the time
the cheque was given.
Landlord is bound to to give a receipt only when an amount is received by the
landlord. The words “when such amount is received” are important. A cheque is
merely an order to Bank to pay money to the payee. It is not a payment of money. He
should pass a receipt when the cheque is cashed.
Mr. H. M. Chokshi, Government Pleader for the State-appellant. Accused
is absent.
RAJU J. This is a reference by the learned Sessions Judge of Ahmedabad,
recommending that the conviction of one Mohanlal Narandas, who will be
hereinafter referred to as the petitioner, under sec. 26(2) of the Bombay Rent
Act, for not having given a receipt when he was given a cheque by his
tenant for Rs. 28-63 np. being rent for the month from 1-7-1959 to 31-7-1959.
The cheque was not encashed by the landlord who returned it. The learned
Judicial Magistrate, First Class, Second Court, Ahmedabad was of the view
that the landlord should not have retuned the cheque but should have given a
receipt. He, therefore, convicted the petitioner under Sec. 26(2) of the Bombay
Rent Act and sentenced him to a fine of Rs. 10/- in default seven days’
*Decided on August 12, 1960. Criminal Reference No. 32 of 1960. Reference
accepted by Shri . G. Bhatt, Sessions Judge, Ahmedabad from a conviction of the
accused by C. C. Morkhia, J.M.F.C., II Court, Ahmedabd

1960] THE STATE v. HIRA BHAGA (Cri.A.)-Raju, J. [157
simple imprisonment. The learned Sessions Judge is of the view that this
conviction is erroneous because no money is received until a cheque is actually
cashed or until the amount of the cheque is credited in the bank account of the
landlord. His view is that if a cheque is not cashed but returned, it cannot be said
that the amount was actually received by the payee of the cheque. The learned
Sessions Judge, therefore, thought that Sec. 26 of the Bombay Rent Act should be
strictly construed and that therefore the conviction of the petitioner was wrong.
I accept the reference for the following reasons :- Sec. 26 of the Bombay
Rent Act reads as follows :-
“26(1). Every landlord shall give a written receipt for any amount at the time when
such amount is received by him in respect of any premises in such form and in
such manner as may be prescribed. (2) Any landlord or person who fails to give
a written receipt for any amount received by him in respect of any premises shall,
on conviction be punishable with fine which may extend to one hundred rupees.”
It is therefore only when an amount is received by the landlord that he
should give a written receipt at the time when the amount is received. The words
“when such amount is received” are important. In the case of a cheque, the
mere giving of a cheque does not amount to giving any amount. The date when
the amount is received and the amount received have to be intimated by the
landlord’s bank. Sometimes cheques may be dishonoured. Therefore, unless the
cheque is credited to the account of the landlord, he is not bound to give a
receipt under Sec. 26(1) of the Bombay Rent Act. The amount for which the
receipt has to be given also depends on the exact amount realised. It is true
that in order to evict a tenant, a landlord might not cash the cheque, but in
order to avoid such a contingency, the tenant must pay the rent either in cash
or by money order. A cheque is merely an order to a Bank to pay money to
the payee of the cheque. It is not a payment of money. The conviction of the
petitioner under Sec. 26(2) of the Bombay Rent Act, is therefore, erroneous.
The reference is accepted and the conviction and sentence passed upon the
petitioner are set aside. Fine, if paid, should be refunded.
* * *
CRIMINAL APPELLATE
Before the Hon. Mr. Justice J. M. Shelat
and the Hon. Mr. Justice V. B. Raju.
THE STATE v. HIRA BHAGA & OTHERS*
Indian Penal Code,1860 (XLV of I860), Sec. 300, Exception IV-Eye —
witnesses suppressing the fact that the deceased caused injuries to the three
accused-Whether on such a ground their evidence should not be accepted
and whether an inference that the accused had a right of private defence
could be drawn-Right of Private defence whether available in a mutual free
determined fight between two rival factions.
IT is not the duty of the prosecution to “cogently” explain how
the accused sustained injuries and no general rule can be laid down
in such cases that merely because some of the prosecution witnesses have
*Decided on 25/26-7-1960. Criminal Appeal No. 25/26 against the order of
acquittal passed by the Sessions Judge, Junagadh along with C. R. Rev. Application
No. 8 of 1960, regarding enhancement of the sentence in Sessions Case No. 10 of 1959.

not satisfactorily explained the injuries on the accused, in all cases their evidence
must be rejected and the prosecution must totally fail. The existence of injuries
on their person does not entitle the accused to get the benefit of the - right of
private defence. In a mutual determined fight between two rival factions right
of private defence is not available to either side.
Sebastian David and another v. Sirkar Prosecutor, A. I. R. 1950
Travancore-Cochin, P. 9, not approved.
Jumnan and others v. State Panjab (1), followed.
(1) A.I.R. 1957 Supreme Court
Mr. B. R. Sompura, Asstt. Govt. Pleader for the State.
Mr. M. P. Thakkar, for the accused.
RAJU J. This judgment will dispose of Criminal Appeal No. 25of 1960
and Criminal Revision Application No. 8 of 1960 arising out of the same judgment
by the learned Sessions Judge, Junagadh, in Sessions Case No. 10 of 1959 in
which four accused Kolis Hira Bhaga, Kana Bhaga, Govind Bhaga and Meram
Jeram were charged under Sec. 302 read with Sec. 34 of the Indian Penal Code
for causing the death of one Bhagwan Bhaya, and also under Sec. 324 read
with Sec. 34 of the Indian Penal Code for having caused hurt with dangerous
weapons to prosecution witnesses Mava and Bhana. The learned Sessions Judge
acquitted all the four accused of the charges under Sec. 302 I. P. Code but
convicted all of them under Sec. 324 I. P. Code and sentenced each of them
to imprisonment till the rising of the Court. In regard to the acquittal of the
four accused under Sec. 302 read with sec. 34 I. P. Code the State has filed
an appeal from acquittal. We hold that there are compelling reasons to set aside
the order of acquittal that the guilt of accused No. 1 under sec. 302 I. P. Code
and of accused Nos. 2 and 3 under Sec. 324 I. P. Code is proved beyond the
possibility of any reasonable doubt and that the learned Sessions Judge should
not have acquitted accused Nos. 1, 2 and 3.
The learned Sessions Judge held that Bhagwan was murdered on 4-1-59 at
10-30 a.m. near the Chora, that it was accused Nos. 1, 2, 3 and 4 who had
caused injuries to Bhagwan near the Chora, that at that time accused No. 1
was armed with a spear and a dagger, accused No. 3 Govind had a hatchets,
accused No. 4 was armed with an iron-shod stick, and the accused No. 2 took
up the sword of the deceased Bhagwan near the Chora. But the learned Judge
held that the accused were entitled to the benefit of reasonable doubt. As regards
the simple injuries with dangerous weapons caused to Mava Bhana Dhana, Kadvi
and Moti, he held that all the four accused had caused these injuries and that
they were guilty under Sec. 324 I. P. Code.
In his judgment after discussing the evidence of 16 alleged eye-witnesses
of whom 13 were eye-witnesses to the incident at the Panchayat Office
and 3 to the incident at the Chora, the learned Sessions Judge observed
that at the Panchayat Office it was crystal clear that accused Kana opened
the attack on Bhagwan and that at the Panchayat Office Bhagwan stabbed
Kana with a dagger, but was followed and pursued by accused No. 1 Hira,
who was armed with a spear and a dagger and accused No. 3 Govind
who was armed with a hatchet. The learned Sessions Judge also observed that
it is crystal clear that at the Chora there was a fight between Bhagwan on the

one side and the four accused on the other in the course of which Bhagwan
could inflict the sword injuries on the three accused before he fell down. He
fell down because a spear injury was inflicted on him by Hira accused No.
1. As he fell down naturally his sword and dagger fell down which Kana accused
No. 2 picked up. In the opinion of the learned Sessions Judge the case before
him was one where if any one had the right of private defense it was Bhagwan
the deceased. The learned Sessions Judge also rejected the defense theory that
at the Panchayat Office it was Bhagwan who had attacked Kana. According to
the learned Sessions Judge it was accused No. 2 and No. 4 who started attack
on Bhagwan at the Panchayat Office. The learned Sessions Judge further observed
that the right of private defense set up by the accused is not proved. However
the learned Sessions Judge relied on the observations in Sebastian David and
another vs. Sirkar Prosecutor A.I.R. 1950 Travancore-Cochin P. 9 and following
this ruling he observed that as the eye-witnesses had suppressed the simple and
obvious fact that it was the deceased Bhagwan who had caused injuries to the
three accused the possibility that the accused were acting in the right of private
defense cannot be denied. The learned Judge then proceeded to observe that he
felt reasonably certain that in fact it was a case of mutual free determined fight
between the rival factions. The learned Sessions Judge therefore thought that
the accused were entitled to the benefit of reasonable doubt and that it is possible
and likely that they were acting in the right of private defense as it was Bhagwan
who had attacked the accused.
Both the findings of the learned Sessions Judge and the reasons given by
him for such findings are inconsistent and illogical. He has held that Bhagwan
was murdered on 14-1-59 at 10-30 a. m. near the Chora and that it was accused
Nos. 1, 2, 3 and 4 who had caused the injuries to Bhagwan near the Chora.
After this finding the only questions left to be determined were whether the
accused had acted in the right of private defense and whether they exceeded
the right of private defense. Having held that it was the four accused who caused
the injuries to Bhagwan and thereby caused the death of Bhagwan the learned
Sessions Judge did not proceed to frame the point for determination whether
the accused had acted in the right of private defense and whether the right had
been exceeded. It is true that this question has been discussed at length in the
judgment. It is also difficult to understand his finding that the accused were
entitled to the benefit of reasonable doubt in view of his earlier finding that
it was the four accused who had caused injuries to Bhagwan near the Chora.
The learned Sessions Judge had no doubt as to whether the accused had caused
the injuries or not but his doubt appears to be on the point whether they were
acting in the right of private defense. In his judgment the learned Sessions Judge
has not considered the question whether the accused or any of them had exceeded
the right of private defense and further at several places in his judgment the
learned Sessions Judge has clearly stated that the right of private defense is not
proved. However the learned Sessions Judge has held that the accused are entitled
to the benefit of reasonable doubt as it is possible and likely that they were
acting in the right of private defense.
After holding that it was the accused who caused injuries to Bhagwan,

the learned Sessions Judge thought that they were entitled to the benefit of
reasonable doubt on the question of private defense because the alleged eye-
witnesses had not given any plausible explanation as to the injuries on the accused.
In the opinion of the learned Sessions Judge as the alleged eye-witnesses had
suppressed the fact that the three of the accused had received injuries the possibility
that the accused were acting in the right of private defense cannot be excluded.
For coming to this conclusion the learned Sessions Judge relied on the decision
in Sebastian David and another v. Sirkar Prosecutor, A.I.R. 1950 Travancore-
Cochin P. 9 and in particular the following observations in that case :—
“Where there are injuries on both sides (the accused and the complainant) the
prosecution must cogently explain how the accused sustained injuries. Without
such explanation the prosecution evidence will not be complete and no court
will be prepared to act on evidence which leaves a lacuna.”
The learned Judges of the Travancore-Cochin High Court also observed as
follows :-
“This is not a case where the accused admits having caused the injuries on
the complainant and pleads self-defense. The plea of self-defense is raised only
in the argument of the counsel. A prosecution which cannot explain the injuries
on the accused is not in the circumstances of the case entitled to succeed.”
With great respect it is difficult to agree with the proposition that when
there are injuries on both the sides it is the duty of the prosecution to cogently
explain how the accused sustained injuries. In a criminal case if the prosecution
adduces reliable evidence for proving all the ingredients of the charges against
the accused persons the prosecution is entitled to succeed unless the accused relied
on any general or special explanation in which case the burden is on the accused
to prove the exception in a case where the accused is said to have attacked
the complainant or members of the complainants party it is sufficient for the
prosecution to prove that the accused had attacked the members of the
complaints party with the requisite intention. In the chief examination of the
prosecution witnesses it is not necessary for the prosecution to put question to
the prosecution witnesses as regards matters which are not included in the
ingredients of the charge against the accused. Of course the prosecution
must be fair and if there are any circumstances tending to show that the
accused may have acted in the exercise of private defense the prosecution must
place such circumstances before the Court. If the accused had sustained
injuries the prosecution must place the fact that the accused had injuries before
the Court but it is not necessary for the prosecution to cogently explain how
the accused sustained injuries. The prosecution must prove the alleged criminal
acts of the accused and the alleged criminal intention. But it is not necessary
for the prosecution to cogently explain a fact which is not one of the ingredients
of the offence charged against the accused. In the instant case as in the Travancore-
Cochin case the fact that injuries had been sustained by the accused has
been proved by the prosecution evidence. In the instant case the learned
Sessions Judge did not accept the answers given by prosecution witnesses
explaining how accused had sustained injuries. In fact the learned Sessions Judge
held that the injuries on the accused must have been caused by deceased Bhagwan.
Even on such a basis the prosecution may by entitled to succeed if it is

satisfactorily proves the alleged criminal acts and criminal intention on the part
of the accused and if the alleged right of private defense is not proved. But
of course it is open to the defense to put questions to the prosecution witnesses
in cross-examination to show that injuries on the accused had been inflicted by
the complainant’s party. It is open to the defense to put questions to the prosecution
witnesses in order to show that their evidence is not entitled to credit. It is
open to the defense to show that the prosecution witnesses have given false or
unsatisfactory answers to the questions put to them in the cross-examination in
order to discredit the testimony of the prosecution witnesses.
Mr. Sompura Assistant Government Pleader for the State has relied on
Jumman and others vs. State of Punjab A. I. R. 1957 Supreme Court P. 469
wherein Their Lordships observed that they believed the evidence of the
prosecution witnesses P. Ws. 19 and 21 but Their Lordships did not think
that their suppression of the injuries on Jumman and Darshu could make
their evidence totally unbelievable. It is open to a Court to believe the
evidence of a witness either in whole or in part and as Their Lordships of
the Supreme Court have held the fact that some of the prosecution witnesses
have suppressed or have given futile explanation as to the injuries of the
accused would not necessarily make their answers totally unbelievable. It is
therefore difficult to agree with the view taken by the Travancore-Cochin High
Court that in all cases where the prosecution have not given a satisfactory
explanation of the injuries on the accused persons the evidence of the
prosecution witnesses must be totally rejected and that the prosecution
witnesses had given false or unsatisfactory explanation is a factor to be
considered in the appreciation of the evidence of the prosecution witnesses
and no general rule can be laid down in such cases that merely because
some of the prosecution witnesses have not satisfactorily explained the
injuries on the accused in all cases their evidence must be rejected and the
prosecution must totally fail. In the instant case the two main prosecution
witnesses namely Bhana and Mava are the brothers of the deceased and
merely because they have tried to minimize the part played by the deceased
in the occurrence their evidence should not be rejected particularly because
their evidence is corroborated by the fact that injuries were found on
both the witnesses and three of the accused persons. Accused No. 1 Hira in
his examination stated that he had taken the dagger of the deceased
Bhagwan who was attacking him with a sword. In order to save his own
life accused No. 1 gave two blows to Bhagwan without an intention
of killing him. The learned Judge has held in favour of the accused that deceased
Bhagwan must have caused injuries to the accused. It is clear from the evidence
that Bhagwan who was going to the Chora was pursued by the accused
who were armed with deadly weapons and apprehending danger Bhagwan may
have caused injuries to the accused or it may be that Bhagwan caused injuries
to the accused after the latter started attacking him and in order to defend
himself from the attack by the accused with dangerous weapons. But whatever
be the circumstances in which Bhagwan caused injuries to the accused it is

satisfactorily proved by the evidence as held by the learned Sessions Judge

that the three accused had attacked Bhagwan near the Chora. In these
circumstances notwithstanding the fact that the two main witnesses have not given
a satisfactory explanation as to the injuries caused to the accused we believe
their evidence in so far as they implicate accused Nos. 1, 2 and 3 as having
attacked Bhagwan.
The learned Sessions Judge felt reasonably certain that in fact this is a
case of mutual free determined fight between the rival factions. If that was his
view he should not have acquitted the accused because in free fight where both
parties intend to attack each other there would be no right of private defense.
It was also contended by the learned counsel for the respondents that this
case would fall within Exception 4 to sec. 300 Indian Penal Code which reads
as follows :—
“Culpable homicide is not murder if it is committed without premeditation
in a sudden fight in the heat of passion upon a sudden quarrel and without the
offenders having taken undue advantage or acted in a cruel or unusual manner.”
If some persons deliberately go to another with the intention of attacking
him that can never be a case of free fight or sudden fight. That would be a
case where the latter would be entitled to the right of private defense in order
to ward off the attack on him by the former. If two persons gather together
at a place and some dispute suddenly arises as a result of which the parties
attack each other or one person attack another that would be a case of sudden
fight. In the instant case on the evidence of the two main prosecution witnesses
which we have believed Bhagwan was going to Visavadar village and on the
way he passed the Chora but he was followed and pursued by the accused who
attacked him brutally. The deceased and the accused were inveterate enemies.
The mere fact that the accused were following him with dangerous weapons
would justify Bhagwan in attacking them. It is not necessary that he should
wait until he himself is attacked. He was armed with a sword and when he
saw that the accused armed with spear hatchet and iron shod stick were pursuing
him he was entitled to reasonably apprehend grievous hurt to himself and he
would be entitled to attack the accused even before he himself was attacked.
There is however no evidence as to whether the accused first attacked Bhagwan
or whether Bhagwan attacked the accused first. If the accused attacked Bhagwan
first the latter was of course entitled to defend himself and to cause injuries
to the accused which were necessary for the purpose of his defense. But the
question is whether the acts of the accused amount to an offence. It was not
a case of a sudden fight but a case of accused persons pursuing Bhagwan at
the Chora and there attacking him. We therefore reject the contention of the
learned counsel for the respondents that the accused are entitled to the benefit
of Exception 4 to sec. 300 Indian Penal Code.
We set aside the acquittal of accused No. 1 convict him under sec. 302
Indian Penal Code for having caused the murder of Bhagwan and sentence
him imprisonment for life. We set aside the acquittal of accused No. 2 and
3 and convict them under sec. 324 Indian Penal Code for having caused

1960] MANGALBHAI v. NANIBA [163
injuries with dangerous weapons to Bhagwan and sentence each of them to

rigorous imprisonment for eighteen months in view of the fact that they were
already undertrial prisoners for nearly nine months.
Acquittal set aside, sentence enhanced.
* * *
and the Hon’ble Mr. Justice P. N. Bhagwati
MANGALBHAI FATEHSINGH CHAUHAN v. BAI NANIBA*
The Bombay Tenancy and Agricultural Lands Act, 1948 (LXVII of 1948)-
Sec. 76A, Sec. 79-Whether preferring an appeal after prescribed date affects
order of review already passed by the Collector under Sec. 76A-Date on
which the record is called for, is the crucial date for the purpose of Sec. 76A.
The Tenancy Mahalkari passed an order for possession on the ground of arrears
of rent on 14th May, 1958. The Collector acted suo motu and called for the record
and on 2nd April, 1959 directed the District Deputy Collector to review the case.
The petitioner unaware of this, filed an appeal to the Collector on 6th April, 1959
to review the case. But on 15th June, 1959, the petitioner having come to know
of the earlier order of review by the Collector filed an application for leave to
withdraw the appeal. The District Deputy Collector, meanwhile, set aside the order
of the Tenancy Mahalkari on 15th July, 1959. The owner preferred a revision
application against that order to the Revenue Tribunal which set aside the order
of the Deputy Collector and restored the order of Tenancy Mahalkari. The peti-
tioner-tenant filed a writ petition in the High Court against the order of the
Revenue Tribunal. The main contention of the opponent-owner was that as the
petitioner had preferred an appeal to Collector and asked to condone the delay in
filing the appeal, the Collector cannot act suo motu under sec. 76A of the Bombay
Tenancy Act.
HELD that the preferring of an appeal against the Order of a Tenancy
Mahalkari, after the period of limitation of sixty days, prescribed under Section.
79 of the Bombay Tenancy Act, with a request to condone the delay, does not
affect the order of review already passed by the Collector in exercise of his powers
under Section 76A of the Bombay Tenancy Act.
Further held that the date on which the Collector forwarded the papers to
the District Deputy Collector is not to be considered for the purposes of Section
76A of the Act, but the date on which the record is called for under Sec. 76A
of the Act is that date which has not to be beyond the expiry of one year, from
the date of the order sought to be reviewed.
These are matters not to be considered in any absolute manner nor should
there be any doctrinaire approach in their determination. The conclusions in these
cases must be guided not by any overrefined technicalities, but having regard
to the realities of the situation.
Mr. B. K. Amin, Advocate for the Petitioner.
Mr. M. C. Shah, Advocate for Opponent No. 1. Opponent No. 2-served.
S. T. DESAI C. J. One question which arises for our determination on
this petition is as to the interpretation of Section 76A of the Tenancy and
Agricultural Lands Act and the scope and ambit of the powers of the Collector
*Decided on 8-8-1960. Special Civil Application No. 203/60 for writ setting aside
the order dated 3-12-1959 passed by the Bombay Revenue Tribunal in Rev. Application
No. TRAAA 1241/59 against the order, dated 15-7-59 by Deputy Collector, Anand.

when he decides to act suo motu under that section and to call for the record
of any inquiry or proceeding of any Mamlatdar for the purpose of satisfying
himself as to the legality or propriety of any order passed by the Mamlatdar.
Another question relates to limitation in the context of the exercise of the power
of review conferred by section 76A on the Collector.
Opponent No. 1 to the present petition is the owner of survey No. 82
admeasuring 2 acres and 24 gunthas and situated in village Partappura in Kaira
District. The petitioner before us is the tenant of that land. Opponent No. 1
filed a tenancy application in respect of this land in the Court of the Tenancy
Mahalkari on 7th May 1956 and the relief sought was recovery of possession
of the land on the ground of default in payment of rent for three years 1952-
53 1953 and 1954-55. The Tenancy Mahalkari held in favour of the owner and
directed the petitioner to hand over possession of the land to the owner. That
order was made on 14th May 1958. This date is crucial and we shall presently
point out it is the terminus a quo of the arguments presented before us. While
determining the matter in favour of the owner the Tenancy Mahalkari did not
apply his mind to the question whether it was a fit case for granting relief
against forfeiture. He had the discretion but he did not consider that aspect of
the matter. An application for reviewing the decision of the Mahalkari was filed
by the petitioner-tenant to the Collector. The Collector in the exercise of his
powers under sec. 76A however acted suo motu and called for the record and
proceedings of the case some time prior to 2nd April 1959. The Collector then
directed the District Deputy Collector to review the case under sec. 76A. On
15th July 1959 the District Deputy Collector set aside the order passed by the
Mahalkari and remanded the case to the Mamlatdar for deciding the matter in
the light of the judgment given by him. He also directed that the parties should
be allowed to lead further evidence. He pointed out in his judgment that the
tenancy Mahalkari had not considered the question of exercising his discretion
in the matter of granting relief against forfeiture in a case where the landlord
claimed possession of the land on the ground of default in payment of rent.
In pursuance of that order of remand proceedings were commenced in the Court
of the Aval Karkun at Nadiad and in the course of those proceedings the petitioner
expressed his willingness to pay within one month the amount of arrears which
aggregate to Rs.848.80 nP. The Aval Karkun thereupon passed an order directing
the petitioner to pay that amount within one month and ordered that if the amount
was not paid by the petitioner with in the prescribed time possession would
be delivered to the opponent-owner. It is not in dispute that the petitioner-tenant
did deposit the amount in the State Bank of India on 2nd September 1959.
Now as we have already mentioned the Collector of Kaira had suo motu
called for the record and proceeding of that case prior to 2nd April 1959.
The petitioner evidently being unaware of the fact that the Collector had
decided to act suo motu in the matter filed an appeal to the Collector on
6 April 1959. This it is of significance to note was about eleven months
after the order passed by the Tenancy Mahalkari directing the tenant to
hand over possession of the land in dispute to the Opponent-owner. On the

1960] MANGALBHAI v. NANIBA (S.C.A.)-Desai, C.J. [165
15 June 1959 the petitioner-tenant filed an application before the Collector for
leave to withdraw the appeal on the ground that the appeal had been filed by
him beyond the period of limitation and further that the Collector had decided
to take action in the matter under section 76A of the Act. The appeal was allowed
to be withdrawn.
The District Deputy Collector had as we have already mentioned acted under
section 76A and set aside the order of the Tenancy Mahalkari on 15 July 1959.
The Opponent-owner preferred a revision application against that order to the
Revenue Tribunal. The Revenue Tribunal set aside the order of the District Deputy
Collector and restored the order of the Tenancy Mahalkari. It did so on two
grounds. Firstly on the ground that the record had been called for after the
expiry of one year from the date of the order passed by the Tenancy Mahalkari
and secondly on the ground that the matter could not be reviewed under section
76A as an appeal had been filed by the petitioner-tenant against the order of
the Mahalkari. We have already made reference to the appeal. The Tribunal
decided the matter in favour of the opponent-owner and the petitioner has now
come to this Court on this petition.
It has been argued before us by Mr. B. K. Amin learned counsel for
the petitioner that the Tribunal was in error in determining both the questions
the one relating to limitation and the other relating to interpretation of section
76A. Counsel relies on the date 14th May 1958 as the starting point relating
to the question of limitation as that was the date on which the Tenancy Mahalkari
passed his order directing the tenant to hand over possession of the land in
dispute to the opponent-owner. He has drawn our attention to some further
dates which we shall immediately proceed to state. It is an indisputable fact
that it was on 2nd April 1959 that the Mamlatdar sent the record to the Collector.
Says Mr. Amin this date is sufficient for his purpose and he has to rely on
it because it is not clear as to when it was that the Collector actually called
for the record of the case. The brief argument here is that the record must
have been sent for on some date previous to 2nd April 1959 and that being
the position it must he held that the Collector had in fact called for the record
of the proceeding of the Mamlatdar before the expiry of one year from the
date of the order of the Mahalkari. Another date which requires to be stated
is 22nd May 1959 on which date the Collector forwarded the paper of the
case to the District Deputy Collector to review the case. Toe contention which
found favour with the Tribunal and which is the one stressed before us by
Mr. Shah who appears for opponent No. 1 is that it is the 22nd May 1959
which is the vital date and that being after the expiry of one year from the
date of the order of the Mahalkari the District Collector had no jurisdiction
to exercise his power of review in the present case. It will be convenient
to set out here Section 76A :-
“76A. When no appeal has been filed within the period provided for it the
Collector may suo motu or on a reference made in this behalf by the Divisional
Officer or the State Government at any time.-

(a) call for the record of any inquiry or proceeding of any Mamlatdar or
Tribunal for the purpose of satisfying himself as to the legality or propriety of
any order passed by and as to the regularity of the proceedings of such Mamlatdar
or Tribunal as the case may be and
(b) pass such order thereon as he deems fit;
Provided that no such record shall be called for after the expiry of one year
from the date of such order and no order of such Mamlatdar or Tribunal shall
be modified annulled or reversed unless opportunity has been given to the
interested parties to appear and be heard.
The section it will be seen postulates two conditions which must be fulfilled
before the Collector or the District Deputy Collector as the case may be can
exercise the power of review conferred on him and whereby he can suo motu
send for the record of any inquiry or proceeding of any Mamlatdar for the
purpose of satisfying himself as to the legality or propriety of the order and
as to the regularity of the proceeding of the Mamlatdar. The first condition is
that no appeal should have been filed within the period prescribed for it when
the recorded is sent for. This is laid down in terms express and explicit in the
initial part of the section. The period for filing of an appeal is sixty days as
prescribed in section 79. The second condition postulated is that the Collector
must send for the record before the expiry of one year from the date of the
order of the Mamlatdar. Both the conditions must be satisfied before the Collector
can assume his powers under section 76A.
Now it would seem not seriously contestable that the Collector or District
Deputy Collector has the power to call for the record of any inquiry or proceeding
on any day after the expiry of the period of sixty days prescribed as limitation
for the filing of an appeal. It is however strongly contended before us by Mr.
Shah that we must have regard to sub-section (2) of section 74 of the Act.
It is as under :-
“74. (1) ... ... ... ... ... ... ...
(2) Save as otherwise provided in this Act the provisions of Chapter XIII of
the Bombay Land Revenue Code 1879 shall apply to appeals to the Collector
under this Act as if the Collector were the immediate superior of the Mamlatdar
or the Tribunal. The Collector in appeal shall have power to award costs.
The argument is that Section 206 of the Land Revenue Code is a complete
answer to the contention urged before us on behalf of the petitioner. That Section
is as under :-
“206. Any appeal under this Chapter may be admitted after the period of
limitation prescribed therefore when the appellant satisfies the officer or the State
Government to whom or to which he appeals that he had sufficient cause for not
presenting the appeal within such period.
No appeal shall lie against an order passed under this section admitting an
appeal.
It is said that in the appeal filed by the petitioner-tenant he has stated that
there was delay in the matter of the filing of the appeal and that the delay
may be condoned. It is then said that that appeal must have been admitted by
the Collector before he allowed the some to be withdrawn. The difficulty in
the way of Mr. Shah is twofold. Firstly there is nothing before us to show

1960] MANGALBHAI v. NANIBA (S.C.A.)-Desai, C.J. [167
that the Collector had considered the matter and applied his mind and satisfied
himself that the petitioner-tenant had sufficient cause for not presenting the appeal
within the prescribed period. The other difficulty in the way of Mr. Shah is
that this contention is being raised by him for the first time in the course of
the arguments before us.
We put to ourselves the question whether the initial words of section
76 where no appeal has been filed within the period provided for it must
relate not only to the period of sixty days prescribed by section 79 but go
further than that and embrace a case where an appeal is presented beyond
the period of sixty days and the Collector is satisfied that the appellant
had sufficient cause for not presenting the appeal within the prescribed period
In our judgment it would be wresting the language of section 76A to give
such extended and far reaching meaning to it. In language plain and simple
it postulates the condition that the power of review is to be exercised only
where no appeal has been filed within the period provided for it. These words
indubitably indicate that it is competent to the Collector to move suo motu
in any such matter immediately after the period of sixty days of the passing
of the order sought to be reviewed has elapsed. They do not permit of any
meaning of the nature urged before us by Mr. Shah. Therefore the contention
relating to interpretation of sec. 76A must be determined in favour of the
petitioner before us.
To turn to the other contention of the petitioner relating to the observance
of the second condition postulated by section 76A. It is urged that the record
and proceeding in the case had in fact been called for by the Collector within
one year of the date of the order and not later. In the earlier part of our
judgment we have mentioned certain dates which have bearing on this aspect
of the case. The date relied on by Mr. Amin is the 2nd April 1959 whereas
the date relied on by Mr. Shah is 22nd May 1959. There is no dispute that
the starting point of time is the 14th May 1958 when the Mahalkari made
his order. The argument of Mr. Shah here is that the date to be regarded
as crucial is 22nd May 1959 the date on which the Collector forwarded the
papers to the District Deputy Collector and that it is said was after the
expiry of the prescribed period of one year. It is true that the Collector
forwarded the papers to the District Deputy Collector after the expiry of one
year from the date of the order of the Mahalkari. The argument however
ignores the unmistakable language of the initial words of the proviso in
section 75A. The proviso expressly speaks of the date on which the
record is called for. It is that date which has not to be beyond the
expiry of one year from the date of the order sought to be reviewed. The
record in the case before us as we have already pointed out must be
regarded as having been sent for before 2nd April 1959 since it was on that
date that the Mamlatdar in fact sent the record to the Collector. It is this
date which on this point of limitation in our judgment affords the terminus
a quo of the whole matter. If this be the date to be regarded and we have

no doubt on the point it must be held that the record had not been sent if
for after the expiry of the prescribed period of the year.
These are matters not to be considered in any abstract manner nor should
there be any doctrinaire approach in their determination. In our opinion on both
the points the Tribunal has viewed the matter in a highly technical manner which
is not permissible and which does not accord with the language and import of
the relevant sections. The conclusions in these cases must be guided not by any
over refined technicalities but having regard to the realities of the situation. The
Tribunal took the view that the petitioner tenant had preferred an appeal against
the order of the Mamlatdar and in that appeal he had prayed for condonation
of delay. It however failed fully to appreciate that the Collector had before the
date of the filing of that belated appeal already decided to act suo motu in
the matter and sent for the record of the case. That if we may so describe
it was the specialty of the whole situation. The Tribunal failed to appreciate
that position and fell into an error when it acceded to the contention to the
contrary urged on behalf of the opponent-owner.
Another argument urged before us by Mr. Shah is that it cannot be said
that the Collector had sent for the record and proceedings of the case. It is
said that there is nothing on the record to show that the Collector had purported
to act under section 76A. It is difficult for us to appreciate this contention.
We wonder what reason the Collector had when he sent for the record of the
case unless it was for the purpose of satisfying himself as to the legality or
propriety of the order passed by the Mamlatdar. The only view permissible to
the Court to take seems to be that the Collector when he sent for the record
of the case wanted to satisfy himself and if necessary take action under section
76A by passing such order thereon as he deemed fit.
Another argument sought to be urged before us by Mr. Shah is that
under section 76A the Collector had no power to transfer the matter to the
District Deputy Collector and the District Deputy Collector had no jurisdiction
to deal with the matter. Mr. Shah has drawn our attention to section 74 which
relates to the power of the Collector to transfer appeals. The argument is that
the Collector has been expressly authorized to transfer an appeal pending before
him by section 74A whereas section 76A does not confer any such power on
him in the matter of review. We would have examined this contention from
all its aspects but it is not necessary to this judgment by doing so since in
our opinion we should not permit burden Mr. Shah to raise this wholly new
contention before us at the hearing of this petition. The present contention
therefore must also be negatived.
In the result the petition succeeds. The rule will be made absolute with
costs.
Petition allowed.
* * *

1960] BHANUSHANKER v. LAXMAN KALA (F.B.)-Desai, C.J. [169
FULL BENCH
Before the Hon’ble Mr. S. T. Desai, Chief Justice,
the Hon’ble Mr. Justice N. M. Miabhoy and
the Hon’ble Mr. Justice P. N. Bhagwati.
BHANUSHANKER AMBALAL JOSHI v. LAXMAN KALA & OTHERS*
Bombay Tenancy and Agricultural Lands Act, 1948 (LXVII of 1948)-
Sec. 31A(d}-Whether expression “Landlord himself” includes successor-in-
interest-Whether transferee can be considered “Landlord himself.”
THE words “in the name of the landlord himself” in Section 31A(d) of the
Bombay Tenancy and Agricultural Lands Act, 1948, must be read as the landlord
individually and not anyone claiming through him as a successor-in-interest. The
object of Sec. 31A is to see that the benefit of Sec. 31 is confined to a person
whose ancestor is shown to be the landlord on 1st January, 1952. The benefit
does not accrue to any other person. Therefore, a transferee from a landlord in
whose name the land is shown to stand cannot fit into the structure of this clause.
The expression “landlord himself” in Sec. 31A(d) of the Act cannot embrace a
person who is a transferee of a landlord.
It does not follow that because transfers are allowed under the Act, there should
be no restriction or limitation on the right of a landlord to terminate the tenancy of a
tenant, on any of the grounds mentioned in Sec. 31 of the Bombay Tenancy Act.
Editorial Note-It may be noted that a Full Bench of the Gujarat
High Court laid down in Anand Municipality v. Union of India, (I.
G.L.R. 82) that the decisions of .the High Court of Bombay given
prior to the 1st May, 1960 are binding on the High Court of Gujarat.
It was also observed that the decisions of the Bombay High Court
would be subject to reconsideration by the Gujarat High Court in
the manner and circumstances similar to those in which a High Court
would be entitled to reconsider its own decisions. In the present case,
their Lordships sitting in a Full Bench overruled an earlier decision
of a Division Bench of the Bombay High Court.
Waman Ganesh Joshi v. Ganu Guna Khapre (1959) 61, Bombay L. R.
1267, dissented from. K.halilulla Hasamiya v. Yesu, (1957) 59, Bom. L. R.
204, distinguished.
Mr. A. R. Baxi, Mr. J. R. Nanavaty and Mr. N. M. Jadeja, for the petitioner.
Mr. B. R. Sompura, Amicus Curiae.
The facts appear in the judgment. ‘
S. T. DESAI C.J. This petition came up for hearing before my brother
Miabhoy and myself when Mr. Nanavaty learned Advocate for the petitioner.
*Decided on 28-7-1960. Special Civil Application No. 123 of 1960, for a writ
setting aside the order dated 21-9-59, by the Bombay Revenue Tribunal, Rajkot Bench,
in No. 41-T of 1959 against the decision dated 15-5-59 by the Deputy Collector,
Amreli, in Ten. Appeal No. 60 of 1957-58.

relied on a decision of the Bombay High Court in Waman Ganesh Joshi v. Ganu
Guna Khapre, (1959) 61 B.L.R. 1267 in support of the argument that the Revenue
Tribunal was in error in interpreting sec. 31A(d) of the Bombay Tenancy and
Agricultural Lands Act 1948 It was also argued before us that the decisions
of the Bombay High Court are binding on this Court. The question had by
that time been referred to a Full Bench of this Court. The Full Bench has now
expressed the view that a decision of the Bombay High Court given prior to
the 1st May 1960 is binding on this High Court Therefore speaking generally
that decision of a Division Bench would be followed by a Division Bench of
this Court. At that time we had found It difficult to agree with the view expressed
in the case of Waman Ganesh and the petition is now before us for disposal.
The facts are these. The petitioner is the landlord of the survey numbers
681 and 681 respectively held by opponents 1 and 2 as tenants of the same.
The petitioner gave due notice and then filed a tenancy suit before the Mamlatdar
Kodinar for possession of the same on the ground that he required the lands
bona fide for personal cultivation. Both the fields had been gifted to the petitioner
by his father on 1st June 1953 and a mutation entry in that behalf had been
made. The petitioner’s father is alive. The Mamlatdar decided the suit in favour
of the petitioner holding that he required the lands bona fide for his personal
cultivation and that the income from the lands would be his principal source
of income. The Mamlatdar being of the view passed an order in favour of the
petitioner for possession of half of the suit land. In appeal the Prant Officer
felt that the gift was invalid under the Act and therefore the petitioner had no
right to apply for possession. He remanded the case for enquiry whether under
the Tenancy Act the transfer was valid or not. On remand the Mamlatdar held
that the petitioner had obtained a certificate under section 84A of the Tenancy
Act and therefore the transfer in his favour should in any event be regarded
as valid. In the result he confirmed his original judgment and passed an order
in favour of the petitioner for possession of half the suit land. The matter was
once again carried in appeal this time to the Collector who reversed the decision
of the Mamlatdar on two grounds firstly that the gift was not valid because
it did not fulfill the requirements of section 123 of the Transfer of Property
Act secondly that the landlord had not fulfilled the conditions laid down in section
31A(d) of the Tenancy Act. The landlord carried the matter in revision to the
Revenue Tribunal. The Revenue Tribunal decided in favour of the landlord on
the point relating to the factum of relationship of landlord and tenant but it
decided against him on the ground that he had not fulfilled the conditions laid
down in section 31A(d). In the result the Tribunal dismissed the revision
application and the landlord has come to this Court on this petition.
The question that has been argued before us by Mr. Nanavati lies in a
narrow compass. He relies strongly on the decision of the Bombay High
Court in the case of Waman Ganesh v. Ganu Guna of which we have
already made mention and to which we shall presently turn. He has also drawn
our attention to a number of provisions in the Act. Relying on section 14
*Anand Municipality v. Union of India, 1960 (1) G.L.R 82.

