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Chanan Singh Son Of Kartar Singh vs State Of Haryana on 2 April, 1971 Equivalent citations: AIR1971SC1554, (1971)3SCC466, AIR 1971 SUPREME COURT 1554 Author: A. N. Ray Bench: A.N. Ray, C.A. Vaidialingam JUDGMENT A. N. Ray, J. 1. This is an appeal by special leave from the judgment dated 9 February, 1970 of the High Court of Punjab and Haryana convicting the appellant under Section 302/34 of the Indian Penal Code for the murder of Mohinder Singh and confirming the death sentence imposed upon him by the Sessions Court. 2. The appellant was sentenced by the Sessions Court to death on three counts, namely, under Section 302 of the Indian Penal Code for causing the murder of Mohinder Singh and under Section 302/34 of the Indian Penal Code for causing the murder of Mukhtiar Singh alias Mukha and Lachhman Singh. Kala Singh was sentenced by the Sessions Court to life imprisonment on two counts under Section 302/34 of the Indian Penal Code for the murder of Mukhtiar Singh alias Mukha and Lachhman Singh. Both of them preferred appeals to the High Court. The sentence of death passed by the Sessions Court on Chanan Singh was before the High Court for confirmation. 3. The High Court acquitted Kala Singh and accepted his appeal. The appeal of Chanan Singh was accepted as to the offence for causing the murder of Mukhtiar Singh and Lachhman Singh and he was acquitted of these offences. His conviction was however upheld for the murder of Mohinder Singh. The sentence of death passed upon Chanan Singh was confirmed. 4.The alleged occurrence was on 9 December, 1968 between 9 and 9.30 p. m. at the house of Chanan Singh in village Hijravan Kalan fat the district of Hissar in Haryana. Three persons died of gun shot wounds. They were Mohinder Singh, Mukhtiar Singh alias Mukha and Lachhman Singh. The prosecution case rested on the single eye-witness Shangara Singh. 5. Shangara Singh Is a resident of village Ali Musa about three miles from Hijravan. He is a relation Mohinder Singh deceased. Kala Singh was a partner of Chanan Singh in the cultivation work. Mohinder Singh deceased and his brother Pishora Singh resided at a field known as Dhani at a Chanan Singh Son Of Kartar Singh vs State Of Haryana on 2 April, 1971 1 distance of about one mile from the resident of Chanan Singh. Mukhtiar Singh was the son of Pishora Singh. 6. The prosecution case was that on the date of the incident, Shangara Singh went to Fatehabad to buy a few things. There he met Mohinder Singh, Mukhtiar Singh, Lachhman Singh and Chanan Singh. Mukhtiar Singh purchased some cloth from the shop of one Diwan Chand. Mohinder Singh asked Shangara Singh to come back with them to their village. All the four, Mohinder Singh, Mukhtiar Singh, Lachhman Singh and Chanan Singh had come on horse back and tied their horses at the house of Harnam Singh. They all went to the house of Harnam Singh. Harnam Singh's daughter Balvinder Kaur handed over a stitched lady's shirt and a salwar to Mohinder Singh. Chanan Singh purchased two bottles of liquor and some cooked potatoes and vegetables. They all thereafter left for Hijravan. When they were about 5 or 6 miles away from Hijravan, Chanan Singh met them. Chanan Singh exchanged greetings with Dalip Singh. Lachhman Singh all along carried a gun. Chanan Singh invited all of them to drinks and snacks at his house. They started drinking. They were sitting on cots. A little later Pritam Singh came to ask for some Mexican wheat seeds from Chanan Singh. Chanan Singh asked him to come the following day. Pritam Singh went away. Mukhtiar Singh drank two pegs and thereafter lay on the cot and did not drink any more. The other persons finished the two bottles. They all ate some potatoes and tomatoes. At about 9 p. m. Chanan Singh demanded from Mohinder Singh repayment of the loan of Rs. 500/-. Mohinder Singh said that Chanan Singh had earlier disgraced him in the presence of his brother Pishora Singh. Mohinder Singh stated that he would not take food with Chanan Singh and would leave. Chanan Singh also got up from the cot. Mohinder Singh was wrapping his loi (wrapper) to go away. Chanan Singh at that moment went inside the house and returned with his gun. He immediately fired at Mohinder Singh near his left ear. Mohinder Singh fell down. Chanan Singh again loaded his gun and fired a second shot at Mohinder Singh while he was lying on the ground. Lachhman Singh tried to run away. Kala Singh caught him. Kala Singh was assisted by Chanan Singh in overpowering Lachhman Singh. Both of them carried Lachhman Singh inside the house. Shangara Singh then slipped away. While going away he heard a gun shot when he was near the outer courtyard. Shangara Singh heard another gun shot a little later. Shangara Singh on account of fear ran away to his village. He reached his house at about 11 p. m. He informed his father about the incident. He requested his father to inform Pishora Singh. His father did not do so on account of fear but agreed to go in the morning. On the following morning Shangara Singh's father left for Hijravan and returned at about 10 a. m. Shangara Singh's father told him that he could not meet Pishora Singh and that Pishora Singh had already gone to lodge the report Shangara Singh was called by the police and his statement was recorded at about 4 p.m. on 10 December, 1968. 7. The defence of Chanan Singh was that in the evening on 9 December, 1968 when he was standing in front of his house Mukhtiar Singh and Mohinder Singh came on horse back. They exchanged greetings. They asked Chanan Singh for drink. Chanan Singh asked them to get down. The horses were tied in the yard. They started having drinks. Chanan Singh then asked his wife for some cooked vegetables. When Chanan Singh's wife came out with the vegetables, Lachhman Singh cracked a joke. Chanan Singh objected. He asked Mohinder Singh as to why he had brought such a bad man and then pointed to Lachhman Singh. Mohinder Singh asked Chanan Singh to keep quiet and said that he would deal with Lachhman Singh. Mukhtiar Singh and Mohinder Singh caught hold of Chanan Singh Son Of Kartar Singh vs State Of Haryana on 2 April, 1971 2 Lachhman Singh and beat him with shoes. Lachhman Singh was turned out. After a while Lachhman Singh came back armed with a gun. He fired a shot at Mukhtiar. He fell down. Chanan Singh ran inside the house. In the meantime Mohinder Singh had got up. Lachhman Singh shot at Mohinder Singh. Chanan Singh came armed with a gun. Chanan Singh found Lachhman Singh had followed him and had gone inside the house. Chanan Singh fired one shot in the air and threw the empty where Mohinder Singh was lying. Chanan Singh again loaded his gun. Chanan Singh felt that Lachhman Singh was grappling with his wife. Chanan Singh went inside the house and found that Lachhman Singh was dragging his wife by her arm and stating that she was the root cause of the trouble and that he would take her. Chanan Singh abused Lachhman Singh and asked him to release his wife. Lachhman Singh then opened the barrel of his gun, threw the empty and was reloading the gun when Chanan Singh fired at him to save himself and his wife. Lachhman Singh fell down in the room where he was struggling with his wife. He saw that Mukhtiar Singh and Mohinder Singh had died. Chanan Singh was afraid that the house of Lachhman Singh was so near that his brothers might come and kill him. Chanan Singh and his wife rode on horse back to the place where Kala Singh was present and then the three of them went to village Sangha, Chanan Singh surrendered after two days. 8. The High Court found that Shangara Singh was with Chanan Singh, Mohinder Singh, Mukhtiar Singh and Lachhman Singh at Fatehabad. Three reasons were given for that finding. The first was that Diwan Chand a shop owner in Fatehabad proved the signature of Mukhtiar Singh in an account book at the time Mukhtiar Singh purchased materials worth about Rs. 200/-. Diwan Chand's evidence was also accepted that he saw Shangara Singh along with Chanan Singh, Mohinder Singh, Lachhman Singh and Mukhtiar Singh. The second reason was that Dalip Singh met all the five at about 7 p. m. on the day of the occurrence when Dalip Singh was going to Fatehabad from his own village Hijravan. The third reason was that Pritam Singh who had gone to the house of Chanan Singh to get some Mexican wheat seeds said that Chanan Singh, Kala Singh, Mukhtiar Singh, Mohinder Singh were all having liquor at the house of Chanan Singh at about 8 p. m. The High Court therefore held that Shangara Singh was present with alt the four at Chanan Singh's house party. 