1960] BHANUSHANKER v. LAXMAN KAKA (F.B.)-Desai, C.J. [171
of the Act it is argued that the landlord envisaged by that section would be
not only the individual landlord himself but would include predecessor-in
title of that landlord. The argument has proceeded that the expression landlord
should have the meaning in section 14 as well as in section 31 It will be convenient
to set out the provision of section 31A(d) :-
“31A The right of a landlord to terminate a tenancy for cultivating the land
personally under section 31 shall be subject to the following conditions:-
(c) The land leased stands in the record of rights or in any public record or
similar revenue record on the 1st day of January 1952 and thereafter during the
period between the said date and the appointed day in the name of the landlord
himself or of any of his ancestors or if the landlord is a member of a joint family
in the name of a member of such family.”
The argument founded on a comparison of the two sections is not tenable
and for the simple reason that while section 14 deals generally with the question
of termination of tenancy in. case of certain defaults committed by the tenant
section 31A which has to be read with section 31 is more of the nature of
a corollary to section 31. The provision contained in section 31 lays down
certain conditions of termination of tenancy. Those conditions have to be strictly
fulfilled. We are unable to see any analogy of the nature suggested by Mr.
Nanavati between section 14 and sec. 31A. Two other sections to which our
attention has been drawn by Mr. Nanavati are sections 34 and 35. Section
34 relates to the maximum land that can be held by a person and section
35 rules that provision of sec. 34 applies to lands coming into possession of
persons on gift purchase assignment or any other kind of transfer inter vivos
or be quest except in favour of recognised heirs. We do not see anything
in any provision of these two sections which can lend any support to the
present argument. Lastly our attention has been drawn by learned advocate
to section 84A of the Act. That section relates to validation of transfers made
before the appointed day. The argument here is that an examination of the
relevant provisions of the Act relating to transfer goes to show that transfers
are not prohibited. We agree that such is the position. But it does not therefore
follow that because transfers are allowed under the Act there should be no
restriction or limitation on the right of a landlord to terminate the tenancy
of a tenant on any of the grounds mentioned in section 31.
Section 31A(d) has to be read not by itself but contextually and
particularly along with section 31 to which it makes express reference in the
initial part of the section. Section 31 deals with matters which are quite
district from matters enumerated in section 14. Section 31 recognises in
favour of the landlord the right to terminate a tenancy on two grounds
mentioned in it if he bona fide requires the land (a) for cultivating
personally or (b) for any non-agricultural purpose. This right recognised in
favour of the landlord by section 31 is not however an absolute right. It is
hedged in by certain conditions some of which are to be found in section 31A.
One condition is that the land of which the landlord seeks possession on the
ground that he bona fide requires it for cultivating personally must have stood
in the record of rights or any public record or similar revenue record on
1st January 1952 and thereafter upon the appointed day which is 14th June

1955, in the name of the landlord himself or any of his ancestors or if the
landlord is a member of a joint family in the name of any member of the
family. The language of clause (d) appears to us to be clear and there is
nothing doubtful or ambiguous about it. Be it noted the section speaks not of
a landlord but of landlord himself.
The construction sought to be placed on behalf of the petitioner on the
words “landlord himself” by including in their connotation a transferee from
a landlord seems to us to be highly artificial and open to grave objection we
are unable to stretch their meaning to what seems to us to be a breaking point.
In our judgment effect must be given if possible to every word in the clause
so that no part of it and no material word in it will be inoperative or superfluous.
In that view of the matter we must read the words in the name of the landlord
himself as the landlord individually and not any one claiming through him as
a successor-in-interest. Considerable support is to be derived for the view which
we are inclined to take when we read the expression “in the name of the landlord
himself” along with the words which follow upon it viz. or any of his ancestors
or if the landlord is a member of a joint family in the name of a member
of such family. The date 1st January 1952 no doubt arbitrary is the datum line.
The manifest object of the provision is to see that the benefit of section 31
is to be confined to a person whose ancestor is shown to be the landlord on
that date and in the case of the landlord being a member of a joint family
then In the name of any other member of that family on that date. The benefit
does not rest in or accrue to any other person. Therefore a transferee from landlord
in whose name the land is shown to stand cannot fit into the structure of this
clause.
The greatest reliance however is placed on the decision in Waman Ganesh
v. Ganu Guna mentioned above. We have given careful and anxious consideration
to that decision of the Bombay High Court. The learned Judges who decided
that case drew upon an earlier decision of the same High Court where clause
(1) of sub-sec. (2A) of sec. 34 came up for construction. We may mention
that the provision in the present clause (d) of sec. 31A is on the same lines
as clause (1) of sub-sec. (2A) of section 34 but with a material and crucial
difference and which in our judgment is a very vital difference. While the relevant
clause in section 34 spoke of a landlord. clause (d) of sec. 31A speaks of landlord
himself. A careful scrutiny of the decision shows that no emphasis was laid at
the bar on the introduction by an amendment of word himself in clause (d)
of section 31A. The learned Judge rested their judgment on an earlier Bombay
case in Khalilulla Hasamlya v. Yesu, (1950) 59 Bom.L.R. 201. At page 204
of the report in that case Mr. Justice Gajendragadhar (as he then was) has made
some observations pointing out the provisions of the amended section. The
attention of the learned Judges in the later case appears to have been drawn
these to observations but they expressed the view that :-
“But even in the amended clause the words of the original clause (1) of sub-
sec. (2A) of sec. 34 are substantially retained and with respect we are of the view
that the decision in the aforesaid case still holds good in so far as clause (d)
of section 31A of the present Act deals with the conditions that the name of the
landlord must stand in the record of tights on the date and during the period
specified in the clause.”

1960] BHOJRASINHJI v. THE STATE (S.C.A.)-Desai, C.J. [173
With respect, we are unable to agree with the view expressed by the Bombay
High Court in the case of Waman Ganesh v. Ganu Guna. For reasons already
discussed we are of the opinion that the expression landlord himself in Sec.
31A(d) cannot embrace a person who is a transferee of a landlord. In the result,
the petition fails and will be dismissed. The rule will be discharged. The
respondent in this case is not represented by an Advocate. Having regard to
the importance of the matter, we had requested Mr. Sompura to present the other
side of the case as amicus curiae. We thank him for the help rendered by him.
Petition dismissed.
* * *
KUMAR SHRI BHOJRAJSINHJI K. ZALA v. THE STATE OF
BOMBAY & OTHERS*
Saurashtra Estate Acquisition Act, 1952, Sec. 7(1}(vii)-Whether relates
only to a reclamation bund and whether the words following “or other
structure on the land” are used ejusdem generis-Whether irrigation bund
within its ambit-Principle of ejusdem generis how far applicable.
An irrigation embankmeat or an irrigation bund is within the ambit and scope
of the language of clause (b)(vii) of sec. 7(1) of the Saurashtra Estate Acquisition Act
as it is covered by the words “or other structure on the land”.
The doctrine of ejusdem generis
General words, though when they stand by themselves are to be accorded their
full and ordinary meaning, they must, when they follow particular and specific
words, be confined to things of the same kind as those before enumerated. This
aid to salutary interpretation is the well established principle of ‘ ejusdem generis.’
Valid only by virtue of form, the doctrine of ‘ejusdem generis’ is a dubious
yardstick. It has, therefore, to be applied with restraint and having regard to the
fitness of the matter. It must not be pushed too far, for after all it is one of numerous
rules of construction. Its operation, is presumptive and not peremptory. The context
of the statute must never be lost sight of, for to ignore the context would make
the inteniion of the Legislature subordinate to the doctrine.
Roe v. Henmings (1), Attorney-General for Palestine v. Fakhay Ayyas (2), Anil
Kumar Bhattacharya v. Corporation of Calcutta (3), referred to.
Mr. V. G. Hathi with Mr. P. V. Hathi and Mr. R. S. Trivedi for the petitioner.
Mr. J. M. Thakore, Advocate General with Mr. B. R. Sompura, Assistant
Government Pleader for the Opponent No. 1.
The opponent Nos. 2 and 3 served.
*Decided on 12-7-1960. Special Civil Application No. 111 of 1960 for a writ
of certiorari setting aside the order dated 17-9-1959, passed by the Bombay Rev.
Tribunal, Rajkot Bench in E. A. Appeal No. 10/59 and the order dated 16-3-1959,
passed by the Dy. Collector, Limbdi in E.A. Case No. 21.
(1) (1951) I.K.B. 676 (2) (1947) A.C. 332 (3) A.I.R. 1937 Cat. 603


S. T. DESAI C. J. The petitioner was given certain Giras lands in
appenage including the ownership of an irrigation lake in the village of
Dhedhuki by the former State of Sayla and he owns a half share in that lake
and has been enjoying the recurring income arising from supply of water
from that lake for irrigation of neighbouring lands. The other half of the
property was held by Mulgirasdars of the village and the petitioner being the
representative of the principal Bhagdar looked after the management of the lands
and the irrigation lake and upon acquisition of the same adopted proceedings
for compensation in that capacity. The Saurashtra Estates Acquisition Act 1952
became applicable to various properties including the irrigation lake owned by
the petitioner and the Mulgirasdars. The Act as we had occasion to observe in
another case was enacted to acquire certain estates of Girasdars and Barkhalidars
of Saurashtra and to regulate certain matters affecting the acquisitions of such
estates. According to the petitioner the property in the irrigation lake consisted
of constructions for storing water and-canals for distribution and supply of the
water of the lake for irrigation purposes and there was a recurring income from
the same. It was his case that the value of the constructions at the time of
the acquisition was Rs. 92 0 and the annual recurring income for water
supplied during Samvat Years 2001 to 2009 varies from Rs. 1800/- to about
Rs. 1100/-. The lake was acquired by the Government under a Notification dated
6th May 1953 and the petitioner and the Mulgirasdars applied to the Collector
for determination of compensation payable to them in respect of the property.
The Deputy Collector visited the site and made necessary inquiry about the
quantum of compensation. He assessed the original cost of construction of the
embankment of the lake at Rs. 23 500 and after deducting the amount of
depreciation he fixed the amount of compensation payable to the petitioner and
the Mulgirasdars at Rs. 1880/- on the basis laid down in section 7(1)(vii) of
the Act read with rule 5 of the Saurashtra Estates Acquisition Rules. Against
that award an appeal was preferred to the Revenue Tribunal.
Two contentions were pressed on behalf of the appellant before the Revenue
Tribunal : (1) that the case was governed by section 14 and not by section
7 of the Estates Acquisition Act and (2) the compensation payable in respect
of the irrigation bund should be determined on the basis of the present cost
of construction and not the actual cost of construction when the embankment
was constructed about 26 years ago. The Tribunal has stated in its judgment
that there is no dispute about the facts that the bund in question is an embankment
constructed for the purposes of irrigation. It was strongly urged before the
Tribunal that the case was not covered by any of the clauses of section 7 and
it was section 14 of the Act which was applicable. In order to appreciate that
argument it is necessary to set out the relevant and material part of section 7
and 14 of the Act.
“7. Compensation payable to Girasdars and Barkhalidars for extinguishment
of their rights :-
(i) Every Girasdar of Barkhalidar having any right in any property which vests
in and becomes the property of the State under section 4 shall be entitled to
compensation in the manner provided in the following paragraphs namely :-
* * * *

1960] BHOJRASINHJI v. THE STATE (S.C.A.)-Desai, C.J. [175
(c) The Collector shall hold a formal inquiry in the manner provided in the Code
and if the Collector is satisfied that the applicant had any rights in the land
and that such rights have been extinguished under section 4 shall make an
award in the manner prescribed in section 11 of the Land Acquisition Act 1894
as adapted subject to the following conditions namely :-
(vii) If there is any reclamation bund or other structure on the land the amount
of compensation shall be the cost of construction making deductions for the
depreciation.
14. Method of compensation for the extinguishment or modification of any other rights.
(1) If any person is aggrieved by any of the provisions of this Act as extinguishing or
modifying any of his right in any land other than those in respect of which provi-
sion for the payment of compensation has been made under section 7 and if such
person proves that such extinguishment or modification amounts to the transfer-
ence to public ownership of such land or any right in or over such land such per-
son may apply to the Collector for compensation within a period of twelve
months from the date on which such rights are extinguished or modified.
(2) The Collector shall after holding a formal inquiry in the manner provided in
the code make an award deciding such amount of compensation as he deems
reasonable and adequate. In deciding the amount of compensation the
Collector shall be guided by the provisions of sub-section (1) of section 23
and section 24 of the Land Acquisition Act 1894 as adapted.”
The Principal contention stressed before the tribunal was that clause (b) vii)
of sub-section (1) of sec. 7 related only to a reclamation bund and the words
following or other structure on the land should be read ejusdem generis. The
Tribunal acceded to the latter part of the contention namely that the words other
structure on the land were used ejusdem generis. The Tribunal however decided
the point of construction of clause (b) (vii) against the petitioner relying on
an earlier Full Bench decision of the Tribunal where it was held :-
“Sec. 7(i) (b) (vii) of the said Act refers to reclamation bunds and similar
structures. The words similar structures will take their colour from the words
reclama tion bunds. They will mean bunds or embankment of a similar nature.
The bund in the present case is said to be an irrigation bund or embankment
used for the storage of water. It is admitted that it would fall under sec. 7(i)(b)(vii)
of the said Act. The object of a reclamation bund would be to reclaim lands which
are liable to floods whereas the object of an irrigation bund would be to supply
water to lands. In either case it would be in the nature of an improvement work
and would add to the value of lands served by it.”
In the result the Tribunal negatived the contention of the petitioner founded
on construction of section 7(i)(b)(vii). It also negatived the contention of the
petition relating to the mode of assessing the compensation. The Tribunal
dismissed the appeal and the petitioner has come to this Court on this petition.
It has been argued before us by Mr. V. G. Hathi learned Advocate for the
petitioner that the Tribunal was in error in assuming that there was no dispute
about the fact that the Bund in question was an embankment constructed for
the purpose of irrigation. That contention however could not be persisted in
having regard to the record of this case.
The next contention urged before us by Mr. Hathi is that the Tribunal
though right in holding the words “or other structure on the land” should
be read ejusdem generis was in error in holding that a reclamation bund and
an irrigation bund stood on the same footing and were both covered by sub-

clause (b)(vii) of section 7(i). Now the reason which weighed with the Tribunal
when it determined this point against the petitioner was that both reclamation
bund and an irrigation bund would be in the nature of improvement works and
would add to the value of the lands served by them and that afforded a reliable
test. It is difficult to see how this could be regarded as a test for construction
of the sub-clause under consideration and in our opinion there is no force in
the argument urged before us on behalf of the State that an embankment
constructed for irrigation can be regarded as a reclamation bund. The concept
of reclamation is that it is a construction executed for the purpose of rendering
land suitable for cultivation or habitation or other similar use. Damming of water
or enclosing of water by piling up an embankment cannot without straining
language be regarded as a reclamation in the present context. There is no dispute
about the fact that there was an irrigation bund put up solely for the purpose
of irrigating neighbouring lands. There was no question whatever of reclaiming
any land. In support of his present argument Mr. Hathi has also emphasized
the aspect of the case that this irrigation embankment put up by the petitioner
resulted in recurring income to his client whereas in case of reclamation bund
there can be no such recurring income. We are not impressed with this part
of the argument. It is the nature of the construction that would be the guiding
factor in determining whether the construction was an embankment bund or an
irrigation bund. The resulting income or profit to the owner is no index and
cannot affect the nature of the construction. Mr. Hathi has also drawn our attention
to certain dictionary meanings but in the view we take of the matter and having
regard to the arguments advanced by the learned Advocate General on the other
side it is not necessary to examine the lexicon meanings of the expressions
‘reclamation bund and embankment in any detail. It will suffice to observe that
reclamation connotes any construction for rendering lands suitable for cultivation
habitation or other similar purpose. A Bund connotes an embankment a causeway
or a quay. Construction of an embankment connotes the putting up of a wall
or piling up of a structure of the nature of a wall for the purpose of preventing
on-rush of water or damming and storing water.
It has been argued by the learned Advocate General that the Tribunal
was in error in holding that the words or other structure on the land should
be read ejusdem generis. Inverted it is stated that the embankment constructed
by the petitioner for the purpose of irrigation is within the purview of clause
(b)(ii) of sec. 7(1) as it is covered by the words “or other structure on the
land”. He has fairly stated before us that the reason which found favour with
the Tribunal namely that relating to income and the similarity between a
reclamation bund and an irrigation embankment is not supportable. Succinctly
stated the argument is that ordinarily the rule of ejusdem generis would
apply when general words follow a specific or particular expression of wide
category and it is only where any such general words follow any wide genus
that the application of the doctrine is invited. He has relied on two decision
of Court in England. In Roe vs. Hemmings, (1951) 1 K.B. 676 the provision
of law which came up for consideration imposed penalties on the exporter
or his agent of “any goods brought to any quay or ‘other place’ for the
purpose of being exported” in contravention of an order made under the

Act of 1939. The Magistrate dismissed the information on the ground that
the words or other place in the section must be construed as ejusdem
generis with quay. That decision was reversed by the Division Bench
holding that the words under consideration were not to be construed as ejusdem
generis. In taking that view the Court followed a decision of the House of
Lords in Attorney-General for Palestine v. Fakhry Ayyas (1947) A.C. 332 This
latter decision also is relied on by the learned Advocate General. The phrase
which was under consideration by the House of Lords also was any “quay”
or other place for the purpose Of being exported. The meaning of or
other place it was decided was not limited by reference to quay. It is also
said that there is no room for the application of the ejusdem generis rule
unless there is a genus or category. Our attention has also been drawn to passage
from Maxwell on Interpretation of Statutes, page 338 where it is stated :-
“In a modern Privy Council case it has been said that there must be more
than one species mentioned to constitute a genus. The mention of a single species
for example water rates does not constitute a genus. But possibly this would not
apply if a single species were wide enough to comprehend a large number of
varieties. e.g. “domestic animal.”
In the alternative it has been argued that even if the words “or other
structure on the land be read as ejusdem generis the genus would not be
reclamation bund but ‘Bund of every kind. Our attention has been drawn
to the scheme of the Act and particularly to the scheme and object of section
7 It is not necessary however to burden this judgment with an examination
of the scheme of the Act.
On the other hand it has been argued by Mr. Hathi that the words
“or other structure on the land” must be read as ejusdem generis so as to exclude
an irritation bund which produces recurring income. It is said that there
cannot arise any question of recurring income in case of the other properties
mentioned in Sub-clauses (i) to (vi) of sec. 7 (i) and that sec. (7) (1)(b)(vi)
speak only of buildings and structures which do not yield any recurring income
where as such is not the position in the case of an irrigation embankment. We
put it to Mr. Hathi that sub-clause (i) of clause (b) speaks of Bid lands which
would yield recurring income to the owner. The answer was that in case of
Bid lands the compensation is eight-times the assessment whereas in case of a
reclamation bund or other structure on the land the amount of compensation
is the cost of the construction after making deduction for depreciation. We fail
to see any substance in this argument. Nor do we see any sound reason to support
the argument that the words “or other structure on the land” cannot include
an irrigation bund. Mr. Hathi has also drawn our attention to certain observations
of Mr. justice Costello and Mr. Justice Panckridge in Anil Kumar Bhattacharya
v. Corporation of Calcutta A.I.R. 1937 Calcutta 603 where after referring to
a decision reported in (1866) I.C.P. 69 it was observed :-
“The argument was that sec. 559(52) must be interpreted and construed in the
light of ejusdem generis rule for it makes no difference that there is merely one
place specifically mentioned and not a number of places. In other words the
ejusdem generis rule not only applies where there is more than one thing
mentioned and then an expression of general import and intent added to the end
but also where there is only one.”

There is nothing in these observations which goes contrary to the proposition

relied on by Advocate General.
One salutory rule of statutory interpretation founded on the principle of
assumed intention of the law maker is that general words though when they
stand by themselves are to be accorded their full and ordinary meaning they
must when they follow particular and specific words be confined to embrace
things of the same kind as those before enumerated. This aid to statutory
interpretation is the well established principle of ejusdem generis. the fixation
of the meaning of such final general words presents little difficulty when they
follow a series of specific words and restrictive effect is given to them limiting
their operation to the company in which they find place.
Difficulty however arises at times when the general words follow a single
word or expression e.g. in the case before us where we have the expression
reclamation bund followed by general words ‘or other structure on the land’.
Is the meaning of these general words to be fixed by reference to the meaning
associated with the expression reclamation bund or by according to them their
normal and natural connotation which obviously is one of width and amptitude
. The conflict between the specific and general words cannot in our judgment
be resolved by sheer adherence to any doctrine. There are cases which call for
some limitative meaning being placed on general words and there are cases where
the final general words must receive their full and natural meaning. Confining
the inquiry to the case before us we find it rather difficult to accede to the
suggestion that the later words should take their colour solely From the expression
‘Reclamation Bund’.
Valid only by virtue of form the doctrine of ejusdem generis is a dubious
yard stick. It has therefore to be applied with restraint and having regard to
the fitness of the matter. It must not be pushed too far for after all it is
one of numerous rules of construction. Its operation is presumptive and not
peremptory. The context of the statute must never be lost sight of for to ignore
the context wound make the intention of the Legislature subordinate to the
doctrine. Before inviting its application care must be taken to see that the
members of the enumeration constitute a class and that the class is not exhausted
by the enumeration. Considering the words reclamation bund or other structure
on the land contextually structurally and in their collocation we are led to
the conclusion that they must be accorded a wider coverage. In our judgment
an irrigation embankment or an irrigation bund is within the ambit and
scope of the language of clause (b)(vii) of sec. 7(i) of the Act. In the course
of his argument we put a question to Mr. Hathi if he could point out any
structure or any property which bearing in mind the scope and object of the
Estates Acquisition Act could be said to be outside the scope of sec. 7.
Mr. Hathi was unable to point out any such provision and all that he could
urge was that sec. 14 deals with rights in land other than those in respect
of which provision for the payment of compensation has been made
under sec. 7. We mention this only incidentally and do not intend to rest
our judgment simply on this aspect of the matter.
For all these reasons we are of the opinion that the petition must fail
and must be dismissed. The rule be discharged Mr. Hathi is right when

1960] RUKMANIBAI v. STATE (C.A.)-Shelat, J. [179
he says that the line of argument advanced before us by the learned Advocate
General is not the same as that adopted on behalf of the State before the Tribunal
and therefore the petitioner should not be ordered to pay the costs of this petition.
There will be no order for costs.
Petition dismissed.
* * *
CIVIL APPELLATE
Before the Hon. Mr. Justice J. M. Shelat.
RUKMANIBAI W/O. KASTURDAS DHARAMDAS v. THE
STATE OF GUJARAT*
Bombay Land Revenue Code, 1879 ( V of 1879)-Sec. 37(3)-lndian Limitation
Act, 1908 (IX of 1908), Art. 14-Period of limitation from dale of order of
final appellate authority-Bombay Revenue Jurisdiction Act, 1876 (X of 1876)
sec. 11-Must exhaust all appeals available before filing civil suit-When the notice
may be construed as misleading.
It is immaterial whether a plaintiff in a suit has claimed declaration as regards
his ownership of the land in question or whether the suit is for setting aside the
order passed by the Mamlatdar. So long as the relief claimed in the suit is
inconsistent with the order passed by the Mamlatdar, sub-section (3) of sec. 37
of the Land Revenue Code must apply and, therefore, a suit instituted in a Civil
Court after the expiry of one year from’ the date of the order of such final appellate
authority, is liable to be dismissed under the provisions of section 37(3) of the
Land Revenue Code.
Under sec. 11 of the Bombay Revenue Jurisdiction Act, 1876, the plaintiff
must exhaust all appeals available to him within the period prescribed in it, before
he can take recourse to a civil suit to challenge an order passed by the Revenue
Officer.
Ganesh Shesho Deshpande v. the Secretary of State for India (1), followed.
Malikajappa v. Secretary of State, for India Council, distinguished as given before
sec. 37 was amended in 1912.
Contrary to the notice of the Mamlatdar the plaintiff, after filing an appeal
before the Prant Officer, straightway lodged an appeal before the Bombay Revenue
Tribunal without having recourse first to an appeal before the Collector. By
adoption of these proceedings, much time was wasted and the cause of action,
was allowed to be time-barred under sec. 37(3) of the Land Revenue Code. The
notice of Mamlatdar had not in any way misled the plaintiff.
Secretary of Stale v. Husenabu Daudbhai, (1), distinguished.
Bombay Land Revenue Code, 1879 (V of 1879) sec. 31(2)-Delegation
of power to Mamlatdar by notification-Whelher such notification ultra vires
or restrictive in scope.
The power under section 37(2) of the Bombay Land Revenue Code
was delegated to the Mamlatdar by the Collector under a notification
*Decided on 17-8-1960. Second Appeal No. 18 of 1960 against the decision of
Mr. M. K. Thakore. Third Extra Assistant Judge at Ahmedabad in Appeal No. 648/
54 from the decision Mr. S. D. Shaikh, Third Joint Civil Judge (S.D.) at Ahmedabad
in Reg. Civil Suit No. 964/53.
(1) 22 Bom. L.R. 212 (2) I.L.R. 36 Bom. 32 (3) 33 Bom.L.R. 361

by the State Government. So the order passed by the Mamlatdar is not without
jurisdiction or ‘ultra vires.’ When the notification delegates power under Sec. 37(2)
to the Mamlatdar to take steps for removal of encroachment, the steps to be taken
contemplate the passing of an order deciding a claim after a formal inquiry. Thus,
the contention that the delegation of power under the notification was a restricted
one or the order passed by the Mamlatdar was ‘ultra vires’ or beyond the scope
of Sec. 37(2) of the Code is not sustainable.
Mr. C. K. Shah, for Mr. M. D. Shah, Advocate for the Appellants.
Mr. B. R. Sompura, Asstt. Government Pleader for the Respondents.
The Appellant-plaintiff constructed a bath room in the land purchased by
him. The Talati of Dhansura started proceedings and an enquiry was instituted
under Sec. 37 of the Bombay Land Revenue Code, 1879. By an order dated
31st January, 1951, the Mamlatdar held that this land formed part of a public
street. Aggrieved by this order, the plaintiff preferred an appeal before the Prant
Officer, who dismissed the appeal on 27th December, 1951. The plaintiff then
preferred an appeal to the Bombay Revenue Tribunal. On 28th April, 1952, the
Tribunal rejected the plaintiff’s appeal on the ground that the plaintiff ought
to have filed an appeal before the Collector, before coming to the Tribunal.
On 22nd June, 1953, the plaintiff filed the present suit. The trial Court held
that the plaintiff had established his title over the land in question but found
that the suit was time-barred and was not maintainable by reason of the provisions
of Sec. 11 of the Bombay Revenue Jurisdiction Act. In appeal, the appellate
Court also confirmed the findings of the trial Judge. The appellants thereupon
filed this present appeal before the High Court.
SHELAT J. [His Lordship after narrating the facts proceeded.] Mr. Shah
who appears for the plaintiff has challenged the order of dismissal of the plaintiff’s
suit by the Trial Court and the learned Assistant Judge. His first contention was
that the finding by the Courts below that the suit was barred both under Sec.
11 of the Bombay Revenue Jurisdiction Act and under Sec. 37(3) of the Bombay
Land Revenue Code was erroneous and was not justified in law. He submitted
that the suit filed by the plaintiff was in fact in time as it was filed on the
22nd of June, 1953 i.e. within one year from the 28th April, 1952 that being
the date of the order of dismissal of the plaintiff’s appeal by the Bombay
Revenue Tribunal which is the final appellate authority. That contention, in my
view, cannot be sustained.
The suit in substance was to set aside the order passed by the Mamlatdar
and subsequently confirmed by the superior revenue authorities. Though, in
the plaint it was said that the suit was for a declaration that the land in
question was of the plaintiff’s ownership and there was a prayer for a
perpetual injunction restraining the State of Bombay from interfering with his
possession, that declaration was sought on the footing that the order passed
by the Mamlatdar and subsequently confirmed by the other revenue authorities
was illegal and should be set aside. Article 14 of the Limitation Act, would
therefore, seem to apply. Under that Article, the period of Limitation
prescribed is one year from the date of the order sought to be set aside. If
Article 14 of the Limitation Act were to apply, then the question would be,

which is the order from the date of which the limitation for one year is to
commence under Article 14. Section 37(3) of the Bombay Land Revenue Code
which is a special statute laying down the period of limitation in respect of
such orders provides that any suit instituted in any Civil Court after the expiration
of one year from the date of any order passed under sub-section (1) or sub-
section (2) or if one or more appeals have been filed against such order within
the period of limitation then from the date of any order passed by the final
appellate authority as determined according to section 204 shall be dismissed
if the suit is brought to set aside such an order or if the relief claimed is
inconsistent with such an order provided that in the case of an order under sub-
section (2) the plaintiff has had due notice of such order. It is therefore immaterial
whether the plaintiff in the suit has claimed declaration as regards his ownership
of the land in question or whether the suit is for setting aside the order passed
by the Mamlatdar. So long as the relief claimed in the suit is in consistent with
the order passed by the Mamlatdar sub-section (3) of section 37 of the Land
Revenue Code would apply and therefore the period prescribed by this sub-section
viz. one year from the date of the order of the final appellate authority must
apply to such a suit. If therefore a suit is instituted in a Civil Court after the
expiry of one year from the date of the order of such final appellate authority
such a suit is liable to be dismissed under provisions of sec. 37(3). It is not
disputed that the final appellate authority as contemplated in section 37(3) is
the Revenue Tribunal. Under sections 203 and 204 of the Land Revenue Code
an appeal from an order of a Mamlatdar first lies to the Prant Officer and
thereafter to the Collector and then to the Revenue Tribunal. As I have stated
the plaintiff filed an appeal before the Prant Officer and having failed there
he straightway filed an appeal before the Revenue Tribunal who rejected the
same on the ground that the plaintiff ought to have preferred an appeal before
the Collector before he launched his appeal before the Revenue Tribunal. Since
no appeal can lie to the Tribunal directly from the order of a Prant Officer
there was no valid appeal before the Revenue Tribunal within the meaning of
the Bombay Land Revenue Code. It was therefore rightly rejected by the Tribunal.
That being the position and there being no valid appeal against the order of
the Prant Officer the final order was the one passed by the Prant Officer dismissing
the Plaintiffs appeal and confirming the order passed by the Mamlatdar. That
was dated the 27th of March 1952. The present suit having been instituted on
the 22 of June 1953 it was undoubtedly filed after more than a year from the
date of the order of the Prant Officer and therefore it was time barred under
sub-section (3) of sec. 37 of the Code.
Section 11 of the Bombay Revenue Jurisdiction Act, 1876 provides that
no Civil Court shall entertain any suit against Government on account of any
act or omission of any Revenue Officer unless the plaintiff first proves that
previously to bringing his suit he had presented all such appeals allowed by
the law for the time being in force as within the period of limitation
allowed for bringing such a suit it was possible to present. It has been held
on more than one occasion that the words “act or omission of any Revenue
Officer” would include an order passed by the Mamlatdar or any other

Revenue Officer under the provisions of the Land Revenue Code. Section 11
of this Act enjoins that all appeals that could be filed before the superior officers
or tribunals within the limitation prescribed for the suit must be filed and if
they are not filed the suit would be barred. Of course if the order of the Revenue
Officer is ultra vires or invalid a plaintiff is not bound to appeal under section
203 of the Code and it would be open to him to bring a suit directly without
filing any appeal. That is because such an order is a nullity and cannot give
rise to any right whatsoever even a right of an appeal and therefore section
11 of the Revenue Jurisdiction Act would not apply in case of such an order.
3Jut then all incorrect orders are not necessarily ultra vires or invalid and in
such case section 11 of the Revenue Jurisdiction Act would apply. There can
be no doubt that the order passed by the Mamlatdar in the present case has
been passed under the provisions of section 37(2) of the Code and though it
was pleaded by the plaintiff in his plaint that the land in question belonged
to him it was never his case either in the Trial Court or in the first appellate
Court that the order passed by the Mamlatdar was ultra vires or invalid. Section
11 of the Revenue Jurisdiction Act therefore must apply to the present case.
Under section 11 the plaintiff must exhaust all appeals available to him within
the period prescribed therein before he can take recourse to a civil suit to challenge
an order passed by the Revenue-Officer. The question as to the construction of
section 11 arose in Ganesh Shesho Deshpande v. The Secretary of State for India,
22 Bom.L.R. 212. where Macleod C.J. and Heaton J. held that if the plaintiff
wished to have a decision of the court upon the legality or illegality of an order
of forfeiture passed by the Collector he was bound to put his plaint on the
file within one year of the date of the order. In that case certain land belonging
to the plaintiff was forfeited by an order dated May 6 1911 after which he
applied first to the Collector and then to the Commissioner to set aside the order.
Eventually he filed a suit on Oct. 14 1915 for a declaration that the proceedings
held by the Revenue authorities in respect of forfeiture were illegal and ultra
vires. It was held that since the suit was filed after the expiry of one year from
the date of the order both under Article 14 of the Limitation Act and under
section 11 of the Revenue Jurisdiction Act the suit was barred. It is thus clear
that the present suit was barred by virtue of section 11 of the Revenue Jurisdiction
Act and sec. 37(3) of the Code.
Mr. Shah for the appellant however relied upon Malikajeppa v. Secretary
of State for Indian Council, I.L.R. 36 Bombay 325 where it was held that
Article 14 of the Limitation Act would only apply to orders passed by a
Government officer in his official capacity. and that article did not apply to
orders which are ultra vires of the officer passing them. There it was held that
when a Revenue Officer passes an order under section 37 of the Bombay Land
Revenue Code which reference to land which is prima facie the
property of an individual who has been in peaceful possession thereof and
not of Government he is not dealing with that land in his official capacity
but is acting ultra vires. Sub-section (1) of section 37 in clear terms provides
that a Collector has the power to dispose of lands which are declared there-
under the property of the Government subject of course, to the orders of the

Commissioner and the general rules sanctioned by Government and subject always
to the right of way and all other rights of the public or of individuals legally
subsisting. The power of the Collector under sub-section (1) of section 37
being limited to such lands and property only an order passed by the Collector
under section 57(1) in respect of properties which do not fall under the sub-
section but which are of the ownership of private individuals cannot be an
order passed under that sub-section nor can it be said to be an order passed
by the Collector in his official capacity. His power to dispose of such lands
being limited only to such lands or properties declared by that sub-section
to be belonging to Government an order passed by him in respect of properties
belonging to the private individuals would consequently be an order outside
the scope of sub-section (1) of section 37 and therefore ultra vires of him.
But the decision in the case of Malikajeppa v. Secretary of State for India
in Council was given in November 1911. In 1912 section 37 was amended
and sub-sections (2) and (3) were added by the Bombay Land Revenue Code
(Amendment) Act 1912 belong Bombay Act No. XI of 1912. Under sub-section
(9) it is provided that where any property or any right in or over any property
is claimed by or on behalf of Government it shall be lawful for the Collector
or a Survey Officer after a formal inquiry of which due notice has been given
to pass an order deciding the claim. Thus whereas sub-section (1) of section
37 confers power upon the Collector subject to certain restrictions thereunder
provided to dispose of lands which are declared to be the lands belonging
to Government thereunder sub-section (2) confers upon the Collector an additional
power to pass an order deciding a claim where property or a right therein
or over it is claimed either by Government or by any person as against
Government. The words pass an order deciding the claim themselves contemplate
an adjudication by the Collector of a dispute in regard to land in respect of
which either Government makes a claim or an individual person makes
such a claim. Sub-section (2) therefore enjoins upon the Collector to hold a
formal inquiry of which due notice has to be given to the person concerned
and thereafter to pass an order deciding the claim. The very provisions of
sub-section (2) of section 37 thus contemplate an inquiry in respect of land
over which either Government makes a claim or a private individual
makes such a claim. The decision in I.L.R. 36 Bombay 325 would have
no application to the facts of the present suit. It cannot therefore be
said that the order in question was passed without jurisdiction or was in
any sense ultra vires.
After the Mamlatdar passed his order he issued a notice to the plaintiff
Ex. 8 dated the 2nd of March 1951 wherein it was stated that if the
plaintiff was aggrieved by the order made by him he had two alternatives
(1) to file an appeal within 60 days from the date of the order before the
Prant Officer and thereafter to the officer superior to the Prant Officer or
(2) he could file a suit in a Civil Court within one year from the date of
the order without filing any appeal against it notwithstanding the provisions of
section 11 of the Revenue Jurisdiction Act. It was contended by Mr. Shah that
the second alternative suggested in this case was contrary to the express
provisions of section 11 of the Revenue Jurisdiction Act inviting the plaintiff
to file straightway a suit in a Civil Court without having recourse to appeals

provided for under that section and that the suggestion in that alternative was
such that it was likely to mislead and did in fact mislead the plaintiff resulting
in the plaintiff not having filed an appeal before the Collector and going directly
before the Revenue Tribunal. Such an alternative was also contrary to the
provisions of sections 203 and 204 of the Land Revenue Code under which
by virtue of section 11 of the Revenue Jurisdiction Act the plaintiff would have
to file an appeal first before the Prant Officer then before the Collector and
thereafter before the Revenue Tribunal. So far as the first alternative suggested
in the notice is concerned Mr. Shah could not take any exception. As regards
the second alternative also it cannot be rightly said that it had in any way misled
the plaintiff though the alternative suggested to the plaintiff was that he could
straightway life a civil suit without filing any appeals. The plaintiff had in fact
filed an appeal first before the Prant Officer and thereafter before the Bombay
Revenue Tribunal. It cannot therefore be said that the notice (Ex. 8) in any
manner had misled the plaintiff as suggested by Mr. Shah.
Mr. Shah relied upon the decision in the Secretary of State v. Husenabu
Daudhai, 33 Bom. L.R. 361 where it was held that on the facts before the
court and having regard to the terms of the notice in that case Government
was not entitled to rely upon the bar under section 11 of the Revenue Jurisdiction
Act. The facts there were that the City Survey Officer at Dahod decided that
a certain plot of land belonged to Government and not to the plaintiffs and
communicated that decision to the plaintiffs by a notice one of the clauses of
which ran as follows :-
“If any person desires to appeal against the above-mentioned order he should
appeal in the prescribed manner to the Collector within 60 days from the date
of the said order.”
Within the period so prescribed plaintiffs appealed against the order but the
appeal was dismissed by the District Deputy Collector. Without presenting any
further appeal the plaintiffs filed a suit to obtain a declaration against Government
that the land was of their ownership. It was objected that the suit was barred
under sec. 11 of the Bombay Revenue Jurisdiction Act. The High Court held
that in view of the fact that the City Survey Officer not having been a direct
subordinate of the Collector an appeal would lie to the Collector under
notification No. 14447 of Nov. 29 1927 and that it did not appear that any
further appeal to the Commissioner was necessary to be filed and further that
having regard to the terms of the notice in the case. Government was not
entitled to rely on the bar under sec. 11 of the Revenue Jurisdiction Act.
Relying upon certain unreported judgments of the High Court it was observed
that such a notice having misled the parties in not filing the appeal against the
order the Government was not entitled to rely upon the provisions of section
11 as bar to the plaintiffs suit. The facts in this case were different from the
ones before me. As an I have pointed out the notice cannot be said to be one
which misled the plaintiff. The observations therefore in 33 Bom. L. R. 361
that the Government was not entitled to rely upon the bar under sec. 11 cannot
apply in this case. Contrary to the advice contained in the notice the plaintiff
after filing an appeal before the Prant Officer straightway lodged an appeal before
the Bombay Revenue Tribunal without having recourse first to appeal before

the Collector. By adoption of these proceedings much time was wasted and the
cause of action which the plaintiff had against the State of Bombay was allowed
to be time-barred under sub-sec. (3) of sec. 37 of the Land Revenue Code.
In my, view therefore, there is no substance in the contention of Mr. Shah that
the notice had in way misled the plaintiff or that Government therefore was
not entitled to rely upon sec. 11 of the Revenue Jurisdiction Act. Mr. Shah
next sought to argue that the power to pass an order deciding a claim under
sec. 37 (2) was conferred by the legislature upon the Mamlatdar had no
competence to pass the order in question under subsection (2) of section 37
Consequently the order passed by the Mamlatdar was ultra vires and illegal and
could be challenged by the plaintiff in a court of law without sec. 11 of the
Revenue Jurisdiction Act applying and without the plaintiff having had recourse
to the appeals referred to is that section. The allegation that the Mamlatdar had
no power under sec. 37 (2) of the Land Revenue Code to decide the claim
by or on behalf of Government or by the plaintiff was not taken in the plaint
nor was such contention raised either in the Trial Court or before the learned
Assistant Judge. It would not therefore be proper to allow Mr. Shah to raise
such a contention for the first time in second appeal denying thereby the
opportunity to the other side to give an answer or an explanation. But the difficulty
In the way of that contention is that sec. 12 of the Code expressly provides
that the duties and powers of a Mamlatdar shall be such as may be expressly
imposed or conferred upon him by the Code or by any other law for the time
being in force or as may be imposed upon or delegated to him by the Collector
under the general or special orders of the State Government. By Notification
No. G.R.D. 3237/45 of October 29 1948 powers under section 37(2) of the
Code have been delegated to the Mamlatdars. Therefore there is no validity in
the contention that the order passed by the Mamlatdar in this case was either
without jurisdiction or ultra vires.
But then Mr. Shah contended that the powers so conferred are only with
regard to the Mamlatdar taking steps for removal of encroachment on Government
lands. He argued that that meant that there was no delegation of power to
the Mamlatdar under section 37(2) to hold an inquiry and to pass an order
deciding the claim. In my view there is no force in this contention also. When
the notification delegates powers under section 37(2) to the Mamlatdar to take
steps for removal of encroachment on Government lands the steps contemplated
under the notification and which the Mamlatdar is to take are steps to be
taken in accordance with sub-section (2) of section 37. If any steps under
this notification are to be taken for the purpose of removing an encroachment
on lands belonging to Government those steps must be taken in accordance
with the provisions of sub-section (2) of section 37 one of the steps for removal
of such an encroachment being to pass an order whereby the Mamlatdar would
have to decide the claim made either by Government or an individual. Such
a claim cannot be decided by the Mamlatdar without following the procedure
laid down in that sub-section. A proceeding contemplated by the
sub-section is the passing of an order deciding claim after a formal inquiry.
Therefore when the notification uses the words “to take steps for removal of

encroachment on Government land”, those words must mean and include the
passing of an order on a claim after an inquiry as stated in sub-section (2).
It is difficult to make any substantial distinction between the power of the
Mamlatdar to pass an order deciding a claim after a formal inquiry and the
power delegated to him under the notification dated the 29th of October 1948
to take steps for removal of encroachment on Government lands. It is thus
not possible to sustain the contention that the delegation of power under
the notification was a restricted one’ or that’ therefore, the order passed by the
Mamlatdar was ultra vires or beyond the scope of Sec. 37(2) of the Code.
Appeal dismissed.
* * *
CIVIL APPELLATE
Before the Hon. Mr. Justice R. B. Mehta
DAHYALAL JETHALAL v. PATEL MANILAL J1WANBHAI*
Bombay Agricultural Debtors Relief Act, 1947 (XXVII of 1947) as
amended by Act XXXVII of 1950-Sec. 57(l)-Application for adjustment of
debt under Sec. 4 can only be made if debtor has property in merged area-
Debt would not be extinguished under Sec. 15 of the Act if no application
could be made.
Under Sec. 57(1) of the Bombay Agricultural Debtors Relief Act, as amended
by Act No. XXXVII of 1950, an application for adjustment of debt under Section
4 of the Act can only be made if the debtor has some property in the merged
area. If the debtor has no property in the merged area on the date of merger, no
application can be made under the provisions of Section 4 of the Bombay
Agricultural Debtors Relief Act read with the amended Section 57 and in that
case provisions of the Section 15 of the Bombay Agricultural Debtors Relief Act,
extinguishing the debt, would not come into operation. In other words, the debt
is not extinguished.
The Bombay Merged States (Laws) Act, 1950 (IV of 1950)— Sec. 4(1) —
Extension of time limit for application-Whether had any practical utility.
The extension of date-line from 1st August 1947 to 15th June 1949 for making
an application for the adjustment of debt under the Bombay Agricultural Debtors
Relief Act by the Bombay Merged States (Laws) Act, 1950, which came into force
on 30th March, 1950, had no practical utility whatsoever.
Mr. C. G. Shastri, Advocate, for the Appellant.
Mr. C. K. Shah, Advocate, for the Respondent.
MEHTA J. This is a second appeal from the appellate judgment of the
learned Second Extra Assistant Judge, Ahmedabad who in turn confirmed the
order and decree passed by the learned Civil Judge, Junior Division, Modasa.
The appellant here is original plaintiff and the respondent is the original defendant.
The plaintiff’s suit was on a Khata for an amount of
*Decided on 28-7-1960. Second Appeal against the decision of Mr. K. M. Bhatt,
2nd Extra Assistant Judge at Himatnagar, in Appeal No. 29/54, from the decision of
Mr. R. R. Patel, Civil Judge (J.D.) at Modasa in Reg. Civil Suit No. 52 of 1953.