9. The High Court next held that Shangara Singh was a reliable witness. The reason given by the High Court was that Shangara Singh found that everybody was drunk and his Instinct would be to try and establish that he was not in the party and he ran away from Chanan Singh's house without informing anybody to save himself and there was nothing unnatural in doing so. 10. The High Court next dealt with the question as to whether Shangara Singh's evidence was truthful. The High Court gave one reason for finding Shangara Singh to be a truthful witness. The reason was that if Shangara Singh wanted to implicate the accused he could have easily deposed as to how Mukhtiar Singh received the injuries and how Lachhman Singh was killed but he never said either of these two things. 11. On these grounds the High Court found Chanan Singh to be guilty of the murder of Mohinder Singh. As to the murder of Mukhtiar Singh and Lachhman Singh the High Court said that the evidence was of circumstantial nature and all were drunk and therefore the High Court did not Chanan Singh Son Of Kartar Singh vs State Of Haryana on 2 April, 1971 3 really know what had happened. 12. The entire prosecution case rests on the slender thread of the testimony of Shangara Singh. He said that he saw Chanan Singh fire a shot at Mohinder Singh which hit him near the ear. When Mohinder Singh fell down Chanan Singh again loaded his gun and fired a shot at Mohinder Singh when he was lying on the ground. Shangara Singh further said that Lachhman Singh then wanted to run away. Kala Singh caught Lachhman Singh. Chanan Singh assisted Kala Singh in overpowering Lachhman Singh. Both of them carried Lachhman Singh inside the house. At that time Shangara Singh slipped away. 13. Two questions arise. First, whether Shangara Singh actually saw Chanan Singh fire twice at Mohinder Singh: secondly, whether Shangara Singh told the truth. Shangara Singh's conduct after the occurrence appears to be abnormal. It was said on behalf of the prosecution that he ran away out of fear. There is no evidence whatever to suggest that Shangara Singh was struck by terror or fear. No one pursued or chased Shangara Singh. There was no threat to him. It would be strange to expect so many persons to stand silent and watch Chanan Singh fire at Mohinder Singh and none would offer any resistance. Shangara Singh's slipping away unnoticed by the others particulary after the alleged shooting by Chanan Singh would be utterly unbelievable. It appears unreal. The second surprising and significant feature in the evidence of Shangara Singh is that at that hour of the night he went through the fields to his house. If Shangara Singh's evidence were at all true that he saw Mohinder Singh being shot twice by Chanan Singh and he also saw Chanan Singh and Kala Singh dragging Lachhman Singh inside the house, he would go at once to Lachhman Singh's house which was 25 karams, i.e., 75 feet away from the house of Chanan Singh. It would be normal and natural for Shangara Singh to run to Lachhman Singh's house immediately and inform the members of the house and get others to try to save the life of Lachhman Singh. The third reason why Shangara Singh's evidence is not believable is that if he saw Chanan Singh fire twice at Mohinder Singh, Shangara Singh would normally go to Pishora Singh brother of Mohinder Singh and tell him that Mohinder Singh had been shot by Chanan Singh. The fourth reason for not accepting Shangara Singh as a truthful witness is that his alleged statement to his father Suba Singh at about 11 at night that Chanan Singh had shot Mohinder Singh does not get any support from conduct. Neither Shangara Singh nor his father went to the police station. The first thing that would occur to Shangara Singh would be to go to the police station. He did not do that. His father also followed suit. The reason given by Shangara Singh was that his father did not move out of fear of the accused. The aspect of fear is without any foundation and is not supported by any evidence of act or conduct. These features indicate the infirmities as to truthful evidence of Shangara Singh. 14. A curious feature of the prosecution case is that Pritam Singh came to Chanan Singh for Mexican wheat seeds at about 8 p. m. Pritam Singh was asked by Chanan Singh to come the next morning. Pritam Singh went the next morning and found three dead bodies. Pritam Singh then went to the police station and lodged the first information report. The presence of Pritam Singh both at night and in the morning appears to be sudden at the critical hours to fit in with the prosecution case. 15. The High Court did not at all take into consideration the vital discrepancy between the medical evidence and the oral evidence of Shangara Singh. Shangara Singh said that he saw Chanan Singh Chanan Singh Son Of Kartar Singh vs State Of Haryana on 2 April, 1971 4 fire twice at Mohinder Singh. The doctor's evidence was that there were two injuries on Mohinder Singh and these were caused by one shot Injury No. 1 was described by the doctor as the wound of exit Injury No. 2 was described as an inlet wound. The pellets entered the body en masse as would appear from injury No. 2. The medical evidence was also that for causing injury No. 2 the shot must have been fired from a close range say within 3 feet. In reexamination the doctor said that in his view there was no possibility that injury No. 1 might be the exit of another shot with which the head was blown oft The doctor was then asked two further questions in re-examination. These are as follows: Q. Could injury No. 1 be not the result of a distinct gun shot if it was given first in order and then immediately the second shot was fired as a result of both the gun shots the entire skull, brain, etc., was blown off? It may be further explained that the first shot had hit on the left side and second on the right side? Ans. I do not agree because there were no signs of any separate wound of entrance or exit for another shot. Q. If the first shot had hit the victim one inch or more above the left ear and had hit the portion which was blown off either as a result of blow or the other blow, what traces you would have found to state the inlet or exit of the other shot especially when the firing was from close range? Ans. If this had happened there must have been found blackening or scorching or skin colour changing on the adjoining skin just above the ear, in an area of about one inch around but if the other shot had hit on the top of the skull and had affected the area which was blown off then there could be 2 or more fires. 16. The purpose of re-examination is explaining any part of the cross-examination which is capable of being construed unfavourably to the party for whom he has given evidence in chief. Re-examination cannot be allowed for new matters except with leave of the Court. The medical evidence both in examination-in-chief and cross-examination was that there was one shot. There was nothing to be clarified. There was no scope for re-examination. The second question put in re-examination contained several hypothetical questions which again were not split up but were compressed into one question. It is not permissible to put two or three questions into one question. The answer in re-examination that if certain things happened then there could be two or more fires far less from giving an answer obscured the matter more. 17. A death sentence can rest on evidence beyond any reasonable doubt. In the present case, there are not only doubts but also inherent improbabilities and infirmities in the evidence of Shangara Singh to hold that he saw Chanan Singh fire at Mohinder Singh. The conviction cannot be sustained. The appeal is accepted. The judgment of the High Court is set aside. The accused is set at liberty. Chanan Singh Son Of Kartar Singh vs State Of Haryana on 2 April, 1971 5 | {
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Gurmukh Singh And Ors. vs The State Of Punjab on 14 December, 1971 Equivalent citations: AIR1972SC824, 1972CRILJ654, (1972)4SCC805, 1972(4)UJ406(SC), AIR 1972 SUPREME COURT 824, 1972 4 SCC 805, 1972 MADLJ(CRI) 523, 1972 CURLJ 232, 1972 SCD 220, (1972) 2 SCJ 194 Author: P. Jaganmohan Reddy Bench: D.G. Palekar, P. Jaganmohan Reddy JUDGMENT P. Jaganmohan Reddy, J. 1. These appeals are by special leave against the judgment of the High Court in a case under Section 439 of the CrPC by which the sentence of fine imposed by the Judicial Magistrate, First Class, Patiala for an offence under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1951 hereinafter called 'the Act' was enhanced to six months rigorous imprisonment and a fine of Rs. 1000/-in default the respective appellants were ordered to further undergo simple imprisonment for 1 1/2 months. In all these cases the appellants were charged under Section 16(1)(a) of the Act for selling without licence articles of food, such as, milk, sweetmeats, tea, curd, biscuits, chappati, ice-cream, dal, bhajji A separate charge was framed against each of the appellants, on respective dates and on the same day they pleaded guilty to the charge and were forthwith sentenced to pay a fine. In Appeal No. 51 and 56 of 1969 the appellants were fined Rs. 30/-each on August 10, 1967 ; in Appeals Nos 52 to 55 & 58 of 1969 they were sentenced to pay a fine of Rs. 50/-each on August 19, 1967, and in Appeal No. 57 of 1969 a sentence of Rs. 40/-was imposed on June 26, 1967. In default of payment of fine in all these case the appellants were directed to further undergo one month's rigorous imprisonment. The reason for imposing the light sentences in all these cases except in Appeal No. 57 of 1969 was that the appellants had made "voluntary confessions" while in Appeal No. 57 of 1969 the reason given was firstly the spontaneous nature of the confession which showed that the accused was in repentant frame of mind and secondly that he was petty shop keeper and a heavy punishment may prove harsh. 2. The High Court enhanced the sentence because under Section 16(1) of the Act the appellants were punishable with imprisonment for a term which may not be less than 6 months but which may extend to six years & with a fine which may not be less than Rs. 1000/-, and though a discretion was given to the court to impose lessor sentence under the proviso to the said sub-section if it is satisfied that there is "any adequate and special reasons", the Magistrate had failed to give valid reasons for giving lenient sentences. The High Court further observed that whether there existed some adequate Gurmukh Singh And Ors. vs The State Of Punjab on 14 December, 1971 1 or special reasons is a question of fact in each case, but in the cases before it no reasons much less any adequate and special reasons had been mentioned in the judgment of the Trial Court for imposing a lesser sentence as required by the proviso. In this view the orders of the Trial Court were held not to have complied with requirements of the proviso for imposing a lesser sentence. 3. It was contended on behalf of the appellants before the High Court that the appellants were found selling articles of food without a licence and not adulterated articles of food and, therefore, a lessor sentence may be imposed on them. This contention was rejected because in the view of the learned Judge selling of articles of food without a licence as required under Sub-rule (5) of Rule 50 of the Prevention of Fo d Adulteration Rules, 1955, is no less serious than selling adulterated articles of food. It is so because before granting a licence for manufacture, stock or exhibition of any of the articles of food in respect of which a licence is required, the licensing authority shall inspect the premises and satisfy itself that it is free from sanitary defects, and the applicant for the licence has to make such alterations in the premises as may be required by the licensing authority for the grant of a licence. When a licence is granted the licensee must observe the conditions of the licence such as preparing articles of food under hygienic conditions and keeping them covered in clean containers protected against dust, disease-bearing flies and other noxious elements. 4. Before the High Court the appellants had questioned the legality of conviction and urged that they could do so under Section 439(6) of the CrPC. While admitting that such a right existed, it was observed that since the appellants had pleaded guilty to the charge they were rightly convicted. The submission that under the provisions of Section 251 A, 252 and 259 of the CrPC the Procedure to be followed was that prescribed for warrant cases. If so, that procedure has not been followed because the Magistrate did not examine the witnesses for the prosecution before framing the charge and therefore the trial was vitiated. This submission also was rejected on the ground that the procedure prescribed under Section 254 of the CrPC was applicable under which the Court can at any previous stage of a case, if it is of the opinion that there is ground for presuming that the accused has committed an offence triable under Ch. XXI, which such Magistrate is competent to try, frame the charge. Even otherwise it was observed that at the most the omission to examine the accused before framing a charge, is an irregularity which is curable under Section 537 of the CrPC and since no prejudice has been caused to them the conviction is not vitiated. 5. Before us one of the grounds urged is that the High Court had not taken into consideration the prejudice caused to the accused in not giving them an opportunity to plead that their's was not a case where they had not obtained a licence at all, but had not renewed their licences which under the law they could renew on a date subsequent to the expiry of the licence. The learned Advocate for the State contested this allegation firstly because the appellants had not while pleading guilty mentioned these facts, and secondly that under Rule 4(b)(iii) of the Prevention of Food Adulteration (Punjab) Rules, 1958, even if the appellant had taken licences those would expire on the 31st day of March of the succeeding year and since on the date they were charged the appellants had not admittedly renewed the licences they were guilty of the offence of selling articles of food without a licence, as such there is no warrant for the submission that the convictions are bad or that the sentences imposed are illegal. Apart from the legality of the convictions which is challenged, it is contended by the appellants that the enhancement of the sentence was not justified. Gurmukh Singh And Ors. vs The State Of Punjab on 14 December, 1971 2 6. It is alleged in the special leave petition that the appellants were carrying on business of selling articles of food under a licence since a long time and that they were renewing their licences each year and had intended to do so even after the financial year 1967-68, but for the fact that the licence Inspector who used to visit the appellants' shops annually and renew the licences had not that year renewed them in time because there was a proposal to increases the licence fee. For this reason they could not renew their licences in time. It is therefore urged that this plea could have been taken if the witnesses had been examined before a charge was framed, but when in fact a charge was framed and they were asked to plead immediately there was no opportunity for them to put forward the reason for not renewing the licence in time. 7. The learned Advocate for the appellants has placed before us certified copies of the licences in each of these cases which are in Form B issued under Rule 4(c) and in which it is categorically stated that the licence shall be in force for the financial year and subsequently for the financial year in which it is renewed. It may also be mentioned that the renewal each year is endorsed on the licence itself so that there is no question of any fresh licence being granted every year or the licensee submitting plans of altering their premises every year. There is ample power under the Act when a licence is granted to a dealer, by rules under Section 23(1)(c) of the Act to maintain control over the production, distribution and sale of any article or class of food which the Central Government may be notification specify in this behalf including the registration of the premises where they are manufactured, maintenance of the premises in a sanitary condition and maintenance of the healthy state of human beings associated with the production, distribution and sale of such article or class of articles : (see Rule 9 of the Prevention of Food Adulteration Rules, 1955). Rule 4 of the Punjab Rules, which is relevant for the purpose of this submission is as follows : (a) The local authority or any officer authorised by it by order in writing in this behalf shall be the licensing authority in its local area for purposes of issuing licences for the manufacturer for sale, for storage, for the sale or for the distribution of the articles of food in respect of which a licence is necessary under the Prevention of Food Adulteration Rules, 1955. (b)(i) An application for licence to manufacturer for sale or store, sell or distribute any article of food for which licence is required shall be made in Form A to the licensing authority and shall be accompanied by a fee of Rs. 5/-in the case of a whole seller and Rs. 2 in the case of a retailer. (ii) The fee shall be credited to the local authority within whose jurisdiction the premises are situated. (iii) The validity of every licence shall terminate on the 31st day of March immediately succeeding the date of issue. (iv) Any person whose application for a licence has been rejected shall have a right of appeal to the District Magistrate. Gurmukh Singh And Ors. vs The State Of Punjab on 14 December, 1971 3 (c) A licence shall be issued in Form B. 8. It is contended that the rules in no where specifically provide for the time within which the licence once granted has to be renewed each year after the date of its expiry, nor is there anything in the Punjab Rules which provides for a renewal before the