1960] DAHYALAL v. MANILAL (C.A.)-Mehta, J. [187
Rs. 1,200/- inclusive of interest. There were two substantial defenses. One was
that the debt was extinguished under the provisions of the Bombay Agricultural
Debtors Relief Act and the second was that the Khata was taken by
undue influence. On the point of undue influence the learned Trial Judge
came to the conclusion that there was no undue influence but on the point
whether the debt was extinguished under the B. A. D. R. Act the learned
trial Judge held that the debt in question was so extinguished. On appeal the
learned Assistant Judge confirmed the order of the Trial Judge also coming to
the conclusion that the debt was extinguished under the B. A. D. R. Act.
In this Court Mr. Shastri the learned Advocate for the appellant has
taken up the only point that the debt in question is not extinguished under
the provisions of the B. A. D. R. Act. Now for the purpose of this appeal,
it is necessary to state that it is an admitted fact that the defendant-
respondent is a debtor under the B. A. D. R. Act and his debts did not
exceed Rs. 15,000/- The debtor is a resident of the village of Antiadeva
part of Modasa Taluka in the former British India and the plaintiff creditor
is a resident of the village Bayad a part of the former Idar State. The Khata
in question on which the suit is based is dated 6th October 1950. To appreciate
the point raised in this appeal viz., that the debt is extinguished under the
provisions of the B. A. D. R Act it is necessary to refer to the legislation
on this point. The Bombay Agricultural Debtors Relief Act, 1947, by its
sub-section (1) of sec. 4 provides as follows :-
“Any debtor ordinarily residing in any local area for which a Board was
established under sec. 4 of the repealed Act on or after the 1st February 1947,
or his creditor may make an application before the 1st August 1947 to the Court
for the adjustment of his debts.”
Under the Act which was repealed Boards were set up for adjustment of
debts and under this Act i.e. the Bombay Agricultural Debtors Relief Act 1947
an application by the debtor or the creditor as the case may be under sec. 4
has to be made to a Court before 1st August 1947. On this provisions there
is no controversy. Now in this context it is necessary to refer to sec. 15 of
the Act which provides as follows :-
“Every debt due from a debtor in respect of which no application has been
made under sec. 4 within the period specified in the said sec. 4 or in respect
of which no application for recording a settlement is made under section 8 within
the period specified in the said sec. 8 or in respect of which an application made
to the Court is withdrawn under sec. 12 and no fresh application is made under
sec. 4 and every debt due from such debtor in respect of which a statement is
not submitted to the Court by the creditor in compliance with the provisions of
sec. 14 shall be extinguished.”
Now, we are concerned in this case only with an application under sec.
4. So, if the necessary application under sec. 4 is not made either by a debtor
or by his creditor then in such a case. the debt shall be extinguished.
Now, so far as the present case is concerned, it is common ground that
the Khata, which is the basis of the cause of action itself came into being on
the 5th October 1950. Therefore it is obvious that in respect of the suit claim
no application could possibly have been made under sec. 4 of the B.A.D.R.
Act 1947 Therefore came the Act No. IV of 1950, which was known as the
Bombay Merged States (Laws) Act, 1950. It was made applicable to Idar State.
By that Act sec. 4(1) of the Parent Act was amended as follows :-

“Any debtor ordinarily residing in any local area or his creditor may make an ap-
plication on or before the 15th June 1949 to the Court for the adjustment of his debts.”
The effect of this amendment is that the time-limit or the date-line for
making an application under sec. 4 of the Parent Act was extended from 1st
August 1947 to 15th June 1947 but it is significant to note that this Act itself
came into force on 30th March 1950. Therefore, it is also evident that the
extension of date-line from 1st August 1947 to 15th June 1947 made by an
Act, which came into force on 30th March 1950 had no practical utility
whatsoever. It was contended by Mr. Shah that under Act No. IV of 1950
an application under sec. 4 should have been made before 15th June 1949.
I do not think that this argument is tenable. In the first place the Khata
itself came into existence on 6th October 1950 but Mr. Shah says that the Khata
in suit was a renewal of a previous Khata. In other words Mr. Shah stated
that the debt was there on 15th June 1949. The answer to this argument
is as I have indicated earlier that it was not possible to take advantage of
the Act which came into force on 30th March, 1950 for making an application
prior to 15th June 1949.
Coming to further legislation on this point there was an amendment by Act
No. XXXVII of 1950 of B. A. D. R. Act of 1947. By this amendment sec. 57 has
been introduced for the first time. As the decision of this case depends on the
construction of sec. 57, it is convenient if sec. 57 is reproduced here :-
“57 (1) Notwithstanding anything contained in sec. 4 of this Act as amended
by the provisions of the Bombay Merged State (Laws) Act 1950 in its application
to the merged territories :-
(a) if any debtor was owing debts to a creditor in a merged territory on the
date on which such territory merged with the State of Bombay and if the place
in which such debtor was ordinarily residing on the said date was outside such
territory such debtor or
(b) his creditor may,
make an application to the Court under sec. 4 within six months from the
date of the coming into operation of the Bombay Agricultural Debtors Relief
(Amendment) Act, 1950.
(2) Nothing in sub-section (1) shall entitle any debtor or creditor to make an
application if prior to the date of the coming into operation of the said Bombay
Agricultural Debtors Relief (Amendment) Act 1950 he could have made an
application under section 4 of this Act :
Provided that if the debtor had in such territory on the date on which such
territory merged with the State of Bombay any property against which the creditor
could have enforced his remedy for the recovery of the debts due to him from such
debtor under any law in force in such territory immediately before the said date such
debtor or his creditor shall be entitled to make an application under sub-sec. (1).”
Now, it is contended by Mr. Shastri that under the provisions of sec. 57,
on application could be made and therefore the debt was not extinguished
under the provisions of sec. 15. It is contended by Mr. Shah the learned
Advocate for the respondent that under the provisions of sec. 57, an application
could have been made under sec. 4 of the Act and such an application has
not been made under the provisions of sec. 15 of the Act the debt is extinguished.
On a plain reading of sec. 57, is seems to me that in this case an application
under sec. 4 not have been made under the provisions of sec. 57. Therefore
the debts is not extinguished under sec. 15. Now under sec. 57, the time-limit
has been extended up to six months from the date of the coming into operation
of the Bombay Agriculture Debtors Relief Act of 1950, i.e. the date-

1960] DAHYALAL v. MANILAL (C.A.)-Mehta, J. [189
line is extended to the 8th May 1951 as the date on which the Act came
into force was 8th November 1950. Sec 57, therefore, extends the time limit
for making an application under sec. 4 of the Parent Act. What it says is that
if a debtor was owing debt to a creditor in a merged territory as in this case
on the date on which such territory merged with the State of Bombay on
which point there is no controversy that the debt existed on the date of the
merger and if the place in which such debtor was ordinarily residing on the
said date was outside such territory i. e. outside the merged territory which is
also the case here because the debtor is outside the merged area then such a
debtor could make an application. Secondly a creditor of such a debtor could
make an application and thirdly such application could be made upon 8th May,
1951 that being the date-line as mentioned above. So if the matter rested
here then an application could have been made by the debtor or the
creditor in this case under sec. 4 but the matter did not rest there. Of
course it may be mentioned that the provisions of sub-section (1) of sec. 57,
apply only to those cases where an application under sec. 4 could not have
been made earlier by the debtor or the creditor. Now comes an important
proviso to this section which says in effect that under sub-section (1) of sec.
57, an application can be made only if the debtor had some property in the
merged area. It is necessary again to advert to the very words of the proviso
which is this way :-
“Provided that if the debtor had in such territory on the date on which such
territory merged with the State of Bombay any property against which the creditor
could have enforced his remedy for the recovery of the debts due to him from
such debtor under any law in force in such territory immediately before the said
date such debtor or his creditor shall be entitled to make an application under
sub-section (1).”
To my mind the proviso is really qualifying sub-section (1) of sec. 57 for
in terms it says that an application under sec. 57(1) can only be made provided
the debtor had any property in the merged area itself on the date of the merger
with the State of Bombay which was available for the recovery of the debts
due from him under law in force at that time. In order words if the debtor
has no property in the merged area on the date of the merger available for
satisfaction of his debts then and in such a case no application can be made
under sec. 57 sub-section (1). Therefore such being the position in this case
and it being an admitted fact that the debtor had no property in the merged
area on the date of the merger no application under sec. 4 can be made under
the provisions of sec. 57(1). The result therefore would be that if no such
application could be made under sec. 4 of the B.A.D.R. Act read with the new
sec. 57 then in that case the provisions of sec. 15 of the Act would not come
into operation. In other words the debt is not extinguished.
Mr. Shah the learned Advocate for the defendant-respondent said that
I should not read the proviso as qualifying sub-section (1) of sec. 57 but
that I should read the proviso only as qualifying sub-section (2) and no
further. What Mr. Shah says now appealed both to the learned Trial Judge and
the learned Judge of the lower Appellate Court, but to my mind, with
respect, that submission is not tenable on the plain and clear language of the

statute itself. To read the proviso as qualifying sub-section (2) only is, to
my mind impossible, for I do not find any connection between the proviso
and sub-section (2) only. Sub-section (2) only says that under sub-section (1)
you are not entitled to make an application if you could have made an application
under Sec. 4 prior to the coming into force of the Bombay Act No. XXXVII
of 1950. The proviso, if it is engrafted to sub-section (2) only, to my mind,
does not give any sensible meaning. The proviso on the other hand clearly
postulates an application under sub-section (1) for in the last two sentences
in clear words the proviso says “Such debtor or creditor shall be entitled to
make an application under sub-section (1) which makes it abundantly clear
that the proviso is engrafted mainly to sub-section (1) and if it is engrafted
to sub-section (1), it is also, to my mind capable of a reasonable interpretation
which is this that under sub-section (1) of Sec. 57, the date-line is extended
for making an application under Sec. 4 and there is a proviso that so far
as the merged areas are concerned, the legislature says that if applications under
sec. 4 are to be made affecting merged territories then we shall entertain the
applications provided there is some property of the debtor in the merged area
which can be available for satisfaction of the debts of the debtor. That seems
to me to be the idea of the proviso. But that what it may be the language
of the proviso is quite clear, and to my mind it qualifies sub-section (1) of
Sec. 57. Admittedly, therefore, as there was no property of the debtor in the
merged area in this case no application could be made under Sec. 4 read
with Sec. 57 of the B.A.D.R. Act, 1947. In the result, the debt is not extinguished
under the provisions of Sec. 15 of the Act. Therefore, the debt is alive. The
defence of undue influence is not taken in this Court by the debtor as it
depends on a finding of fact.
The result will, therefore, be that there shall be a decree in favour of the
plaintiff-appellant for Rs. 1 200 with interest from the date of the suit till payment
on the principal amount of Rs. 982-8-0 at 4% per annum. In regard to costs,
the order of costs made by the lower Appellate Court is vacated. The respondent
to pay the court-fees paid by the appellant in the Trial Court as well as in
the first Appellate Court and so far as this Court is concerned, the respondent
to pay full costs of the appellant.
Appeal allowed.
* * *
ORIGINAL ClVIL JURISDICTION
Before the Hon’ble Mr. Justice P. N. Bhagwati.
MANILAL MAGANLAL v. KALIDAS MANILAL*
Bombay Reorganisation Act, I960 (II of 1960)-Sec. 30-Whether Gujarat
High Court has inherent and general jurisdiction to appoint guardian of
undivided share of a minor in a joint Hindu family-Whelher Gujarat High
Court has inherent jurisdiction possessed by the former Bombay High
Court prior to reorganisation.
*Decided on 2-9-1960. Miscellaneous application No. 2 of 1960.

1960] MANILAL v. KALIDAS (O.C.J.)-Bhagwati, J. [191
Prior to reorganisation of the Bombay State, the Bombay High Court has under
its inherent jurisdiction, power to appoint guardian of an undivided share of a
minor in a joint Hindu family if the minor resided within the original or appellate
jurisdiction of the High Court. Thus the Bombay High Court exercised such
powers in respect of a minor residing in territories now comprised in the State
of Gujarat. On a question being raised whether the Gujarat High Court has a similar
jurisdiction.
HELD, the Gujarat High Court has by virtue of Sec. 30 of the Bombay
Reorganisation Act, 1960, under its inherent or general jurisdiction, power to make
an order appointing guardian of the undivided property of a minor who is a
member of a joint Hindu family and who resides within the territories forming
the State of Gujarat.
In Re : Ratanji Ramaji (1), referred to.
(1) 1941 (43) Bom.L.R. 926
Mr. H K. Joshi, for the Petitioners.
Mr. K. H. Kaji, Advocate appointed Amicus Curiae.
BHAGWATI J. This is a petition filed by the petitioners for an order that
the petitioners be appointed guardians of the undivided share of the minor
respondents in the property particularly described in Exhibit A to the petition
and that the agreement of sale of the said property mentioned in the petition
be sanctioned as being for the benefit of the minor respondents and that the
petitioners as guardians be authorized to complete the sale on behalf of the minor
respondents. The order is sought from this Court in the exercise of its inherent
jurisdiction. When this petition was presented, I entertained some doubt as to
whether this Court has inherent or general jurisdiction to appoint a guardian
of the undivided share of a minor in a joint Hindu family and to sanction the
sale on behalf of the minor. I, therefore, asked the learned Advocate appearing
for the petitioners to address full arguments to me on this point. Since, the
petition is at this stage ex-parte, I requested Mr. Kaji to argue amicus curiae
and to present the opposing point of view, if any.
Mr. Joshi the learned Advocate for the petitioners has contended that prior
to the coming into force of the Bombay Reorganisation Act, 1960 the High
Court of Bombay had inherent or general jurisdiction to make an order appointing
a guardian of the undivided property of a minor not only in case of minors
residing within the town and island of Bombay but also in case of minors residing
outside the town and island of Bombay but within the State of Bombay provided
they were citizens of India and that since High Court of Bombay had that
jurisdiction in respect of minors residing within the territories which now form
part of the State of Gujarat, this Court has inherited that jurisdiction by virtue
of the provisions of Section 30 of the Bombay Reorganisation Act, 1960.
In support of this arguments, Mr. Joshi has relied upon a judgment of the
Bombay High Court. In re : Ratanji Ramaji, 1941 (43) Bombay Law Reporter,
926, In that case a special Bench of the Bombay High Court held that the
High Court of Bombay had under its general jurisdiction power to make
an order appointing a guardian of the undivided property of a minor who
was a member of a joint Hindu family and who resided within the limits
of its original jurisdiction that is to say the town and island of Bombay,
and that such jurisdiction extended also to a minor in a joint Hindu family,

who was a British subject and who resided within the presidency of Bombay.
The source of that jurisdiction was traced to the prerogative of the Crown as
parens patriae to protect subjects of the Crown who cannot protect themselves.
Reliance was placed on clause 37 of the Chapter of the Old Supreme
Court of Bombay clause 16 of the Letters Patent of 1862 and clause 17
of the amended Letters Patent of 1865 and the conclusion was reached that
the High Court of Bombay could under its inherent or general jurisdiction
appoint a guardian of the undivided property of a minor who was a member
of a joint Hindu family even if the minor resided outside the town and island
of Bombay but within the State of Bombay.
Mr. Kaji who has argued the matter amicus curiae has also pointed out to
me that the same view has been taken by the High Courts of Calcutta and Madras
and both the said High Courts have held that the jurisdiction to appoint a guardian
of the undivided property of a minor who is a member of a joint Hindu family
extends to all minor resident within the limits of respective territorial jurisdictions.
A Full Bench of this Court has recently held that the judgments delivered
by the High Court of Bombay prior to 1st May 1960 are binding on this Court.
It must therefore follow having regard to the decision of the High Court of
Bombay reported in (1941) 43 Bombay Law Reporter 926 that prior to 1st May
1960 the High Court of Bombay had inherent or general jurisdiction to point
a guardian of the undivided property of a minor who was a member of a joint
Hindu family and who was residing in the territories now forming part of the
State of Gujarat. Now section 30 of the Bombay Reorganisation Act 1960 which
has been relied on by Mr. Joshi runs as under :-
“30. Jurisdiction of Gujarat High Court. The High Court of Gujarat shall have
in respect of any part of the territories included in the State of Gujarat all such
jurisdiction powers and authority as under the law in force immediately before
the appointed day are exercisable in respect of that part of the said territories
by the High Court of Bombay.”
It is clear from a plain reading of this section that since the High
Court of Bombay had inherent or general jurisdiction to appoint a guardian
of the undivided property of a minor who was a member of a joint
Hindu family and who was residing in the territories now forming part of
the State of Gujarat this Court has the same jurisdiction by virtue of the
provisions of this section.
I therefore hold that this Court has under its inherent or general
jurisdiction power to make an order appointing guardian of the undivided
property of a minor who is a member of a joint Hindu family and who
resides within the territories forming part of the State of Gujarat. The
petition is accepted and Mr. V. J. Merchant the Deputy Registrar of this Court
is appointed guardian-ad-litem of the minor respondents.
Petition accepted.
* * *

1960] HAJI AHMEDMIYA MANIAR v. FATAMABU (C.A.)-Shelat, J. [193
CIVIL APPLICATION
HAJI AHMEDMIYA MANIAR v. FATAMABU ABUBAKAR
MORRISWALA*
Civil Procedure Code (Act V of 1908)— Sec. 151-Inherent power-
Whether Court can order refund of Court-fees on appeal withdrawn before
it came for admission.
An appeal presented to the High Court was withdrawn even before it could
come for admission. The appellant prayed for the full refund of the Court-fees paid
on the memo of appeal. The liberty to withdraw the appeal was granted on 15th
April, 1959, long before the Bombay Court Fees Act, 1959, came into force. lt was
contended that a Court has inherent power under Sec. 151 C. P. C. to order refund
of Court-fees in such cases. It was also contended that as an application for refund
was made on 7th January, 1960 i.e. after the Bombay Court Fees Act came into
force, the petitioner was entitled to the refund of atleast half of the Court-fees.
HELD that a Court has no power under Sec. 151 Civil Procedure Code to
circumvent provisions of the Court Fees Act. If that Act casts a particular obligation
upon a litigant to pay certain Court-fees, it is not open to the Court under Sec.
151 of C.P.C. to exonerate that citizen from that liability or to reduce the quantum
of that liability. If, on the other hand, a litigant has paid court-fees which he was
not bound to pay under the Court Fees Act, or has paid court-fees in excess to
what he was liable to pay under the provision of that Act, the Court would be
entitled to, and it would be in fact, right and proper for the Court to exercise
its inherent power under Sec. 151 and to order refund of the Court-fees or a part
thereof paid by him in excess, as the case may be.
In the matter of Kumud Nath Das Saha (1), Ahmed Ebrahim v. Government of
Bombay (2), Vishnuprasad Narandas v. Narandas (3), Indu Bhusan v. Secretary of
State (4), referred to.
Mohammad Sadi Alikhan Nawab v. Saiyidi Ali Abbas (5), Firm Hari Ram v. H.
O. Hay (6), Chanamallapa v. Shri Shailappa, the judgment by Bavdedkar, J.
(unrep); (7), dissented from.
Karfule Limited v. Arical Daniel Varghese (8), followed.
Bombay Court Fees Act, 1959 (XXXVI of 1959)- Sec. 43(2)-Notification
by Government thereunder-Whether refund could be granted in case of
appeals withdrawn before the Act came into force-Whether application made
after the Act came into force relevant.
The notification dated 29th April 1960, issued by the Government of
Bombay under Sec. 43(2) of the Bombay Court, Fees Act, 1959 (XXXVI of
1959), which provided for refund of the court-fees in certain cases would not apply
in the case of an appeal which was withdrawn long before the Act came into force.
Sec. 43(2) of the Bombay Court-Fees Act which gives powers to the State
Government to issue an Order permitting refund must be construed to be one which
applies to matters which arise after 1st August, 1959 when the Act came into force.
The fact that the application for refund was made after the Act
*Decided on 26th September 1960. Civil Application No. 531/60 praying for
refund of Court - fee stamps affixed on the Memo of Appeal in first appeal No. 281/59.
1. (1935) 39 C.W.N. 1074 2. 44 Bom.L.R. 912 3. 51 Bom.L.R. 602
4. (1935) A.I.R. Cat. 707 5. (1932) I.L.R. 7 Luck. 588
6. A.I.R. 1939 Lah. 257 7. C.A. 53 of 1960 B.H.C.(urep) (8) 54 Bom.L.R. 664

came into operation is hardly relevant. What is relevant is the date when the appeal
was withdrawn.
Mr. R. N. Shah, for the Petitioner,
Mr. B. R. Sompura, Assistant Government Pleader, by notice.
SHELAT J. This application raises a question of some interest regarding
the interpretation of Section 43 of the Bombay Court, Fees Act No. XXXVI
of 1959. The question arises in the following manner :-
The opponents-plaintiffs filed a suit No. 92 of 1957 in the 2nd Joint Civil
Judge, (Senior Division), Ahmedabad against the petitioner-defendant for
the recovery of Rs. 12412-8-0 alleged to be due and payable under a
promissory note executed in 1951 by the petitioner. The Trial Court rejected
the petitioner’s plea of limitation and passed a decree in favour of the opponents
plaintiffs for a sum of Rs. 12347. On the 17th of January, 1959 the petitioner
presented a First appeal against the said decree. On the 7th of April, 1959 that
appeal was registered and given a number. viz. No. 281 of 1959 Before the
appeal could come up for admission the learned Advocate for the petitioner
lodged a note before the office for the appeal to be placed on board for
withdrawal. In accordance with that note, the appeal then already numbered 281
of 1959 was placed on April 15, 1959 before the Division Bench of the then
High Court of Bombay consisting of Tambe and Datar JJ. The learned Judges
granted liberty to the petitioner to withdraw the appeal, and thereupon, the appeal
was withdrawn. The learned Advocate for the petitioner thereafter filed a note
before the office asking for a refund of the Court-fees paid by the petitioner
at the time of the presention of the appeal. The matter was placed before Mr.
Justice Datar of the High Court of Bombay on the 7th November, 1959 when
the learned Judge asked the petitioner’s Advocate to file a regular application.
The learned Advocate for the petitioner thereupon filed an application being
application No. 531 of 1960 praying therein for the refund of the entire Court-
fees paid by the petitioner. As a result of the bifurcation, this application has
come to be transferred to this Court.
Mr. Shah for the petitioner has contended that the petitioner is entitled
to the refund of the court-fees by reason of the fact that the appeal was
withdrawn even before it could come for admission. As I have said liberty
to withdraw the appeal was granted to the petitioner’s Advocate on April 15,
1959 even before the Bombay Court Fees Act of 1959, came into force.
The new Act came into force on August 1, 1959. Mr. Shah has conceded
that the only Sections in the Court Fees Act, 1870, which provide for
refund are Sections 13, 14, 15 and 31. There is no dispute that none of these
Sections provides for the refund of Court-fees in respect of an appeal which
has been withdrawn in the circumstances in which the present appeal was
withdrawn. Mr. Shah however contended that assuming that the Court Fees
Act of 1870 applies though none of the Sections 13, 14, 15 or 31 of that
Act is applicable, this Court has inherent jurisdiction to order refund of the
court-fees as the appeal was withdrawn by the petitioner before it even
came up for admission. Mr. Shah has relied upon certain observations made
by Mulla in his commentary under Section 151 of the Code of Civil Procedure,
12th edition where it is observed that a Court has inherent power to order

refund of court-fees paid by inadvertance or in cases which are not

governed by sections 13 14 and 15 of the Court Fees Act 1870 Relying
on these observations Mr. Shah argued that I should exercise inherent
power under section 151 and direct that the Court-fees paid by the petitioner
should be refunded to him.
There are decisions of certain High Courts in which orders of refund of
Court-fees though not falling under section 13 14 or 15 of the Court Fees Act
1870 were passed. These are :-
Mohammad Sadic Ali Khan Nawab Mirza v. Saiyidi Ali Abbas (1972)
I.L.R. 7 Luck. 588, In the matter of Kumud Nath Das Saha (1935) 39
C.W.N. 1074 Firm Hari Ram v. H. O. Hay, A.I.R. 1939 Lah. 257 Ahmed
Ebrahim v. Government of Bombay, 44 Bom.L.R. 912, Vishnuprasad Narandas
v. Narandas, 51 Bom.L.R. 602 Indu Bhusan v. Secretary of State, (1935) A.I.R.
Cal. 707 and Chanamallapa v. Shri Shailappa an unreported judgment of Mr.
Justice Bavdekar of the High Court of Bombay in Civil Application No. 53
of 1960 (F. A. Fo. 247 of 1950) decided on June 29 1951 Except in the decisions
by the High Courts of Lucknow and Lahore and the unreported judgment of
Mr. Justice Bavdekar the principle upon with the Courts in the rest of these
decisions exercised the inherent power under section 51 of the Code of Civil
Procedure and ordered refund was that the party concerned had either paid the
court-fees where he was not liable to pay or that such a party had paid the
court-fees in excess though mistake or inadvertance In other words
the principle upon which the Courts acted under section 151 of the Code of
Civil Procedure was that if a party has paid court-fees where he is not liable
to pay or had paid court-fees more than what he is liable to pay through mistake
or inadvertance. Government should not be allowed to take advantage of such
mistake or inadvertance and it would therefore be right to ask Government to
take only such court-fees as the Legislature by the Court Fees Act has made
the party liable to pay and no more. If therefore any excess of courtfees has
been paid or where there is no liability and yet a party through mistake or
inadvertance has paid such court-fees it would be right for the Court to exercise
its inherent power and pass an order of refund. In Mohammad Sadic Ali Khan
Nawab Mirza v. Ali Abbas, I.L.R. 7 Luck. 388 the High Court had however
ordered refund on the ground that the appeal filed in that case was wholly
unnecessary. That order undoubtedly was beyond the principle had down in the
aforesaid cases. Similarly in Firm Hari Ram v. H. O. Hay, A.I.R. 1939 Lah.
257 Lahore High Court passed an order of refund in a case where it found
that the lower Courts had not decided the case on merits. The Lahore High
Court took the view that though the case did not strictly fall under section 13
of the Court Fees Act 1870 the case was analogous to one falling under that
section and therefore passed an order for refund. in Chanamallapa v. Shri
Shailappa, Bavdekar J. ordered refund of court-fees holding that the Court had
inherent power to grant refund of court-fees irrespective of any limitation and
that each case must be judged upon its own merits. He took the view that as
the appeal was withdrawn at the time of admission the Court should order refund
of courtfees. The learned Judge felt that applications to withdraw hopeless appeals

should be encouraged as it would save unnecessary litigation. I may observe

that the grounds on which Mr. Justice Bavdekar made the order of refund of
court-fees are almost similar to the ones existing in the present case. If the
judgment of Bavdekar J. were to be good law there is no doubt that Mr. Shah
would be entitled to the refund of the entire court-fees paid by the petitioner.
The question as to whether the Court has power under section 151 of
the Code of Civil Procedure to pass an order of refund although the case does
not fall under any of the sections in the Court Fees Act 1870 dealing with the
refund of court-fees arose in Karfule Limited v. Arical Daniel Varghese, 54
Bom.L.R. 644. The learned Chief Justice sitting with Mr. Justice Gajendragadkar
there held that the Court has no such power under section 151 of the
Civil Procedure Code to circumvent the provisions of law. If the Legislature
has cast a particular obligation upon a citizen it is not open to the Court under
section 151 to exonerate him from that liability or to reduce the quantum of
that liability. The law must be given effect to and the Court cannot be a party
to the circumvention of that law by exercising its inherent power under
section 151. There an appeal to the High Court was compromise out of Court
and the appellants when applied for refund of court-fees on the ground that
the appeal had been withdrawn before it was heard. The High Court held that
it had no jurisdiction to order refund of the court-fees which the appellants were
in law liable to pay. The learned Chief Justice delivering the judgment of the
Bench analysed various decisions cited before them and in which orders of
refund had been passed. Dealing with the decision of the High Court in Firm
Hari Ram v. H. O. Hay, A.I.R. 1939 Lah. 257 the learned Judges held that
that decision was not a correct one because if the Court had to give effect to
section 13 of the Court Fees Act. 1870 it must give effect to the provisions
of the section as framed by the Legislature and not upon the ground that
the case before them was analogous to one which would fall under section 13.
Similarly they held that the decision by the High Court of Lucknow in Mohmmed
Sadic Ali Khan Nawab Mirza v. Saiyidi Ali Abbas did not lay down
correct principle. If an appellant chooses to file an appeal which ultimately turns
out to be unnecessary he is bound to pay court-fees which the law requires
him to pay. Such a case would not be one of those cases where he has paid
court-fees which he was not legally liable to pay. So far as the decision of
Mr. Justice Bavdekar was concerned the learned Judge held that though they
were in agreement with the view of the learned Judge that unnecessary
litigation should be discouraged they could not agree with him that it was for
the Court to give effect to that principle by really legislating contrary to the
provisions of the Court Fees Act and that therefore that case was not one where
the inherent power of the Court could have been exercised under section 151.
The principle thus laid down in Karfule Limited v. Arical Daniel Varghese was
that a Court has no power under section 151 to circumvent the provisions of
the Court Fees Act. If that Act casts a particular obligation upon a litigant to
pay certain court-fees it is not open to the Court under section 151 to exonerate
that citizen from that liability or to reduce the quantum of that liability. If,
on the other hand, a litigant has paid court-fees which he was not bound to

pay under the Court Fees Act or has paid court-fees in excess of what he was
liable to pay under the provisions of the Act the Court would be entitled to
and it would be in fact right and proper for the Court to exercise its inherent
power under sec. 151 and to order refund of the court-fees or a part thereof
paid by him in excess as the case may be. But as I have said before such an
order would be passed on the principle that Government should not be allowed
to retain the court-fees which the Legislature has not though fit to exact from
the litigant. It is only on this principle that the Court can act under section
151 of the Civil Procedure Code. A case illustrative of this principle arose in
Vishnuprasad Narayn v. Narayan, 51 Bom.L.R. 602. The plaintiff in that case
had paid ad valorem duty in a suit for partition. After the suit was filed a
decision was given by the full bench of the High Court of Bombay to the effect
that in a partition suit ad velorem duty was not payable but that what was payable
was a fixed fee under Sch. 11 Art. 17 Cl. (vii) of the Court Fees Act. In view
of that decision the learned Judges who decided that case held that there was
no liability upon the plaintiff to pay ad velorem fees and therefore ordered refund.
The principle upon which the power under sec. 151 of the Civil Procedure Code
was exercised in this decision is clear viz. that there was no legal liability on
the plaintiff in that case to pay ad velorem duty in a partition suit and he having
paid such ad velorem duty through mistake of law he was entitled to refund
of the fee paid by him in excess. This being the principle on which the inherent
power under sec. 151 can be exercised Mr. Shah must fail in his contention.
Mr. Shah next contended that the petitioner would be entitled to an order
or refund by virtue of the Notification dated April 29 1960 issued by the Govt.
of Bombay in exercise of the powers conferred upon then under subsec. (2)
of section 43 of the Bombay Court Fees Act 1959. The notification provides
for the refund of the court-fees in five cases enumerated in the schedule annexed
thereto. There can be no doubt that if the notification were to apply to the
facts of this case the petitioner would be entitled to a refund of at least half
the court-fees under item (3) or (4) of that schedule. The question is whether
sec. 43 of the new Act or the notification issued thereunder can apply in a
case where there has been a withdrawal of the appeal prior to the date when
the Act came into force. As I have pointed out liberty to withdraw the appeal
was granted to the petitioner on April 15 1959 and the appeal was accordingly
withdrawn on that day that is to say long before August 1 1959 when the new
Act came into force. Mr. Shahs contention however was that by virtue of sub-
sec. (2) of section 43 as also the fact that the application for refund was made
by him on January 7, 1960 i.e. after the Act came into force the petitioner
was entitled to the refund of at least half the court-fees. In my view such a
contention cannot be sustained.
Sec. 43 deals with repayment of fees in certain circumstances. Sub-sec.
(1) of that section provides that when a suit is settled by agreement of
parties before any evidence is recorded or any appeal or cross-objections
is settled by an agreement of parties before it is called on for effective hearing
by the Court, half the amount of fees paid by the plaintiff appellant or

respondent on the plaint appeal or cross-objections as the case may be shall

be repaid to him by the Court. There is a proviso to that sub-section but
that is not relevant and therefore it is not necessary to recite it. It is clear
from sub-section (1) of sec. 43 that the Legislature itself has provided for
the refund of part of the court-fees in the events specific in that sub-section
and therefore the Court can pass an order of refund by virtue of the provisions
of that sub-section. It would seem however that besides providing for those
events in which the Court can pass an order of refund the Legislature under
sub-section (2) of the section gave certain powers to the StaLe Government
empowering the State Government to provide by an order repayment to a plaintiff
or an appellant or a respondent of any part of the fees paid by him on a
plaint or appeal or cross-objections in suits or appeals disposed of under such
circumstances and subject to such events as may be specified in the order.
It is by virtue of this power reserved to the State Government by sub-section
(2) of sec. 43 that the notification referred to above was issued by the State
Government. Mr. Shah argued that under sub-section (2) the State Government
can pass an order for refund in any circumstances that it deems proper. That
is correct. The notification issued by the State Government does in fact provide
for the refund of the court-fees in certain circumstances. Mr. Shah argued that
the petitioner having withdrawn his appeal even before it came up for admission
that is to say before any preliminary hearing he would be entitled to claim
an order of refund from this Court. Sec. 43(2) which gives powers to the
State Government to issue an order providing for refund must be construed
to be one which applies to matters which arise after the 1st of August 1959
when the Act came into force. For I find nothing in section 43 or in the
notification issued by the State Government thereunder to justify the view that
that section or the notification would apply in the case of an appeal which
was withdrawn long before the Act came into operation. It is ture that an
application for the refund was made on the 7th of January, 1960 after the
Act came into operation. But the fact that that application was made after
the Act came into operation is hardly relevant. What is relevant is the date
when the appeal was withdrawn. At that date the Court Fees Act 1870 which
had no provision for refund in such a case was in operation. If therefore
the petitioner was entitled to any order of refund of Court-fees it would be
under the Act which was applicable then and not the Act of 1959 which was
not then in operation. The notification issued under powers reserved under
sub-section (2) of section 43 therefore can apply only to those matters
which arise after the Act came into operation and not to matters which
were disposed of or withdrawn as in this case long before the Act came
into operation.
For these reasons the application must fail and is dismissed. The fair of
costs would be that there shall be no order as to costs.
Application dismissed.
* * *

1960] RASIKLAL v. LAIKS UMED (S.C.A.)-S. T. Desai, C.J. [199

RASHIKLAL BHAGWATLAL DAVE v. LAIKS UMED BHIL*
Transfer of Property Act 1882 (IV of 1882)- Sec. 108(e)-Rule of Diluvion-
Whether tenant can assert right after reformation of land-Whether incon-
sistent with the provisions of the Bombay Tenancy and Agricultural Lands
Act, 1948 (LXVII of 1948).
The rule in case of diluvion rests on the principle which is the very foundation
of the provisions contained in Sec. 108(e) of the Transfer of Property Act, that
the lease, at the option of the lessee, shall be void. After reformation ‘in situ’
of land affected by diluvion, a person who is a protected tenant can assert a right
in the land which has been reformed. The provisions of sec. 108(e) of the Transfer
of Property Act are not inconsistent with any of the provisions of the Bombay
Tenancy and Agricultural Lands Act, 1948.
Mr. I. C. Bhatt, for the Petitioners.
Mr. V. J. Desai, for opponent No. 1.
S. T. DESAI C.J. The short and interesting question that arises for our
determination on this petition is whether after reformation in situ of land
affected by diluvion a person who is a protected tenant under the Tenancy Act
of 1948 can assert a right in the land which has reformed.
The facts which gave rise to this petition are not now in dispute and not
disputable. Petitioner No. 4 is the owner of land admeasuring 23 acres and 5
gunthas out of which 2 acres and 22 gunthas were let out to respondent No.
1 who, it is common ground became a protected tenant of that land. That land
the subject matter of the tenancy was submerged in river Narmada in the year
1947-48 and re-appeared in August, 1955. Respondent No. 1 thereupon filed
a tenancy suit in the Court of the Mamlatdar which suit was dismissed on the
ground that it was barred by limitation. Respondent No. 1 preferred an appeal
to the Deputy Collector who reversed the decision of the Mamlatdar and held
that the tenancy suit was within the time prescribed by the law of limitation.
The landlord carried the matter to the Revenue Tribunal which rejected the
revision application. The only question raised by the landlord in the revision
application was the one relating to limitation. It was however argued on his
behalf before the Tribunal that when the land was submerged the tenancy came
to an end, and on re-emergence of it, the landlord became entitled to it without
any obligation to respondent No. 1 who had been a protected tenant. The Tribunal
expressed the view that since opponent was a tenant admittedly when the suit
land was submerged he continued to be tenant on its re-emergence. It disallowed
the contention of the landlord that the tenancy became terminated on submergence
of the land and the landlord has now come to this Court on this petition.
*Decided on 8-7-1960. Special Civil Application No. 124 of 1960 under Art. 227
of the Constitution of India for a writ against order of the Bombay Revenue Tribunal
dated 27-7-59, in Revenue Application No. TEN AA 556/59 and the decision by Addl.
Deputy Collector, Broach dated 7-5-58 against the decision of Mamlatdar, Ankleshwar
in Ten. Application No. 22/56 dated 9-8-57.

It has been argued before us by Mr. I. C. Bhatt learned advocated for the
petitioners that the Tribunal was in error in rejecting the contention of the landlord
that the tenant ceased to be such when the land was submerged. It is said that
after any land is submerged by any act of nature like flood the tenant loses
his right in the land. It has been strenuously urged before us that in any such
case as soon as the land is submerged the relationship of landlord tenant ceases
to subsist. We are unable to subscribe to any such proposition. In India the
general rule in case of diluvion seems to us to be fairly well settled and in
favour of the tenant. Our attention has been drawn to a number of reported
cases relating to proportionate abatement of rent in case of diluvion but these
cases have remote bearing on the principle with which we are concerned in this
case and do not afford any particular assistance or guidance in the matter.
The rule in case of diluvion rests on the principle which is the very foundation
of the provisions contained in section 108(e) of the Transfer of Property Act.
The material part of that section relevant for our purpose is as under :-
“108 In the absence of a contract or local usage to the contrary the lessor
and the lessee of immoveable property as against one another respectively possess
the rights and are subject to the liabilities mentioned in the rules next following
or such of them as are applicable to the property leased:-
(e) if by fire tempest or flood or violence of an army or of a mob or other
irresistible force any material part of the property be wholly destroyed or rendered
substantially and permanently unfit for the purposes for which it was let the lease
shall at the option of the lessee be void.”
This clause gives a lessee the option of avoiding the lease by notice if the
property the subject matter of the lease is destroyed or rendered substantially
and permanently unfit for the purposes for which it was let out in case of any
of the events therein mentioned. It is not in dispute that the land in dispute
was rendered substantially and permanently unfit for the purpose for which it
was let out when it became submerged in 1947 Nor is it in dispute that
submergence was caused by an irresistible force. But what is disputed is that
section 108(e) has no application at all to the present case. It is conceded that
if section 108(e) applies to the case before us than the Tribunal was right in
the conclusion reached by it and opponent No. 1 became entitled to claim to
be a tenant of the land in dispute.
The argument on this point of application of section 108(e) had of
necessity to be of the briefest. All that could be urged is that clause is
not consistent with the provisions of the Tenancy Act 1948. As would
appear from an examination of the provisions of the Tenancy Act of 1948,
the act is not a complete enactment and its provisions do not embrace every
aspect of the relationship between a landlord and a tenant and their mutual
rights and liabilities. Section 3 of the Tenancy Act of 1948 in terms enacts
that the provisions of Chapter V of the Transfer of Property Act 1882,
shall in so far as they are not inconsistent with the provisions of this Act,
apply to the tenancies or leases of land to which this Act applies”. It is

1960] BAI DAHI v. BAI SADA (S.C.A.)-Miabhoy, C.J. [201
evident, therefore, that Mr. Bhatt’s clients can only hope to succeed if it is
shown that the provisions of clause (e) of section 108 is inconsistent with any
provision in the Tenancy Act of 1948. We asked Mr. Bhatt to point out any
provision relating to termination of tenancy or any other relevant provision
in the context of which it can be said that the provision of clause (e) of
section 108 of the Transfer of Property Act is inconsistent with it. The only
section to which Mr. Bhatt has referred us is section 4 of the Tenancy Act.
That section enumerates persons who are deemed to be tenants for the purpose
of the Act. There is nothing in that section which seems to us to have any
bearing on the present point. Apart from section 4 Mr. Bhatt has been unable
to point out any provision in respect of which it can be said that there is
any inconsistent between section 108(e) and that provision.
In the view we take of the matter it is not necessary to refer to some of
the provisions of the Land Revenue Code to which our attention was drawn
by Mr. V. J. Desai who appears for opponent No. 1.
In the result the petition fails and the rule will be discharged with costs.
Petition dismissed.
* * *
CIVIL APPELLATE
Before the Hon’ble Mr. Justice N. M. Miabhoy
BAI DAHI D/o. PATEL NATHABHAI TRIKAMBHAI v. BAI SADA
W/o. PATEL NATHABHAI TRIKAMBHAI*
Baroda Hindu Code, secs. 5 (Kha), 220 and 230-Heirs of a woman
holding limited estate-Reversioners mentioned in Sec. 5 (Kha) only entitled
to challege acts of a limited owner-Expression “Real sister” does not include
“Step sister.”
Reading Sections 230, 220 & 5(Kha) together, it is clear that Baroda Hindu Code
divides the heirs to the estate of a person held by a woman as a limited estate into two
classes. The first class consists of those persons who are described as “Reversioners”
in Sec. 5(Kha) and the second class consists of those who, though they are heirs to
the estate, do not fall within the category of reversioners. The intention of the Legis-
lature appears to confer a right to challenge the acts of a limited owner only on the
eleven specific heirs mentioned in Sec. 5(Kha) and not to confer such a right on the
other relatives, though they fall within the class of heirs. Thus, the persons who are
entitled to bring a suit for declaration under Sec. 230 are the eleven relatives men-
tioned in Sec. 5 (Kha) of Baroda Hindu Code.
The expression “Real sister” as one of the relatives mentioned as the
reversioners in Sec. 5(Kha) does not include a consanguine sister. The expression
‘real’ in this clause is not intended to effect a contrast between a legitimate and
an illegitimate sister. The contrast is intended to be effected between a real sister
and a step sister, and consequently, step sisters do not come within the purview
of Sec. 230 of the Baroda Hindu Code.
*Decided on 5-9-1960. Appeal No. 45 of 1960 against the decision of D. J. Soni,
Esq., Joint Civil Judge, S. D., at Baroda in Civil/Special Suit No. 46/53.


Mr. N. R. Oza, Advocate for the Appellant.
Mr. S. N. Patel, Advocate for the Respondent Nos. 1, 4 and 5.
Mr. N.N. Karlekar, Advocate for the Respondent Nos. 2 and 3.
MIABHOY J. In this appeal the main question which requires to be
decided is whether the two plaintiffs-appellants are or are not entitled to
challenge certain transactions entered into by Sada, defendant No. 1, according
to the Baroda Hindu Code. The present suit was instituted by plaintiffs for a
declaration that the transactions entered into by Sada were null and void against
their interest and not binding on them. The impugned transactions are a
compromise entered into on 11-11-1952 between Sada, defendant No. 1 on the
one hand and Gajara, defendant No. 2 and Sharda, defendant No. 3 on the other
gift made by Sada on 13-6-1953 in favour of defendant No. 4 and a sale made
on 20-6-1953 in favour of defendant No. 5. The Trial Court has dismissed the
suit from which this appeal arises on the ground that plaintiffs were not the
next reversioners of their father Nathabhai Trikambhai or the next reversioners
of their brother Punjabhai Nathabhai and that as such according to the Baroda
Hindu Code they were not entitled to bring the present suit for challenging the
transactions effected by Bai Sada.
The suit was dismissed on a preliminary ground without taking any evidence
in the matter. Therefore, the question which requires to be decided in this appeal
will have to be decided on the basis that the allegations made in the plaint
are true.
The fact on the basis of which the point requires to be decided may shortly
be stated as follows :
One Nathabhai Trikambhai and his son Punjabhai constituted a joint
Hindu family. Nathabhai had two wives named Ratu and Sada who is defendant
No. 1. Ratu predeceased Nathabhai and by Ratu, Nathabhai had two daughters
Dahi and Son who are plaintiffs in the suit. By Sada, Natha bhai had a son
named Punjabhai. Nathabhai died on 3-7-1924 leaving behind him surviving Sada
Punja and Dahi and Son. Plaintiffs admit that, on the death of Nathabhai,
Punjabhai became the sole sruviving coparcener and as such he became the owner
of the joint family properties. Punjabhai also died on 19-12-1942. Plaintiffs allege
that by Gajara, defendant No. 2 Punjabhai had a daughter named Sharda defendant
No. 3. But they allege that Sharda was not the legitimate daughter of Punjabhai.
They allege this on the ground that there was no valid marriage between Punjabhai
and Gajara. Therefore, according to plaintiffs on the death of Punjabhai his
properties did not devolve on Gajara and Sharda is not his next reversioner.
According to plaintiffs, on the death of Punjabhai the properties in suit devolved
on Sada, defendant No. 1 as the mother of Punjabhai. It appears that in 1950
Sada filed a Special Civil Suit No. 126 of 1950 against Gajara and Sharda for
recovering possession of the properties owned by Punjabhai. In that suit a
compromise was made between the parties and under the compromise, Sada
got some of the properties held by Punja. The compromise is one of the
transactions which the plaintiffs are challenging in this suit as not binding

on them. It also appears that after the compromise was made Sada made a gift
in favour of defendant No. 4, on 13-6-1953 of some of the properties which
she got under the compromise and by a deed about a week thereafter she sold
to defendant No. 1 the rest of the properties acquired under the compromise.
These are the other two transactions which the plaintiffs challenge in the suit.
In the plaint plaintiffs contended that they were the next reversioners of
Nathabhai Trikambhai as such they were entitled to challenge the aforesaid
transactions. Subsequently they sought to amend the plaint and challenged the
transactions on the ground that they were the heirs of Nathabhai Trikambhai.
That application was rejected by the Trial Court and a application for revision
against that order was summarily rejected by the High Court It appears that
amongst other contentions the defendants resisted the claim for declaration on
the ground that plaintiff were not the next reversioners of Nathabhai Trikambhai.
In answer to this the plaintiffs contented that they were also the next reversioners
of Punjabhai Nathabhai and sought to support their claim for declaration the
ground. The plaint as it stands to-day does not purport to support the claim
for declaration on the ground that plaintiffs were next reversioners of Punjabhai
Nathabhai. But the matter has been considered by the learned Trial Judge on
that basis also.
As the learned Judge thought that aforesaid contentions of defendants went
to the root of the matter he raised a preliminary issue embodying those contentions
and proceeded to decide the same. He came to the conclusion that the plaintiffs
were not the next reversioners of Nathabhai Trikambhai or the next reversioners
of Punjabhai Nathabhai He also decided that that being so the plaintiffs were
not entitled to bring the present suit and therefore as a result of his finding
on the aforesaid preliminary issue the learned Trial Judge dismissed the suit of
plaintiffs. The present appeal is directed against the decree passed as a result
of the finding on the aforesaid preliminary issue.
It is not disputed that the rights of the parties are governed by the Baroda
Hindu Code It is also not disputed that the preliminary issue has got to be tried
on the assumption that bai Gajara defendant No. 2, and Bai Sharda defendant
No. 3, had no interest in the estate of the deceased Punjabhai. Mr. Oza learned
advocate for the plaintiffs concedes that the true position in law is that the suit
properties were last held by Punjabhai as the absolute owner and that on the
allegations made in the plaint on the death of Punjabhai the properties devolved
on Bai Sada defendant No. 1, as the heir of Punjabhai. It is also not disputed
that according to Baroda Hindu Code. Sada would become the absolute owner
of the estate of Punjabhai to the extent of Rs. 12000/- and that in respect of
the rest of his estate she would be holding a widows estate. In the present suit
we are not concerned with that part of the estate of Punjabhai the value of
the which is Rs. 12000/-. We are only concerned with the estate of Punjabhai
which is in excess of Rs. 12000/-. The contentions raised by the parties have
got to be decided in this excess estate.
The first contention of Mr. Oza is that according to the Baroda Hindu Code
the plaintiffs are the successors to the estate of Punjabhai. Mr. Oza rests his

contention on section 220 of the Baroda Hindu Code. That section occurs in
Chapter XXXIII which deals with the heirs of a Hindu woman. Section 220
deals with succession to the estate held by a woman as a limited owner and
that section states that in respect of such an estate on the death of the woman
the estate would devolve upon her husband’s heirs. The contention of Mr. Oza
is that though the suit estate has been inherited by Bai Sada as the mother of
Punjabhai according to section 220 Baroda Hindu Code the estate would devolve
upon the present plaintiffs being the heirs of Sadas husband on the death of
Bai Sada. In our judgment it is not necessary to decide this question in the
present litigation at this stage. We will assume for the purposes of the present
suit that the contention of Mr. Oza is right that in case Sada dies plaintiffs
would be the heirs who would be entitled to the estate of Punjabhai. But the
present suit has not been brought by plaintiffs as claiming succession to the
estate of Punjabhai. In Law plaintiffs cannot bring such a suit during the life-
time of Sada. Their claim would be a spes successionis. The present suit has
been brought for the purpose of challenging certain transactions effected by the
limited owner viz. Bai Sada and the question as to who are the heirs to that
particular estate does not directly fall to be decided in the present suit. The
question is whether the plaintiffs fall within the category of persons who are
entitled to challenge the transactions made by Bai Sada and that question has
got to the Baroda Hindu Code and it is this section which deals with the right
of persons to challenge the transactions made by a Hindu woman. That section
is in the following terms :-
“Right of a reversioner to sue for relief against misuse :-
Where a woman is found
(a) to be misusing or wasting the property in which she has a limited estate or
(b) committing any act detrimental to the interest of a reversioner in such property.
The presumptive reversioner or in case he precludes himself from suing either
fraudulently or for any other person or he is incapable of instituting a suit any
other reversioner may sue for the following reliefs :-
(a) on an occasion under clause (a) for obtaining an injunction for preventing
such misuse or waste;
(b) on an occasion under clause (b) for a declaration to the effect that the
act is not binding on him.
It will be noticed that this confers a right only on reversioners to challenge
acts of mismanagement or acts harmful to the interest of reversioners. That right
is conferred on reversioner and the section does not say in terms that the right
is available to any other category of persons. The term reversioner itself has been
defined in the Code and the definition is to be found in section 5 (kha) of the
Code and that definition is as follows :-
“ ‘reversioner means any of the following relations of a person whose property
has devolved on his widow or the widow of his sagotra sapinda :-
(1) daughter
(2) daughters sons
(3) father
(4) mother
(5) widow of the son

(6) brother of the whole blood
(7) son of brother of the whole blood
(8) fathers mother
(9) sisters of the whole blood and sons daughter
(10) fathers father
(11) son of the sister of the whole blood and daughter’s daughter.”
According to this definition a reversioner is one who is related to the
propositus whose estate is held by the limited owner in the way mentioned in
this section. The section gives a list of eleven such relatives. Therefore reading
section 230 along with section 5(kha) it is crystal clear that the persons who
are entitled to bring a suit for declaration under section 230 are the eleven relatives
mentioned in section 5(kha). As regards the last ten relatives whether their light
is absolute or qualified is depend upon the fact as to whether at the date of
the filing of the suit he or she does or does not happen to be the next reversioner
of the deceased estate holder. If he or she is the next reversioner then he or
she has the absolute right. But, if that is not so then those other relatives must
satisfy the conditions laid down in section 230 sub-section (b). Mr. Oza’s
contention is that the plaintiffs fall within the purview of the class of reversioners
mentioned in section 5(kha). One of the relatives mentioned as the reversioner
is real sister. The contention of Mr. Oza is that the expression real sister includes
a consanguine sister. We are unable to agree with this contention. Mr. Oza
contended that the expression real was used to connote a legitimate relationship
and was intended to describe a legitimate sister in contradistinction to an
illegitimate one. We cannot accede to this argument. In our judgment the
legislature did not intend to contract in this clause a legitimate and an
illegitimate sister. The contrast was intended to be effected between a real
sister and a step-sister. There are several sections in the Code in which the
term ‘real’ has been used in the Code in conjunction with a relative. That the
legislature was also not unaware of the distinction between a ‘real relative’ and
a step-relative is also shown by at least one section of the Code wherein it
has been specifically provided that the relatives mentioned therein include
not only the real relative but the step sister also. Section 211 falls in Chapter
XXXI, which deals with the heirs outside the compact series. That section
provides that in the absence of a daughters daughter or sisters son of a deceased
male, certain prescribed ‘Sagotra Sapindas’, and, in their absence the
Samanodakas shall be the heirs of the deceased. Whilst so providing the section
states in specific terms that, in determining the heirs in accordance with the
rules prescribed in section 211, no distinctions shall be made between a step
relative and a real relative. As against this, in Chapter XXX, which deals with
the compact series of heirs the term real has been used in more than one section
such as sections 203, 205, 206 and 208. If the expression ‘real’ is to be co-
related with the expression ‘legitimate’ in respect of these sections then it would
lead to absurd results. For example in section 203, it will have to be held
that the person who is mentioned as the heir therein is the legitimate mother
which would be an absurd construction. Under the circumstances we are not
satisfied that the plaintiffs come within the purview of section 5, sub-section
(kha) clause (9) inasmuch as they are not real sisters but only step sisters of
the deceased Punjabhai and, consequently, in our judgment plaintiff do not come

within the purview of section 230 of the Baroda Hindu Code.

But, Mr. Oza contended that the expression ‘reversioner’ used in section
230 must be liberally construed. He submitted that, that expression must be so
construed as to include not only the specific heirs mentioned in section 5 sub-
section (kha) but all the heirs of the propositus whose estate is being held by
a woman as limited estate. He submitted that according to the Baroda Hindu
Law the plaintiff being the heirs in respect of the limited estate would be the
next reversioners there being no nearer relatives and under the Hindu Law as
administered in the rest of India plaintiffs undoubtedly would have a right to
maintain the present Suit. He contended that therefore the expression reversioner
as used in section 5, sub-section (kha) ought not to be construed in such a manner
as to be exhaustive of the list of heirs who were entitled to be described as
reversioners. He contended that that list was only an illustrative list and was
not intended to exclude the other relatives who ordinarily according to the
Mayukha or other brancher of Hindu Law would fall within the category of
reversioners. In our judgment it would not be proper to construe the Code with
any preconceived notions. The Baroda Code is a codifying price of legislation.
In construing the Code the interpreter must primarily have regard to the language
used in the Code and construe it in accordance with the ordinary principles of
interpretation. The previous history of the law cannot be allowed to affect the
interpretation if the construction does not require the previous history to be taken
into account. In our judgment reading sections 230 220 and 5 (kha) together
it is clear that Baroda Hindu Code divides the heirs to estate of a person held
by a woman as a limited estate into two classes. The first class consists of those
persons who are described as reversioners in section 5, sub-section (kha) and
the second class consist of those who though they are heirs to the estate do
not fall within the category of reversioners. The intention of the Legislature
appears to confer a right to challenge the acts of a limited owner only on the
eleven specific heirs mentioned in section 5 sub-section (kha) and not to confer
such a right on the other relatives though they fall within the class of heirs.
Mr. Oza contended that the Legislature could not have intended such a result
specially in those cases such as the present where the nearest heir happens to
be not within the class of eleven specific heirs described in section 5, sub-section
(kha). Mr. Oza is unable to point out any section or sections in the Code which
would show that such was the object of the Legislature in enacting section
230 and section 5 sub-section (kha). It is difficult to speculate as to why the
Baroda Code made a distinction between heirs so as to divide them into
reversioners and nonreversioners for the purpose of section 230 of the Code.
One explanation which may be put forward is that Legislature though it proper
not to allow a litigation of the type mentioned in section 230 to be started
by heirs remoter than the heirs mentioned in section 5, sub-section (kha). It
may be that the Legislature might have thought that the remoter heirs though
they would ultimately inherit the estate should not be given the right of
challenging the acts during the life-time of the limited heir and must wait till
the succession actually opens. In this connection it is important to bear in mind
that it is difficult to say during the life-time of the limited owner as to who

actually would become the heir to the estate of the deceased propositus. For
aught we know the present plaintiffs may not survive defendant No. 1 and
may not inherit the estate at all. Under the circumstances, in our opinion,
no reasonable ground has been shown by Mr. Oza for departing from the
salutary rule of construction which says that a statute must be interpreted
in accordance with its ordinary meaning. As we have already pointed out, we
are not dealing with the question of heirship at all. We dealing with the
question of the right to file a suit for claiming the reliefs mentioned in section
203, clauses (a) and (b) during the life-time of a limited owner. As to the
scope and the amplitude of that right and the persons who are entitled to
have that right the same must be answered with reference to the provisions
contained in section 230 and not by notions of equity and justice or notions
derived from the state of the general Hindu Law under which the immediate
or the next reversioner though remoter than the eleven heirs mentioned above
has the right to institute a suit of the present type. As already stated
probably the Baroda Legislature intended to restrict the scope of this type
of litigation by stopping short at a certain number in the list of heirs which
probably it thought for all practical purposes would meet the needs of quite
a large majority of cases. It did not intend to leave the question at large
and permit the heirs remoter than the last heir mentioned in section 5 sub-
section (Kha) to undertake a litigation of this type. In this connection it is
important to notice that the definition of the expression “reversioner” is not an
inclusive definition. The definition states that the expression reversioner means
‘the following’ kinds of heirs.
It is also noteworthy that the expression ‘reversioner’ has reference
only to the last holder from whom the widow or the limited owner has
inherited the estate and has no reference to the previous owners to whom the
estate might have belonged at one or the other time. The definition states
in specific terms that the ‘reversioner’ means any of the relations mentioned
therein of a person “whose property had devolved on his widow or the
widow of his ‘sagotra sapinda’ ”. Having regard to this definition it is quite
clear that the fact that plaintiffs stand related to the deceased Nathabhai
Trikambhai a his daughters has no relevant whatsoever. The estate having
been last held by Punjabhai and having been inherited by Sada from him
as his mother the question of reversionship must be decided with reference
to the relationship existing between Punjabhai and plaintiffs and not with
reference to the relationship existing between plaintiffs and Nathabhai who at
one time held the estate.
For the aforesaid reasons we have come to the conclusion that the view
taken by the learned Trial Judge that the plaintiffs do not fall within the purview
of section 230 of the Baroda Hindu Code is correct as also the finding that
the plaintiffs are not entitled to file the present suit for challenging the various
transactions mentioned in the suit.
The appeal therefore fails and is dismissed with costs in one set.
Appeal dismissed.
* * *

CIVIL REVISION APPLICATION

N. RAMANLAL & COMPANY v. KIRCHAND SUNDERJI
OF MORBI, a firm*
Bombay Court Fees Act, 1959 (XXXVI of 1959)-Secs. 36, 49-Proceedings
commenced before 1st August, 1959 when the Act came into force-Whether
a party to those proceedings has vested right under the Court Fees Act,
1870 to file an appeal on payment of court fees under the Act of 1870-
Whether Sec. 49 of 1959 Act takes away such vested right by express words
or necessary intendment-Whether 1959 Act is retrospective.
One K. S. filed a suit against N. R. for recovery of certain dues. The suit was
decreed on 1st August, 1959. N. R., the original defendant, being aggrieved by
the decree filed an appeal to the High Court affixing on the memorandum of
appeal, court fees payable under the Court Fees Act, 1870. The Taxing Officer
directed that as the appeal was filed after 1st August, 1959, on which date the
Bombay Court Fees Act, 1959 came into force, the 1959 Act applied and N. R.
should pay court fees at the enhanced rate under the 1959 Act. N. R. filed a
Revision against the said decision contending that as the suit against them was
filed before 1st August, 1959, they had a vested right of appeal on payment of
court fees on “the old scale, and that right was not taken away by the 1959 Act
which was not retrospective.
HELD that a party to a proceeding which was initiated before 1st August, 1959
on which date the Bombay Court Fees Act, 1959 came into force, has a vested
right to carry through that litigation in all its successive stages on payment of
court fees which were payable at the date of commencement of such proceedings
under the 1870 Act. That vested right has not been taken away by the second
proviso to Sec. 49 of the 1959 Act nor can that Section be construed to have
retrospective effect either by express words or necessary intendment.
The words in the first proviso to Sec. 49(1) of the Bombay Court Fees Act,
1959 saving ‘the previous operation’ of the repealed Act, must be construed as
including vested rights in the litigant to carry through his litigation in all its
successive stages on payment of court fees prescribed under the Act of 1870, that
have accrued to the litigant by reason of the previous operation of the repealed
Act. The fact that Sec. 49 of the 1959 Act did not incorporate in its entirety the
language of Sec. 7 of the General Clauses Act, cannot restrict the operation of
the saving clause so as to exclude those vested rights.
The first proviso to Sec. 49(1) is a saving clause making exceptions to
certain things from the general repeal provided in Sec. 49(1) and is thus
an exception to the first part of Sec. 49(1). That exception includes the vested
rights of the litigants to carry through their proceedings in all their stages on
the payment of court fees on the old scale. The second proviso does not take
away by express words or necessary intendment those vested rights given by the
first proviso. Construing the second proviso as an exception to the first proviso,
and as taking away those vested rights would create an inconsistency between
the first and the second proviso, rendering the first proviso nugatory, a result which
as far as possible must be avoided. The Legislature has introduced the second
*Decoded on 28 September and 3rd October 1960. Civil Revision Application No.
676 of 1960 against the order dated 22-1-1960 passed by N. M. Shanbag Esq. Taxing
Officer, High Court of Bombay in First Appeal Stamp No. 16411 of 1959, from the
decision of A. N. Patel, Esq., Civil Judge, (S.D.) at Morbi in Civil Suit No. 4 of 1959.

1960] N. RAMANLAL & CO. v. KIRCHAND (C.R.A.)-Shelat, .J. [209
proviso “ex majori cautela”, though it was strictly not necessary to do so, having
already provided by Sec. 36 that all documents shall be charged at the rates
prevailing at the date of their presentation.
A litigant has a vested right of appeal and such right becomes vested in him
from the date when the proceedings are initiated.
That such vested right of appeal is governed by the law as it stood at the
commencement of the proceedings.
That though the Legislature is competent to lay down restrictive conditions
to such a right, it being a substantive right, the legislature can do so only by
express words or necessary intendment.
Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh (1), Colonial Sugar
Refining Co. v. Irving (2), Nagendranath Bose v. Man Mohan Singh Roy (3), In the
Reference under Sec. 5 of the Court Fees Act, (4), Shankar Maruti v. Bhagwant Gunaji
(5), Sawaldas Madhavdas v. Arti Cotton Mills Ltd. (6), Garikpatti Veeraya v. N. Subbiah
Chaudhury (7), Mullins v. Surrey Treasurer (8), Fryer v. Morland (9), Mclaughlin v.
West Gath (10), Hough v. Widdus (11), referred to.
Indira Sohanlal v. Custodian of Evacuee Properties Delhi & Ors. (12), distinguished.
Mr. R. M. Shah, Advocate for the Appellants.
Mr. S. B. Vakil and M. U. Shah, Interveners.
Mr. J. M. Thakore, Advocate General, with Mr. B. R. Sompura, Asstt. Government
Pleader, by notice.
SHELAT J. The question that falls for determination is whether the appellants
who were the defendants in the suit and who filed this appeal on December
19, 1959 that is after the new Act came into force are liable to pay Court-
fees under the old Act or under the new Act?
The preamble to the new Act recites that the Act was passed with the object
of consolidating and amending the law relating to the fees except those falling
under entries 77 and 96 of list I in the Seventh Schedule to the Constitution.
The principal difference between the old Act and the new Act is the new scale
of fees provided in the ad valorem fees and the withdrawal of the maximum
of Rs. 12,500 thereunder in the old Act and the substitution in its place of
unlimited fees chargeable under the last sub-clause of clause (1) of Schedule
I of the Act. It is not in dispute that the present memorandum of appeal is
a document falling under clause (1) of the first schedule and if the new Act
were to apply to it the fees chargeable of it would be Rs. 1240/- according
to the higher scale now provided.
Section 5(1) creates a disability against a document on which proper
fees are not paid for by providing that “no document of any of the kinds
specified as chargeable in the fact or second schedule to the Act annexed shall
be filed exhibited or received in any Court of Justice...unless in respect of such
document there has been paid a fee of an amount not less than that indicated
by either of the said schedules as the proper fee for such document”. The
memorandum of appeal being a document falling under clause (1) of the first
(1) 1953 S.C.R. 987 (2) (1905) A.C. 369 (3) (1930) 34 C.W.N. 1009
(4) 57 Bom.L.R. 180 (5) 49 Bom.L.R. 72 (6) 57 Bom.L.R. 294
(7) 1957 S.C.R. 488 (8) (1880), 52 Q.B.D. 170 (9) (1876) 3 Ch. D. 675
(10) (1906) 94 L.T. 831 (11) (1884), 12 P.B.D. 224 (12) 1956 S.C.R. 77

schedule, it is liable to be charged with the ad valorem fees specified therein.

It may be observed that section 5 falls under Chapter III which is headed
‘Computation of Fees’. Sub-clauses (2) and (3) provide for a machinery when
a difference of opinion arises between a suitor or his pleader on the one
hand and the officer whose duty it is to see that proper fees are paid under
the Act on the other. Chapter VI then deals with the ‘mode of levying fees’.
Section 36 in Chapter VI provides that “all fees shall be charged and collected
under this Act at the rate in force on the date on which the document
chargeable to court-fees is or was presented. The section thus provides that
whenever a document is presented the fees which shall be charged and collected
under this Act shall be at the rate in force on the date on which such document
is or was presented. The inclusion of this provision in the Act seems to have
been thought necessary in view of two other sections in the Act. Section 40
provides that no document which requires to bear a stamp under this Act shall
be of any validity unless and until it is properly stamped. It also provides that
if any such document is through mistake or inadvertence received filed or
used in any court without being property stamped the presiding Judge may order
such document to be stamped as directed by him and upon that being done
the same shall be as valid as if it was properly stamped in the first instance.
This section explains why in section 36 the words “was presented” occur. Thus
if a document was presented but through mistake or inadvertence was not
properly stamped at the rate in force on the date of its presentation the presiding
Judge can call upon such document to be stamped at the rate in force when
it was presented. Ordinarily when the Legislature had already provided in section
5 and the two schedules both the liability for payment of court-fees as also
the extent of that liability there would no longer be any necessity of again laying
down the rate of fees at which the chargeable documents are to be stamped.
It became necessary however to insert section 36 because of section 46 being
in the Act which enables the State Government to reduce or to remit from time
to time all or any of the fees mentioned in the two schedules. This powers
to vary the rates though only by way of reduction or remission in whole or
in part appears to have made the Legislature to enact in section 36 that the
fees to be charged and collected under section 5 and the two schedules shall
be at the rate in force on the date when the document chargeable thereunder
is or was presented. In the light of these two sections section 36 cannot be
regarded as argued by the learned Advocate General as a section simplicitor, for
the levying of court-fees under the new scale whenever a document is presented
after the Act comes into force. The object of enacting section 36 was to lay
down that court-fees shall be charged at the rate in force from time to time
in accordance with section 5 the two schedules and also in accordance with such
charges that may be made by the State Government under the power conferred
upon them by section 46 of the Act. From a reading of sections 5, 36 and
46 it is thus clear that the court-fees payable under the Act of 1959 are those
prescribed in the two schedules at the rate existing on the day when a document
was presented depending upon whether there was any reduction thereunder
or remission thereof at any particular time. Hence section 36 uses words,

“at the rate in force on the date on which the document chargeable to
court-fees is or was presented. But for section 46 there apparently was no
necessity of section 36 in the Act. No doubt such a power to educe or
remit was given to the appropriate Government under section 35 of the Act
of 1870 But the Legislature had not then thought fit to incorporate a section
similar to the present section 36 though there was section 25 in the earlier
Act which said that all fees referred to in section 3 or chargeable under this
Act (Italics are mine) shall be collected by stamps”.
Having made so much of the ground clear, I will now turn to section 49
of the new Act which has been the subject matter of controversy in this application.
It is obvious that but for section 49 which is both a repealing and a saving
section and in the absence of certain recognised principles laid down from time
to time in respect of a repealed statute and the substitution in its place by another
statute the general result would be that the new statute would came into force
from the date specified for its application. Secondly, a litigant would have to
pay court-fees prescribed under the new Court Fees Act as from the date of
its coming into force. The new Act provides a specific repealing and a saving
section and therefore it would be that section which would govern the extent
of repeal and also the saving of the repeated statute.
The principles governing the rights of parties in relation to a repealed
statute are so well settled as not to need any fresh inquiry. In Hoosein
Kasam Dada (India) Ltd. v. The State of Madhya Pradesh, 1953 S.C.R. 987
the Supreme Court confirmed the principle laid down in Colonial Sugar
Refining Co. v. Irving, (1905) A.C. 369 and held that the right of appeal
was a matter of substantive right and not a procedure right and that this
right becomes vested in a party when proceedings are first initiated in or before
the decision is given by the inferior Court and such a right cannot be taken
away restricted or impaired except by express enactment or necessary intendment.
In the case before the Supreme Court the right of appeal was not taken away
but an additional condition was imposed before that right could be exercised.
Dealing with that condition the Supreme Court approving the observations made
by the High Court of Calcutta in Nagendra Nath Bose v. Man Mohan Singha
Ray, (1930) 34 C. W. N. 1009 observed that the principle was the same whether
the statute in question purposed to deprive the litigant of the right of appeal
or to restrict or impair it. In that case a judgment-debtor applied to set aside
a sale which was held in execution of a decree against him. The application
was dismissed and he preferred an appeal against that order of dismissal. But
before he filed the appeal could be preferred the amount recoverable in execution
of the decree had to be deposited. The High Court held that this amendment
could not affect the right of the judgment-debtor to appeal under the old law
as the application to set aside the sale was made before the amendment came
into force. Two other decisions both of the High Court of Bombay; confirm
the same principle. They are particularly relevant as both of them deal with
the Court Fees Act. In the Reference under section 5 of the Court Fees Act
57 Bom.L.R. 180 the appeals and the cross-objections arose out of suits filed

for partition. These suits were filed prior to April 1, 1954 when Bombay Act
of 1945 came into force. When these suits were filed the Court-Fees paid were
Rs. 18-12-0 and that was on the assumption that suits for partition by a coparcener
when he was in constructive possession of the joint family property fell under
schedule 11 art. 17(vii) of the Court Fees Act. At one time the High Court
had taken the view that suits for partition fell under section 7(v) and therefore
the Court-fees would be payable on an ad valorem basis. But in Shanker Maruti
v. Bhagwant Gunaji, 49 Bom.L.R. 72 a Full Bench of that High Court took
a different view and after that decision the Court-fees ware payable on the basis
that suits for partition where the plaintiff was in constructive possession of a
joint family property fell under art. 17(vii) of schedule II. Act XII of 1954
by section 6 added a new sub-clause to section 7 which was sub-clause (via).
That sub-clause dealt suits for partition and provided that in suits for partition
and separate possession of a share of a joint family property or of joint property
whether or not the plaintiff is in actual or constructive possession of the property
of which he claims to be a co-parcener or a co-owner according to the value
of the share in respect of which the suit is instituted. The effect of this amendment
was to override the decision in Shanker Maruti v. Bhagwant Gunajis case and
consequently if the amendment applied to the appeals and cross-objections filed
then the court-fees would have to be paid on the basis laid down in the amendment
and not in accordance with that decision. It was held that art. 17 clause (vii)
of schedule II of the Court Fees Act 1870 levying enhanced court fees in suits
for partition of joint family property had no retrospective effect. Therefore where
a suit for partition of joint family property was filed before the amendment
but an appeal was file alter the date of this amendment a memorandum of appeal
or an application for cross-objections was not liable to enhanced court-fees.
Following the principle laid down by the Supreme Court in Hoosein Kasam
Dada (India) Ltd. v. The State of Madhya Pradesh it was held that a right
of appeal was not a procedural right but a substantive right. It was a right vested
in the litigant when he files a suit. An appeal was a continuation of the suit
and when a litigant filed a suit he had the right to continue the suit upto the
final Court of Appeal. That substantive or vested right cannot be taken away
unless the Legislature expressly intends that it should be so taken away. It is
not merely that a right of appeal cannot be taken away by a procedural enactment
which is not made expressly retrospective but the right cannot be impaired or
imperiled nor can new conditions be attached to the filing of the appeal nor
can a condition already existing be made more onerous or more stringent.
In Sawaldas Madhavdas v. Arti Cotton Mills Ltd., 57 Bom.L.R. 294,
the suits from which the appeals arose were filed before April 1, 1954. In
both the cases the appeals were filed by the defendants and the court-fees
which the appellants paid were the court-fees regulated by the amendment
to the Court Fees Act which came into force on April 1, 1954 On that
day the whole system of charging court-fees in the High Court of Bombay
on the original side was altered and instead of a fixed fee payable so far
on the plaint ad valorem fees became leviable as in the districts. The contention
of the appellants was that at the date when the suits were filed the court-fees
leviable was fixed fee. At the date they had a vested right of appeal and

that vested right was impaired by a higher burden being thrown upon them
for preferring an appeal to the High Court. It was urged that if they had paid
court-fees on the basis payable when the suit was filed the amount would
have been much less than what was payable on that day and therefore in
increasing the burden the right of appeal had been impaired. It was therefore
argued that the Court Fees Act should not be given retrospective effect and the
amended Court Fees Act should only apply to appeal which are preferred in
suit filed after April 1, 1954 Relying upon the earlier decision. In the Reference
under section 5 of the Court Fees Act, the High Court held that there was no
distinction between the case of a plaintiff and the case of a defendant that the
right of appeal vested both in the plaintiff and the defendant at the date when
the proceedings were initiated or the suit was filed. The State of Bombay went
into appeal against the decision but the Supreme Court confirmed the decision
and after reviewing the existing decisions held that “there can be no doubt that
the right of appeal has been affected by the given decision and in the absence
of any express enactment this amendment cannot apply to proceedings pending
at the date when the new amendment came into force. It is true that the appeal
was filed after the Act came into force but that circumstance was immaterial
for the date to be look into for this purpose was the date of the original proceeding
which eventually culminated in the appeal”. Earlier in Garikapatti Veeraya v.
N. Subbiah Choudhary, 1957 S.C.R. 488, the Supreme Court had already laid
down the principle in general terms and it was clear that the benefit of that
principle must apply both to the plaintiffs and the defendants alike. The Supreme
Court also held that the vested right of appeal was a substantive right and although
it could be exercised in case of an adverse decision it was governed by the
law prevailing at the time of the commencement of the suit and comprised all
successive rights of appeal from Court to Court which really constituted one
proceeding. Such a right could be taken away only by a subsequent enactment
either expressly or by necessary intendment.
The principles emerging from these decision are :-
1. that a litigant has a vested right of appeal and that such a right becomes
vested in him from the date when proceedings are initiated,
2. that such a vested right of appeal is governed by the law as it stood at
the commencement of the proceedings and
3. that though the Legislature is competent to lay down restrictive condition
to such a right it being a substantive right the Legislature can do so only
by express words or by necessary intendment.
The contention of the appellants was that the suit against them having
been filed before August 1, 1959, when the new Act came into force they
had a vested right of appeal and that right could not be restricted or
impaired by a demand for higher court-fees. They also contended that sec. 49
of the Act did not contain any language indicating that the Legislature
while enacting it wanted to give it retrospective effect. The section therefore
not being retrospective the appellants were liable only to court-fees on the
earlier scale and not on the new scale. Any demand for higher court-fees
was a restriction or an impairment to the vested right of appeal of the

appellants. In view of the settled principles emerging from the aforesaid

decision no exception can be taken to these contentions if the learned Advocates
for the appellants were to be right that section 49 of the 1959 Act is
not retrospective.
Sub-section (1) of section 49 with which I am concerned in this application
falls into three parts :- The first part deals with the repeal of the laws specified
in column 3 of schedule IV annexed to the Act. Since the suit in this case
was filed in the Court at Morbi Saurashtra the Act repealed by sub-section (1)
of section 49 is the Court Fees Act of 1870 as applied in that area by the
State of Saurashtra (Application of Central and Bombay Acts) Ordinance 1948
The effect of sub-section (1) is clearly to repeal that entire Act. The sub-section
is then followed by two provisos the first one being clearly a saving clause.
That proviso runs as follows :-
“Provided that such repeal shall not affect the previous operation of any of
the laws so repealed and anything done or any action taken (including any
appointment notification order rule form application reference notice report or
certificate made or issued under any such law shall in so far as it is not inconsistent
with the provision of this Act be deemed to have been done or taken under the
corresponding provision of this Act and shall continue to be in force accordingly
unless and until superseded by anything done or any action taken under this Act.”
It was argued by the learned Advocate General that the Legislature had
deliberately used only the words “previous operation of any of the laws so
repealed” and had not repeated the language used in section 7 of the Bombay
General Clauses Act 1904 while enacting this saving clause. Thus whereas section
7 of the Bombay General Clauses Act while dealing with the effect of repeal
of a statute provides that unless a different intention appears the repeal shall
not amongst other things affect the previous operation of any enactment that
is repealed or affect any right privilege obligation etc. accrued or incurred in
any enactment the present section is content by saving only the previous operation
of the laws repealed. He argued that therefore the words “previous operation”
do not save the vested right of a litigant, for, if the Legislature had wanted
to save them it would have used the same language in this proviso as in section
7 of the Bombay General Clauses Act. It was also contended by him and rightly
that section 7 of the Bombay General Clauses Act did not apply in this case
in as much as the Legislature was at pains to insert a specific proviso so as
to indicate its intention of how much and no more it wanted to save.
The learned Advocate General argued that the first proviso to section 49
clearly indicated that the only thing saved thereby was the previous operation
of the Act repealed but not the rights accrued to the parties thereunder and
therefore this in itself was an indication that the new Act was retrospective.
He next argued that this position was made clear by the second proviso which
lays down as follows :-
“Provided further that all the fees shall be charged and collected under this Act
at the rate in force on the date on which the document chargeable to court-fees is
or was presented.”
According to the construction suggested by the learned Advocate General
the second proviso would mean that even though the previous operation of
the repealed Act was saved under the first proviso the court-fees shall

be charged at the rate in force on the date of the presentation of a document.