expiry of the licence, as such it is quite likely that the authorities concerned may not entertain an application for renewal if presented before the expiry of the licence and may direct him to apply on the expiry of the licence, leaving him only an option to renew it on the 1st of April every year, which may in most cases not be possible either due to the volume of applications or some other cause for which the licensee may not be responsible. This contention, in our view, is not valid, because under Rule 51 of the Central Rules "A licence shall, unless suspended or cancelled, will be in force for such period as the State Government may prescribe : Provided that if application for a fresh licence is made before the expiry of the period of validity of the licence, the licence shall continue to be in force until orders are passed on the application". Reading this rule with Rule 4 of the Punjab Rules the plea of the appellants that because they have not been given an opportunity to put forward their respective pleas, they were prejudiced and hence their conviction is illegal will not avail them because firstly not only did they not renew their licences before the expiry of the licence but they had not even applied for a renewal by the time they were charged, which in one case is three months and in other cases is five months. The conviction of the appellants for selling, storing or preparing articles of food without a licence cannot therefore be assailed. 9. On the question of the sentence, it is not denied that the offence with which each of the appellants was charged was committed after the amendment of Sub-section (1) of Section 16 of the Act under which the sentence has to be a minimum of six months rigorous imprisonment and a fine of Rs 1000/-, unless it is covered by the proviso to that sub-section in which case a lesser sentence can be given for adequate and special reasons to be mentioned in the judgment. The appellants were charged for an offence under Section 16(1)(a)(ii) where "any person whether by himself or by any other person on his behalf...manufactures for sale, or stores, sells or distributes any articles of food (i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) Authority in the "interests of public health ; (ii) other than an article of food referred to in Sub-clause (i) in contravention of any of the provisions of the Act or of any rule made there under". It is not the case of the prosecution that the appellants sold or stored any adulterated or misbranded or prohibited articles of food. Even in such cases if the offence is with respect to an article of food which is adulterated under Sub-clause (1) of Clause (i) of Section 2 or misbranded under Sub-clause (ix) of atc. 2 a lesser sentence under the proviso can be awarded As pointed out in Jagdish Prasad alias Jagdish Prasad Gupta v. State of West Bengal Crl. Appeal No. 50 of 1969 decided on Dec. 13, 1971 the offence under the Act being anti social crimes affecting the health and well being of our people, the Legislature having regard to the trend of courts to impose in most cases only fines or where a sentence of imprisonment was passed a light sentence was awarded even in cases a severe sentence was called for a more drastic step was taken by it in prescribing a minimum sentence and a minimum fine to be imposed even for a first offence. The reason for the Legislature to nuke the exception is not that the offence specified are not considered to be serious but the gravity of the offence having regard to its nature can be less if there are any special or adequate reasons. In our view though offences for adulteration of food must be severely dealt with, no doubt depending on Gurmukh Singh And Ors. vs The State Of Punjab on 14 December, 1971 4 the facts of each case which cannot be considered as precedents in other cases, in this case having regard to the fact that the offence is only one for non renewal of a licence within a reasonable time, and the appellants as pointed out by the trying Magistrate were only petty traders, a mitigation in the sentence is justified-No doubt as the High Court points out, the reason given by the Trial Court that the accused pleaded guilty and were repentant may not be adequate. But in the special circumstances pointed out by us a lesser sentence is called for. In view of the fact that all the appellants have already served one week's sentence, we think interests of justice would be served it the sentence of 6 months imprisonment and fine of Rs 1000/-is reduced to a period of imprisonment already undergone by each of them, and to pay a fine of Rs. 250/-and in default of which they are directed to undergo a further period of imprisonment for 1 month. In each of these appeals this sentence is substituted for the sentence awarded Ly the High Court and the appeals are accordingly allowed to this extent. Gurmukh Singh And Ors. vs The State Of Punjab on 14 December, 1971 5 | {
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Lallubhai Devchand Shah And Ors. vs The State Of Gujarat on 3 November, 1971 Equivalent citations: AIR1972SC1776, 1972CRILJ828, (1971)3SCC767, 1972(4)UJ177(SC), AIR 1972 SUPREME COURT 1776 Author: D.G. Palekar Bench: A.N. Ray, D.G. Palekar JUDGMENT D.G. Palekar, J. 1. The appellants (1) Lallubhai Devchand Shah (2) Jayantlal Lallubhai Shah and (3) Bai Nathi were convicted by the learned Additional Sessions Judge, Ahmedabad of the offence under Section 302 IPC and sentenced to suffer imprisonment for life. The Gujarat High Court confirmed the conviction and sentence in appeal. The present appeal has been filed by special leave. 2. Lallubhai is the father of Jayantilal and Bai Nathi is his wife. Together' they lived in a house near the Jain Temple in village Poshina in Idar Taluka, District Sabarkantha. The village is a small village with a population of about 1500. At the relevant time, the deceased Bai Sharda was about 22 years old and was also living with them. Sharda had been married to another son of Lallubhai named Amritlal in about 1962-63. She was the daughter of one Kachralal Kevaldas P.W. 10 who lived in another village Mau which is about 7 or 8 miles from Poshina. Her husband Amritlal had been living in Bombay to earn his livelihood since before his marriage. Though Sharda was betrothed to Amritlal for many years before the marriage the marriage seems to have been a failure because Amritlal did not show any affection for her He used to come from Bombay to Poshina once in six months or a year for a stay of one or two days and did not think of taking her to Bombay. He did not also visit his father-in-law's house at Mau. In or about 1964-65, Amritlal started giving tuition to one girl named Aruna in Bombay and in course of time formed an attachment for her. In 1967 they decided to marry but as Amritlal's wife was living, they converted themselves to Islam and thus overcame the obstacle to marriage Thereafter Amritlal and Aruna married on 16-11-1967 at Bombay and lived together as husband and wife. Aruna's brother there after filed a complaint at Bombay against Amritlal, but by about the first week of April, 1968, Aruna's relations were won over and nothing happened in the criminal case. The action of Amritlal seems to have met with the approval of his parents which we know from a letter written by Amritlal on 8-4-1968 Ext. 24. The letter has specifically referred to the criminal complaint against him and informed the family members about the changed attitude of Aruna's relations. It is in evidence that Aruna also used to write letters to the members of her husband's family. The same letter further shows Amritlal general attitude towards Lallubhai Devchand Shah And Ors. vs The State Of Gujarat on 3 November, 1971 1 his first wife Sharda. Sharda was living at that time with the accused having returned from her father's house a few months earlier. During all those six years of the marriage, Sharda lived sometimes with her father and sometimes with the accused. The letter reveals that Amritlal hated Sharda because he tells his father that if the matter were left to him, he would not have allowed Sharda to come to the house, let alone allow her to enter the kitchen. With a touch of sarcasm, he compliments his parents for giving shelter to Sharda due to social pressure. In short, Sharda had been abandoned by her husband Amritlal. 3. At about 10.00 A.M. on 18-4-1968 i.e. about a week after the letter Ext. 24 was received by the accused, there was a quarrel between the mother-in-law Nathi Bai and Sharda. We do not know the nature of the quarrel But it was not a serious one. One of the witnesses Bhuderlal P.W. 5 described it as the usual quarrel which takes place in many houses which are joint. That witness P.W. 5 and Bai Tara who came there on hearing the quarrel advised them not to quarrel and the matter ended there. At about 1.00 p m. neighbours heard cries and shrieks from the house of the accused and ran to the place. They saw a ghastly sight there. In the hindmost room which is also described as the second room in the judgment of the High Court, Sharda had fallen on the ground naked with burns all over her body. She was in great pain but perfectly conscious. The neighbours who came there asked her what had happened and she told them that the three accused had sprinkled kerosene on her clothes and set them on fire. A large crowed had collected and one of them was Amritlal Manga Lal, P.W. 1, Amritlal was a relation. He was related to Lallubhai, accused No. 1, as his brother's son and he was also related to Sharda who was the daughter of the maternal uncle of Amritlal's wife. On hearing what the girl had stated within their hearing, the Sarpanch of the village, Dharam Chand, P.W. 3 prepared statement Ext. 10 and the same was signed by about 14 persons including P.W. 1 Amritlal. Neither the signature nor the thumb impression of Sharda could be taken below the writing because that was not possible as the palms of her hands were burnt. After signing the writing, Amritlal and some others left she village to fetch a Doctor and to inform the Police. Amritlal obtained a Jeep and went to the Police outpost at Chitroda which is two miles away. Some other persons went to the Medical Officer Dr. Keshavlal whose headquarters were also at Chitroda. Head Constable Samat Singh P.W. 19 was in charge of the Police outpost. On a statement made by Amritlal to him, he prepared an occurrence report Ext. 9 to the effect that the three accused had, after beating Bai Sharda, sprinkled kerosene on her body and set fire to her clothes. The occurrence report was signed by P.W. 1 Amritlal who was instructed by the Head Constable to proceed to the Police Station at Jadar which was about 10/12 miles away. The Head Constable there-after proceeded to village Poshina. 4. In the meantime Dr. Keshavlal P.W. 15 having learnt that Bai Sharda had received burns, came to Poshina in a Jeep. He reached the house of the accused at about 4 15 P.M. He directly went to the place where Sharda was lying. On seeing the Doctor, Sharda implored him loudly 'save me, Save me'. He noticed that her body had been extensively burnt and the case was very serious. He casually asked her as to how she got burnt. Thereupon she told him that she was burnt by her father in law Lallubhai, mother-in-law Bai Nathi and brother-in'law Jayantilal after sprinkling kerosene on her. He carried out whatever medical examination was possible and since the case was serious he recommended that she be taken to the Civil Hospital at Himatnagar, By this time, Head Constable Samat Singh had also arrived at that place. He also noticed that Sharda had extensive burn on her Lallubhai Devchand Shah And Ors. vs The State Of Gujarat on 3 November, 1971 2 body and she was quite conscious and able to speak. He asked her what had happened and, according to the witness, she told him that her husband had contracted a second marriage and that her father-in-law, mother-in-law and brother-in-law had burnt her after sprinkling kerosene on her. At the instance of the Medical Officer Dr. Keshavlal, he then took Sharda to the Civil Hospital round about 6.00 p m. Her condition at that time was very bad. She was speaking in a very low voice and it was not possible to follow her. He started giving treatment to her and intimated the Police Section at Himatnagar to arrange for recording her dying declaration. Before the police could arrive, Sharda expired at 6.35 p.m. In due course Dr. Pandya performed the post-mortem examination. The results noticed by him were as follows. 5 "Pieces of clothes stuck to the body and black threads tying the hairs of the head were collected at the post Mortem Examination. Smell of Kerosene was found Body had blisters which had burst and from head to legs she was blackened. The hairs on the head were practically burnt. Face, legs, eyes, cheek, shoulders, chest, abdomen, neck, back of chest, both things, and buttocks, lower part of the abdomen and genitals, both knees and calves of legs were burnt and found black. Both the palms with fingers had also burns and blisters. All these injuries were found to be ante-mortem. According to Dr. Pandya the burns were so extensive that they were sufficient in the ordinary course of nature to cause death- 6. The principal evidence against the accused consisted of the dying declarations made by Sharda from time to time. First there was the dying declaration recorded as per Ext. 10 by the Sarpanch Dharam Chand P.W. 3. It was signed by no less than 14 persons who had come to the place immediately after hearing Sharda's cries. The second time when Sharda made the statement was when Dr. Keshavlal questioned her. He had prepared rough notes at the time which he later transferred to the case papers Ext. 38, prepared the same day. Ext. 38 records the statement made by her to the effect that Sharda's father-in-law, mother-in-law and brother-in-law had sprinkled kerosene on her and "set on fire". The third dying declaration is to be found in the statement of the Head Constable Samatsingh, P.W 19 who says that when he asked Sharda as to what had happened, she told him that her husband had contracted a second marriage and her mother-in-law Bai Nathi, father-in-law Lallubhai and brother in-law Jayantilal had burnt her after sprinkling kerosene on her. The second and the Third declarations have been proved by Dr. Keshavlal and Head Constable Samat Singh respectively and Dr Keshavlal produced Ext. 38 the case papers, in corroboration of his evidence. With regard to the first dying declaration Ext. 10 which was prepared by the neighbours who had come to the house on hearing the cries, no less than six persons out of the 14 persons who were signatories to the statement, were e-xamined. Most of them deliberately avoided supporting the prosecution P.W. 1 Amritlal who had signed the statement and had also made his report at the outpost in accordance with that statement turned hostile and denied having heard the dying declaration or even having made the report Ext. 9 which he had signed. Sarpanch Dharam Chand P.W. 3 though admitting that he had recorded the statement and signed it along with the others gave a twist in the course of evidence suggesting thereby that the had prepared the report on what the ladies questioned and as it Sharda had told him. In these circumstances the learned Sessions Judge held that Ext. 10 was inadmissible in evidence. At the same time he held that the first dying declaration had been duly proved by P.W. 4 Ravashankar who did not disclose any disposition to turn hostile. Ravashankar stated that when he was returning home at about 1 00 p.m., he heard a Lallubhai Devchand Shah And Ors. vs The State Of Gujarat on 3 November, 1971 3 noise at the house of the accused and so he went there. There were many persons including the females and the sarpanch. Sharda was lying in the second room The females were questioning Sharda and within his hearing Sharda said that she had been burnt by the accused. The Sarpanch prepared Ex'. 10 and he also signed it, though in his cross-examination he admitted that he had not read it before signing because it was prepared on the basis of what they had heard from Sharda. The learned Sessions Judge found that this witness and he had no difficulty in holding that Sharda had nude a statement soon after she was burnt implicating the accused as the persons who had burnt her after sprinkling kerosene on her body. 7. Apart from denying that they had set fire to the clothes of Sharda and pleading not guilt, no consistent defence was put forward by the accused. 