There again he argued the Legislature had shown its intention not to respect
any vested right accrued under the repealed Act.
In order to appreciate these contentions it is necessary to remember some
of the well established principles of construction. In Mullins v. Surrey Treasurer,
1880 52 Q.B.D. 170, Lush J. said that when one finds a proviso to a section
the natural presumption is that but for the proviso the intended part of the section
would have included the subject matter of the proviso. In other words the effect
of a proviso according to the ordinary rules of construction is to except out
of the earlier part of the section something which but for the proviso would
be within it. In Fryer v. Morland, (1876) 3. Ch. D. 675, Jessel M. R. dealing
with the construction of an exception observed in construing an Act of Parliament
when we find provisions put in by way of precaution not absolutely required
it is by no means necessary to infer that because these provisions are put in
therefore everything not included in the exception is to be included in the general
proviso which we find in the Act of Parliament and which by itself would not
include the thing excepted. Similarly in McLaughlin v. West Gath, (1906) 94
L. T. 831, it was held that in the construction of a statute it is not to be assumed
that all persons not specifically included in a protecting clause are for that reason
excluded from the protection of the section. In Garikupatti v. N. Subbiah
Choudhary, 1957 S. C. R. 488 the Supreme Court at page 515 approvingly cited
the observations made in Hough v. Widdus, (1884) 12 Q.B.D. 224 at 237 that
“statutes should be interpreted if possible so as to respect vested rights”.
The question then is what is exactly that the Legislature has saved by the
first proviso to sub-section (1) of section 49 As I have said the enacted part
of sub-section (1) of section 49 repeals amongst other Acts the Court Fees Act
1870 as applied to Saurashtra. Having repealed that Act entirely the Legislature
by the first proviso desired to carve out an exception. That intention must be
given full effect to. The first proviso is a composite one for it contains both
a saving clause and a legal fiction. By the first it saves the ‘previous operation’
of the Act repealed and by the second it enacts that anything done or any action
taken etc., under the repealed Acts shall be deemed to have been done or taken
under the corresponding provision of this Act. What is then meant by the words
‘previous operation’ of the repealed Act. In their plain meaning the words
‘previous operation’ would mean the operation of the Court Fees Act of 1870
prior to August 1, 1959, when that Act was repealed and ceased to have any
effect. Until then its operation created certain consequences which must be
taken to be part and parcel of that operation and this must mean and include
rights of litigants arising from and accrued due as a result of its operation. It
is obvious that part of the operation of the Act meant that a suitor shall pay
court-fees at a certain rate which would mean that a suitor had a right of carrying
through his litigation in all the successive stages on payment of court-fees
prescribed under that Act and no more. I cannot think of any other meaning
and none has been suggested to me by the learned Advocate General which can
be given in the present context to the words ‘previous operation’. In my view
therefore these words must be construed as including vested rights that accrued

to the litigants by reason of the previous operation of the repealed Act. The
mere fact that sec. 49 of the Act did not incorporate the entire language of
sec. 7 of the General Clauses Act does not in the present case mean that
the Legislature wished to deprive the suitors of the rights which had accrued
to them under the repealed Act. As against this construction the learned Advocate
General relied upon the decision of the Supreme Court in Indira Sohanlal
vs. Custodian of Evacuee Property Delhi & others, 1956 S. C. R. 77. The
Supreme Court in that decision was concerned with the construction of section
58 of the Administration of the Evacuee Property Act, 1950 (Act XXXI of
1950) which came into force on April, 17 1950. The appellant there was a
displaced person from Lahore and was the owner of a house known as 5,
Danepur Road. Malik Sir Firoz Khan Noon of West Pakistan owned a large
tract of agricultural land in Punjab Khore within the State of Delhi. On October
10, 1947, there was an oral exchange between them in pursuance of which
the appellant took certain agricultural lands in place of the house and was
put in possession of these lands. Under section 5-A of the East Punjab Evacuees’
(Administration of Property) Act, 1947, as applied to the State of Delhi such
a transaction required confirmation by the Custodian. On February 23, 1948,
the appellant made an application to the Additional Custodian of Evacuee Property
Delhi for confirmation of the above transaction of exchange and of the consequent
transfer to her of the agricultural lands. The application was for one reason
or the other not disposed of by the Additional Custodian until March 20, 1952,
After the order confirming the exchange was passed by the Additional Custodian
the appellant filed an application on May 5, 1952, asking to be placed in
possession and for a warrant of delivery of possession to be issued against
certain attottees and tenants of the land. At this stage a notice under section
27 of the Central Act XXXI of 1950 was issued by the Custodian General
to show cause why the order dated March 20 1952 of the Additional Custodian
in her favour confirming the exchange and the other consequential and incidental
orders should not be set aside. On May 20 1953 the Custodian General set
aside the order of confirmation and directed the Custodian to decide the case
after giving notice to all those who might be affected by the confirmation
of this transaction. It will be observed that before the order of confirmation
was passed Act XXXI of 1950 has been enacted under which the appointment
of the Custodian General with powers of appeal and revision as against the
orders of Provincial Custodians was provided for. Sections 5 and 6 of Act
XXXI of 1950 amongst other things authorized the Central Government to
appoint a Custodian General of Evacuee Property. The Act also provided an
appeal to the Custodian General where the order had been passed by a Custodian
or an Additional Custodian or an authorized Deputy Custodian. There was no
doubt that the transaction of exchange required confirmation. By section 58
of Act XXXI of 1950 the Administration of the Evacuee Property Ordinance
1949 was repealed. Sub-section (3) of section 58 upon which the learned Advocate
General has relied upon ran as follows :-
“(3) The repeal by this Act of an Administration of Evacuee Property Ordinance

1949, (XXXII of 1949)........shall not affect the previous operation thereof and
subject thereto anything done or any action taken in the exercise of any power
conferred or under that Ordinance shall be deemed to have been done or taken
in the exercise of the powers conferred by or under this Act as if this Act was
in force on the day on which such thing was done or action was taken.”
On a construction of this sub-section the Supreme Court held that this sub-
section indicated the effect of the repeal both in negative and in positive terms.
The negative portion of it relating to, ‘the previous operation’ of the prior
Ordinance appears to have been taken from section 6(b) of the General Clauses
Act, while the positive portion, a ‘deeming’ provision was quite contrary to what
is contemplated under that section. Under the General Clauses Act the position
in respect of matters covered by it would have to be determined as if the repealing
Act had not been passed while in respect of section 58 of the Central Act XXXI
of 1950 the position so far as the positive portion is concerned has to be judged
as if the repealing Act were in force at the earlier relevant date. Section 6 of
the General Clauses Act cannot therefore be called in aid in cases governed by
section 58(3) of the Act XXXI of 1950. Regarding the effect of the enactment
of Act XXXI of 1950 Their Lordships held that where an application under
section 5-A of the East Punjab Evacuees (Administration of Property) Act 1947
for the confirmation of transfer of evacuee property was still pending on the
date when the Central Act XXXI of 1950 came into force it had to be deal
with and disposed of under the latter Act and the order of confirmation passed
thereon in 1952 would clearly be subject to the revisional power of the Custodian
General under section 27 of the said Act. On behalf of the appellant however
it was urged that on the filing of the application in 1948 the appeal got a vested
right to have it determined under section 5-A with the attribute of finality and
conclusiveness under section 5B of the East Punjab Evacuees (Administration
of Property) Act 1947 attaching to such determination. It was urged that this
followed from the previous operation of the original law and was in consonance
with the principles laid down by the Privy Council in (1905) A.C. 369. This
contention was negatived by the Supreme Court on the ground that the decision
in (1905) A.C. 369 related to the case of a right of appeal against an order
passed or to be passed in a pending action; that such a right was an existing
right at the date of the repeal of the previous statute and that therefore the
suitor could not be retrospectively deprived of it except by express words or
by necessary implication. Their Lordships also held that by the very terms of
section 5-B of the East Punjab Evacuees (Administration of Property) Act XIV
of 1947 finality attached to it on the making of the order and that even if
there be in law any such right at all as the right to a determination with the
attribute of finality it can in no sense be a vested or accused right. In any
event it would not until determination was in fact made when alone the
right to finality would become an existing right. They also held that such
an alleged right could not be brought under the ambit of the phrase ‘previous
operation’ of the repealed law for the contention on behalf of the appellant
meant no previous operation of the repealed law but the further operation of
the previous law. Therefore there was no justification for such a construction.
Now, I fail to see how the decision in this case can possibly be invoked by

the learned Advocate General in support of the construction proposed by

him. What the Supreme Court in this decision held was that suitor had no
vested right in having a finality to a decision made under a provincial statutes
when the Central Act was enacted and came into force while the proceeding
was still pending. Besides the language used in section 58 of the Central Act
XXXI of 1950 relied upon by the learned Advocate General is considerably
different from the language used in the first proviso to section 49 (1) of the
present Act. In my view this decision is not applicable to the facts of this case
and therefore cannot avail the learned Advocate General.
In constructing a section of a statute and endeavour should be made to give

a meaning as far as possible which brings about harmony and consistency to
all its component parts. The scheme of sub-section (1) of section 49 is that
its first part the enacting part repeals the Acts specified therein. The first proviso
is a saving section making exception to certain things from a general repeal
and then follows the second proviso. It was argued, as I have already mentioned
by the learned Advocate General that the second proviso by necessary intendment
takes away the vested right of a litigant to file an appeal on payment only of
court-fees which he was liable to pay at the date when the proceedings were
initiated that is to say such court-fees as he was liable to pay under the earlier
Act. But if the construction of the second proviso as suggested by the learned
Advocate General were to be accepted it would bring about contrary to all rules
of construction an inconsistency between the two provisos a result which as far
as possible must be avoided. The first proviso saves the previous operation of
the repealed Act which as I have held must include rights already accrued
thereunder in consequence of and as flowing from the operation of that act.
Having saved those rights the Legislature surely cannot be attributed the intention
of saving these rights by one hand and taking them away by the other.
The Legislature by sec. 36 already provided that all documents shall
be charged at the rates prevailing at the date of their presentation. Having
done that it was no longer necessary for it to provide the very same thing by
the second proviso to section 49 (1). Obviously it included the second proviso
ex-majori cautela though it was strictly speaking not necessary to do so.
The second proviso therefore cannot be construed as an exception to the
first proviso which in itself is an exception to the first part of sub-section. The
meaning suggested by the learned Advocate General that it is an exception to
an exception would in my view create an inconsistency between the first
and the second proviso rendering the first proviso nugatory. That surely cannot
be the intention of the draftsman who framed the section. The interpretation
that I seek to put on sub-section (1) of section 49 and the two provisos contained
in it makes all its component parts consistent with each other all forming
into one complete enactment on the subject of the liability of a litigant to-pay
court-fees. This view of the section makes it clear that a party to a proceeding
which was initiated before August 1, 1959, when the new Act came into
force has a vested right to carry through that litigation in all its successive stages
on payment of court-fees which were payable at the date of the commence-
ment of such proceeding. In my view that right has not been taken away

1960] JIVANSINHJI v. DEVUBHAI (C.R.)-Desai, .J. [219
by Section 49 nor can that section be construed to have retrospective effect by

express words or by necessary intendment.
In this view the order passed by the Taxing Officer must be set aside. No
order as to costs. Order set aside.
* * *
CIVIL REVISION
and the Hon’ble Mr. Justice P. N. Bhagwati
JIVANS1NHJI TAKHATSINHJ1 v. DEVUBHAI MADHAVSINHJ1*
Saurashtra Agricultural Debtors’ Relief Act, (1954)- Sec. 2(5) and (6)-
Interpretation of the expression “Debtor” in context of debt or debts incurred
by undivided Hindu family-Whether application regarding another debt by
one branch of family can affect the joint application.
A and B members of an undivided Hindu family, mortgaged some of their
properties with C to secure a loan of Rs. 15.000/- in 1923. In 1927 they created a
second mortgage on the same properties in favour of C to secure a further loan of
Rs. 2275/- (A had taken a separate loan also from C). Both mortgages were created
for the joint family purpose. After death of A and B an application was made by
sons of A and B for adjustment of the debts under the provisions of S.A.D. Relief
Act, 1954. It was stated in the application that their liability was joint. Liability
was not divided as a joint and several one. Another application was preferred for
adjustment of debts by the heirs of A only. It related to the debts of three brothers
as heirs of A. Aggregate amount of debts shown therein was Rs. 11050/-. The
amount was in respect of debts of the sons of A only as members of an undivided
Hindu family. Two applications were consolidated by the Court which framed a
preliminary issue viz “whether the applicants in the two applications were debtors
or not. Trial Court held that they were debtors within the ambit of the Act, as the
aggregate amount of each unit did not exceed Rs. 25.000/-. The learned District
Judge Madhya Saurashtra took view that sons of A were liable for the entire
amount of both the mortgages and also for the amount Rs. 11050/- shown in the
second application, and hence total debts exceeded Rs. 25.000/-, and therefore,
trial Court had no jurisdiction to adjust their debts. In the revision application
before the High Court by sons of A and B the order of District Judge was challenged
on the ground viz. (1) that the aggregate amount of two mortgages should have
been divided in two parts and heirs of A should have been held to be debtors only
in respect of a mortgage of the aggregate amount of Rs. 17,275/- and (2) secondly
that the first petition by sons of A and B can only be regarded as one by the unit
constituted by members of the original family of two deceased brothers and the
other application by sons of A could only be regarded as members of undivided
Hindu family constituting another unit.
HELD, negativing the first contention, that reading two sub-sections (5) and (6)
of Section 2 together of Saurashtra Agricultural Debtors’ Relief Act, 1954, a debtor
can be an individual or an undivided Hindu family as an unit but in either case
the total debts of the individual or the unit, as the case may be, must not exceed
Rs. 25.000/- on the date of the filing of the application to the Board under the Act.
Further held, upholding the second contention, that looking to the
nature of the application the first application was made by the
applicants as constituting one unit and the second application was made
*Decided on 5-8-60. Civil Revision Application No. 80 of 1960 against the
judgment of District Judge, Madhya Saurashtra who in appeal reversed the
judgment of the trial Court in application No. 204 of 1955.

by some of them as constituting another unit and so the applicants, in two cases
could be regarded as ‘’debtors” within the ambit of‘ the Act.
Mr. A. R. Baxi with Mr. J. R. Nanavaty for the Petitioners.
Mr. M. U. Shah, for Opponents 2 and 3.
Mr. T. N. Shah, for Opponent No. 5.
S. T. DESAI C.J. This petition raises an interesting question and one
of some importance relating to the interpretation of the expression debtor
in Section 2(6) of the Saurashtra Agricultural Debtor Relief Act, 1954 in thes
context of debts or debt incurred by an undivided Hindu family.
The facts require to be stated in some detail. Takhatsinh and Madhavsinh
were two girasdars who were members of an undivided Hindu family. On
24th October, 1923 they mortgaged some of their properties with the firm of
Mehta Dhanji Tejshi who are the second opponent before us. The mortgage
was to secure a loan of Rs. 15000/-. On 1st April, 1927 they created a
second mortgage on the same properties in favour of the same creditors to
secure a further advance of Rs. 2275/-. Both the mortgages were created for
joint family purpose. After the death of the two brothers an application was
made by their sons for adjustment of their debts under the provisions of the
Saurashtra Agricultural Debtors Relief Act to be referred to hereafter by us as
the Act. That application was registered as No. 304 of 1955. In that application
they stated (ík{k{ ËuýËkLke MktÞwfík)sðkçkËkhe that the liability of the sons of both
Takhatsinh and Madhavsinh was a joint liability. It is to be noted that the liability
was not described as a joint and several liability or as a several liability. Two
mortgage-creditor firms filed their claims in accordance with the provisions of
the Act and set out the names of all the sons of Takhatsinh and Madhavsinh
as debtors describing them as the heirs of Takhatsinh and Madhavsinh. In the
column relating to the details of the debt they described the sons of the two
brothers as (ËuýËkhku) their debtors.
Another application for adjustment of debts under the Act was preferred
only by the heirs of Takhatsing. That application related to the debts of
the three brothers as heirs of Takhatsinh. It is not disputed nor is it
disputable that the aggregate amount of the debts there shown as Rs. 11,050
in respect of the debts of the sons of Takhatsinh as members of an undivided
Hindu family. The Court of first instance consolidated the two matters
and framed a preliminary issue and the preliminary issue was whether the
applicants in the two applications were debtors or not. That they were agriculturists
was not in dispute but the dispute was whether the debts of the applicants
exceeded Rs. 25000/- on the date of the filing of the two applications to
the Board under Section 4 of the Act. The trial Court reached the
conclusion that the applicants in the two applications could be regarded as
debtors within the ambit of the Act and that was on the ground that the
aggregate amount of their debts did not exceed Rs. 25000/-. In the view we
take of the matter it is not necessary in this revision application to refer to
one or two other contentions of the debtors which were considered by the
Courts below. The trial Court having found that it had jurisdiction to adjust

1960] JIVANSINHJI v. DEVUBHAI (C.R.)-Desai, .J. [221
the debts of the applicants made an award and proceeded to take accounts
for the purpose of scaling down the debts of the debtors.
The creditors appealed against that decision and in appeal the learned
District Judge Madhya Saurashtra took the view that the sons of Takhatsing
were liable for the entire amount of the mortgages and also for the amount
of Rs. 11,050/- shown in the second application and therefore their total debts
exceeded Rs. 25000/-. Being of that view the learned Judge held that the trial
Court had no jurisdiction to adjust the debts of the applicants and the applicants
have come to this Court on this revision application.
It has been firstly argued before us by Mr. Nanavati learned advocate for
the petitioners who are the heirs of Takhatsing that the learned District Judge
was in error in holding that the whole amount of debts due on the mortgages
aggregating to Rs. 17,275/- was a debt due from the sons of Takhatsing to the
mortgagee-creditor firm. The argument is that on a proper interpretation of section
2(6) the aggregate amount of the two mortgages should have been divided into
two parts and the heirs of Takhatsing should have been held to be debtors only
in respect of a moiety of the aggregate amount of Rs. 17,275 It will be convenient
to set out here the definitions of debt and debtor in the Act :-
“2(5) ‘debt’ means any liability in cash or kind whether secured or unsecured
due front a debtor whether payable under a decree or order of any Civil Court
or otherwise and includes mortgage money the payment of which is secured by
the usufructuary mortgage in the nature of PURA-CHHOOT of immoveable
property but does not include arrears of wages payable in respect of agricultural
or manual labour;
(6) Debtor means an agriculturist
(i) whose debts do not exceed Rs. 25 0 on the date of filing an application
to the Board under section 4; and
(ii) (a) in the case of an individual whose annual income from sources other
than agriculture and manual labour does not exceed 33 per cent of his
total annual income or does not exceed Rs. 1 800 whichever is greater;
(c) in the case of an undivided Hindu family whose annual income from
sources other than agriculture and manual labour does not exceed 40 per
cent of its total annual income and the aggregate of such incomes of whose
members does not exceed Rs. 5,400;
Provided that a person whose debts of a commercial or industrial nature from
a substantial part of his total debts shall not be considered to be a debtor. The
decision of the Board whether debts of an industrial or commercial nature from
a substantial part of the total debts shall be final.”
On the other hand it has been argued by Mr. M. U. Shah learned Advocate
for the opponents 2 and 3 that there is nothing in the definition of debt or
debtor which may permit any such meaning being ascribed to the expression
debtor. It is said that a debtor may be an individual or the debtor may be a
unit consisting of members of an undivided Hindu family but whether an
individual or of the nature of a unit in the form of an undivided Hindu family
it is the entire debt which has to be taken into consideration while determining
whether the aggregate amount of the debt exceeds Rs. 25000/- or not.
There is in our opinion substance in this argument urged on behalf of
the opponents sub-clauses (a) and (b) of clause (ii) of section 2(6) go clearly
to indicate that a debtor may be an individual or a unit constituted by
members of an undivided Hindu family in the case of undivided Hindu

family in applying the test of annual income a different standard has been
laid down by the Legislature in terms express and explicit. In the case of
an individual he can be regarded as a debtor if his total annual income does
not exceed Rs. 1800/or fulfills the other test of 33 per cent of the total income.
In the case of an undivided Hindu family in order that it may be regarded
as a debtor its aggregate income must not exceed Rs. 5400/- or it must fulfill
the test of 40 per cent of the total income. Now when we turn to clause
(i) of section 2(6) we do not find any such provision permitting of any different
standard in the case of an individual and in the case of an undivided Hindu
family. In our opinion therefore there is intrinsic evidence in the sub-section
itself which throws a flood of light on the first question which is raised for
our determination. Reading the two sub-sections (5) and (6) of section 2 together
we are led to the inevitable conclusion that under clause (i), a debtor can
be an individual or an undivided Hindu family as a unit but in either case
the total debts of the individual or the unit as the case may be must not
exceed Rs. 25000/- on the date of the filing of the application to the Board
under section 4. To accede to the argument of Mr. Nanavati on his aspect
of the case would be to wrest the language of the definition which of course
it is not open to this Court to do. It may be that in a given case this interpretation
may result in hardship or even some anomalous situation but that is not a
consideration which can over-ride the plain natural and grammatical meaning
of the language of sub-section (6), which as we read it is not capable of
more than one meaning. There is nothing uncertain or ambiguous about the
language of that part of the definition with which we are concerned. For all
these reasons the present contention pressed for our acceptance by Mr. Nanavati
must be negatived.
It is next urged by learned advocate for the petitioners that the first petition
was by the sons of Takhatsing and Madhavsing and that application can only
be regarded as one by the unit constituted by members of the original family
of the two deceased brothers. The other application it is said was by the sons
of Takhasting and that could only be regarded as an application made by the
three brothers as members of an undivided Hindu family constituting another
unit. The argument has proceeded that the units in the two cases are Dot the
same and the Court below was in error in regarding the two applications as
if they were made by the same unit.
It has been argued on the other hand by Mr. M. U. Shah that the
applicants had described themselves as persons jointly and severally liable in
case of both the applications. It is true that there are some observations in
the judgment of the appellate Court which may support this argument but
as we have already pointed outs in the first application the applicants did
not state that they were jointly and severally liable but what they stated
was that they were jointly liable and that could only be on the footing of
their being members of an undivided Hindu family. It is next urged by
Mr. Shah that the definition of debtor states that a debt includes mortgage
money any mortgage money would be the entire amount and one sum and
the mortgagor it is said must also be regarded as one unit. We agree that
such can be the position. It is then said that the heirs of Takhatsing must

1960] GIRDHARLAL v. AHMED. MUN. CORP. (S.C.A.)-S. T. Desai, C..J. [223
be regarded as one and the same unit in the case of both applications
because they were liable as the heirs of Takhatsinh in respect of the
mortgage debts as well as the debts which are the subject matter of the
second application.
The submission is not well-founded. What we have to consider is not whether
in both cases the applicants included the sons of Takhatsinh but in what capacity
were the applications made by them. The first application was by the sons of
Takhatsinh as well as Madhavsing and they all as we have already mentioned
must be regarded as persons who had applied for adjustment of their debts as
one unit. In the second case, no doubt it was the sons of Takhatsinh who as
a unit applied for adjustment of their debts but that was a unit consisting of
a joint Hindu family of which they alone were the members and could be regarded
as debtors. The sons of Madhavsinh had nothing to do with that debt. We are
not really concerned on this revision application with the question of any
separation or partition of jointness regarding the applications. What we are
concerned with is the nature of the two applications and in our judgment the
first application was made by the applicants as constituting one unit and the
second application was made by some of them as constituting another unit.
For all these reasons, we are of the opinion that the Court below was in
error in allowing the appeal. That decision will be set aside. The decision on
other points by the lower appellate Court will stand. The matter will go back
to the Board for taking accounts in accordance with law. There will be no order
for costs.
Petition allowed.
* * *
GIRDHARLAL GANPATRAM v. THE AHMEDABAD MUNICIPAL
CORPORATION*
Bombay Municipal Corporations Act, 1949 (LIX of 1949)- Sec. 210(1)(b)-
Change in street line-Power of Municipal Commissioner-Whether previous
sanction of Standing Committee necessary-Notices without such sanction void
-Street line prescribed under Bombay Municipal Boroughs Act, 1925 to be
deemed as street line prescribed under the Act of 1949-Doctrines ‘pari materia
and ‘fictio juris’.
Before passing an order making a change in the whole or a part of the existing
street line, it is incumbent on the Municipal Commissioner to obtain the previous
approval of the Standing Committee of the Corporation under Section 210(1)(b) of
the Bombay Municipal Corporations Act, 1949. It is also necessary that before
such approval could be accorded the procedure laid down in the provision to clause
(b) of the said sub-section relating to notices and objections, should, have been
*Decided on 9-8-1960, Special Civil Application No. 329/60 under Art. 226, Consti
tution of India for a writ setting aside the notice dated 22-6-56 issued by the
Commissioner, Municipal Corporation and notices dated 20-6-60 issued by the Deputy
Municipal Commissioner.

complied with. Notices issued, therefore, under Sec. 212 of the Act to acquire
the land and remove the structure thereon, without following the prescribed
procedure were void as not being in accordance with the provision of the Act.
The Municipal Commissioner’s powers to prescribe a street line on his own under
clause (a) of Sec. 210(1) of the Act is circumscribed to the extent that if any change is
to be made in any ‘deemed’ line which is operative for the purposes of the Act, he must
seek approval of the Standing Committee before effecting any change.
The street line prescribed and operating under the Bombay Municipal
Boroughs Act, 1925, is to be regarded as the street line in operation for the
purposes of the Act of 1949, as actually demarcated and prescribed by the
Commissioner under clause (a) of Section 210 (1) of the Act.
Shankar Dattatraya v. The Municipal Corporation of the City of
Bombay (1), distinguished.
East End Dwellings Ltd. v. Finbury Borough Council (2), Slate of
Bombay v. Pandurang (3), referred to.
The facts appear in the Judgment.
Mr. A. H. Mehta, for the petitioner.
Mr. S. B. Vakil, for the respondent.
Mr. J. M. Thakore, Advocate General, by notice.
S.T. DESAI C.J. This is a rule taken out at the instance of the petitioner
against the respondent, the Ahmedabad Municipal Corporation for an appropriate
writ, order or direction under Article 226 of the Constitution quashing and setting
aside several notices issued by the respondent calling upon the petitioner to
demolish and remove that portion of his property coming within the roadline
within seven days of the receipt of the notices and to keep the land underneath
open. The petition gives rise to a contention which lies in a narrow compass
but our decision, we are informed and verily believe, will affect some other
cases of the same nature. The petitioner is the owner of property bearing survey
numbers 4225, 4225-B, 4224, 4224-B, 4224C, 4222 and 4223 situate in Jamalpur
Ward of the city of Ahmedabad. The property is a four-storeyed building and
the petitioner and the members of his family reside in the same. There are four
shops on the ground floor of the building. On 22nd June, 1956 the respondent
Corporation issued a notice under Sec. 212(1)(b) of the Provincial Municipal
Corporations Act, 1949 to be referred to by us hereafter as the Act, calling
upon the petitioner to show cause why the land bearing the stated survey numbers
should not be acquired and removing the structure thereon as the said structure
was within the roadline demarcated by the respondent. The petitioner filed his
objections to the same challenging inter alia the legality of the notice and the
legality of the position of the alleged roadline. Nothing appears to have been
done by the Corporation till 20th June, 1960 when it issued notices calling upon
the petitioner to remove the structure within seven days of the receipt of the
same and to clear the space. These latter are the notices which are challenged
on this petition. Various contentions have been raised by the petitioner in
his petition. His principal contention and one which has been passed before
us is that the Commissioner of the respondent Corporation has imposed and
(1) (1946) 48 Bom.L.R. 434 (2) (1952) A. C. 109 (3) (1953) S.C.R. 773

demarcated the roadline relied on by the respondent without following the

proper procedure laid down in section 210(1)(b) of the Act. The contention is
that the proper procedure required the Commissioner to obtain approval of the
Standing Committee of the Corporation before making any change in the
existing roadline. It is said that no public notice of the proposal to impose the
change in the roadline was issued by the Commissioner by advertising in local
newspaper nor was any notice of the proposed change in the roadline put in
the street or part of street for which the change in the roadline was proposed
to be prescribed. It is further said that no objections were invited to the proposed
change in the roadline as required by section 210. Succinctly stated the case
of the petitioner is that the Commissioner had no power to impose the change
in the roadline complained of by the petitioner and as he admittedly failed to
obtain the previous approval of the Standing Committee to the proposed change
the notices served on the petitioner are void and inoperative in law and should
therefore be quashed by an appropriate writ or order of this Court. It is also
the case of the petitioner in the petition that sections 211 and 212 of the Act
are ultra vires Articles 19 and 31 of the Constitution. It is unnecessary to give
a resume of the petitioner’s case on this aspect since Mr. A. H. Mehta learned
Advocate for the petitioner has not pressed the same before us.
In opposition to the rule the Commissioner of the respondent Corporation
has filed an affidavit in which he has denied the correctness of the contention
raised in the petition. According to him the notices issued under section 212
were legal. He has stated in his affidavit that there was and is a roadline upon
the building of the petitioner and that the same is legal. To his affidavit he
has annexed a sketch to which we shall turn a little latter. Another affidavit
has been put in on behalf of the respondent Corporation for the purpose of
giving the Court a clear and complete idea of the roadline of the Gandhi Road
formerly known as Richey Road. That road it is common ground proceeds from
Panchkuva Gate to Bhadra. To the latter affidavit is annexed a plan of the roadline
to use the terminology of the Act itself the regular line of the street. The plan
relates to the entire roadline demarcated under the Act of 1925 and is in four
sections. There was a roadline for Gandhi Road (Richey Road) prescribed
under section 111 of the Bombay Municipal Boroughs Act 1925 and as we shall
presently point out section 210 has the effect of laying down that that roadline
is to be deemed to be a street line for the purpose of the Act of 1959. In
his affidavit the Commissioner has stated that there was roadline already
prescribed it was not necessary to inform the petitioner or to give a notice to
him or any opportunity to him of filing any objections when the change or
alteration in the roadline was made. In paragraph 5 of his affidavit he has
stated “I state that a roadline was formerly prescribed...............The said
roadline have been shown in red in the Ferrow Plan No. 234 annexed to the
order No. E.R. L. 234 passed by the former Municipal Commissioner of the
respondent to hereinafter stated”. He has also stated in affidavit that is was
found that on account of heavy traffic it was necessary to widen the traffic
circles or islands and for that purpose to revise the roadline crossing inter alia,
the survey numbers of the petitioner. There is not doubt and in course of
arguments before us it has not been disputed that the purpose of the change

made by the Commissioner was to widen me traffic circle for the purpose of
helping and controlling traffic at the crossing of Gandhi Road and Danapith
Road which proceeds from Danapith towards Delhi Gate. A look at the map
before us clearly shows the necessity for the proposed changes in the roadline
since it is clear that the proposed changes if effect be given to them will open
up the bottle-necks mentioned in the affidavit of the Commissioner. But we are
not concerned on this petition with the necessity and propriety of effecting changes
in the roadline. What we are concerned with is whether the Commissioner in
prescribing the change in the roadline challenged on this petition was acting
within the scope and ambit of his powers. It is of significance to mention that
in his affidavit the Commissioner has accepted that he did not obtain the approval
of the Standing Committee before prescribing the changes in the roadline which
is of the crux of the matter. His case however is that in demarcating that change
or alteration in the roadline he was acting within the scope of his authority
and that he was not bound under the Act to obtain the previous approval of
the Standing Committee before doing so.
In order to appreciate the arguments advanced before us it will be convenient
to set out here the material and relevant part of section 210 :-
“210 (1) The Commissioner may
(a) prescribe a line on one both sides of any public street; provided that every
regular line of a public street operative under any law for the time being
in force in any part of the City on the day immediately preceding the
appointed day shall be deemed to be a street line for the purpose of this
Act until a street line is prescribed by the Commissioner under this clause;
(b) from time to time but subject in each case to the previous approval of
the Standing Committee prescribe a fresh line substitution for any line
so prescribed or for any part thereof Provided that such approval shall
not be accorded unless at least one month before the meeting of the
Standing Committee at which the matter is decided public notice of the
proposal has been given by the Commissioner by advertisement in the
local newspapers and special notice thereof signed by the Commissioner
has also been put up in the street or part of the street for which such
fresh line is proposed to be prescribed and until the Standing Committee
has considered all objections to the said proposal made in writing and
delivered at the office of the Municipal Secretary not less than three clear
days before the day of such meeting.
(2) The line for the time being prescribed shall be called the regular line of the street.
3) A register with plans attached shall be kept by the Commissioner showing
all public streets in respect of which a regular line of the street has been prescribed
and such register shall contain such particulars as to the Commissioner may appear
to be necessary and shall be open to inspection by any person upon payment
of such fee as may from time to time be prescribed by the Standing Committee.
(4)(a) Subject to the provisions of sub-section (5) no person shall construct
or reconstruct any portion of any building on land within the regular line
of the street except with the written permission of the Commissioner and
in accordance with the conditions imposed therein and the Commissioner
shall in every case in which he gives such permission at the same time
report his reasons in writing to the Standing Committee.
(b) No person shall construct or reconstruct any boundary all or a portion
of a boundary wall within the regular line of the street except with the
written permission of the Commissioner :-
Provided that if within sixty days after the receipt of an application from any per-
son for permission to construct or reconstruct a boundary wall or a portion thereof, the

commissioner fails to acquire the land within the regular line of the street under
section 213 the said person may subject to any other provision of this Act or
the rules or bye-laws proceed with the work of construction or reconstruction of
such boundary wall or a portion thereof as the case may be.”
The short argument of Mr. A. H. Mehta here is that it was not within
the competence of the Commissioner to make any change in the roadline without
obtaining the prior sanction of the Standing Committee. He has in the
main relied on clause (b) of sub-section (1) of section 210. It will be convenient
here to state briefly what the Commissioner did in the matter of the
change in the roadline complained of by the petitioner. There was a roadline
prescribed under section 118 of the Bombay Municipal Boroughs Act 1925 The
Commissioner passed an order under section 210 (1)(a) on 21 February 1955
as under :-
“Sanction is hereby accorded under section 210 (1) (a) of the B. P. M C. Act
1949 to prescribe a line of public street in substitution of the line of public street
prescribed under the Municipal Boroughs Act 1925 at Ward Raikhad & Kalupur
3 Street No. 38 S. Nos. 4219, 4220, 4225 to 4229 as shown by Yellow line in
the accompanied Ferro Plan No. 234 signed by me.
Estate and City Improvement Officer is requested to arrange to show this line
in the original roadline tracings and take my initials on the same”.
This order is annexed as Exhibit A to the affidavit of the Commissioner.
The survey numbers mentioned in this order relate to the property of the petitioner
and some other structures on the Danapith corner on the crossing of Gandhi
Road and the Danapith-Pankornaka road shown in the plan annexed to the
affidavit. The change is shown by yellow line on that plan. There is another
change shown in yellow line at the other corner of the crossing. The survey
numbers of the structures affected by that other yellow line are not those
mentioned in the order mentioned above. It is not disputed that the above order
does not touch the other yellow line. Apparently another order must have been
passed in respect of that other change in the roadline. It may be mentioned
at this stage that Mr. Vakil who appears for the Commissioner has stated before
us that the Commissioner has made a number of changes in the roadline
demarcated under the Act of 1925 without the previous approval of the Standing
Committee on the footing that it was competent to him to do so under clause
(a) of section 210(1) of the Act of 1949. The argument urged on behalf of
the petitioner disputes the authority of the Commissioner to make any change
in the roadline of the nature before us.
The argument on behalf of the petitioner has proceeded that it is not
competent to the Commissioner to prescribe any change in a street line once
the street line is prescribed. It is said that the substantive part of clause (a)
only authorises the Commissioner to “prescribe a line on one or both sides
of any public street”. This line or lines it is said can be only one unit
and one entire single line or two entire lines one on either side of the road
or one entire double line. The proviso to clause (a), it is said only lays
down that until a street line is prescribed by the Commissioner under
clause (a), the old line prescribed under the Act of 1925 is to be deemed
to be the street line for the purposes of the Act. The proviso says Mr. Mehta,
only authorises the Commissioner if he so desires to demarcate on his own in

place of the old deemed line a street line which may be a single line or two
lines one on either side of the road or a double line in respect of any public
street. It does not empower him to make any partial alteration in any old line
which is to be deemed to be a street line for the purpose of the Act of 1949.
In support of this argument he relies on the language of both clauses (a) and
(b) and particularly the language of clause (b) The argument is that once a
street line is demarcated either originally or in place of a deemed line the
Commissioner cannot make any change in it or in any part of it without obtaining
the approval of the Standing Committee and satisfying the requirements of the
proviso to clause (b) relating to notices objections etc.
It has been argued on the other hand by Mr. S. B. Vakil learned advocate
for the Corporation that the Commissioner of the respondent Corporation acted
under clause (a) of sec. 210(1) in the matter of passing the order whereby a
change was made in the existing roadline and it was not necessary for him to
obtain the approval of the Standing Committee before bringing about that change
in the roadline. It is urged that clause (a) of section 210 does not speak of
any entire line nor does it refer to the whole line of the street. It is said that
it will be illogical and a strange result if the Commissioner who is authorized
to prescribe the entire line on one or both sides of any public street should
not have the power under clause (a) to make any change in the existing deemed
roadline by demarcating the same on the existing deemed roadline. The whole
burden of Mr. Vakils argument is that clause (a) permits the Commissioner to
prescribe a line for a part of a public street. He can do so the argument ran
as often as he likes without going to the Standing Committee. In referring to
sub-section (2) of section 210 which rules that the line for the time being
prescribed shall be “the regular line of the street” the assertion is that the street
line does not mean a line extending the entire length of the street.
The argument is ill-founded. The scheme and object of section 210 as we
understand it is to define and lay down the powers of the Commissioner to
prescribe the regular line of the street. The line may be on one side of any
public street or it may be on both sides of any public street meaning thereby
it may re single line or two single lines one on either side of the road or a
double line. But whether single or double it is the regular line of the street
and it makes no difference whatever whether it is called roadline or street line.
The expressions “line of the street” and “street line” are to be found in sub-
section (2) itself and the proviso to clause (a) of section 210(1). We have to
read clauses (a) and (b) together and must see that as far as possible the
interpretation we put on them makes a consistent enactment of whole provision.
Clause (a) is not a detached enactment but one forming part of one single
connected scheme.
Mr. Vakil has strongly relied on a decision of their Lordships of the Privy
Council in Shankar Dattataya v. The Municipal Corporation of the City of Bombay
(1946) 48 Bom.L.R. 434. The facts of that case were materially different and
so also was different the dispute which arose for the determination of the Court
in that case. It is true that in the judgment in that case their Lordships have
made mention of sections 289, 291, 296, 297, 298 and 299 of the Bombay
Municipal Corporation Act, 1888. Section 298 of that Act to which reference
was made by their Lordships is as under :-

“297. (1) The Commissioner may :-

(a) prescribe a line on each side of any public street;
(b) (b) from time to time but subject in each case to his receiving the authority
of the corporation in that behalf. prescribe a fresh line in substitution for any
line so prescribed or for any part thereof provided that such authority shall not
be accorded
(i) Unless at least one month before the meeting of the corporation at which the
matter is decided public notice of the proposal has been given by the
Commissioner by advertisement in local newspapers as well as in the Official
Gazette and special notice thereof signed by the Commissioner has also been
put up in the street or part of the street for which such fresh line is proposed
to be prescribed and
(ii) until the Corporation have considered all objections to the said proposal made
in writing and delivered at the office of the municipal secretary not less than
three clear days before the day of such meeting.
(2) The line for the time being prescribed shall be called the regular line on the street.
(3) No person shall construct any portion of any building within the regular
line of the street except with the written permission of the Commissioner who
shall in every case in which he gives such permission at the same time report
his reasons in writing to the Standing Committee.
It will be seen that this section though not in pari materia with
section 210 of the District Municipal Act of 1948, is on similar lines and
contains similar provisions. It is hardly necessary to stress that observations
made in the context of an enactment which is not in pari materia when
relied upon us furnishing a guide to another similar enactment must be
read with great care and caution. The doctrine of pari materia does not depend
upon similarity in the two enactments under consideration but the language
of the two provisions being materially on par i.e. on their being in pari materia.
The observations of their Lordships which we shall immediately set out and
on which Mr. Vakil leans heavily are as under :-
“Their Lordships agree with the opinion of all the learned Judges of the High
Court that a consideration of the terms of sec. 297 and of its setting in the Act shows
conclusively that sec. 297 is dealing with the building line of a public street as dis-
tinguished from the boundary line or intended boundary line of a public street. In the
first place the definition of public street in sec. 3(x) relates to a street that is already
in existence and this definition applies in sec. 297 this may be contrasted with sec.
296(1)(b) which shows that the expression intended is used when appropriate. In
short the boundary line of a street is fixed prior to actual construction and the regular
line of the street is prescribed after it has come into existence.”
We are dutifully bound to follow any expression of opinion of their
Lordships of Privy Council prior to the Constitution and also bound to
follow even an obiter of their Lordships. But it is difficult to see how these
observations made in a wholly different context can be instructive or afford
any guidance to us in interpreting sec. 210 of the Act of 1949. Moreover,
the observations have to be read in the context of the facts of that case
and bearing in mind that the distinction drawn by their Lordships was not
between a building line and a street line or a roadline. The distinction
drawn was between a building line and a boundary line of a street. In
that case the scheme of the Municipal Corporation relating to Shivaji park
had as a part of that scheme under contemplation, a sixty feet road on
which the appellant was under an agreement with the Municipal
Corporation entitled to have a frontage for his property. In clear terms, their

Lordships have pointed out in the above observations that the boundary
line that was under consideration was one which had been fixed prior to
the actual construction of the street and the regular line of the street had
been prescribed after the public road had come into existence. We are not in
this case concerned with any boundary line of the Gandhi Road (Richey Road).
We are concerned with the regular line of the street or to put the same thing
differently the street line of the road. There is nothing in the view we take
of the matter or the observations which we have made which can be said to
depart in any way from the opinion expressed by their Lordships in the case
of Shankar v. The Bombay Municipality.
We would like to preface what follows with some brief general
observations and that before we examine the language of the two clauses of
sec. 210 of the Act. The language of the two clauses is plain and simple. There
is no ellipsis and no redundance. Nor is there anything vague ambiguous
or uncertain about that language. That being so we have to read the two
clauses in their natural and ordinary sense. They express a meaning which is
single and sensible and we see no reason why the precise words used by the
lawmaker in the two clauses and the deeming provision is clause (a) should
not be given their full meaning and effect. The exact colour and shape of the
meaning of any words in any enactment is not to be ascertained by reading
them in isolation. They must be read structurally and in their context for their
signification must vary with their contextual setting. Of course when we speak
of the context, we understand it in a wide sense in a sense which requires that
all provisions which bear upon the same subject matter must be read as whole
and in their entirety. For that affords a salutary safeguard against the effect of
an asserted construction producing inequality injustice absurdity or repugnance
or other objectionable consequences.
It is in the light of these observations that we turn to examine the language
of the relevant provisions of sec. 210. Clause (a) of sec. 210(1) authorises
the Commissioner to prescribe a line on one or both sides of any public street.
The line is referred to in the proviso to that clause as a street line. In ordinary
parlance it is referred to as roadline. This street line which may be demarcated
by the Commissioner on one side or both sides of the street must in our
judgment be in relation to be the whole public street. It cannot be in respect
of any part or section or segment of that street. We shall be adverting to
this aspect of the matter again a little later in our judgment.
The Bombay Provincial Municipal Corporations Act of 1949 was applied to
the City of Ahmedabad in 1950. Before that the municipal administration of the
city was carried on under the Boroughs Act of 1925. It is common
ground that a roadline-a double street line-had been prescribed for the whole of
Gandhi Road (Richey Road) under the relevant provisions of that Act. That is
evident from the map in four sections which is annexed to the affidavit
made by the Commissioner. It is clear from that map that the roadline that
was shown on the four sections of the map was a double street line that is a
line on both sides of the street and it was there delineated in red. It was unitized
and unitary. Clause(a) of sec. 210(1) of the Act of 1950 empowers the
Commissioner to prescribe a line on one or both sides of any public street. An

important proviso was engrafted upon clause (a) because it would take some
time before a line on one or both sides of any public street could be prescribed
by the Commissioner under section 210(a) of the new Act. It could also be
that the Commissioner may not want to demarcate a new line in substitution
of the old line. The power to prescribe a line on one or both sides of any
public street having already been conferred on the Commissioner by clause (a)
the proviso took care to see that that power remained unimpaired and it was
obviously for that purpose that the latter part of the proviso stated that the regular
line of a public street operative under the previous law for the time being in
force should be deemed to be a street line for the purpose of the new Act until
a street line is prescribed by the Commissioner under clause (a). These latter
words, in our opinion relate to a point of time and to the exercise by the
Commissioner of the power conferred on him by the substantive part of clause
(a). Till that stage, it is the old line which is to be deemed to be the street
line for the purpose of the new Act and operates as such.
It is by this factio juris that the line prescribed and operative under the
Act of 1925 is to be regarded as the street line operation for the purposes of
the new Act. When a statute enacts that something shall be deemed to
exist which would not have been so but for the enactment the Court is
entitled and bound to ascertain for purpose the statutory fiction is to be
resorted to and full effect must be given to it and it should be carried to its
logical conclusion. The following statement of the principle by Lord
Asquith in the decision of the House of Lords East End Dwellings Company
Ltd. v. Finsbury Borough Council, (1952) A.C. 109 has been quoted with approval
in numerous decisions and by the Supreme Court in State of Bombay v.
Pandurang, (1953) S.C.R 773 778 779;
“If you are bidden to treat an imaginary state of affairs as real you must surely
unless prohibited from doing so also imagine as real the consequences and
incidents which if the putative state of affairs had in fact existed must inevitably
have flowed from or accompanied it.........The statute says that you must imagine
a certain state of affairs; it does not say that having done so you must cause
or permit your imagination to boggle when it comes to the inevitable corollaries
of that state of affairs.”
The putative state of affairs affecting the roadline and the inevitable corollary
to the same requires that the deemed street line must be regarded as having
been demarcated and prescribed under clause (a) though in fact the Commissioner
had not so demarcated and prescribed it under the power vested in him by that
clause. The consequences and incidents of that line which must have flowed
from or accompanied it must also be regarded as flowing from and accompanying
that deemed line which for the purposes of the new Act is to be regarded as
actually demarcated and prescribed by the Commissioner under the Act though
in fact he did not prescribe the same. This putative state of the roadline is to
continue ‘until a street line is prescribed by the Commissioner under this clause
(a)’. There is nothing in the language of the substantive part of clause (a) to
authorise or permit the Commissioner to prescribe the ‘regular line of the street’
in parts or sections for this regular line can only be for the whole street.
Of course it may from time to time be altered or modified and even
substituted by an entirely fresh line but that would not be under clause (a)

but could only be under and in accordance with clause (b). Nor is there anything
in the language of clause (a) or the proviso to it which authorises or permits
the Commissioner to make any change in any line prescribed by him on his
own or in any line which having been prescribed under the Boroughs Act was
to be deemed to be a street line for the purpose of the new Act. Of course
the latter part of the proviso as we have already mentioned does authorise the
Commissioner to prescribed a new street line on his own in place of and in
substitution of the deemed line.
The matter however does not rest there. When we turn to sub-section (b)
there is abundant intrinsic evidence which shows the intention of the Legislature.
In terms this clause relates to any change which the Commissioner may effect
with the previous approval of the Standing Committee by prescribing a fresh
line in substitution for any line ‘so prescribed’. The words ‘so prescribed’, it
is not seriously disputed must apply to a line prescribed by the Commissioner
himself in the exercise of the powers conferred on him by clause (a) as also
a line prescribed under the Boroughs Act and deemed to be operative for the
purposes of the new Act. The language of the substantive part of clause (b)
makes it abundantly clear that the Commissioners power to prescribe a street
line on his own under clause (a) is circumscribed to the extent that if any change
is to be made in any line prescribed by him in respect of any public street
or in any deemed line which is operative for the purposes of the new Act he
must go to the Standing Committee and seek the approval of the Standing
Committee before effecting any such change.
But that is not all. The words at the end of clause(b) leave no scope
for any doubt as to the construction of the material part of section 210 with
which we are here concerned. Clause (a) says nothing about any change in
any part of the street line whereas clause (b) in terms speaks of changes from
time to time being made in any street line prescribed under clause (a) or
in any part of that line prescribed under clause (a). All these considerations.
in our judgment are sufficient to lead inevitably to the conclusion that it was
without the competence and authority of the Commissioner to pass an order
making a change in a part of the street line which had been prescribed under
the Boroughs Act of 1925 for Gandhi Road and which remained operative
for the purposes of the new Act even after the coming into force of the Act
of 1949. It was necessary for him before making any such change to obtain
the previous approval of the Standing Committee and it was also necessary
that before such approval could be accorded to him the procedure laid down
in the proviso to clause (b) relating to notices and objections should have
been complied with. Admittedly that procedure was not followed at all. In
our judgment it was incumbent on him to follow that procedure and seek
that approval before making the change complained of by the petitioner and
he having failed to do so it was not within his competence to effect that
change. That being the position the notices issued by him under section 212
were void as not being in accordance with the provisions of the Act.
Notice was served in this matter on the Advocate General as the petitioner
in his petition had impugned the validity of certain section of the Act.