8. The burning could have been either homicidal or accidental. Accident was ruled out by the fact that even at the time of the post-mortem, there was smell of kerosene and there was no possibility of Sharda being burnt by accidentally catching fire in the second room because the kitchen was far from the place and the room was used merely as a store room. Accident was not also suggested before us. There can be, therefore, no doubt that death was homicidal The High Court has further noticed that in the Sessions Court it did not appear to have been suggested that death was suicidal, but the agreement was advanced in the High Court that it was quite likely that Sharda might have committed suicide by sprinkling kerosene on her clothes and setting fire to herself the reason being that she had been discarded by her husband, she was issueless and she had nothing to look forward in her life, her husband having married a second time. 9. Both the courts have accepted the truthfulness of Sharda's dying declaration and on the basis the High Court has confirmed the conviction of the accused. The law with regard to dying declarations is very clear. A dying declaration must be closely scruitinised as to its truthfulness like any other important piece of evidence in the light of the surrounding facts and circumstances of the case, bearing in mind, on the one hand, that the statement is by a person who has not been examined in court on oath and, on the other hand, that the dying men is normally not likely to implicate innocent persons falsely. See Khushal Rao vs The State of Bombay 1958 SCR p. 552. If the court is satisfied on a close Scrutiny of the dying declaration that it is truthful, it is open to the court to convict the accused on its basis without and independent corroboration. In the present case, we find that on a close scrutiny of the dying declaration both the courts, after a detailed consideration of the evidence, have come to the conclusion that the dying declaration is true. The normal rule so far as this Court is concerned is that when the High Court accepts a piece of evidence as true, this Court does not examine the evidence afresh for itself unless there is substantial error of law or procedure or there is a failure of justice by reason of misapprehension or mistake in reading the evidence or the case involves a question of principle of general importance. See Brahmin Ishwarlal Manilal v. The State of Gujarat Crl. Appeal No. 120 of 1963 decided on 10-8-1965, and Tapinder Singh v. State of Punjab and Anr. 1970 (2) SCC p. 133. 10. Mr. Mehta appearing for the appellants, though conceding that it was not open to contend here that Sharda had not made the dying declaration as alleged, submitted that the courts had not found as a fact that Sharda was in a fit mental condition to make the statement. According to Mr. Mehta, Lallubhai Devchand Shah And Ors. vs The State Of Gujarat on 3 November, 1971 4 though the witnesses stated in the evidence that Sharda was conscious and was able to speak, it did not necessarily mean that she was in a proper mental condition to make a consciously truthful statement and unless clear evidence about her mental state was produced the statement could not be regarded as reliable evidence. In support of his submission Mr. Mehta relied on an unreported judgment of this Court in Sucha Singh v. The State of U.P. Crl. Appeal No. 225 of 1967 decided on 12-11-1968 and specially on the following observation at page 4 of the blue print. It would be very unsafe to record a conviction for the offence of murder, relying solely upon a statement recorded as a dying declaration which is not shown to be made by a person in a fit state of mind. There can be no doubt that when a dying declaration is recorded the person who records the statement must be satisfied that the person who makes the statement is consciously making the statement understanding the implications of the words he uses. The expression 'fit state of mind used in the case referred to above means no more than that. The facts of that case go to show that though the dying man Trilok Singh had purported to make a statement implicating Sucha Singh and Mahendra. Singh as his assailants, that court was not prepared, on the evidence, to accept that statement as having been consciously made by Trilok Singh. The evidence showed that Trilok Singh had died a few minutes after his statement had been recorded by Dr. Pant and just before recording the statement of Trilok Singh he had been surrounded by other Sikh Sardars who were speaking to Tiilok Singh in Punjabi. The suspicion, therefore, could not be eliminated that Trilok Singh, when he made the statement, was merely transmitting the suggestions made to him by the Sikh Sardars surrounding him and was not making a conscious and voluntary statement of his own. The court, therefore, blamed Dr. Pant for not questioning Trilok Singh with a view to test whether Trilok Singh was in a 'fit state of mind' to make the statement. The 'fit state of mind' referred to is in relation to the statement that the dying man was making. In other words, that the case suggests is that the person who records a dying declaration must be satisfied that the dying man was making a conscious and voluntary statement with normal understanding, and the responsibility of the court is greater in holding that it was so made when in fact it is found that the man dies a few minutes afterwards. 11. In the present case there can be hardly any doubt that Sharda was not only conscious and able to speak but also that she was consciously and voluntarily making the statement. It is not the case that she was surrounded at the time when she made the first dying declaration at 1.00 P.M. by her friends and relatives. Her parents and other relations were away and there was no body in the house who could have made any suggestions to her to make a false statement. The evidence is that throughout she was conscious and was able to speak. Not only at 1.00 P.M. but even between 4 00 and 4.30 P.M. when Dr. Keshavlal and the Head Constable spoke to her she was perfectly conscious and able to speak her mind. As a matter of fact when she saw Dr. Keshavlal coming inside the house, perhaps with the Doctor's bag, she implored him to save her. She said "Save me, Save me". That clearly goes to show that she had perfect understanding and was able to make a rational statement of her own No suggestion has been made to Dr. Keshavlal that her mental condition was such that she was not able to make a conscious statement. In fact in his cross-examination Dr. Keshavlal says that at that time the temperature of Bai Sharda was 98 F, respiration 19 and pulse 76. There was no Lallubhai Devchand Shah And Ors. vs The State Of Gujarat on 3 November, 1971 5 restlessness. There was no shock. She was not unconscious. Her voice was not feeble. Her voice was clear. In these circumstances we have no doubt at all that the dying declaration was a conscious statement voluntarily made by Sharda. 12 Mr. Mehta next contended that the accused had really no reason to murder her because inspite of her husband's aversion towards her, the accused were giving her food and shelter and for this even the husband had complimented them in the letter Ext 24. There is no substance in this argument because if as suggested, the accused were kind and sympathetic towards her because she was a young woman abandoned by her husband, it could be hardly conceived that Sharda would implicate them falsely. On the other hand, we would expect her to be grateful to her parents-in-law who had given her shelter and maintenance though her husband did not like her at all. 13. Mr. Mehta next submitted that it was not unlikely that Sharda committed suicide by pouring Kerosene oil upon herself because her husband had abandoned her, she had no issue and there was no future for her. And having decided to commit suicide it is further suggested, that she had decided to implicate the accused in a revengeful mood. No sufficient material has been placed before the Court to show that this could have been possible She had been living for the last six years in the village sometimes with her parent and sometimes with parents-in-law. Her husband had never cared for her. There is no evidence whatsoever that she had previously tried to commit suicide or showed disgust for life. The fact that her husband hid turned to another woman could not have remained unknown to her, the marriage having taken place more than 5 to 6 months before the present incident. Undoubtedly she must have been a disappointed woman. But it is not shown what impelled her to commit suicide on that day. She had never enjoyed the love of her husband since the date of her marriage and it could hardly be said the it she had any hopes of her husband treating her better whether he married a second time or not. Her disappointment with life, if any, could not have started after her husband married Aruna in 1967. It is quite likely that she was neglected in the house of the accused that being the fate of most young women who have to live with parents-in-law after being abandoned by their husbands. But that did not prevent her from living with them because it is seen from the evidence that she lived with the accused and her father alternately. No circumstances have been brought on record to show that she was disposed to commit suicide or that the father-in-law or brother-in-law out of the three accused were treating her so harshly that she would think of implicating them also in a vengeful mood. On the other hand, the immediate conduct of the accused tends to negative the possibility of he suicide When people rushed to the house on hearing her cries, they do not appear to have noticed that anything was being done by the accused which could be regarded at evidence of their sympathy for the girl The accused were sitting in the verandah quietly. Being in the house they should have been the first to go near the girl when her clothes had caught fire, But the evidence shows that there were no visible signs on the persons of any of the accused to suggest that they helped the girl when the clothes caught fire. No attempt was made by