1960] KAPILABEN v. COM. OF REV., BARODA DIV. (S.C.A.)-Shelat, .J. [233
The petitioner as we have already pointed out has not passed his contention
relating to the vires of those Sections. The learned Advocate General who
appears before us in pursuance of the notice served on him has made
his submissions before us on the meaning and effect of Section 210. His
submissions lend support to the contentions of the petitioner and accord
with the view we have taken as to the scope and ambit of the powers of the
Commissioner under Section 210.
In the result, the petition succeeds. The rule will be made absolute and
an order will issue in terms of prayer A of the petition. The respondent will
pay the petitioners costs of the petition fixed at Rs. 250/-. The petitioner will
pay cost of the Advocate General fixed at Rs. 250/-.
Petition allowed.
* * *
and the Hon’ble Mr. Justice R. B. Mehta.
KAPILABEN CHIMANLAL KOTHAR1 v. THE COMMlSlONER
OF REVENUE, BARODA DIVISION AND OTHERS*
Bombay District Municipal Act, 1901 (III of 1901) - Sec. 15(2)(e)-
Councillor remaining absent from meetings during four successive months-
Office becomes vacant-Whether disability attaches if President has not
convened compulsory meetings-Period to be computed from the date of
meeting in which the member first remained absent.
HELD that if a Councillor has remained absent from meetings of the
Municipality during four successive months he should be disabled from continu-
ing to be a member and his office shall become vacant under Sec. 15(2)(e) of
Municipal Act, 1901. This disability would attach to the Councillor, irrespective
of whether the President has convened or not the compulsory meetings provided
for under Sec. 26(1) of the Act.
Four successive months are to be computed from the date of the absence, which
absence has to be continuous from meetings during four successive months. The
period, therefore, must be computed from the date of the meeting in which the
member first remained absent.
Kershaw v. Shoredith Corporation (1960) 22 T.L.R. 302; S. K. Mariya Pillai
v. Muthuvela Pandaram (2), I.L.R. 49 Mad. 563; Halsbury’s Laws of England
(3rd Edition) Vol. 24, p. 445; referred to.
Bombay District Municipal Act, 1901 (III of 1901) - Sec. 26(l)-Duty of
President to call ordinary general meetings-Meetings fortnight either way
would not be a reasonable time-Failure of President does not absolve the
Councillor from disability.
Sec. 26(1) of the Bombay District Municipal Act, 1960, contains
both duties and powers, the duty being mandatory. It is. therefore,
incumbent upon the President to call at least the four ordinary general
*Decided on 14-9-1960. Special Civil Application Nos. 803, 804, 805 and 806
of 1960 praying for a writ under Arts. 226 and 227 of the Constitution of India, for
setting aside orders No. MUM 402 dated 22-7-1960 passed by the Commissioner of
Revenue, Baroda Division, in appeals preferred against the order Nos. MUNI M.D.
dated 29-1-60 and MUNI W.S. dated 25-5-60, passed by the Collector of Kaira.

meetings on or about the dates mentioned therein. At the same time because some
margin in the date to be fixed is left to the discretion of the President, it does and
cannot mean that such a meeting can be called at any time and be treated as one
of the prescribed meetings. A meeting held 15 days before and another held 20
days after the scheduled date cannot be deemed to be meetings held on or about
the scheduled dates. A fortnight either way from that date would not be a reason-
able time in view of the fact that such meetings are expected to be held at regular
intervals of three months. But that failure on the part of the President does not
absolve the Councillor from the disability that the absence imposes upon him
under Sec. 15(2)(e) of the Bombay District Municipal Act, 1901.
Hari Vishnu Kamath v. Syed Ahmad Ishaque and Others (1), District Board of Guntur
v. Desu Subba Rao (2), Maxwell on the Interpretation of Statutes (3), 10th Edition P.
381referred to.
Mr. I. M. Nanavati with Mr. B. H. Shah, for the applicant.
Mr. B. R. Sompura, Asst. Government Pleader, for opponent No. 1.
Mr. S. B. Vakil, for opponent No. 2.
Mr. C. T. Daru, for opponent No. 3.
SHELAT J. This and the three other petitions raise an important question of
construction of Section 15(2)(e) of the Bombay District Municipal Act, 1901 All
these petitions have identical facts and raise a common question of law. It would
be therefore convenient to cite the facts in petition No. 803/60 as facts typical to
all the three other petitions and dispose of all the four petitions by a common
judgment.
In Special Civil Application No. 803/60 the petitioner was a duly elected
councillor of the Municipality of Mehmedabad. On July 18, 1959 the second
opponent also a councillor of the municipality made an application under Section
15(3) of the Act to the Collector of Kaira stating therein that the petitioner had
absented herself from the meetings of the municipality during four successive
months and had consequently incurred disqualification laid down in Section 15(2)(e)
of the Act. By his order, dated 29th January, 1960 the Collector held that the
petitioner was not disabled from continuing as a councillor and rejected the appli-
cation. The second opponent thereafter went in appeal before the Commissioner
who by his order dated 22nd July, 1960 set aside the order of the Collector and
held that the petitioner had incurred disqualification as laid down in Section
15(2)(e) of the Act and that, therefore, she had ceased to be a councillor of the
municipality. All the four appeals filed by the second opponent were disposed of
by a common judgment. It is to challenge that order that these four Special Civil
Applications have been filed.
The facts involved in these applications are not in dispute. Between
February to July, 1959 four meetings in all were held viz. on the 21st of
February 26 March, 21 May, and 30th July, 1959. There is no dispute that
the petitioner remained absent from the meetings held on the 26th of
March and 21st May, 1959. She did not attend the meeting held on 30th
July, but obtained leave for absence. Under Section 15(2)(e) of the Act, when
1. 1955 S.C.R. 1104 2. A.I.R. 1928 Mad. 983
1960] KAPILABEN v. COM. OF REV. BARODA DIV. (S.C.A.)-Shelat, .J. [235
such leave is obtained absence from that meeting would not be considered
as absence to be reckoned as creating a disability.
A preliminary point was raised by opponents Nos. 2 and 3 that the petitioner
has resigned as a councillor by her letter of resignation, dated July 23, 1960
She was consequently not entitled to retain her councillorship and therefore even
if we were to set aside the impugned order she would not be entitled to continue
to be a councillor. It was therefore, argued that this Court would not entertain
a petition for a Writ of Certiorari, where the relief if granted would be futile.
In our view, there is no substance in this contention If the petitioner were to
be right in her contentions and yet no relief were to be granted to her by reason
of this contention there would remain against her an order on record which
would tend to cast upon her a slur in the sense that she was unmindful of her
obligations and duties as a councillor and that would perhaps affect prejudicially
her interests in future elections. The petitioner, in our view, is entitled to move
this Courts for relief.
The question that arises for our determination is, whether by reason of sec.
15(2)(e) petitioner is disabled from continuing to be a councillor by her having
remained absent in the two meetings held on the 26th of March and the 21st
of May 1959. Section 15(2)(e) of the Act provides as follow :-
“If any counciller during the term for which he has been elected or appointed
not being a president or vice-president or a salaried servant of the Government
absents himself during four successive months from the meetings of the Municipality,
except with the leave of the Municipality...........he shall be disabled from
continuing to be a councillor and his office shall become vacant.”
Prima facie, it would seem that by the petitioner absenting herself from
those two meetings, the only two meetings convened by the President during
the relevant period she would be said to have remained absent from meetings
during four successive months i.e. for the period from March 26, to July 25,
1959. Since the period of these four successive months would end on the 25th
July 1959, the meeting held on the 30th July 1959 would not be relevant for
our consideration and therefore her having obtained the leave of absence from
the Municipality in respect of that meeting would not avail her.
The contention of Mr. Nanavati was three-fold; (1) that has the President
did not canvene meetings during this period, though it was incumbent upon
him to do under sub-section (1) of section 26 of the Act in the months
of April and July 1959, it cannot be said that there was failure to attend or
that there was absence from meetings as contemplated by sec. 15(2)(e) of the
Act; (2) that there was no failure to attend meetings during the four
successive months inasmuch as the period of default should be reckoned
from the 1st of April and not from March 26, 1959, the date of the meeting
when she first remained absent and; (3) that sec. 15 of the Act contemplated
that there must be meeting held in each of the four successive moths and in
which meetings she must remain absent in order to constitute failure or
default within the meaning of that subsection. Mr. Nanavati argued that if no
meetings were held during the four successive months obviously there would
be no failure or default. He also argued that if a member was absent in a meeting
held in March and no further meeting was held thereafter for a period of four
successive months then again there would be no failure. He next argued that

if a member were to be absent in a meeting held in March and also in another

meeting held subsequently and no more meetings were thereafter convened there
would again be no failure or default on the part of such a councillor. His
contention was that such a councillor can legitimately expect that the President
would convene meeting as required of him under sub-section (1) of section 26
of the Act. In other words, the petitioner could legitimately expect that the
President would convene the two ordinary general meetings as contemplated by
that sub-section one on or about the 10th of April 1959, and the other on or
about the 10th of July 1959, which the petitioner would attend in order not
to invite upon herself the disability laid down in sec. 15(2)(e) of the Act. He
argued that the Legislature could not have intended that a President in breach
of his public duty would not convene meetings ordained by sec. 26(1) of the
Act and thus create a situation in which a member remaining absent in two
meetings previously held would be declared desabled under sec. 15(2)(e). The
argument no doubt has some force for one can well contemplate a President
wishing to take advantage of the absence from two meetings by a member and
not convening any more meetings during the prescribed period and thus placing
such a member in a difficult situation. But we have to take this statute as it
is and construe it according to the words contained in it.
It is clear that under sec. 15 (2)(e) if a member were to remain absent
from meetings during four successive months, such a member would be disabled
from continuing to be a councillor. The first question is what is the meaning
to be attached to the word “month”? Mr. Nanavati argued that since the Legislature
has used the words “successive months”, those words imply that the period to
be reckoned would commence from the first day of the month following the
date of absence which absence must be continuous during the four months, and
therefore, the period should be computed from the 1st of April 1960. The
contention on behalf of the opponents on the other hand was that since the word
“month” has not been defined in the Act, the meaning to be attached to the
word “month” must be according to the Bombay General Clauses Act which
under sec. 3(30) defines the month as meaning a month reckoned according to
the British calendar. month means the period here fore commencing from the
1st of the month and therefore the period of absence must be reckoned from
the 1st of March 1959, and ending on 30 June 1959. In our view; neither of
these contentions is correct. The word “month” defined in sec. 3(30) of the
Bombay General Clauses Act means only that wherever the word “month” occurs
in any of the statutes, unless there is anything contrary or repugnant in the context,
the month would mean the month in the British calendar and not in a Hindu
or any other calendar. The definition does not mean that it must always be
reckoned from the 1st day of the month. Sec. 15(2)(e) it self makes the meaning
clear, for the absence that is necessary under that section is the absence from
meetings during four successive months. In other words four successive months
are to be computed from the date of the absence which absence has to be
continuous from meetings during four successive months. The period therefore,
must be computed from the date of the meeting in which the member first
remained absent. It will be observed that the section uses the words “successive

months” and not “succeeding months”. The word successive means following
one after another in uninterrupted succession and is synonymous with the word
consecutive. The period therefore must be computed from the date of the meeting
when the member was absent and then it must be established that he was absent
from meetings during four successive months from that date. Therefore the period
would be from March 26, 1959 to July 25, 1959. We are fortified in this
conclusion by an English decision in Keshaw v. Shoredith Corpn. (1906) 22 T.L.R
302 quoted with approval in Halsburys Laws of England third edition Vol. 24
page 445, Para 837. In that case by the 1894 Act sec. 46(6) which is incorporated
in London Government Act, 1899, by sec. 2(5), so far as it related to the offices
of a mayor and an alderman if a member of a council for a parish or district
were to be absent from meetings of the council for more than six months
consecutively except in certain cases his office on the expiration of those months
would become vacant. The plaintiff who was an alderman of a metropolitan
borough was absent from a meeting of the council on June 6 1905 and from
each subsequent meeting until November 21 when he was again present. It was
there held that the absence must begin to be reckoned from the first meeting
at which the plaintiff was absent viz. June 6 and as the six months from that
date had not expired on November 21 his office had not become vacant. Similarly
in S. K. Mariya Pillai v. Muthuvelu Pandaram, I.L.R. 49. Mad. 563 the question
was from what date the period of such absence should be computed. Under sec.
66(1)(h) of the Madras Local Boards Act, 1920, it was provided that failure
of a member of a Taluka Board to attend meetings of the Board for three
consecutive months entitled discontinuance of his membership. It was there
observed that the absence that mattered was not from three consecutive meetings
but what mattered was the absence from attending the meetings of the Board
for three consecutive months. It was held that the period of absence for three
consecutive months is to be computed from the date of first default in attending
a meeting. It was however suggested that such computation would create
difficulties. At page 565 of the report the learned Judges put that difficulty in
the form of an illustration and stated :-
“Supposing the Local Board does not meet in January meets in February does
not meet in March; there is only one meeting held during the three months and
it is asked in such a case does the sub-section apply? The answer is perfectly
clear. The sub-section uses the word “meetings” and not “meeting”. There must
therefore be at least two meetings which a member has failed to attend and section
56(h) will not otherwise apply.”
We may observe that sec. 15(2)(e) of the Act also uses a similar
phraseology, viz., “meetings”. Therefore there must be more than one meeting
held during the period in question in which the member has remained
absent. On the other hand it was contended by Mr. Vakil that the word
“meetings” must be construed in the light of the General Clauses Act
which provides that a singular includes plural and vice versa. Therefore even
if we were to exclude the meeting held on March 26, 1959, the absence of
the petitioner from the meeting held on May 21, 1959, would be sufficient to
cast disability upon her. There is in our view no validity in that argument.
As in the case of the Madras Act the Legislature has deliberately used the plural
to avoid a probable mischief that a President might be tempted to commit

on finding that a member has remained absent from a meeting and upon
that not calling any other meeting during the four successive months or to
avoid a member suffering from disability on his having remained absent
due to unavoidable circumstances from even one meeting. In our view,
therefore, the period to be computed would be from March 26, 1959 and ending
on July 25, 1959.
A more substantial point raised by Mr. Nanavati was that there would be
no failure or default on the part of a councillor even if such a councillor has
remained absent in a meeting or meetings of the municipality if the President
has not convened the meetings which under the provisions of the Act, he is
bound to convene. As we have said the relevant meetings held by the municipality
were of March 26 and May 21, 1959, in both of which the petitioner had
remained absent. The argument was that under sub-section (1) of section 26
of the Act President was bound to call meetings in April and July on or about
the 10th of each of these two months and the President having failed to call
these meetings there would not be any failure or absence within the meaning
of sec. 15(2)(e) of the Act. The petitioner who had absented herself from the
two meetings held on 26th March and 21st May 1959, could legitimately expect
that the two compulsory meetings provided for under sub-section (1) of section
26 would be convened by the President when she could remain present and thus
avoid any possible disability. The contention of Mr. Vakil, on the other hand
was that sec. 26(1) of the Act was not mandatory but directory and that even
if the provision for calling the four ordinary general meetings were to be held
mandatory the requirement that those meetings should be convened on or about
the dates set out therein was not mandatory but merely directory. He relied upon
certain observations from Maxwell on the Interpretation of Statutes, 10 edition
page 381 where it is observed :-
“Where the prescriptions of a statute relate to the performance of a public duty
and where the invalidation of acts done in neglect of them would work serious
general inconvenience or injustice to persons who have no control over those
entrusted with the duty without promoting the essential aims of the legislature
such prescriptions seem to be generally understood as mere instructions for the
guidance and government of those on whom the duty is imposed or in other words
as directory only. The neglect of them may be penal indeed but it does not affect
the validity of the act done in disregard of them. It has often been held for instance
when an Act ordered a thing to be done by a public body or public officers and
pointed out the specific time when it was to be done that the Act was directory
only and might be complied with after the prescribed time.”
He also relied upon the observations of the Supreme Court in Hari Vishnu
Kamath v. Syed Ahmad Ishaque and others, 1959 S.C.R. 1104, where it has
been observed that it was a well-established principle than an enactment
nevertheless mandatory might in substance be directory and that the use of
the word “shall” does not conclude the matter. These are well known rules
for determining when a statute should be construed as mandatory and
when directory. But all of them are only aids for ascertaining the true
intention of the legislature which is the determining factor and that must
ultimately depend on the context. In every case, therefore, where the Court is
called upon to consider whether provisions of an enactment are mandatory

or merely directory in nature the determining factor is the intention of the

Legislature. So far as the present statute is concerned, it is clear that the intention
of the Legislature in enacting sub-section (1) of section 26 was to lay down
a mandatory provision. Sub-section (1) of section 26 imposes both a duty and
confers power upon the President. Under this sub-section a duty is cast upon
the President to call at least four ordinary general meetings distributed
approximately at three months regular intervals the object of the sub-section being
that the councillors should be associated with the carring on of the municipal
administration and to prevent the President from carrying on the administration
by himself. At the same time the sub-section confers power upon the President
to call other ordinary general meetings if he finds it necessary to do so. Sub-
section (2) also confers power upon the President to convene special general
meetings, whenever he finds such meetings to be necessary. The object of the
Legislature seems to be to prevent the President from carrying on the municipal
administration without the assistance and association of the councillors or from
calling meetings at one time or in such a way as to cause inconvenience to
the councillors. With that object in mind the Legislature distributed the four
ordinary general meetings, which the President must convene at stated intervals.
Sub-section (1) of sec. 26 if read with sec. 15(2)(c) would indicate that a duty
is cast upon the President, which, if not performed would create inconvenience
and even injustice to persons who have no control over him or at any rate,
who cannot compel him to perform his duties without recourse to a Court of
law. As stated by Maxwell, at page 376, where powers rights or immunities
are granted with a direction that certain regulations formalities or conditions
shall be complied with it seems neither unjust nor inconvenient to exact a
regorous observance of them as essential to the acquisition of the right or
authority conferred. But when a public duty is imposed and the statute requires
that it shall be performed in certain manner or within a certain time or under
other specified conditions such prescriptions may well be regarded as intended
to be directory only in cases when injustice or inconvenience to others who
have no control over those exercising the duty would result if such
requirements were essential and imperative. In our view sec. 26(1) contains both
duties and powers. the former being mandatory. It is, therefore, incumbent upon
the President to call at least the four ordinary general meetings on or about
the dates mentioned therein.
Mr. Vakil for the opponents contended that in that event the meetings
held on the 26th March and the 30th July should be deemed to be the
ordinary general meetings which under sub-section (1) of sec. 26 were to
be held on or about the 10th of April and 10th of July 1959. He
submitted that since the section itself provides that these meetings are to be
held on or about the 10th of those two months the meeting held on 26th
of March i.e. about 15 days before the scheduled date the meeting held on
the 30th July i.e. about 20 days after the date should be treated as two of
the four prescribed meetings. But if sec. 26(1) were to have any meanings
it is necessary that the words on or about used therein must be given a
reasonable meaning. Those words were advisably incorporated by the
legislature; for laying down a fixed and common date for all the muni-

cipalities might have created considerable inconvenience and hardship. At the

same time because some margin in the date to be fixed is left to the
discretion of the President it does not and cannot mean that such a meeting
can be called at any time and be treated as one of the prescribed meetings.
A meeting held 15 days before and another meeting held 20 days after
the scheduled date cannot in our view be deemed to be meetings held on or
about scheduled date. A fortnight either way from that date would not be
a reasonable time in view of the fact that such meetings are expected to be
convened at regular intervals of three months.
Our attention was drawn to a decision of the Madras High Court in
District Board of Guntur v. Desu Subba Rao, A.I.R. 1928, 983, Mad. where
the facts were somewhat similar to those before us. A member did not attend
the meeting of the Taluka Board held on 10th July 1926. There was again a
meeting of the Board on 12th August 1926, which also he did not attend. There
were no meetings in September and October. There was a meeting on 13th
November 1926 which he attended. It was held that the period of absence for
three consecutive months is to be computed from the date of his first default
in attending the meeting and the member thus brought himself clearly within
sec. 56(1)(h) of the Madras Local Board Act 1920 A question was raised whether
the member forfeited his seat by reason of his non-attending in the two meetings
held in July and August. The District Judge held that he did not forfeit his
seat inasmuch as he did not fail to attend two meetings in three months. Clause
1 of sec. 56 provided that subject to the provisions of sec. 57 a member of
a Local Board shall cease to hold office if he fails for three consecutive months
to attend the meetings of the Local Board. The District Judge calculated three
months excluding the date of the first meeting which the respondent failed to
attend. In the view of the High Court that was a wrong calculation. Relying
upon the authority in Kershaw v. Shoredith Corporation and Mariya Pillai v.
Mathuvelu Pandaram. it was held that the period of absence for three
consecutive months is to be computed from the date of his first default in
attending the meeting and therefore the member forfeited his seat. The
question however that was raised in that decisions was only about the time
from which the period of three consecutive months was to be reckoned.
The point now agitated before us was neither raised nor determined viz.
whether if the President has failed to carry out his public duty such failure
would save the disability of a councillor. The decision in A.I.R. 1928 Mad.
983, therefore, cannot help us in deciding the question raised before us.
As we have said sub-section(1) of sec. 26 of the Act does cast a duty
open the President but the question is does that failure absolve the councillor
from the disability that her absence imposes upon her? It is clear that neither
of the two sections can be legitimately construed from the point of view of
saving that disability or on considerations extraneous to the object for which
they were enacted. It is well-settled that in construing a statute a Court ought
not to be influenced or governed by any notions of hardship. It must look
hardship in its face rather than break down the rules of law and if the law
in its natural construction is not inconsistent or unreasonable or unjust, the

construction is not to be departed from merely because it may operate with

hardship in some particular cases. Keeping this principle in mind we must now
proceed to construe sec. 15(2)(e) of the Act. Sec. 15(2)(e) deals with absence
from meetings during four successive months. As envisaged by sec. 26,
which is a section which provides for the meetings of the Municipality, these
meetings are the four minimum ordinary general meetings which are compulsory
and the other ordinary general meetings and special general meetings which the
President has the power to convene if he thinks it necessary to do. The contention
of Mr. Nanavati would have considerable force if sec. 15(2)(e) had made a
distinction between the meetings which are compulsory under sub-section (1)
of sec. 26 and the meetings which are not compulsory but which can be convened
by the President at his discretion under the other provisions of sec. 26. No such
distinction is made in sec. 15(2)(e) of the Act. It is clear therefore that the
absence that has to be taken into consideration is the absence from any class
of meetings and not merely meetings which are to be compulsorily convened
under sub-sec. (1) of sec. 26 of the Act. It is true that the absence has to be
from more than one meeting as sub-clause (e) of sub sec. (2) of sec. 15 of
the Act uses the word “meetings.” As held by the High Court of Madras the
absence that is required is absence from more than one meeting by reason of
the Legislature having used the plural. There is no dispute that the petitioner
was absent from more than one meeting viz. from the meetings held on March
26 and May 21, 1959. As we have said the meeting held on 30th July being
irrelevant for computing the period of absence it is clear that the petitioner was
absent from meetings during the four successive months and therefore the
disability enacted under sec. 15(2)(e) of the Act would attach to her.
If we were to accept the construction sought to be placed by Mr. Nanavati
on sec. 15(2)(e); viz. that there can be no failure of absence from
meetings unless the President has called all the compulsory meetings
during the relevant period we feel that we would be reading sec. 15(2)(e)
differently from what it is and re-writing that sub-section by construing
to mean absence from meetings which ought to have been held which words
would be contradictory in terms. There can be absence of a councillor from
a meeting actually held but there cannot be absence from a meeting which
ought to have been held. Sec. 15(2)(e) being couched in clear and unambiguous
terms we must take these words in their ordinary and normal meaning. Such
an interpretation must necessarily mean that if a councillor has remained
absent from meetings of the municipality during four successive months the
disability that is enacted there would attach to such a councillor irrespective
of whether the President has convened or not the compulsory meetings provided
for in sub-sec. (1) of sec. 26 of the Act. If the construction sought to be
put by Mr. Nanavati were to be correct then the legislature would not have
used the words which it has. The words “meetings of the municipality” would
in that event have been qualified by stating something to the effect that no
such disability would accrue in the event where the President has failed to
call the compulsory meetings as provided for in sub-sec. (1) of sec. 26 of
the Act.

In this view, the petition fails and must be dismissed. The rest of the
three petitions also involving the same point fail and are dismissed. In
view of the fact that these petitions involve a point of construction of
some importance the proper order of costs would be that there shall be no
order as to costs.
Petitions dismissed.
* * *
and the Hon’ble Mr. Justice P. N. Bhagwatl.
THE INDIAN EXTRACTIONS PRIVATE LTD. v. A. V. VYAS
AND OTHERS*
Industrial Disputes Act, 1947 (XIV of 1947)- Sections 33(2), 38(4), Rule
60-Whether approval of Authority necessary before taking action against
an employee pending conciliation proceedings-Whether decision of Bombay
High Court in Premier Automobiles’ case ‘per incuriam’-Doctrine of ‘per
incuriam’.
The petitioners during the pendency of conciliation proceedings dismissed one
of its employees after departmental inquiry. After the order of dismissal, they
applied to the Conciliation Officer for his approval. The Conciliation Officer
refused to grant approval to the action on the ground that the application had
been made subsequent to the order of dismissal. In the petition to the High Court,
the petitioners contended that on a proper construction of Sec. 33(2) and Sec.
38(4) and rule 60 of the Rules made under Sec. 38(4) of the Act, it was permissible
for the petitioners to apply for approval of its action after the order of dismissal.
They further contended that the decision of the Bombay High Court in Premier
Automobiles Ltd. v. Ramachandra, (1959) 62 Bom. L.R. 199 in which it was held
that the application under Section 33(2) should be made before the action was
taken by the employer should be treated as a decision given “per incuriam” and
therefore, not binding as a very material aspect of the construction of Sec. 33(2)
read with Sec. 38(4) and rule 60 of the Rules made under Sec. 38(4) was not
brought to the notice of the Court which decided the case.
HELD, that it is not very relevant consideration of aspect or fact of a question
or point for determination about which there may have been some mistake or
some misapprehension or which might have been overlooked by the court which
decided the question or point that can be regarded as a adequate ground for
treating the decision ‘per incuriam.
HELD, that the decision in Premier Automobiles’ Case was binding on this
court and that the mere circumstance that an argument founded on Section 38(4),
and the rules made thereunder had not been presented before the court cannot
be sufficient for reaching a conclusion that the decision in Premier Automobiles’
case was given ‘per incuriam.’
The expression ‘per incuriam’ in its primary sense means something determined
through want of care; an order obviously made through some mistake or under
some misapprehension; a decision or dictum of a Judge which clearly is the result
of some material oversight.
Premier Automobiles Ltd. v. Ramachandra (1), followed.
*Decided on 29-8-60. Special Civil Application No. 248 of 1960, under Art. 226
of the Constitution of India for a writ setting aside the order dated 27-1-60 passed
of A. V. Vyas Esq., Concillation Officer, Rajkot in Application No. 38/59.
(1) (1959) 62 Bom.L.R. 199

1960] INDIAN EXT. LTD. v. A. V. VYAS (S.C.A.)-S.T. Desai, C..J. [243
Nicolias v. penny (1950) 2 K.B. 4665, Young v. Bristol Aeroplane Co. Ltd. (1944)
K. B. 718; Bengal Immunity Co. Ltd. v. the State of Bihar and others (1955) 2
S. C. R. 603; referred to.
Mr. S. D. Parekh with Mr. B. J. Shelat instructed by M/s. Matubhai Jamietram
& Madan, for the Petitioners.
The Assistant Government Pleader for Respondent No. 1.
S. T. DESAI C. J. This petition raises a question of some importance
affecting the construction of Section 33(2) of the Industrial Disputes Act,
1947 to be referred to be us hereinafter as “the Act”. The matter has been
argued before us by Mr. S. D. Parekh with ability and discernment and he has
made a valiant attempt to persuade us to hold that a decision of the Bombay
High Court on the identical question should not be regarded by us as binding
on this Court and he has taken his stand on the ground that the decision to
which we shall presently turn was delivered per incuriam.
The facts may be succinctly stated. The petitioners are a Limited Company
which owns a factory at Jamnagar. The second respondent was in the employment
of the petitioners-Company and he was charge-sheeted by the Company on 14th
September, 1959 and a departmental inquiry was held against him. After the
inquiry the employer dismissed the second respondent from employment. At that
time, conciliation proceedings were pending before the first respondent. An order
was passed by the employer discharging the service of the second respondent
and in that order it was mentioned that the amount of one month’s salary had
been sent by Money Order to the second respondent along with certain other
amounts due to him in respect of outstanding leave. After the order of dismissal.
the petitioner. - Company made an application to the first respondent who is
the Conciliation Officer asking for his approval in respect of the order of
dismissal. The Conciliation Officer passed an order on that application on 27th
January, 1960 and by that order he refused to grant approval to the action taken
by the petitioner-Company and rejected the application. The ground on which
the application asking for approval of the dismissal was rejected was that the
application had been made subsequent to the order of dismissal. In that order,
he has expressly referred to Section 33(2) of the Act. The petitioner, Company
has challenged the correctness of that order on this petition.
It has been argued before us by Mr. Parekh that the Conciliation Officer
has erroneously interpreted the relevant provisions of section 33 of the Act. In
order to appreciate the argument, it is necessary to set out here the material
and relevant part of Section 33.
“33. Conditions of service etc. to remain unchanged under certain circum-
stances during pendency of proceedings :- (1) During the pendency of any
conciliation proceeding before a Conciliation Officer or a Board or of any
proceedings before a Labour Court or Tribunal or National Tribunal in respect
of an industrial dispute no employer shall-
(a) in regard to any matter connected with the dispute, alter, to the prejudice of
the workmen concerned in such dispute the conditions of service applicable
to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether
by dismissal or otherwise, any workman connected in such dispute,
save with the express permission in writings of the authority before with the
proceeding is pending.

(2) During the pendency of any such proceeding in respect of an industrial

dispute the employer may in accordance with the standing orders applicable to
a workman concerned in such dispute:-
(a) alter in regard to any matter not connected with the dispute the condition
of service applicable to that workman immediately before the commencement
of such proceeding; or
(b) for any misconduct not connected with the dispute discharge or punish
whether by dismissal or otherwise that workman Provided that no such
workman shall be discharged or dismissed unless he has been paid wages
for one month and an application has been made by the employer to the
authority before which proceeding is pending for approval of the action taken
by the employer.
... .... .... ... ....
(5) Where an employer makes an application to a Conciliation Officer Board
Labour Court Tribunal or National Tribunal under the proviso to sub-sec. (2) for
approval of the action taken by him the authority concerned shall without delay
hear such application and pass as expeditiously as possible such order in relation
thereto as it deems fit.”
The brief argument on behalf of the petitioner-Company founded on the
difference in the language of sub-sections (1) and (2) of section 33 is firstly
that whereas sub-section (1) speaks of express permission which it is said requires
to be granted before any order or dismissal or discharge can be made sub-section
(2) and particularly the proviso to that subsection speaks of only an approval
to the action taken by the employer. The greatest stress has been laid by Mr.
Parekh on the proviso to subsection (2). The key stone of the argument is that
although the initial part of the proviso may suggest a different meaning the
crucial words of the proviso are for approval of the action taken by the employer.
It is said that the proviso though not very happily worded must be read in
a manner which harmonises sub-section (2) with sub-section (1) and if it be
so read greater emphasis should be laid on the words for approval of the action
taken by the employer rather than the words in the initial part of the proviso
which state unless he has been paid wages for one month and an application
has been made by the employer to the authority. Mr. Parekh has also relied
on sub-section (5) of section 33 and leaned strongly on the words under the
proviso to sub-section (2) for approval of the action taken by him.
He has also drawn our attention to section 38 which relates to the rulemaking
power of the Government Sub-section (4) of that section is as under :-
“(4). All rules made under this section shall as soon as possible after they are
made be laid before the State Legislature or where the appropriate Government
is the Central Government before both Houses of Parliament.”
Rules have been framed both by the Central Government and the Bombay
Government under the Act. Rule 60 of the rules framed by the Central Government
is as under :-
“60. Application under section 33 :- (1) An employer intending to obtain the ex-
press permission in writing of the Conciliation Officer Labour Court Tribunal or Na-
tional Tribunal as the case may be under sub-section (1) or sub-section (3) of section
33 shall present an application in Form J in triplicate to such Conciliation Officer.
Board Labour Court Tribunal or National Tribunal and shall be filed alongwith the
application as many copies thereof as there are opposite parties.
(2) An employer seeking the approval of the Conciliation Officer Board Labour
Court, Tribunal or National Tribunal, as the case may be of any action taken by

him under clause (a) or clause (b) of sub-sec. (2) of section 33 shall present an
application in Form K in triplicate to such Conciliation Officer Board Labour
Court Tribunal or National Tribunal and shall file along with the application as
many copies thereof as there are opposite parties.
(3) Every application under sub-rule (1) or sub-rule (2) shall be verified at
the foot by the employer making it or by some other person proved to the
satisfaction of the Conciliation Officer Board Labour Court Tribunal or National
Tribunal to be acquainted with the facts of the case.
(4) The person verifying shall specify by reference to the numbered paragraphs
of the application what he verifies of his own knowledge and what he verifies
upon information received and believed to be true.
(5) The verification shall be signed by the person making it and shall state
the date on which and the place at which it was verified.”
The argument here is that this is a statutory rule and must be accorded
greater efficacy and importance than any ordinary rule framed by virtue of
delegated authority. Particular reliance has been placed on sub-rule (2) which
deals expressly with any action taken Inter alia by a Conciliation Officer under
clause (a) or clause (b) of sub-sec. (2) of sec. 33. The rule it is pointed out
speaks of “any action taken by the employer” and the argument is that this clearly
envisages the situation that the order of dismissal has already been passed and
approval of the Conciliation Officer is sought in respect of an order of dismissal
which has already been made. Reliance has further been placed on the forms
J and K referred to in sub-rule (1) and sub-rule (2) respectively of rule 60.
The material part of Form K which relates to rule 60(2) is as under :-
“The workman........discharged/dismissed under clause (b) of sub-sec. (2) of sec.
33 has......been paid wages for one month.
The applicant prays that the Conciliation Officer may be pleased to approve
of the action taken namely :-
(Here mention the action taken under clause (a)
or clause (b) of sub-section (2) of section 33).”
There can be no doubt that rule 60 and the material part of Form K
which we have quoted above proceed on an interpretation of section 33(2)
for which Mr. Parekh contends.
The arguments on behalf of the petitioners ran that rules made by the Central
Government were laid before both houses of Parliament and we must attach
fullest importance to rule 60 and the language of Form K while interpreting
section 33(2). It will be necessary to advert to his argument a little later in
our judgment.
Where the matter res integra we should have found some difficulty
in negativing the argument canvassed before us by Mr. Parekh. But this
question of construction of sec. 33(2) must however be regarded so far
as this Court is concerned as concluded by authority. In Premier
Automobiles Ltd. v. Ramachandra, (1959) 62 Bombay Law Reporter 199
this provision came up for examination before a Division Bench of the
Bombay High Court and it was there held that the application for approval
to the authority concerned required to be made by the employer under the
proviso to sec. 33(2) of the Industrial Disputes Act, 1947, must be made by
the employer before he passes the order of dismissal or discharge. The view
was also expressed that the words “action taken” in the proviso to sec. 33(2)

of the Act must be construed as “action proposed to be taken”. In delivering

the judgment of the Court Chennai C. J., examined the scheme of sec. 33 and
referred to the amendments made in 1956. The learned Chief Justice then referred
in his judgment to what was said in the statement of Objects and Reasons relating
to the amendments in sec. 33. Mr. Parekh has sought to rely before us on what
is said in that Statement of Objects and Reasons set out in the judgment of
the learned Chief Justice. With great respect, we on our part do not deem it
permissible to us nor do we deem it desirable that we should seek any assistance
from that Statement of Objects and Reasons. It is not necessary to examine cases
on this aspect of the matter as in our opinion it is a well settled principle of
construction favoured by the Courts of this country that in case of any legislation
of the nature before us the Court should not look at the Statement of Objects
and Reasons. The learned Chief Justice has pointed out in his judgment that
there was considerable force in the arguments advanced on either side regarding
the construction of the wording of the proviso and observed that it was possible
to take both the views. Ultimately the Court reached the conclusion that harmony
between sub-sec. (1) and sub-sec. (2) of sec. 33 would be brought about by
preferring the view which it ultimately took and which we have already mentioned
above. This decision of a Division Bench of the Bombay High Court, was
delivered on 15th October 1959 and as held by a Full Bench of this High Court,*
this Court is bound to follow the decision of that High Court unless that decision
can be brought into one of the well recognised exceptions to the rule that a
decision of a Court of co-ordinate jurisdiction should be followed by another
Court similarly constituted.
One of the exceptions is that a judgment delivered per incuriam is not
binding on a Court of co-ordinate jurisdiction. Mr. Parekh has tried his utmost
to persuade us to take the view that the decision of the Bombay High Court
should be treated by us as per incuriam. It is in this context that we must revert
to sec. 38(4) of the Act. The argument here is that the rules framed by the
Central Government under sec. 38 were placed before both the Houses of
Parliament and we must read rule 60 and if necessary form K as if they were
part of the Act. In support of the present argument reliance has been placed
by counsel on the following passage from Maxwell on Interpretation of Statutes
Tenth Edition pages 50 and 51 :-
“Instruments made under an Act which prescribes that they should be laid
before Parliament for a prescribed number of days during which period they may
be annulled by a resolution of either House but that if not so annulled they are
to be of the same effect as if contained in the Act and are to be judicially noticed
must be treated for all purposes of construction or obligation or otherwise exactly
as if they were in the Act. If there is a conflict between one of these instruments
and section of the Act it must be dealt with in the same spirit as a conflict between
two sub-sections of the Act would be dealt With. If reconciliation is impossible
the subordinate provision must give way and probably the instrument would be
treated as subordinate to the section.”
Reliance has also been placed by counsel on the following passage in
Mays Parliamentary Practice 16 Edition pages 849-850 :-
“Apart from the special opportunities of the affirmative and negative procedures, there
exists in the House of Lords a general power of challenging delegated legislation by
*Anand Municipality v. Union of India, (1960) 1 G.L.R. 82.