them to call the Doctor or sent for relations. On the other hand, when the girl was telling her interrogators that the three accused had poured kerosene on her and set her clothes on fire, the accused did not so much as protest and declare that she had committed suicide and was blaming them unjustly Reference was made to the fact that some sand was seen at the place when a Panchnama was made next morning. The suggestions was that one or the other accused had thrown sand to extinguish the fire. If in fact the sand had been thrown at the girl to extinguish the fire, the Lallubhai Devchand Shah And Ors. vs The State Of Gujarat on 3 November, 1971 6 Doctors who examined the body would not have failed to see the sand particles on the body of the girl There is no cross-examination of the Doctors with a view to elicit from them that there were particles of sand on the naked body of Sharda. Similarly reference was made to a quilt, a small part of which is supposed to have been burnt. The suggestion now is that the quilt had been used to smother the fire. The quilt was, however, actually found in the verandah and, according to the learned Sessions Judge, it was taken there from the other room and not from the room where Sharda had fallen. Ordinarily if that quilt or any other quilt had been used by any one of the accused to smother the fire, some injury would have been caused to the man or woman who attempted to cover the burning clothes of the girl with the quilt. Secondly the quilt would have fallen and remained, if not extensively burnt, at the place where the woman was burnt and fell. It is not elicited from any witness, though some of them were hostile to the prosecution and inclined towards the accused, that any quilt was found close to the place where Sharda was lying. We, therefore, find no hesitation in agreeing with the High Court when it observes that this unusual conduct on the part of the accused is more consistent with the prosecution case than with the possibility of suicide. All the points raised before us on facts had been raised before the High Court and they have been satisfactorily discussed and dealt with. We are not shown that there was any misapprehension or misreading of the evidence on the part of the Trial Court or the High Court resulting in failure of justice. Therefore, this is not a fit case for interference in appeal by special leave. The appeal is, therefore, dismissed. Lallubhai Devchand Shah And Ors. vs The State Of Gujarat on 3 November, 1971 7 | {
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State Of Mysore vs Swamy Satyanand Saraswati, ... on 31 March, 1971 Equivalent citations: 1971 AIR 1569, 1971 SCR 284, AIR 1971 SUPREME COURT 1569 Author: G.K. Mitter Bench: G.K. Mitter, K.S. Hegde, P. Jaganmohan Reddy PETITIONER: STATE OF MYSORE Vs. RESPONDENT: SWAMY SATYANAND SARASWATI, RELIGIOUSPREACHER, RAICHUR DATE OF JUDGMENT31/03/1971 BENCH: MITTER, G.K. BENCH: MITTER, G.K. HEGDE, K.S. REDDY, P. JAGANMOHAN CITATION: 1971 AIR 1569 1971 SCR 284 ACT: Grant by Jagirdar-If includes right to minerals in favour of grantee Burden of proof. HEADNOTE: The Nizam of Hyderabad granted a jagir to his prime minister. The successor of the jagirdar granted an island in one of the villages, comprising a hillock of granite, to the predecessor-in-interest of the respondent. The area covered by the grant was acquired by the State Government for purposes of an irrigation project. On the question whether the respondent was entitled to sub- soil rights, and as a consequence, became entitled to compensation for the granite and quarries as minerals, HELD:It was for the respondent to establish his claim to minerals or quarry rights by putting forward proof of the State Of Mysore vs Swamy Satyanand Saraswati, ... on 31 March, 1971 1 grant thereof by the Nizam to the jagirdar and by the jagirdar to his predecessor. But assuming that the Nizam conferred the right on the jagirdar, the patta granted by the jagirdar and the connected documents showed that what was in contemplation of the jagirdar and his grantee at the time of the grant, was either the cultivation of the land or the grazing of cattle on it. Nobody at that time had any thought or idea of the land being put to any other use or any mining or quarrying rights being exercised therein. When the grantor was careful to exclude even the fruit bearing trees, it would be wrong to hold that he must have parted with the sub-soil rights by implication. Therefore,the right to minerals was not granted to the respondent's predecessor.[287B-C; 289B; 292D-E] What has to beconsidered in each case is the purpose for which the lands are leased oran interest created therein with all the clauses which throw any light on the question as to whether the grantor purported to include his rights to the sub-soil in the grant when there was no express mention of it. If the grant shows that the purpose of the grant was to allow the user of the surface only it would be wrong to presume that subsoil rights were also covered thereby. [292C-D] The test of what is a mineral is, what at the date of the instrument, the word meant in the vernacular of the mining world, the commercial world, and among landowners; and in case of conflict that meaning must prevail over the purely scientific meaning. Since granite is a mineral according to this test the respondent had no right to the granite or quarries. [293B-C] State of Andhra Pradesh v. Duvvuru Balarami Reddy, [1963] 1 S.C.R. 173, followed. Hari Narayan Singh v. Sriram Chakravarti, 37 I.A. 136, Durga Prasad Singh v. Braja Nath Bose, 39 I.A. 133, Girdhari Singh v. Megh Lal Pandey 44 I.A. 246, Sashi Bhusan Misra v. Jyoti Prasad Singh Deo, 44 I.A. 46, Govinda Narayan Singh v. Sham Lal Singh, 58 I.A. 125, Bejoy Singh Dudhoria v. Surendra Narayan Singh, I.L.R. 61 Cal. I (P.C.) and Attorney General v. Welsh Granite Co. The Law Times Reports 549, applied. 285 JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 496 of 1966. Appeal by special leave from the judgment and order dated August 10, 1964 of the Mysore High Court in Regular Appeal (H) No. 75 of 1956. S. T. Desai, B. D. Sharma, Shyamala Pappu and S. P. Nayar, for the appellant. State Of Mysore vs Swamy Satyanand Saraswati, ... on 31 March, 1971 2 M. Natesan, B. Parthasarathy, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for respondent Nos. 1 and 3. The Judgment of the Court was delivered by Mitter, J.-The main question involved in this appeal is whether the respondent was entitled to sub-soil rights by virtue of the pattas granted in favour of his predecessor-in-interest by Nawab Salar Jung III of Hyderabad and as a consequence thereof became entitled to compensation claimed by him for acquisition of a large block of land containing a hillock of granite which was required for the Tungabhadra Project and was notified for acquisition under the Hyderabad Land Acquisition Act on February 3, 1946. The relevant facts are as follows. In 1820 the Nizam of Hyderabad granted a jagir, the terms whereof do not appear from the record before us, to his Prime Minister known as Nawab Salar Jung T. This jagir consisted of many villages in the district of Raichur one of them being Madlapur on the bank of the river Tungabhadra. In the year 1930 the successor of the original grantee of the jagir, Nawab Salar Jung III made a grant of an island in that village comprising S. Nos. 154, 312 and 313 with a hillock rising to a height of 250 ft. and measuring Ac. 290-00 in favour of one Swami Nijananda, the predecessor-in-interest of the respondent. In February 1946 the entire area covered by the grant to Swami Nijananda was proposed to be acquired for an irrigation and hydroelectric project known as the Tungabhadra Project which had been embarked upon by the Governments of Hyderabad and Madras States. The purpose of acquisition was the gathering of granite stone for the construction of a dam across the river Tungabhadra. The acquisition proceedings were completed pursuant to a final notification made on June 16, 1947 followed by an award by the Land Acquisition Officer on July 24, 1950. Before the Land Acquisition Officer two claims were put forward, one on behalf of the respondent Swami Satyananda and the other by Nawab Salar Jung III. But as all jagirs including that of Nawab Salar Jung were abolished during the pendency of the acquisition proceedings, the claim for compensation by Nawab Salar Jung III also disappeared. The claim of Swami Satyananda was for Rs. 29,91,600. The Land Acquisition Officer awarded Rs. 31,260-8-0 as the total compensation disallowing the claim in respect of the granite hillock on the ground that it was not covered by the grant to Swami Nijananda. The District Judge to whom reference was made under the Land Acquisition Act enhanced the compensation to Rs. 48,892 exclusive of statutory allowance and interest. Two of the issues framed by the District Judge related to the respondent's