moving for papers (and dividing the House upon the motion) or by asking a
questions In the House of Commons a member if he does not avail himself of
the facilities of exempted business to move a prayer for the annulment of delegated
legislation might move it on another occasion;...The opportunities of question
time are freely used for inquiry as to the purpose meaning or effect of Statutory
Instrument.”
Our attention has also been drawn by Mr. Parekh to Article 105(3) of
the Constitution which relates inter alia to powers privileges and immunities
of the Houses of Parliament and lays down that in respect of matters not
expressly mentioned in the Constitution the powers privileges and immunities
of each Houses of Parliament and of the members and the committees of each
Houses shall be such as may from time to time defined by Parliament by
law and until so defined shall be those of the House of Commons of the
Parliament of the United Kingdom and of its members and committees at the
commencement of the Constitution. Our attention has also been drawn to the
Rules of Procedure and Conduct of Business in Lok Sabha (Fifth Edition).
Chapter XXI of the Rules of Procedure relates to Subordinate Legislation. Rules
234 and 235 are as under :-
“234. (1) Where a regulation rule sub-rule bye-law etc. framed in pursuance
of the Constitution or of the legislative functions delegated by Parliament to a
subordinate authority is laid before the house the period specified in the
Constitution or the relevant Act for which it is required to be laid shall be
completed before the House is adjourned sine die and later prorogued unless
otherwise provided in the Constitution or the relevant Act.
(2) Where the specified period is not so completed the regulation rule, sub-
rule bye-law etc., shall be re-laid in the succeeding session or sessions until the
said period is completed in one session.
235. The Speaker shall in consultation with the Leader of the House fix a
day or days or part of a day as he may think fit for the consideration and passing
of an amendment to such regulation rule sub-rule bye-law etc., of which notice
may be given by a member:
Provided that notice of the amendment shall may be in such form as the
Speaker may consider appropriate and shall comply with these rules.”
Founded on these rules and the passages quoted above the argument is that
a very material aspect of construction of section 33(2) was not brought to the
notice of the Division Bench which decided the Bombay case and therefore we
must regard that decision as per incuriam.
We are unable to accede to this argument. It is true that the rules
reproduced above and the quotations from May’s Parliamentary Practice
and Maxwell do lend support to the argument of Mr. Parekh. It is also
true that sub-section (5) of section 33 goes to advance that argument as
furnishing intrinsic evidence which would afford useful assistance in
interpreting another provision of the same section. It is also true that section
33 is not happily worded. Even so we do not think that these considerations
are sufficient to lead us to the conclusion that the Bombay decision must
be treated as delivered per incuriam. Our attention has been drawn by Mr.
Parekh to a number of decisions which explain the principle under lying
this exception to the principle of comity of judgments. It is not necessary
to burden this judgment with an examination of all those decisions and we
shall he referring to only one or two of them. In Nicholas v. Penny, (1950)

2 K. B. 466 the Court of appeal had to consider this question. Lord Goddard
Chief Justice made the following observations at pages 472-473 :-
“.... it has been laid down by the Court of Appeal in Young v. Bristol Aero plane
Co. Ltd. (1944) K.B. 718 which has been followed quite recently in this court that
where material cases or statutory provisions which show that a Court has decided a
case wrongly were not brought to its attention the court is not bound by that decision
in a subsequent case.”
These are instructive observations. Equally instructive are the following
observations of Lord Greene in Young v. Bristol Aeroplane Co. Ltd. (1944) 1
K. B. 718 at Page 729 :-
“Where the court has construed a statute a rule having the force of a statute
its decision stands on the same footing as any other decision on a question of
law but where the court is satisfied that an earlier decision was given in ignorance
of the terms of a statute or a rule having the force of a statute the position is
very different. It cannot in our opinion be right to say that in such a case the
court is entitled to disregard the statutory provisions and is bound to follow a
decision of its own given when that provision was not present to its mind. Cases
of this description are examples of decisions given per incuriam. We do not think
that it would be right to say that there may not be other cases or decisions given
per incuriam in which this court might properly consider itself entitled not follow
an earlier decision of its own. Such cases would obviously be of the rarest
occurrence and must be dealt with in accordance with their special facts.”
In Bengal Immunity Company Limited v. The State of Bihar and others,
(1955) 2 S.C.R. 603 the learned Acting Chief Justice Mr. S. R. Das (as he
then was) made mention of the decision of the Court in England in Young v.
Bristol Aeroplane Co. Ltd., in the context of a decision given per incuriam.
Here it seems convenient to allude to the jurisidicial meaning of the
expression per incuriam. In its primary sense it means something determined
through want of care. The law lexicons point out that the expression
connotes an order obviously made through some mistake or under some
misapprehension; a decision or a dictum of a judge which clearly is the
result of some material oversight. The doctrine of binding precedent of co-ordinate
court is not absolute in its applicability. It does not require a court to
abdicate wholly its own judgment. It does however rest strongly on the
principle of comity which requires uniformity of decisions of courts and certainty
about the law. Moreover the sound principle that confusion and uncertainty
should as far as possible be avoided also requires that precedents of the nature
under consideration should be respected and followed unless there is strong
permissible reason for not doing so for instance in case of a decision
delivered per incuriam. It is not however every relevant consideration or aspect
or fact of a question or point for determination about which there may have
been some mistake or misapprehension or which might have been overlooked
by the court which decided the question or point that can be regarded as adequate
ground for treating the decision as per incuriam.
To apply these considerations to the present case we put to ourselves the
question whether we would be justified in concluding that any precedent,
any binding decision any material and important provision of law or any
governing principle of law was not brought to attention of the Division

1960] CHIMANBHAI v. JASHBHAI (C.R.)-R.B. Mehta, J. [249
Bench which decided the Bombay case ? The answer in our opinion must be
in the negative. The mere circumstance that an argument founded on Sec. 38(4)
of the Act had not been presented before that court cannot be sufficient for
reaching the conclusion that the decision was given per incuriam, and therefore,
need not be followed by a court otherwise bound to do so. Reference to section
38(4) and the reasoning underlying the passages from May’s Parliamentary
Practice and Maxwell as also the two rules in Rules of Procedure and Conduct
of Business in Lok Sabha at the highest afford an argument founded on one
of the principles of construction. However, sound that principle may be it is
in the context of the present case only one aspect of the matter and one step
in the ratiocination which would lead the court to a proper interpretation of
Section 33(2). In our judgment that sole consideration should not in case of
the decision of the Bombay High Court in Premier Automobiles Ltd. v.
Ramchandra, be so magnified as to invite the impress of one delivered per
incuriam. Therefore, whatever view we might have taken of the case before
us, were the matter res integra we are bound to follow that decision.
For reasons already discussed the petition fails and will be dismissed. The
rule will be discharged with costs.
Petition dismissed.
* * *
CRIMINAL REFERENCE
Before the Hon’ble Mr. Justice R. B. Mehta.
CHIMANBHAI KASHIBHAI PATEL v. JASHBHAI MOTIBHAI
AND THE STATE*
Criminal Procedure Code (V of 1898)- Sec. 197-Public servant-Whether
a Court competent to take cognizance of a complaint without sanction of
the State Government-Protection if act done in official capacity or within
its purported exercise - Indian Penal Code (XLV of 1860) Sec. 21-President
of Municipality-Whether a public servant.
Bombay Municipal Boroughs Act, 1925(XXVII of 1925)- Sec. 21(l)-
Removal from office affects capacity only as President-Sec. 31(d)~Power of
President to direct payment in emergency-Mere non - reporting to Standing
Committee not fatal-Whether direction to pay legal charges and travelling
expenses is in discharge of his official duty.
A complaint was filed against the President of a Municipality by a Councillor
under Sec. 409 Indian Penal Code in regard to the payments which he directed
the’ Chief Officer to make for the legal charges and travelling expenses incurred
in certain cases against him as President of the Municipality. The Magistrate after
enquiry under Sec. 202 Cr. P. C. issued a bailable warrant, The petitioner in a
application to the Magistrate stated that as he was a “public servant” no
cognizance of the complaint could be taken without the previous sanction of the
State Government, under Sec. 197 of Cr. P. C. The learned Magistrate dismissing
the application observed that the question would be considered at future
stage. On the revision application against the order the Session Judge observed
that the previous sanction of the Government was necessary and no such sanction
*Decided on16-9-60. Criminal Reference No. 24 of 1960, by the Sessions Judge of
Kaira, at Nadiad against the orders of Judicial Magistrate, First Class, Nadiad.

having been obtained, the learned Magistrate was not competent to take cogni-
zance of the matter. So, the learned Sessions Judge made a reference to the High
Court to quash the proceedings.
HELD that if a person is a public servant not removable from his office except
with the sanction of the State Government and if the acts done by him, which
are alleged against him, have been committed by him while acting or purporting
to act in the discharge of his official duties, then under the provisions of Sec.
197 of the Cr.P.C. no Court previous sanction of the State Government.
The President of a Municipality is a “Public Servant” within the meaning of Sec.
21 of the Indian Penal Code. Even though a President can be removed by the
Municipality under Sec. 21(1) of the Bombay Municipal Boroughs Act, the
removal affects his capacity of office as a President only and does not touch his
capacity as a Councillor. The President is not removable in the capacity of a public
servant, which capacity includes the President’s Office as a Municipal Councillor
under under Sec. 27 of the Act, except by the State Government.
In case of emergency mentioned in sub-sec. (d) of Sec. 31 of the Bombay
Municipal Boroughs Act, it is within the powers of the President to direct doing
of an act and also to direct payment in connection thereof without previously
obtaining the sanction of the Municipality, provided, in the opinion, it is necessary
for the service of the public. The mere non-reporting of the action taken under
Sec. 31(d) to the Standing Committee is not fatal to the exercise of the power
under Sec. 31(1) of the Act.
If the act done falls within the duty of a public servant or within the purported
exercise of the duty of a public servant, then he is protected under Sec. 197 of
Cr.P.C., although if he has done the act dishonestly or fraudulently or in any other
manner contrary to the law he may have committed a criminal offence. The
direction for the payment of the money in regard to the legal charges and travelling
expenses, by the President, is in the discharge of his official duty and it does
bear such relation to his duty as a public servant, that he can claim reasonably
but not fancifully, that he did it in the performance of his official duty.
Emperor v. Hira Lal Das (1), Emperor v. Vishnu Talyaba Naik (2), Amrik Singh v.
The State of Pepsu (3), referred to.
Mr. H. P. Shukla, Mr. P. B. Desai and Mr. N. C. Trivedi, for the Petitioner.
Mr. D. K. Shah for the opponent No. 1.
Mr. H. K. Thakore, Asstt. Govt. Pleader, for the State.
MEHTA J. This is a reference by the learned Sessions Judge, Nadiad for
quashing the proceedings started against the petitioner Chimanlal Kashibhai Patel
against whom a charge has been levelled by opponent No. 1 under Sec. 409
of the Indian Penal Code in regard to certain acts which he did while he was
continuing as President of the Nadiad Municipality till a new President was duly
elected. The facts leading to this reference are this way :-
The petitioner-accused was a Councillor of the Nadiad Municipality prior
to 9th March 1958. On 9th March 1958 he was elected as President of the
(1) 69 Cr.L.J. 567 (2) 42 Bom.L.R. 1193 (3) 1955 S.C.R. 1302

Nadiad Municipality for a period of one year. After the expiry of the said period
of one year on 23rd March 1959, the accused was elected as President for a
second term of one year. It appears that a Writ Petition No. 542 was filed
immediately thereafter in the then High Court of Bombay challenging the election
of the accused as President of the Municipality. An order was passed in this
Writ Petition on 14th April 1959 settling aside the election of the accused President
of the Municipality. Under the rules of the Municipality however the accused
continued as a President till the election of a new President. The accused filed
and an application for leave to appeal to the Supreme Court but that application
was rejected by the High Court. It may be mentioned that in the original Writ
Petition No. 542 of 1959 the accused was made a party as President of the
Nadiad Municipality and the Municipality was joined as second party. In that
application for leave to appeal the Nadiad Municipality was a co-applicant with
the accused. The accused then filed an application for special leave to appeal
to the Supreme Court. In this special leave application the Nadiad Municipality
was joined as a co-applicant. The accused in his capacity as the President of
the Municipality engaged lawyers on behalf of the Nadiad Borough Municipality
and by his orders he directed the Chief Officer of the Municipality to pay the
fees of the lawyers as well as the travelling expenses incurred by him as well
as the Secretary of the Municipality in connection with these legal proceedings.
It appears that in addition to the directing of the payment of these charges by
the Chief Officer of the Municipality the accused had also directed the payment
of legal charges and travelling expenses in connection with other proceedings
These other proceedings were also two Writ Petitions by one Vinubhai
Gordhanbhai Patel bearing Nos. 461/59 and 649/59 in the Bombay High Court
filed against the accused as President of the Municipality as well as against the
Municipality itself in connection with the cancellation by the Municipality on
two occasions of the factory licence of said Vinubhai Gordhanbhai Patel. In
connection with these two latter Writ Petitions also the accused had engaged
lawyers for himself as well as on behalf of the Municipality and he had directed
the Chief Officer to pay the legal charges of the lawyers and the travelling
expenses incurred by himself as well as by the Secretary of the Municipality.
In addition to the above proceedings there was another Writ Petition bearing
No. 541/59 which was filed by three councillors of this Municipality against
the Collector and the Municipality in connection with a notice of disqualification
given by the Collector to them. Lawyers were engaged in. this Writ Petition
also on behalf of the Municipality and the accused as President of the Municipality
had directed the Chief Officer for the payment of the legal charges and the
travelling expenses of himself and the Secretary of the Municipality in connection
with this Writ Petition also. All these charges ordered by him to be paid were
without the sanction of the General Board of the Municipality.
On the 29th September 1959 the first opponent Jashbhai Motibhai Desai,
who is the original complainant, filed a complaint before the third Joint
Civil Judge Jr. Dn. & Judicial Magistrate, First Class, Nadiad for an
offence under section 409 of the Indian Penal Code against the accused in
regard to the payments which he directed the Chief Officer to make in regard
to the above-mentioned proceedings and travelling expenses as stated above.

The learned Magistrate himself made an inquiry on receipt of this complaint

under the provisions of section 202 of the Criminal Procedure Code and on
9th January 1960 issued a bailable warrant. On 11 January the accused presented
himself before the Court before the warrant was actually served on him and
gave an application to the learned Magistrate. It is that application which has
led to the present reference.
So far as it is material to the present reference it may be stated that the
main ground which was taken by the accused applicant in that application before
the learned Magistrate was that he was a public servant within the meaning of
sec. 197 of the Cr. P. C. and not removable from his office except with the
sanction of the State Government and that in regard to the transactions in question
he acted or purported to act in the discharge of his official duty and that in
these circumstances the learned Magistrate was not competent to take cognizance
of the complaint except with the sanction of the State Government which
admittedly has not been obtained in this case. The learned Magistrate while
disposing of this application observed in the course of his order dated 9th February
1960 that the question whether the sanction should be obtained or not was not
so clear in the case before him. However the learned Magistrate further observed
that he did not rule out that the said sanction was not at all necessary further
stating that the question would be considered at the proper stage. The learned
Magistrate also observed that if it appeared that there was a bar against the
prosecution of the accused for want of the required sanction the question would
be considered in that light at a future stage and that stage he thought that it
was too early to decide that question. Giving his views this way the learned
Magistrate dismissed the application of the accused-applicant. Against this order
of the learned Magistrate a revision application was filed before the learned
Sessions Judge. The learned Sessions Judge in a detailed and careful order came
to the conclusion that in this case sanction was necessary holding that the accused
was a public servant not removable except with the sanction of the State
Government and that the acts charged against him were done by him in his
capacity as a public servant or purporting to act as such public servant. The
learned Sessions Judge under these circumstances has expressed the view that
sanction was necessary for the prosecution of the accused-applicant on the above-
mentioned charges and that mentioned charges and that as no sanction was obtained
from the State Government the learned Magistrate was not competent to take
cognizance of the complaint. Under the circumstances the learned Sessions Judge
has made a reference that the proceedings before the learned Magistrate should
be quashed for want of sanction.
Two questions arise in this reference (1) whether the accused-applicant is
a public servant not removable from his office except with the sanction of the
State Government; and (2) whether the acts done by him which are alleged to
constitute the offence alleged against him have been committed by him while
acting or purporting to act in the discharge of his official duty. If these two
conditions are satisfied then under the provisions of sec. 197 of the Cr.P.C.,
no court is competent to take cognizance of such an offence against the accused
except with the previous sanction of the State Government.

Now in regard to the first question whether the accused-applicant is a public

servant who is not removable from his office except, with the sanction of the
State Government I must turn to the relevant provisions of the Bombay Municipal
Boroughs Act 1925 sec. 56(1) of the said Act provides as follows :-
“Every Municipal Councillor officer or servant and every lessee of the levy
of any municipal tax and every servant or other person employed by any such
lessee shall be deemed to be a public servant within the meaning of sec. 21 of
the Indian Penal Code.”
Section 18(1) of the Act says as follows :-
“A municipality shall be presided over by a president who shall be elected
by the councillors from among their number. There shall be a vice-president
similarly elected for each municipality.......”
Taking sec. 18(1) and sec. 56(1) of the Act together it is fairly clear that
a President can only be elected from the councillors of the Municipality. Therefore
the President is also and continues to remain a councillor of the Municipality
even after be is elected as President the only difference being that in addition
to his capacity as a councillor he has the added dignity and the position of
the President. Therefore the President of the Municipality is a public servant
within the meaning of sec. 21 of the I.P.C. In fairness to Mr. Shah the learned
counsel for opponent No. 1, I must observe that he has conceded that that position
cannot be challenged that the President is a public servant within the meaning
of the Act. Independently however of the concession it is my view that he is
a public servant within the meaning of sec. 21 of the I.P.C.
The next question that arises in connection with this first point is whether
he is a public servant who is not removable from his office except with the
sanction of the State Government. In this connection I may refer to sec. 27
of the Bombay Municipal Boroughs Act 1925 which provides as follows :-
“The State Government if it thinks fit on the recommendation of the Municipality
supported by at least two-thirds of the whole number of councillors may remove any
councillor elected or nominated under this Act if such councillor has been guilty of
misconduct in the discharge of his duties or of any disgraceful conduct or has become
incapable of performing his duties as a councillor.”
Provided that no resolution recommending the removal of any councillor shall be
passed by the municipality unless the councillor to whom it relates has been given a rea-
sonable opportunity of showing cause why such recommendation should not be made.
Thus it is clear from the provisions of sec. 27 that a councillor of the
Municipality can only be removed by the State Government.
Proceeding further sec. 21(1) of the said Act provides as follows :-
“A president or vice-president shall be removable from his office as such
president or vice-president by the municipality by a resolution passed to that effect
provided that three-fourths of the whole number of the councillor of the
municipality vote in favour of such resolution and provided further that before
such resolution is passed the president or vice-president is given a reasonable
opportunity of showing cause why such resolution should not be passed.”
Sub-section (2) of sec. 21 of the Act provides as follows :-
“A president or vice-president shall also be removable from his office as such
president or vice-president by the State Government for misconduct or neglect of or
incapacity to perform his duty and the president or vice-president so removed shall not

be eligible for re election as a president or vice-president during the remainder

of the term of office of the municipality.”
Under the provisions of sec. 27 a Municipal Councillor is liable to be removed
from his office by the State Government while under the provisions of section
21(1) a President is removable from his office as such President by the
Municipality by a resolution as prescribed by the said sub-section. Under sub-
sec. (2) of sec. 21 a President is also removable from his office as such President
by the State Government.
Now, relying on the provisions of section 21(1) of the Act it is contended
on behalf of opponent No. 1, that the President is removable from his office
by the Municipality under sub-sec. (1) of sec. 21. Therefore it is contended
that one of the conditions of sec. 197 Cr.P.C. is not satisfied in this case for
the reason that the public servant concerned is removable to this particular case
by an authority other than the State Government. It may however be borne in
mind in this connection that sec. 21(1) provides for the removal of a President
(also Vice-President) by the Municipality from the office of the President as
such or the office of the Vice-President as such. So even if by a resolution
of the Municipality a President is removable under sec. 21(1) he is removable
as such President but he still continues to remain as a councillor. Therefore it
is obvious that even though a President can be removed by the Municipality
under sec. 21(1) the removal affects his capacity or office as a President only
and does not touch his capacity as a councillor. In other words the individual
concerned continues to retain his capacity of a public servant in his office as
a councillor. The question therefore to be deter. mined is whether under the
provisions of section 197 of the Cr. P. C. as applying in the context of this
case the removal should be the removal of the President as such or a complete
removal in his capacity as a public servant. It seems to me that the proper
construction of sec. 197 as applying in the context of this case is that the removal
that is contemplated is the removal as a public servant which includes not only
his capacity of a public servant as a President but also his capacity as a Public
servant as a Municipal Councillor. In this view, it is clear that the President
is not removable in the capacity of a public servant which capacity includes
the Presidents office as a Municipal Councillor under the provisions of sec. 27
of the Act except by the State Government. Therefore, in my view, this is a
case, where the petitioner-accused is a public servant who is not removable from
his capacity as a public servant except by the State Government.
Having looked at the provisions of the statute in this connection, I shall
now refer to the decisions which have been brought to my notice in this
connection. My attention was drawn to the case of Emperor v. Hiralal
Das, 69 Calcutta Law Journal page 567, where it was held that a Vice-
Chairman of a Municipality cannot be prosecuted in respect of certain acts
performed by him in that capacity in connection with the placing of
contract for the supply of oil to the Municipality without the sanction of the
Local Government in view of the provisions sec. 197 of the Criminal Procedure
Code. A Vice-Chairman of the Municipality in that case was removable by two
thirds vote of the Commissioners (meaning the members of the Municipality)
while a Commissioner could only be removed by the Local Government.

The persons charged in that case was the Vice-Chairman of the Municipality.
The case came up before a Division Bench of the Calcutta High Court consisting
of Mr. Justice Henderson and Mr. Justice Sen. The relevant observations (at page
572) are as follows :-
“The reference has been opposed on behalf of the Crown and the contention
of the learned Deputy Legal Remembrancer is that inasmuch as the petitioner can
be removed from his office as Vice-Chairman by a vote of two-thirds of the
Commissioners under the provisions of sec. 61 of the Bengal Municipal Act sec.
197 has no application to the proceedings.
In our judgment it is impossible to divorce the position of the petitioner as
Vice Chairman from his position as Commissioner. He was still a Commissioner
while acting as Vice-Chairman and indeed unless he was a Commissioner it would
be impossible for him to be appointed to that office. If the position were that
anybody could be appointed to the post of Vice-Chairman the argument of the
Crown might have some force in it. In fact however in discharging the duties
of that office the petitioner was working as a Commissioner.”
In the above case before the Calcutta High Court therefore where the position
was somewhat similar to the position as it obtains in this case it was held that
though the Vice-Chairman could be removed by two thirds vote of the
Municipality still he would be entitled to the protection of sec. 197 Cr. P. C.
as he was also a Municipal Councillor and as such he was not removable from
his office except by the State Government.
My attention was also drawn to a case of the former Bombay High Court
reported in XLII Bombay Law Reporter page 1193 (Emperor v. Vishnu Talyaba
Naik). In that case there were two accused a Sub Overseer in the employ of
the District Local Board and the second accused was the Chairman of the Works-
Committee. Under the provisions of sec 38 of the Bombay Local Boards Act
1923 a Local Board may appoint committee to exercise the powers and perform
the duties of the Local Board in respect of any purpose subject to the provisions
of the said Act and it was competent under sub-section (4) of sec. 38 to the
Board at any time to discontinue or alter the constitution of such committee.
In other words it was competent to the Board to put an end to the constitution
of the whole or part of any committee. In other words the members of the
committee were liable to be removed at any time by the Board; but so far as
the removal of the members themselves was concerned under the provisions of
sec. 31 that power of removal of the members of the Local Board was vested
in the State Government. So, the position in this Bombay case was that the
Vice-Chairman of the Works-Committee as a members of that committee was
removal by the Local Board but as a member of the Local Board itself he was
only removable with the sanction of the State Government. As stated above the
prosecution was against the Overseer as well as the Vice-Chairman of the Work-
Committee. The second accused was the Vice-Chairman of the Works-Committee.
Under the provisions of the Bombay Local Boards Act, 1923, sec. 135, every
member of the Local Board is deemed to be a public servant within the meaning
of sec. 21 of the I. P. C. No. sanction was obtained for the prosecution of
the second accused in this case and Mr. Justice Was soodew at page 1200 of
the report observed in this connections as follows :-
“There is no doubt that the member is also entitled to protection under sec. 197 of the

Criminal Procedure Code. He is a statutory public servant according to sec. 135

of the Bombay Local Boards Act and the act complained of was done or purported
to be done in the exercise of his official duty. As a member is not removable
without the sanction of the Local Government under sec.31 of the Act the sanction
of that Government would be necessary for his prosecution under sec. 197 of the
Criminal Procedure Code. Therefore I think the rule in his revisional application
must be made absolute and the proceedings pending before the Resident First
Class Magistrate of Manmad quashed.”
The question that was raised before the Division Bench of the Bombay High
Court in the above-mentioned case was also somewhat similar to the question
raised before me in this case and the interpretation of sec. 197 of the Cr. P.
C. in that case was also to the effect that though as a Vice Chairman of the
Works-Committee he may be removable by the District Local Board as a member
of the Local Board he was only removable by the Local Government and therefore
as a public servant he was removable only by the Local Government and that
therefore he was entitled to the protection of sec. 197 of the Cr. P. C. In other
wards sanction to prosecute him was necessary. I respectfully agree with the
views expressed in the above Calcutta and Bombay decisions and come to a
similar conclusion in this case viz. that in the present case though the President
is removable by the Municipality in certain contingencies as a President he is
not removable as a councillor of the Municipality except by the State Government
and that therefore in his capacity as a public servant he is only removable by
the State Government because as a councillor, as I have stated above he is only
removable by the State Government. In these circumstances one condition of
sec. 197 Cr. P. C. is satisfied viz. that the President is a public servant who
is removable only by the State Government.
The next question that arises is whether in this case it can be said that
the offence alleged against the accused was committed by him while acting
or purporting to act in the discharge of his official duty. It is contended on
behalf of opponent No. 1 that in this case the President has used his office
as a mere cloak for the acts in question. In other words it was contended
that there was a pretence of his office which he had made in doing the acts
which are alleged against him and that really the acts were done neither in
his capacity of the public servant not were they purported to have been done
in the discharge of his official duty. On the other hand it is contended on
behalf of the accused that the acts complained of have been done by him
while acting in the discharge of his official duty or at any rate while purporting
to act in the discharge of his official duty. It is necessary in this connection
to refer to certain provisions of the Bombay Municipal Boroughs Act 1925
sec. 31(d) of the Act provides as follows :-
“(d) the president of a municipality may in cases of emergency direct the execu-
tion or stoppage or any work or the doing of any act which requires the sanction of
the municipality and the immediate execution or doing of which is in his opinion
necessary for the service or safety of the public any may direct that the expense of ex-
ecuting such work or doing act shall be paid from the municipal fund.”
It appears that under the above provisions of sec 31(d) in cases of
emergency the President has the power to direct amongst other things the doing
of an act which requires the sanction of the Municipality and the immediate
doing of which is in his opinion necessary for the service of the public and
to direct that the expenses for doing such an act shall be made from the

municipal funds in other words if the President thinks that there is a case of
emergency he has the power to direct the doing of an act which requires the
sanction of the Municipality without previously obtaining such sanction if it is
necessary for the service of the public and for that purpose he has the power
to direct the payment of the expenses of doing such an act from the municipal
funds. Prima facie it appears therefore that under the provisions of sec. 31(d),
if the President thinks that there is an emergency and if he further thinks that
the immediate doing of a thing is necessary for the service of the public then
in that case it is within his powers to direct the doing of such an act and to
order the payment for the doing of such an act even without the sanction of
the Municipality. Therefore under sec. 31(d) if the contingency which is mentioned
in that section is present in that contingency it is within the powers of the President
of a Municipality to direct the payment of expenses of doing an act without
previously obtaining the sanction of the Municipality. It is true that under Rule
160 of the Rules of the Nadiad Municipality it is provided as follows :-
“No suit shall be instituted compromised or defended on behalf of the
Municipality without their sanction.”
It follows therefore that to direct payment by the President in connection
with such legal proceedings he must previously obtain the sanction of the
Municipality under Rule 160. It is also true that under Rule 135 of this
Municipality no payments on behalf of the Municipality shall be made except
in cases covered by Rules 136 to 139 (not material to the present case) if the
payment has not been ordered by the controlling committee. The scheme of the
rules therefore is that ordinarily speaking and as a general rule no payments
on behalf of the Municipality can be made except in excepted cases (with which
we are not concerned in this case) before payment has been ordered by the
controlling committee and in particular as a result of rule 160 no legal expenses
could be incurred much less paid on behalf of the Municipality without the
sanction of the Municipality. This is the ordinary rule. There might however
be cases of emergency and it is to provide for these emergent cases that a provision
is made under sec. 31 of the Bombay Municipal Boroughs Act 1925 to the effect
that in case of emergency mentioned in sub-section (d) thereof it is within the
power of the president to direct the doing of an act and also to direct payment
in connection therewith without previously obtaining the sanction of the
Municipality provided in his opinion it is necessary for the service of the public.
It was pointed out on behalf of the opponent No. 1, that there is a
proviso to sec. 31, which says that in case an action is taken under subsection
(d) of sec. 31, the President shall report forthwith the action taken under
this section and the reason therefore to the Standing Committee at its next
meeting. It was contended that in this particular case no such report was
made. To my mind not making of the report under the proviso cannot
take away the power that is given under sub-section (d) of sec. 31. It is true
that if no such report is made after the exercise of the powers under sub-
section (d), it may be an ingredient amongst other things to find out whether
the powers under sub-section (d) were exercised properly. Nonetheless, I do
not think that mere non-reporting of the action taken under sub-section (d)

is fatal to the exercise of the power under sub-section (d) of sec. 31 of

the Act.
Now, in the case before me as stated earlier the President has directed the
payment of the legal charges incurred in connection with the several writ
applications in which the President and the Municipality both were made parties
except for one petition where the President was not made a party but the Municipal
Borough of Nadiad was made a party. The charges also include the travelling
expenses of the President as well as the Secretary of the Municipality in connection
with these legal proceedings. It cannot be said that such a direction by the
President to the Chief Officer to make payment of these legal charges and the
travelling expenses cannot fall under the provisions of sec. 31(d). The question
whether the direction was exercised by the President dishonestly or fraudulently
is a question which will affect the merits of the case. For the present, I am
only concerned with the question whether the payment can be said to be in
the execution of the powers of his office as a President or in the purported
execution of the powers of his office as a President. There seems to be little
doubt that the direction to pay the legal charges and travelling expenses in this
case would fall under the provisions of sec. 31(d), in so far as mere power
of the President is concerned to do such as act. At any rate it is a purported
exercise of such power as contemplated under sec. 31(d).
In this connection now I may refer to certain decisions which lay down
the principles to be observed in determining the question whether a particular
act is within the powers of a public servant concerned or whether that can be
said to be within the purported exercise of the powers of the public officer
concerned. I may refer to the case Amrik Singh v. The State of Pepsu reported
in 1955 Supreme Court Reports page 1302. where after discussing the relevant
authorities. His Lordship Mr. Justice Venkatrama Ayyar J., observes at page 1310
as follows :-
“The result then is that whether sanction is necessary to prosecute a public servant
on a charge of criminal misappropriation will depend on whether the acts complained
of hinge on his duties as a public servant If they do then sanction is requisite. But if
they are unconnected with such duties then no sanction is necessary.”
Now in this case it cannot be denied that the payment of the legal and
travelling charges do hinge on his duties as a President and that they are
connected with his duties as a President. It was in his duty as a President
that he attended to his litigation. So it cannot be said that the acts complained
of were unconnected with his official position as President and if such is
the position then according to the above decision of the Supreme Court the
sanction is requisite.
Again I may refer to the case of Matajog Dobey v. H. C. Bhari,* where
Mr. Justice Chandrashekhar Aiyar observed at page 933 as follows :-
“The interpretation that favour with Varadachariar J., in the same case is stated by
him in these terms at page 187 : “There must be something in the nature of the act
complained of that attaches it to the official character of the person doing it.” In
affirming this view the Judicial Committee of the Privy Council observe in Gills case
: “A public servant can only be said to act or purport to act in the discharge of his
official duty, if his act is such as to lie within the scope of his official duty...The
* 1955, 2 S.C.R. page 925.

1960] CHIMANBHAI v. JASHBHAI (Cri.R.)-Mehta, .J. [259
test may well be whether the public servant, if challenged can reasonably claim
that, what he does he does in virtue of his office.”
Further the same learned Judge observes at page 934 as follows :-
“The result of the foregoing discussion is this : There must be a reasonable
connection between the act and the discharge of official duty; the act must bear such
relation to the duty that the accused could lay a reasonable but not a pretended or a
fanciful claim that he did it in the course of the performance of his duty.”
In this case therefore as I have stated earlier the question is whether the
direction for the payment can be said to be an act having reasonable connection
with the discharge of his official duty or not. If one can say that the act bears
such a relation to the duty of the President that the President could lay a reasonable
claim that he did it in performance of his duty then in that case he is entitled
to the protection of sec. 197, Cr. P. C., of course it should not be a pretended
or a fanciful claim. This naturally must depend on the facts and circumstances
of each case. On the facts and circumstances in this case as stated above in
the several writ applications the President and the Municipality were made parties
the lawyers were engaged on behalf of the Municipality and the President and
the President directed the payment of these charges viz., legal charges and the
travelling expenses as an emergent expenditure in exercise of the power vested
in the President under sec. 31(d) of the Act. The least can be said is that if
this is not under the exercise of his power it cannot be denied to be in the
purported exercise of the powers of the President under sec. 31(d) of the Act.
In this connection I may also refer to the observation of Mr. Justice
Broomfield in the above referred to case in 42 Bombay Law Reporter (Emperor
v. Vishnu Tatyaba Naik) made at page 1201, which are as follows :-
“If the act alleged to be criminal is done by a public servant in his official
capacity that is if it is an act which it is his duty to do as such Public servant under
the law governing the case he is protected although by reason of the fact that he
had done the act dishonestly or fraudulently or in any other manner contrary to the
law he may have committed a criminal offence. On the other hand if the offence
charged involves an act or acts which the accused is not required to do and which
are outside his official duties the liability to prosecution is unfettered.”
Now in this case therefore what one has to see is whether the act done
falls within the duty of the public servant or within the purported exercise of
the duty of the public servant. If it is within the duty of the public servant
then he is protected under sec. 197, of the Cr.P.C., although if he has done
the act dishonestly or fraudulently or in any other manner contrary to the law
he may have committed a criminal offece. What is important to bear in mind
is that the Court has to find out whether there is authority to do such act in
his official capacity or whether the act done is in the purported exercise of
the official duty. In both these case a public servant is protected. If he has
committed dishonesty or fraud or an illegality in the sense that he has done
in the manner contrary in law he may have committed a criminal offence and
that is a matter on merits with which I am not concerned at this stage.
My attention was drawn by Mr. Shah for the first opponent to
another Supreme Court case reported in A.I.R. 1960 S.C. p. 266, K. Satwant
Singh v. The State of Punjab, wherein it was held that the act must bear

such relation to the duty that the public servant could lay a reasonable but not
a pretended or fanciful claim, that he did it in the course of the performance
of his duty. I have already considered this argument in an earlier part of this
judgment. It cannot be denied that in this case the accused can reasonably claim
that what he did was in the course of the performance of his duty. This claim
is neither a pretence nor a fanciful one.
In this view of the case, there is no doubt that the direction for the payment
of the money in regard to the legal charges and travelling expenses given to
the Chief Officer of the Municipality by the accused-President is in the discharge
of his official duty and it does bear such relation to his duty as a public servant
such that he can claim reasonable but not fancifully, that he did it in the
performance of his official duty.
In these circumstances the accused-President is entitled to the protection of
Sec. 197 of the Criminal Procedure Code viz. that the sanction of the State
Government is necessary to be obtained before launching the prosecution of the
accused under Sec. 409 of the Penal Code in this case and the learned Magistrate
was not competent to take cognizance of the complaint in question without such
a sanction. No such sanction having been obtained the proceedings in this case
must and are quashed.
The reference is accepted.
Reference accepted.
* * *
and The Hon’ble Mr. Justice P. N. Bhagwati.
CHHANALAL A. PATEL v. THE STATE OF GUJARAT*
Bombay Local Boards Act, 1923 (VI of 1923) - Sec. 26(1)-Show -
cause notice-”Misconduct”-Whether must confine to the period of term
of office-Whether misconduct prior to the new term of office could be
considered-Doctrine of “Nocitur a sociis”.
The State Government issued a notice on the President of a District Local Board
calling upon him to show cause why he should not be removed from office under
Sec. 26(1) of the Bombay Local Boards Act, 1923. The allegation made referred
to a period prior to 16th June 1958, the date on which the Board was reconstituted
and the petitioner was elected as its President. The contention of the petitioner
praying for a writ of prohibition directing the State Government not to proceed
with the inquiry was that the alleged misconduct did not take place during the
term of office of the petitioner as the President of the reconstituted Board and
that the show-cause notice was wholly out of the purview of Sec. 26 of the Local
Boards Act and issued by the State Government without any authority and
jurisdiction.
HELD THAT even though the office of a President of a District Local Board
continues till the expiry of his term of office, he may nevertheless be removed
from his office as such President by the State Government for misconduct or neglect
of duty or incapacity to perform his duty under Sec. 26 of the Bombay Local
Boards Act. The removal from office is to be confined in point of time only to the
*Decided on 15-9-1960.Special Civil Application No. 282 of 1960 for a writ of
prohibition under Art. 226 of the Constitution of India against the notice of the
State Government dated 4th April, 1960.

1960] CHHANALAL v. STATE (S.C.A.)- S.T. Desai, C.J. [261
remainder of the term of the Local Board. The misconduct of which Sec. 26 of
the Act speaks is misconduct during the term of office and not at any point or
period of time beyond and before that term of office.
Interpretation of Statutes-Nocitur a Sociis
When the import of a statute is doubtful associated words can explain and
limit the application of each other. The word “misconduct” in sec. 26 of the Local
Boards Act is grouped with two other expressions “neglect” and “incapacity” to
perform duties of a President and it is permissible to determine its meaning by
a reference to the associated words provided such reading of it is not inconsistent
with the general intent and ambit of the rule.
Constitution of India, Article 226-Writ of prohibition-Whether ‘as of right’
or ‘of course’ or ‘in any event ‘as a matter of course’-Whether discretionary,
When there is absence of jurisdiction apparent on the face of the proceedings,
the Court should in the exercise of its discretion grant relief by issuance of the
writ unless there is some very strong case made out for withholding of the same.
The Court is bound to act with discretion and when it appears that there has been
usurpation of jurisdiction, it is that discretion itself that requires that the Court
should act and not refuse to act in the matter. The issuance of the writ though
not “of right” or “of course” would almost be as “a matter of course”.
Stock v. Central Midwives Board (1), distinguished.
S. C. Prashar v. Vasantsen (2), applied.
Farguharson v. Morgan(3), Bengal Immunity Company v. State of Bihar (4), referred to.
Mr. M. P. Amin with Messrs. P. M. Amin, M. H. Chhatrapati and T. J. Patel,
for the Petitioner.
The Advocate General with the Assistant Government Pleader, for the Respondent.
S. T. DESAI C. J. This is a petition for a writ of prohibition
directing the opponent, the State Government, not to proceed with an inquiry
contemplated by a show cause notice dated 4th April, 1960 issued in circumstances
to be presently stated. The petitioner is the President of the District Local
Board, Mehsana. He was also the President of a previously constituted Local
Board. A District Local Board of Mehsana was constituted of elected
members in 1957. The petitioner was an elected member of that Board and
was elected its President and functioned as such from 12 July, 1957 to 13th
June 1958. There were changes in the boundaries of the district and the Local
Board was dissolved by the State Government on 13th June, 1958. On 14th
June, 1958, the District Local Board for Mehsana was reconstituted and the
petitioner was one of the nominated members of that Board. At a meeting
convened for the purpose, the petitioner was elected President of the reconstituted
Local Board on 14th June 1958. That office of the petitioner as President
was for a period of three years from 14th June, 1958. On 4th April, 1960,
the State Government issued a notice on the petitioner calling upon him
to show cause why he should not be removed from his office under Section
26(1) of the District Local Boards Act, 1923. A number of allegations are
made against the petitioner in that show-cause notice. It is not necessary to
go into the details of those allegations and it will suffice to observe that the
1. (1915) (3) K.B. 756 2. (1955) 58 Bom.L.R. 184 3. (1894) 1 Q.B. 522
4. A.I.R. (1955) S.C. 661

allegations are not of any serious nature. It is of consequence however to note

that all the allegations in that show cause notice relate to a period prior to 14th
June 1958 when the District Local Board was reconstituted and the petitioner
was elected as its President. They relate to the period of the previously constituted
District Local Board. This is common ground. Immediately after the service of
the show cause notice on him the petitioner presented this petition seeking a
writ of prohibition directing the opponent not to proceed with the inquiry
contemplated by the show cause notice.
One important question that arises for our determination lies in a narrow
compass and relates to the interpretation of sec. 26 of the Bombay Local Boards
Act to be referred to by us hereafter as the Act. The other question is one
of greater importance and relates to the position in law in the matter of issuance
of a writ of prohibition. Where there is patent lack of jurisdiction and it appears
that a Tribunal or authority is usurping jurisdiction would a writ of prohibition
issue as a matter of right or a matter of course or would it be a matter of
discretion with the Court?
It has been argued before us by Mr. M. P. Amin learned counsel for the
petitioner that the show cause notice could not be issued under section 26 because
the alleged misconduct did not take place during the term of office of the
petitioner as the President of the reconstituted District Local Board. The argument
has proceeded that the show cause notice is wholly outside the purview of sec.
26 and issued by the State Government without any authority and jurisdiction.
In order to appreciate this argument it will be convenient to set out here the
relevant and material part of that section :
“26. (1) The term of office of every president or vice-president shall cease
on the expiry of his term of office as a member of the local Board over which
he presides : provided that he shall be removable from office as such president
or vice-president by the State Government for misconduct or neglect of or
incapacity to perform his duty and a president or vice-president so removed shall
not be eligible for re-election or appointment during the remainder of the term
of office of local board.”
The argument of Mr. Amin has been that on a plain reading of the section
the expression misconduct must relate to misconduct which has taken place during
the term of the office of the President and not on any prior date or earlier
point of time. Mr. M. H. Chhatrapati learned counsel for the petitioner who
supplemented the arguments of Mr. Amin has carefully and fully argued before
us this question of construction. Learned counsel has laid great stress on the
initial words of sub-sec. (1) of sec. 26 as also the words “during the remainder
of the term of office of the Local Board” with which the sub-section ends.
He has learned heavily on the elements of neglect and incapacity to perform
duty and urged that the negligence or incapacity to perform duty must necessarily
have arisen during the term of office and not at any point of time before that.
This latter aspect relating to negligence and incapacity to perform duty has not
been seriously challenged before us by the learned Advocate General who appears
for the State Government. The argument of Mr. Chhatrapati has proceeded that
the expression “misconduct” must relate to misconduct in the performance of
his duty by the President. Misconduct, neglect or incapacity to perform duty
should all be read in the same manner and must all relate to the same period
of time and if they be so read the necessary effect of doing so would be

that misconduct which affords a ground for removal of the President of a Local
Board must taken place during the term of his office.
Greatest emphasis has been laid on behalf of the petitioner on the expression
term of office which occurs at the out set of the section. It is said that the
section is concerned with one term of office and nothing more. Some support
is also sought to be derived from the marginal not to the section which speaks
inter alia of term of office of president and vice-president and their liability
to be removed. Our attention has also been drawn to sections 9 and 31 of the
Act. Since reference has been made in the course of arguments on either side
to both these sections it will be convenient to set out here relevant and material
part of section 9 and the provisions of section 31.
“9. (1) No person may be a member of local board who —
*** *** **** ***
(c) (1) has been convicted by a Court in India of any offence and sentenced
to transportation or to imprisonment for not less than two years unless a period
of five years or such less period as the State Government may allow in any
particular case has elapsed since his release; or
*** *** **** ***
(ii) has been removed from office under section 31 and five years have not
elapsed from the date of the expiry of such removal.”
“31. The State Government may if it thinks fit on the recommendation of the
local board remove any member of such local board elected or appointed under
this Act after giving him an opportunity of being heard and after such inquiry
as the State Government deems necessary if such member has been guilty of
misconduct in the discharge of his duties or of any disgraceful conduct or has
become incapable of performing his duties as a member of the local board.”
Section 9 contains a number of rules relating to general disqualifications
of members. A person suffering from any of those disqualifications cannot be
elected as a member by the electorate. That section imposes total disqualifications
whereas section 26 when it speaks of misconduct speaks of conduct less
reprehensible than that resulting in conviction of an office and sentence of
imprisonment as there stated and the section itself furnishes material which goes
to show that the section is concerned with one term of office and no more.
It is also urged that even if we take the view that the meaning of the expression
misconduct is not very clear we must strictly construe it against disqualification.
It is also said that a reconstituted board is a new board for all purposes and
there is no reason why the expression misconduct in section 26 should relate
to misconduct on the part of a President during any earlier and previously
constituted Local Board.
It has been argued on the other hand by the learned Advocate General that
the expression misconduct must be interpreted to mean not only any misconduct
of the President in the performance of his duty as President but such as renders
him unfit to be the President of the Local Board. Reliance has been placed
by counsel on a decision of the Court in England in Stock v. Central Midwives
Board, (1915)3 K.B. 756. The Court was there considering section 3 of the
Midwives Act 1902 which conferred power on the Central Midwives Board to
frame rules regulating their own proceedings and to remove from the roll the
name of any midwife disobeying the rules or for other misconduct. As page
763 of the report Lord Reading C.J. observed :-

“.....I only desire to say that in my view the misconduct dealt with by the
section is not limited to misconduct in the discharge of the duties of a midwife.
If it is misconduct in the opinion of the Board which tends to unfit her for
the discharge of the duties of a midwife then the Board has the right to treat
it as misconduct under the statute and to visit it with the penalties which in
their opinion it deserves.”
It is true that these observations though made in a different context and
in interpreting a provision in the Midwives Act in England can be helpful. But
we on our part are of the view that in the present context it should make little
difference whether we read the expression misconduct In the sense suggested
by Mr. Chhatrapati or in the sense which we are asked to attribute to the same
by the learned Advocate General. In our judgment as we shall presently point
out for the purpose of the present inquiry it is not so much the meaning and
connotation of the expression misconduct in the section that must matter as its
collocation its setting and the association of words which follow upon it. Of
that more hereafter.
It is next argued that there is no reason why the word misconduct should
be read as misconduct during the term of the office of the President. That it
is said would be incorporating words in the section which are not there. The
argument has run that there is nothing in the section which introduces any thing
of the nature of limitation in point of time in the context of the act or acts
of misconduct in respect of which action may be taken by the State Government
against the President of a District Local Board.
The proviso to section 26 it appears to us could have been penned with
greater clarity. But the obscurity that seems to result becomes considerably less
so when we invoke the aid of some of the recognised canons of construction.
We must look not only at the expression misconduct but look at the context
and collocation of it and the structure of the whole sentence which laps down
the rule relating to removal of the President. We must make a consistent and
harmonious enactment of the whole rule. We must also remember that we are
interpreting a provision which brings about removal of a President from his
office and his punitive in its effect and must therefore be strictly construed.
By this we do not mean that it should be stintingly or narrowly understood
but that we must exclude from its ambit and operation all that is not clearly
covered by the words used. On the one hand there should be no deliberate
weighing in favour of a construction which would validate a show cause notice
issued under it not on the other hand there should be attributed to the language
used any constricted sense and operation. The coverage of it would however
be confined to that which is clear and explicit and having regard also to the
scheme of the relevant provisions and the object of the Legislature to be gathered
from the same.
Misconduct is a term of wide and indefinite import. In section 26 it is
grouped with two other expressions neglect and incapacity to perform duties
of a President and it is permissible to determine its meaning by a reference
to the associated words provided such reading of it is not inconsistent with
the general intent and ambit of the rule. It is in such cases that the maxim
nocitur a sociis affords a guide and at times even a key to the ascertainment
of the legislative intendment. Of course we do not intend to be understood to
suggest that the character of the expression under consideration should be

sub-merged by its association. If the legislative intent is clear and plain the maxim
must give way. But when the import is doubtful associated words can explain
and limit the application of each other.
Considered in the light of these prefactory observations it seems to us that
the difficulty of construing this expression “misconduct” in the context of its
operation in point of time is more apparent than real. The first part of the
section relates to the term of office of every President or Vice-President. The
proviso which is more of the nature of an additional rule than a proviso is
obviously intended to enact that even though the office of a President continues
till the expiry of his term of office he may nevertheless be removed from his
office as such President by the State Government for misconduct or neglect of
duty or incapacity to perform his duty. There is greater reason in our opinion
for confining the operation of the rule to acts of misconduct or neglect on his
part during the term of his office than giving the rule a wider scope. We have
already pointed out that as to negligence or incapacity to perform his duty they
should indubitably be during the term of office. Obviously the expression
“incapacity” whatever else it includes must include physical incapacity and it
is inconceivable that it can be suggested that physical incapacity during the term
of a previously constituted Local Board would invite the operation of this section
and the same considerations must apply to an act of negligence in the performance
of his duty by a President. That being the position it seems to us that this
is one of those cases where we must allow the maxim nonitur a sociis to help
us in interpreting the section. There is all the more reason for preferring this
construction when we look at the words at the end of the section. The removal
from office is to be confined in point of time only to the remainder of the
term of office of the Local Board. The misconduct or neglect to perform his
duty or incapacity to perform his duty as a President ate obviously regard by
the legislature as not serious matters for the removal is to be only for a limited
period of time.
Support is to be derived for the view we prefer to take on this question
from section 9 which we have already set out above. There are matters which
are regarded by the legislature as resulting in general disqualification and they
are all of a serious nature. This in our opinion is an index showing that the
misconduct of which section 26 speaks is misconduct during the term of office
and not at any point or period of time beyond and before that term of office.
In that view of the matter it must be held that the show cause notice was beyond
the competence of State Government.
The next step of the argument on behalf of the petitioner is that here
is a case where State Government has usurped jurisdiction and authority
which it does not possess and it is apparent that this is a case of total
absence of jurisdiction. The argument has run that the absence of
jurisdiction is apparent on the face of the show cause notice itself and
being a case of patent lack of jurisdiction the petitioner is entitled to a
writ of prohibition as of right and in any event as a matter of course. It
has been argued on the other hand by Counsel for the opponents that the
issuance of a writ of prohibition must always remain a matter of discretion

with the Court. There are observations of the highest Tribunal where it is said
that the issuance of any prerogative writ under article 226 of the Constitution
is discretionary with the Court.
The interesting question whether a writ of prohibition can be claimed by
a party as of right came up for consideration before me in the case of S. C.
Prashar v. Vasantsen, (1955) 58 B.L.R. 184. In England it is not unusual to
say that where there is total absence of jurisdiction apparent on the face of the
proceedings a writ of prohibition would go as of right (See Farguharson v.
Morgan, (1894) 1 Q.B. 552). But as I pointed out in Prashars case it is in
the historical background of the writ that in England it is said that in any such
case prohibition is demandable of right. No such considerations need weigh with
this Court in appreciating the broad principle that granting of all writs under
article 226 of the Constitution including the writ of prohibition is always
discretionary though of course different considerations may prevail in case of
different writs. The principles that can be gleaned from an exhaustive review
of citations made at the bar in that case were summarised by me in the form
of certain propositions :-
“The following propositions though not exhaustive of the subject are sufficient
for the purposes of this case and I venture to think that the true measure and
scope of She exercise of this jurisdiction and the discretion of this Court to issue
a writ of prohibition under our law in respect of proceedings in excess of
jurisdiction may be thus stated :
(i) The High Court has always the power and the discretion to grant or refuse
to grant this writ which though it is primarily intended for enforcement of
fundamental rights must also issue where necessity demands immediate and
decisive interposition.
(ii) The considerations that arise when this writ is asked for on the ground
that any inferior Court or person or body of persons having legal authority is
committing or has committed an error of law apparent on the face of its
proceedings and those that arise in a case of excess or usurpation of jurisdiction
by any such Court or authority must necessarily be differentiated for in the former
case there is an erroneous exercise of jurisdiction which exists while in the latter
case there is no jurisdiction at all.
(iii) Absence of jurisdiction may be patent that is apparent on the face of the
proceedings or latent in the sense that it is not so apparent. Where the defect
is not apparent the Court in its discretion may refuse the writ if the facts
circumstances attending the case show undue delay insufficient materials miscon-
duct loaches or acquiescence on the part of the party applying for it or are such
as would render it unjust on the part of the Court to interpose.
(iv) Where however there is patent lack of jurisdiction and the Court is
immediately satisfied that the inferior Court or authority has exceeded its jurisdiction
the Court will very readily interpose. The discretion to grant or refuse to grant the
writ is of course there. But since discretion contemplates an exercise of arbitrium and
not arbitrariness the writ must go though not of right nor of course yet almost as a
matter of course unless an irresistible case for withholding the writ is made out.”
I added :-
“It is not my endeavour to formulate the irresistible grounds on which this writ
may be withheld in a case of patent lack of jurisdiction. I desire to guard myself
against the dangerous ambition of suggesting rules that should regulate this discre-
tion of the Court or of trying to foresee everything. The use of the term discretion
in this connection though of course accurate is apt at times to be misconceived.
The matter has to be decided ‘with discretion and not ‘at discretion.”
The argument on behalf of the State is that the petitioner will not be
seriously prejudiced if the writ is withheld and therefore we should in the

1960] RAMNATH v. G.S. IYER (S.C.A.)- S.T. Desai, C.J. [267
exercise of our discretion decline the issuance of the writ. This in our opinion
would not be correct approach to the matter. It being shown that there is patent
absence of jurisdiction apparent on the face of the proceedings we should in
the exercise of our discretion grant relief by issuance of the writ unless there
is some very strong case made out for withholding of the same. We are bound
to act with discretion and when it appears that there has been usurpation of
jurisdiction, it is that discretion itself that requires that this Court should act
and not refuse to act in the matter. My brother Bhagwati points out to me that
in the case of Bengal Immunity Co. v. State of Bihar, A.I.R. 1955 S.C. 661
Mr. Justice Venkatarama Ayyar made of following observations in the context
of a writ of prohibition at page 726 :-
“The existence of another remedy is a very material circumstance to be taken
into account when the Court is called upon to issue a writ of certiorari but wholly
different considerations arise when the writ asked for is prohibition. Writ of
prohibition is issued whenever a subordinate Court or Tribunal usurps jurisdiction
which does not belong to it and when that has been shown the issue of the writ
though not of course is of right and not discretionary......”
We on our part would not in the context of a writ the issuance of which
is discretionary venture to say that the issuance of the writ can be of right.
In all humility, we would prefer to say that the issuance of the writ though
not of right nor of course would almost be as a matter of course. In that view
of the matter we see no reason why the writ of prohibition should be withheld
in the instant case.
There remains to be mentioned one more contention urged before us by
Mr. Chhatrapati and the contention is that the show-cause notice was issued mala
fide. The loose allegations of mala fide made in the petition have been denied
in the affidavit made in opposition to the rule. In our opinion, there is little
substance in the allegations of mala fide and since we have already reached the
conclusion which goes in favour of the petitioner we do not think it necessary
to discuss the present argument any further. It will suffice to say that in our
judgment the case of mala fides has not been made out.
In the result, the petition succeeds. A writ of prohibition will issue against
the opponent the State of Gujarat directing it not to proceed with the inquiry
contemplated in the show-cause notice dated 4th April, 1960 The opponent will
pay the petitioners costs of the petition.
Petition allowed.
* * *
RAMNATH AGARWAL v. G. S. IYER, COLLECTOR OF CUSTOMS,
KANDLA*
Sea Customs’ Act, 1878 (VIII of 1878)- Sec. 39-Starting point of limitation-
Whether date of first assessment or date on which intimation given or received-
Expression ‘first assessment’ means actual assessment-Principle’ of audi
*Decided on 8-9-1960. Special Civil Application No. 263 of 1960 under Arts.
226, 227 of the Constitution of India against the notices dated 16-4-60 and 22-3-
60 passed by Collector of Customs, Kandla.

alteram partem’-Whether applicable to executive or administrative orders-

Action taken by customs authorities whether quasi judicial.
The notice of demand under Sec. 39 of the Sea Customs Act for payment of
duties not-levied, short—levied or erroneously refunded, must be issued within
three months from the date of the “first assessment.”
The expression “first assessment” in Sec. 39(2)(e) of the Act can only relate
to assessment “strictissimi juris.” It relates to the fixation of the prescribed category
which covers particular goods and the computation and determination of the
amount of the duty to be paid on the same. It relates to and means “actual
assessment” by the Customs Authorities of the particular goods.
The starting point of limitation under Section 39 of the Act is the actual date
of the “first assessment’’ and not the date on which the intimation of the making
of the assessment was given to or received by the owner of the goods.
The order under Sec. 39 of the Act is an unilateral act and the mere fact that
the Collector of Customs added at the end of the letter that any representation
made would be considered cannot be permitted to alter the essence and effect
of the letter. The notice of demand cannot be read merely as a show-cause notice.
Audi Alteram Partem.
The application of the principle founded on the maxim “ audi alteram partem”
does not reach executive or administrative orders. Its application covers order
which are judicial or quasi judicial. An action taken by the Customs Authorities
under Sec. 39 is an administrative or executive action and in doing so they cannot
be regarded as acting in any quasi-judicial manner.
Glaxo Laboratories v. Venkateswaran (1), Ramji v. Manilal Solanki (2), Local Government
Board v. Arlidge (3), Express Newspapers Ltd. v. Union of India (4), referred to.
Mr. Porus A. Mehta with Mr. J. R.. Gagrat and Mr. S. B. Vakil, instructed
by M/s. Gagrat and Company, for the Petitioner.
The Advocate General with the Assistant Government Pleader, for the Respondents.
S. T. DESAI C. J. This petition raises a question of some importance relating
to the interpretation and ambit of limitative provision in Section 39 of the Sea
Customs Act to be referred to by us hereinafter as “the Act”. In view of the
contentions urged at the bar on this question of limitation and other aspects
of the matter, the facts require to be stated with some fullness.
In December, 1957 the petitioner imported 380 case of free wheels at
Port Kandla per S. S. Egidia. The petitioner in the usual course filed the
Bill of Entry through his clearing agents along with the relevant documents.
On 11th January, 1958 the petitioner in answer to some inquiry made by the
Customs Authorities supplied further information required of him. On 14th
January, 1958 the Customs Officer made certain endorsements on the Bill of
Entry. Those endorsements are of considerable importance in appreciating the
arguments advanced before us. In the column under the heading “Value on which
1. (1959) 61 Bom.L.R. 1 2. (I960) 1.G..L.R. 53 3. (1915) Appeal Cases 120
(4) A.I.R. 1958 SC 578;

1960] RAMNATH v. G. S. IYER (S.C.A.)-S. T. Desai, C..J. [269
Duty is Assessed” the Customs Officer wrote as under : “Rs. 97,435.5”.

In the heading under “Rate of Duty” he wrote 65% u/i (meaning “under item”)
75(8) I.C.T. (meaning Indian Customs Tariff). In the heading under “Amount
of Duty”, he wrote out the sum of Rs. 63,333.08. All the three endorsements
relating to value on which Duty was assessed. Rate of Duty and Amount of
Duty, were initialed by the Customs Officer and the date appended to the same
was 14th January 1958. As we shall presently point out greatest stress is laid
on behalf of the petitioner on this factual aspect of the matter. On 15th January
1958 the Collector of Customs Kandla addressed a letter to the petitioner inter
alia stating therein-
x x x x x
“In view of the evidence produced by you the goods are being released on
payment of duty..........You are therefore requested to make early arrangements for
the clearance of the consignment.”
On 16th January 1958 the amount of duty was paid by the Petitioner and
it is common ground that the goods were cleared on that date. Nothing happened
in the matter of this consignment to be described by us hereafter as first
consignment till the 16th April 1958 when the Collector of Customs Kandla
addressed a letter of Demand to the petitioner of which we shall presently make
mention. In the meantime the petitioner had imported another consignment of 113
cases of components of free wheels at Kandla per S. S. Jalatarang and this had
arrived at Kandla in about March 1958. The petitioner filed the Bill of Entry
relating to the same through his clearing agents along with the relevant documents.
The goods of the second consignment were detained by the Customs Authorities
on the ground that the real value declared by the petitioner was not correct.
Adjudication proceedings ensued in which ultimately the Collector of Customs
Bombay passed an order on 14th January 1960 directing that the goods of the
second consignment be confiscated under sec. 167(37) of the Act. He however
gave an option to the petitioner to pay in lieu of confiscation a fine of Rs. 12000/
-. By that order the petitioner was informed that he could appeal against that order
to the Central Board of Revenue at Delhi. An appeal filed by the petitioner against
that order is pending but we are not concerned on this petition with the subject
matter of that appeal or the contentions therein raised. The petitioner through his
clearing agents applied for clearance of the detained goods on payment of the
fine of Rs. 12000/- in compliance with the Order.
By this time the Collector of Customs had addressed the Letter of Demand
to the petitioner dated 16th April 1958 under sec. 39 of the Act. One head
of the argument of Mr. Porus Mehta learned counsel for the petitioner has rested
wholly on the contents of that Letter of Demand and it will be convenient to
set out that letter in extenso.
“Whereas it appears that Customs duty amounting to Rs. 99 162.92 (Rs. Ninety-nine
thousand one hundred sixty two and ninety two naye paise only) which was short
levied in respect of the above consignment is due from you as indicated below :-
Duty was collected at the rate of 65 per cent on the declared value viz. Rs. 97,435.5
nP. From enquires made it appears that the real value of the consignments under
sec. 30(b) of the Sea Customs Act is Rs. 2,5000.00 nP. Duty on this at the rate of 65
percent comes to Rs. 1,62,500.00 nP. Duty thus short levied is Rs. 99,166.92 nP. only.

I demand under section 39 of the Sea Customs Act 1878 (VIII of 1878) that
the said amount be paid within fifteen days from the date of this demand.
Any representation or in writing against the demand with necessary (docu-
mentary evidence about the correctness of your stand should be made within the
said period. If no representation is received within the period aforesaid it will
be presumed that you have admitted the correctness of the demands.”
On 26th April 1958 the petitioner addressed a letter to the Collector of
Customs expressing his surprise at the claim for the alleged short levied Customs
Duty. He stated in that letter inter alia that the Customs Duty had already been
collected from him and that was the correct duty chargeable on the real and
correctly declared value of the goods; the alleged value of Rs. 2 50 0 nP. was
arbitrary exorbitant fanciful and untenable; that the Notice of Demand dated 16th
April 1958 under section 39 was time barred. Nothing appears to have taken
place after that letter but the adjudication proceedings relating to the second
consignment took place thereafter. When the petitioner applied for clearance of
the detained goods on payment of the fine of Rs. 12 0 in respect of the second
consignment under the Order dated 14th January 1960 the first respondent refused
clearance of the detained goods on the ground that that could not be permitted
unless and until the demand relating to short levy of Rs. 99 166.92 nP. was
met and the amount paid. Correspondence ensued between the legal advisers of
the petitioner and the Customs Authorities to which it is not necessary to refer
in this resume of the facts. The petitioner has approached this Court challenging
the order under section 39 of the Act and dated 16th April 1958. The relief
sought by him is that a Writ of Certiorari or any other proper writ may issue
or a direction or order may be made by this Court under Articles 226 and 227
of the Constitution. Certiorari is sought on the footing that the challenged order
was made in the exercise of quasi judicial powers by the Collector of Customs.
In opposition to the rule the Collector of Customs Kandla has filed an
affidavit. The relevant and material part of that affidavit requires to be set out
as the learned Advocate General who appears on behalf of the opponents has
rested a factual aspect of the case on some of the averment in that affidavit.
He has deposed in that affidavit as under :-
“.....The petitioner alleges the date of assessment as 14-1-1958 but that is not
so. The assessment on that day was not complete. The petitioner had been asked
earlier to furnish some further information on receipt of which a letter was written
to the petitioner on 15th January 1958 in pursuance of which he paid the duty
leviable on the Egidia consignment and cleared the goods on 16th January 1958
The process of assessment was not completed on 14-1-1958 as alleged by the
petitioner but the Egidia consignment was finally released only after the
information asked for was received from the petitioner on or about the 15th
January 1958 and after the final computation of the amount of duty payable was
completed and amount thereof was determined by the officers of the Customs
which was immediately prior to the payment of duty by the petitioner of the Egidia
consignment on the 16th January 1958 Hence the date of the first assessment
of the Egidia consignment is not 14-1-1958 as alleged but 16-1-1958.......”
x x x x
x x x x
“It is true that the demand must be made within three months of the first assessment but
the date of assessment in law is not 14-1-1958 as alleged in the petition. It is not true

that the notice was issued more than 3 months after the assessment. It is submitted
that the notice is legal and as no duty was paid as mentioned therein the detention
of the Jala-tarang consignment is also legal........”
An objection has been raised in limine by the learned Advocate General
and the objection is that the petition has been filed after inordinate delay It
is said that the petitioner who challenges the demand under section 39 made
by the Customs Authorities by the letter dated 16th April 1958 should have
appealed against that order and if an appeal was not maintainable so the objection
has run he should have gone in revision against the Notice of Demand. In our
opinion there is little substance in this preliminary objection. It is not necessary
to rehearse the facts and it will suffice to observe that it was in pursuance of
what was mentioned in the last paragraph of the letter dated 16th April 1958
that a representation in writing was made by the petitioner to the Collector of
Customs by a letter dated 29th April 1958. There was no reply to that letter
and the adjudication proceeding relating to the second consignment continued
till about March 1960. It is extremely difficult to see how in this set of
circumstances it can be said that the petitioner was guilty of such laches and
in action on his part as should deprive him of his right to approach this Court
on a petition under Articles 226 and 227 of the Constitution.
Three contentions have been urged before us by Mr. Porus Mehta learned
counsel for the petitioner. Firstly it is urged that the notice of demand under
section 30 of the Act is not a final demand and must be rend as containing
merely a provisional demand. Then it is said that the Customs Authorities had
no jurisdiction or power to make any such provisional demand. We have set
out the whole of the letter of the Collectors dated 16th April 1958. It is true
that in the last part of that letter the Collector has stated that the petitioner
could make a representation orally or in writing against the demand with necessary
documentary evidence about the correctness of his stand within fifteen days of
the date of demand and that if no representation was received from him it would
be presumed tit he admitted the correctness of the demand. This might perhaps
suggest that a final demand would be made after the representation was made.
As against that there is the clearest indication in the earlier part of the letter
that what the Collector of Customs purported to do was to pass an order under
section 39 of the Act and make a demand in respect of short levy of duty.
In express terms he stated :-
“I demand under section 39 of the Sea Customs Act 1878 (VIII of 1878) that
the said amount be paid within fifteen days from the date of this demand.”
In support of his argument Mr. Porus Mehta has referred a decision of the
Bombay High Court in Glaxo Laboratories v. Venkateswaran, 61 Bom.L.R. 1.
It is true that in that case it was held that there was no final demand but
a provisional demand. But that was on the express and explicit phraseology
of the relevant communication which was under consideration by the Court.
We are unable to read this letter of 16th April 1958 in the manner
suggested by Mr. Mehta. It is to be noticed that the Order under section 30
is an unilateral act and the mere fact that the Collector or Customs added at
the end of the letter that any representation made by the petitioner would be
considered cannot be permitted to alter the very essence and effect of the

letter. What we are asked to do is to hold that what is expressly stated to be

a Notice of Demand under section 39 should not be read by us as such. That
demand is categorical and we must give due meaning to the same. The contention
that this Notice of Demand must be read merely as a show cause notice must
therefore be repelled.
It is next contended on behalf of the petitioner that even if the demand
made by the letter of 16th April 1958 was a final demand it was issued to
the petitioner beyond the period of three months prescribed under section 39
of the Act. It is the major premise of the argument of Mr. Mehta that the date
of first assessment in respect of the first consignment was 14th January 1958.
The factual aspect of the matter need present no difficulty. The photo state
copy of the Bill of Entry annexed to the petition we are told by the learned
Advocate General did not contain all the relevant endorsements and he drew
our attention to the original Bill of Entry described as the Customs Copy wherein
the Collector has put his initials and appended the date 15-2-1958. We have
allowed this original Bill of Entry to be taken on the record of this petition.
The entry in the column relating to Value on which Duty is Assessed could
obviously be made only after the duty was assessed and the amount there
mentioned is Rs. 97 435.5 nP. The entry under the heading of Rate in the column
relating to Duty mentions 65% under item 75(8) of the Indian Customs Tariff.
Under the heading of Amount in the column relating to Duty is mentioned the
sum of Rs. 63 333 Obviously this is the amount of duty particularized and
determined on completion of the assessment. The signature of the Customs Officer
embraces this endorsement and bears the date 14-1-1958. Primarily and principally
we should have regard to these endorsements in determining the date of the
first assessment. Of course it may be necessary in a given case to have regard
to some other relevant circumstances. In the case before us there is not much
of any such relevant circumstances except what may be gathered from the letters
of 11th January 1958 and the January 1958 of which we have already made
mention. Before we turn to examine the same and particularly the letter of 15th
January 1958 addressed by the Collector of Customs to the petitioner we must
advert to what the Collector of Customs has to say. on this point. We have
already quoted that part of his affidavit which has been relied on by the Advocate
General. The contention there that the date of assessment in law was not 14th
January 1958 but was 16th January L958 is to say the least very feeble. In
the absence of any other date we would prefer to rest our conclusion on the
endorsements made on the Bill of Entry itself and on the contents of the letter
dated 15th January 1958 addressed by the Collector to the petitioner and the
endorsements on the Bill of Entry leave little scope for any doubt or dispute.
Assuming however that something did require to be done after those endorsements
were made on 14th January 1958 and that was done after the receipt of the
petitioners letter of 11th January 1958 there was nothing which remained to
be done after the Collector addressed his letter of 15th January 1958 to the
petitioner. In very clear. terms it is there stated that the petitioner could clear
the goods of the consignment. It is also there stated that the goods were being

released in view of the evidence produced by the petitioner. We fail to see what
remained to be done by the Collector could have been done by him after he
addressed this letter of 15th January 1958 to the petitioner. The conclusion seems
to us to be inescapable that the date of first assessment was 14th January 1958
and in any event a date not later than 15th January 1958. If further support
is necessary for this conclusion that is to be derived from the express and explicit
language of section 87 of the Act which rules :-
“87. On the delivery of such bill the duty (if any) leviable on such goods shall
be assessed and the owner of such goods may then proceeds to clear the same......
....subject to the provisions hereinafter contained.”
The petitioner could clear the goods only after the completion of the
assessment. This factual aspect of the matter has also bearing on a legal argument
stressed before us by the Advocate General to which argument we shall presently
turn. But before we do so it will be convenient to set out the provisions of
section 39 of the Act.
“39. (1) When customs-duties or charges have not been levied or have been
short-leveled through inadvertence error collusion or misconstruction on the part
of the officers Customs or through mis-statement as to real value quantity or
description on the part of the owner.
or when any such duty or charge after having been levied has been owing
to any such cause erroneously refunded.
the persons chargeable with the duty or charge which has not been levied
or which has been so short-levied or to whom such refund has erroneously been
made shall pay the duty or charge or the deficiency or repay the amount paid
to him in excess on a notice of demand being issued to him within three months
from the relevant date as defined in sub-section (2) :-
(2) For the purposes of sub-section (1) the expression relevant date means:-
(a) in a case where the duty or charge has not been levied the date on which
the Customs-officer makes an order for clearance of the goods;
(b) in a case where the duty is re-assessed under section 29A the date of
reassessment;
(c) in a case where the duty is provisionally assessed under section 29B the
date of final adjustment of duty;
(d) in a case where the duty or charge has been erroneously refunded the
date of refund; and
(e) in any other case the date of the first assessment.”
The contention of the petitioner as we have already indicated is that
the first assessment was made on the 14th January 1958 and in support of
that he relies on the endorsements made on the Bill of Entry which we
have already examined. The argument of the learned Advocate General on
the other hand is that the true meaning of the expression date of the first
assessment requires to be fully examined. Assessment it is said is not a
single act but a process and examination of goods is part of the process of
assessment. It does not consist merely in writing entries or making any
endorsements. The factual aspects of the matter has already been considered
by us and it is not necessary to burden this part of the judgment with any
repetition of the relevant and crucial facts. We put to counsel the question
as to when according to him the process would end and the answer was that
the process of assessment ended when the final amount of the duty to be
levied was computed and communicated to the person liable to pay the duty.

He has also drawn our attention to a number of sections relating to levy of

Customs-duties.
Before we turn to consider this argument urged on behalf of the respondents
it will be convenient to examine the scheme of the relevant provisions relating
to levy of Customs-duties and make some prefatory general observations. Section
20 is the levying or charging section and it enacts in sub-section (1)
“Except as hereinafter provided customs-duties shall be levied at such rates as
may be prescribed by or under any law for the time being in force on goods imported
or exported by sea into or from any customs-part from or to any foreign port;”
x x x x
Section 21 relates to goods partially composed of dutiable articles. Section
22 enacts an important provision which authorises the Central Government from
time to time by notification to fix tariff-values. Section 22 imposes upon the
owner of goods who imports or exports goods from any customs-port whether
liable to duty or not to state in his bill of entry or shipping bill the real value
quantity and description of such goods to the best of his knowledge and belief
and subscribe a declaration to that effect as the foot of such bill. Section 29A
provides for assessment of duty prior to examination of goods. The part of that
section relevant for our purpose states that goods chargeable to duty may prior
to the examination thereof be permitted by the Customs-collector to be assessed
for the purposes of the Act on the basis of the statement contained in the bill
of entry or shipping bill as the case may be. In case it is subsequently found
on an examination of the goods or otherwise that any such statement is not
true in respect of any matter relevant to the assessment the goods may be re-
assessed to duty. Section 29B empowers provisional assessment of duty in certain
cases. Section 30 enacts a deeming provision as to the meaning of Real value.
Section 31 relates to examination of ad Valorem goods. It lays down :-
“.. ..If it appears that the real value of the such goods is correctly stated in
the bill of entry or shipping bill the goods shall be assessed in accordance
therewith.”
Section 32 lays down the procedure to be adopted where goods are under-
valued by the owner. It empowers the Customs-officer to detain the goods. Section
39 which is the vital clause and on the language of which the crucial argument
before us was advanced contains provisions relating to payment of duties not
levied short-levied or erroneously refunded. It will be noticed from the provisions
of section 39 which we have already set out that sub-section (2) which gives
the meaning of relevant date for the purpose of applying the period of limitation
of three months speaks of the date on which an order for clearance of the goods
is made; the date on which re-assessment is made in a case where duty is re-
assessed under section 29A; the date of final adjustment of duty in a case where
the duty is provisionally assessed under section 29B; the date of refund in a
case where the duty has been erroneously refunded; and in any other case the
date of the first assessment.
In an extended and expansive sense the expression assessment may
include a number of steps and the whole procedure for imposing fixing and
collecting of the duty. It is obvious that the expression “first assessment”

with which we are here concerned does not relate to the whole gamut of it.
In the context of the prescriptive provision in section 39 which we are called
upon to interpret it can only relate to assessment strictissimi juris. It must relate
to the fixation of the prescribed category which covers the particular goods and
the computation and determination of the amount of the duty to be paid on
the same. This should not present any difficulty if it is clearly borne in mind
that there are three stages in the imposition of levy of Sea Customs duty. There
is the declaration of liability in respect of dutiable goods. That is by the
initial part of Chapter V intituled “Levy of and Exemption from Customs-duties”.
The levying of the charging provisions in that Chapter raise the levy and
determine the goods in respect of which that is to be done. The relevant provisions
lay down that Customs-duties shall be levied at such rate as may be prescribed
under any law and empower the Central Government to fix the tariff-values.
The liability is fixed ex hypothesis. That is the first stage. The second stage
is the assessment. Assessment particularises and fixes the precise amount of duties
in respect of the dutiable goods the subject matter of each case. The third and
the last stage is the mode or method of collection and recovery of the amount
to which the goods are assessed. It seems therefore beyond disputation that the
limitative provision in section 39 with which we are here concerned relates to
and means actual assessment by the Customs-authority of the particular goods.
An ‘actual assessment in the present context can only mean the computation
and fixation of the precise amount of duty to be paid on the particular goods
having regard to the prescribed category under which they fall and the mode
or manner by which their value or real value has to be ascertained. There is
no provision for a notice of demand in respect of the first assessment envisaged
by section 39. In view of the argument urged before us by the learned Advocate
General that the process of assessment continues till the final amount of duty
is computed and communicated to the person who is liable to pay the duty we
would have lingered longer on the aspect of notice incorporated in the
argument and considered whether we would be justified in giving such wider
and enlarged meaning to the expression ‘first assessment. Learned counsel has
however with his usual fairness stated before us that there is no practice of
giving notice of the first assessment followed by the Customs-authorities. We
refrain from entering into an elaborate discussion of this aspect of notice as
very rightly, it is no part of the argument of counsel that the process of
assessment under consideration does not terminate till any prescribed notice is
given. It is common ground that there is no provision of law relating to giving
of notice in respect of the first assessment and no system or practice relating
to giving of any such notice followed by the Customs authorities. That being
the position learned counsel had necessarily to seek support from certain
decisions where in considering the terminus a quo of a prescribed period of
limitation. the Courts expressed the view that the starting point of limitation
in provisions for instance relating to the filing of appeals should be the date
when the decision should in the normal course have become known to the party.
We might have referred to those decisions but do not deem it necessary to do
so since they all relate to periods prescribed in different contexts. As was

pointed out by Fawcett J. in one of the decisions cited by the learned

Advocate General that principle should be followed only when the context
so justified. We put to ourselves the question whether there is anything
in the context in which clause (e) of sub-section (2) of section 39 appears
which requires that the expression ‘date of the first assessment should be
understood to connote not the date of the actual making of the first assessment
but the date on which intimation of the making of the assessment was
given to or received by the owner of the goods In these cases argument
derived from analogy is at times an unsound consideration though we agree
with Counsel that such argument may sometimes be of some assistance. A
closer analogy if indeed analogy is to be resorted to is furnished by certain
provisions in the Income Tax Act for instance section 33A which speaks of
an order which has been made more than one year previously. That section
relates to the power of revision by Commissioner. Another instance of the like
nature is furnished by section 33 of that Act and which relates to power of
Commissioner to revise Income-Tax Officers orders and the period of limitation
there prescribed is two years from the date of the order sought to be revised.
The question of commencement of the limitation period in case falling
under sections 33A and 33B of the Income Tax Act has given rise to some
conflicting decisions. But the majority of the High Courts have taken the view
that limitation in cases under those sections commences from the actual
date of the order. We have referred to those sections only in answer to the
argument based on analogy on which counsel for the respondents sought to
place reliance. The analogy is not helpful. It is also to be noticed that in
a case of the nature before us there cannot be any question of the period
of limitation commencing without intimation or knowledge of the order
and thereby any prejudice being caused to the party against whom the bar
of limitation has been placed.
The language of clause (e) of sub-section (2) of section 39 read with the
relevant part of sub-section (1) of that section does not leave the meaning in
dubio. On the contrary the language employed is clear and explicit. In express
terms the clause requires that the notice of demand must be issued within three
months from the date of the first assessment. It is the Customs-authority who
makes the first assessment and it is the Customs-authority who has to give the
notice of demand within the prescribed period of limitation. There is neither
principle nor authority which requires any extended meaning being given to
section 39(2)(e). After giving our best consideration to the argument urged on
behalf of the respondents we have reached the conclusion that the notice of demand
was issued after the expiry of the period of three months prescribed for the
same by section 39. On that ground alone the petitioner is entitled to succeed.
This period of three months goes to the very root of the matter and the condition
that the order must be issued within the prescribed period is a condition precedent
to the exercise of any power or authority by the Customs-officer under section
39. It was unfortunate that in the present case the notice of demand should
have been issued after the expiry of the period of limitation though it was within
a very short time of it.

There remains to be considered the third contention urged by Mr. Porus

Mehta and that contention ii that in issuing the notice of demand, the
Customs-authority violated a fundamental principle of natural justice namely
that he issued the notice without giving any hearing to the petitioner. It is said
that the particulars on which the conclusions resulting in the notice were based
were not given to the petitioner and the petitioner had no chance of submitting
his version of the case before the order was made. Succinctly stated the argument
is founded on the dictum audi alteram partem. It is upon this maxim that the
well-known principle of law applicable to such cases is founded. The maxim
has been loosely translated to mean that no person shall be condemned unheard.
We had occasion to consider this principle and this maxim in a case recently
decided by my brother Miabhoy and myself in Ramji v. Manilal Solanki.* In
his judgment my brother Miabhoy there referred to Brooms Legal Maxims and
pointed out that the rule required that no one shall be condemned punished or
deprived of his property in any judicial proceeding unless he has bad an
opportunity of being heard. The decision of the House of Lords in Local
Government Board v. Arlidge, (1915) Appeal Cases 120 is a land-mark on this
aspect of law. There are decisions of the Supreme Court and also of various
High Courts in India where the view has been taken that the application on
the principle founded on the maxim audi alteram partem does not reach executive
or administrative orders and that its application covers orders which are judicial
or quasi judicial. To refer to only one of them Express Newspaper Ltd. v. Union
of India, A.I.R. (1958) S.C. 578 where question arose as to the character of
the functions performed by Wage Boards under the Industrial Disputes Act. In
the judgment of the Court in that case Mr. Justice Bhagwati pointed out this
vital distinction. At page 609 of the report his Lordship observed.......
“.. ..The question assumes importance on two grounds; viz. (1) whether the
decisions of the wage boards are open to judicial review and (ii) whether the
principle of ‘audi alteram partem’ applies to the proceedings before the wage boards.
If the functions performed by them were administrative or legislative in character
they would not be subject to judicial review and not only would they not be amenable
to the writs of certiorari or prohibition under Articles 32 and 226 of the Constitution
they would also not be amenable to the exercise of special leave jurisdiction under
Article 136. Their decisions moreover would not be vulnerable on the ground that the
principle of ‘audi alteram partem i.e., no man shall be condemned unheard was not
followed in the course of the proceedings before them and the procedure adopted by
them was contrary to the principle of natural justice.”
A rather feeble attempt was made by Mr. Mehta when he said that in
the case before us there was a lis and therefore the order passed by the
Customs-authority should be regarded as made in a matter which was quasi-
judicial. The differentiation and distinction relating to a lis no doubt relevant
in certain cases has no bearing however on the facts and circumstances of
the case before us and we need not pursue the point. On our part we are
of the definite view that the action taken by the Customs authorities under
section 39 is an administrative or executive action and therefore in doing
so they cannot be regarded as acting in any quasijudicial manner. We are
also of the view that before making the impugned order the Customs-autho-
* (1960) 1 G.L.R. 53

rities were not bound to hear the petitioner to every case contemplated by
the section the action of the authorities would be an unilateral act although
of course there is nothing to prevent them from seeking all information that
may be relevant for enabling them to make adequate and satisfactory assess-
ment. For reasons which we have already discussed the present contention
must be negatived.
In the view we have taken of the contention relating to bar of limitation
the petition must succeed. A writ of Mandamus and an order will
issue in terms of prayer (b) of the petition. There will also be an order
directing the respondents to forbear from detaining the goods in
question in implementation or pursuance of the short levy notice
dated 16th April 1958 and the notice dated 22nd March 1960. The respondents
will pay the petitioners costs of the petition. Mr. S. B. Vakil presses
for the maximum amount of costs which can be awarded by this Court in a
writ matter which is Rs. 500/-. The petitioner has canvassed three points
before us and on two of them our decision has gone against him. That is a
circumstance whichcannot wholly be ignored in awarding costs. The fair
order for costs in our opinion will be that the respondents should pay to
the petitioner Rs. 250/as costs.
Petition allowed.
* * *
[ END OF VOLUME ]


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GUJARAT LAW REPORTER

SPECIAL CIVIL APPLICATION

*Decided on 17-6-1960. Special Civil Application No. 184 of 1960.

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language of the analogous provision contained in section 88C prior to its

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controversy on the question is precluded. Or to put the same thing somewhat

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The following judgment was delivered by —

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SPECIAL CIVIL APPLICATION

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facturing process is being carried with the aid of powers or if ordinarily

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The date on which the final orders of rejection of application of landlord

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HELD THAT “tenant” in Barkhali Abolition Act includes not only an

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the natural consequences thereof unless he affirmatively proves that he is

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he is subject to insane impulses while the cognitive faculties remain so far

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thefts. In such cases under Explanation 2 to sec. 54 of Evidence Act

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is an amendment in the language of the section but it is not necessary to

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SPECIAL CIVIL APPLICATION

*Decided on 20-6-1960. Special Civil Application No. 33 of 1960.

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have prospective consideration. The Court has to ascertain that intention

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