claim to a right in the quarry and also to the situs thereof i.e. as to whether it was within the patta land belonging to the claimant. He found that the rock was situated within the patta land of the claimant but with regard to the quarry rights he took the view on the basis of two Farmans of the Nizam Exs. A-21 and A-22 and Section 2(d) of the Mines Act and Section 3 of the Hyderabad Land Revenue Act that the claimant had no right to the minerals and quarries. He did not record any finding as to whether the jagir granted by the Nizam included the mining rights and whether the patta granted by the jagirdar conferred the same rights on the claimant in view of his conclusion on the points of law urged that mining rights were in the exclusive ownership of the Nizam. The High Court took the view that the District Judge had proceeded on the assumption that there was a grant to Nawab Salar Jung I with all the mineral products in the land by the jagir of 1820. It however held, differing from the District Judge, that the Farmans Exs. A-21 and A-22 did no more than explain the provisions of Section 63 of the Land Revenue Act and did not affect any subsisting rights in the minerals if they belonged to the jagirdar. According to the High Court the question as to whether the grant to Nawab Salar Jung did or did not include the granite in the hillock was never raised at any stage and it was assumed by every one that the grant to Nawab Salar Jung included the State Of Mysore vs Swamy Satyanand Saraswati, ... on 31 March, 1971 3 right to granite and that right was a subsisting right even while the Hyderabad Land Revenue Act 1907 was enacted. The High Court was not willing to entertain the contention raised by the Advocate-General for the first time that the grant did not include the right to granite in the hillock. The High Court apparently fortified its conclusion placing reliance,on the fact that copies of all the grants of jagirs should have been available with the State authorities and as the original grant to Nawab Salar Jung or an authenticated copy thereof was not produced, the necessary inference would be that the same would not support the contention of the Advocate-General. The High Court further took the view that the granite in respect of which compensation was claimed in the case was not a mineral and that being so neither Section 63 of the Hyderabad Land Revenue Act nor the Farmans referred to in Exs. A-21 and A-22 were relevant to the issue before it and it would not be possible to hold that the minerals and mineral products in the hillock vested in the Government under Section 63 of the Hyderabad Land Revenue Act. In our view it is not necessary to consider the effect of the Farmans or of Section 63 of the Hyderabad Land Revenue Act. It was for the respondent to establish his claim to minerals or quarry rights by putting forward proof of the grant thereof by the Nizam to Salar Jung and to show that his rights in the land held by him were co-extensive with those of Nawab Salar Jung 111. There is no scope for any presumption that the Nizam had parted with the mineral rights to the jagirdar or that the jagirdar had done so in his turn. Even assuming that the Nizam conferred the right of minerals in the land or to quarry for granite therein to Nawab Salar Jung 1, the question still remains, what right did the patta of the Salar Jung estate confer on the predecessor-in-interest of the claimant. The patta for S. Nos. 312 and 313 was marked as Ex. 49 in this case. It contains various columns including those for the name of "Khatedar", 'any increase or decrease in the land on account of cultivation or left uncultivated', 'remarks of the, village officers', "opinion of the Tahsildar" and "the approval of the 'Nizam' of settlement". Under the column headed "opinion of the Tahsildar" is to be found the following :- "The land bearing S. No. 254 Paramboke known as Bolurguddi' is situated in Madlapur village, the area of which is Ac. 290-00 and it has not been surveyed. Narasimha Bharati Swamy has filed an application wherein he has approved/accepted land the extent of Ac. 89-00 area in Tahsil office. As the village was under survey the Tahsil office sent the file to the Settlement Department... According to the profit accruing to the State as pointed measuring 109 acres and 13 guntas, having an measuring 13 acres 13 guntas having an assessment of Rs. 19 in all 183 acres 33 guntas and with a total assessment of Rs. 46 were given into the possession of the applicant and the remaining 109 acres 20 guntas have been included in the Paramboke the survey number of which is 154, the Government has got the right over the trees bearing fruit. The patta bearing S. Nos. 312- 313 may be made in the name of the applicant Narsimha Bharati Swamy from 1331 Fasli. The letter received from the Settlement is worthy of perusal. According to the remarks of Settlement Department, the entry of unculti- vated land has been made since 1330 F. because it was approved in 1330 F. The file of the Thasil has also been submitted. The acceptor has filed an application in the District office stating that the entry of the patta be made in the year 1330 Fasli and that he is willing to pay the amount." State Of Mysore vs Swamy Satyanand Saraswati, ... on 31 March, 1971 4 Ex. 50 is a copy of the proforma No. 8 (Takavi) statement of village Madlapur and is for Paramboke (patta) granted on 7th Mehar 1336 F. The remarks of the Tahsil office in this case read : "An assessment of Rs. 28-4-9 of the unsurveyed guntas at the Bolguddi is approved as per the District Office Order. Nijanand Narasimha Bharati Swamy of Dolurguddi is granted the excess of 'Lawani' in accordance with Rs. 0-4- 0 agreement from 'Dhara' to 'Rev-Sharan'." Reference may also be made to the letter issued by the Superintendent, Settlement Department, Salar Jung Estate where the petition for grant of patta of land of Bolur Gedda by Narasimha Bharati Swamy mentioned as one for the purpose of grazing cattle. According to this letter : measuring 209 acres and known as Bolur Gedda has been lying as a waste since a long time. The land in the said survey number is not fit for cultivation. On all the occasions water of the stream will be surrounded on all the four sides. It would be useful only for grazing the cattle. Near about the said survey land there are two tamarind trees. But the product of the trees has not been auctioned at any time. Now regarding the rent received by the Government of the State as indicated by the petitioner in regard to the aforesaid land of the land measuring 109 acres 13 guntas and measuring 74 acres and 20 guntas assessed at Rs. 19, thus a total of 183 acres and 33 guntas assessed at Rs. 46 has been given in possession of the petitioner and the rest of the land 106 acres and 20 guntas has been included in this 'purpose' land only and its survey number is 154. The tamarind trees standing on the said survey land would belong to the Government only. In case a petition is presented in future the lands may be included in the patta as per rules. The patta of the survey lands bearing S. Nos. 312, 313 may be made in the name of the peti- tioner Sri Nijanand Narasimha Bharati Swamy from the year 1331 F." It is amply clear from the above that what was in contem- plation of the grantor and grantee at the time of the grant was either the cultivation of the land or the grazing of cattle on it. Nobody at that time had any thought or idea of the land being put to any other use or any mining or quarrying rights being exercised therein. The grantor was careful to exclude even the fruit-bearing trees. It would be wholly unrealistic to construe the grant as conferring mining rights by implication simply because of the fact that there was no mention of it. A long line of decisions of the Judicial Committee of Privy Council relating mainly to the grants of land and leases by the Zamindars in Bengal makes it amply clear that sub-soil rights are not to be treated as having been conveyed by implication in grants of surface rights to tenure-holders pattidars (lessees) etc. In this connection it may be State Of Mysore vs Swamy Satyanand Saraswati, ... on 31 March, 1971 5 noted that by the Permanent Settlement of 1793 the zamindars with whom the lands were settled were held to be owners of all mines and minerals in their zamindaries. The decisions of the Privy Council relate principally to grants of land in coal-bearing areas before the discovery of any coal therein. One of the early cases of this type was that of Hari Narayan Singh v.. Sriram Chakravarti(1). There the dispute was as to the right to minerals lying under a village called Petena situate within the zamindari of the first appellant. The appellant's predecessor had conveyed some sort of interest in the village to a set of persons called Goswamis who were shebaits or priests of an idol. The Goswamis had purported to grant to the respondents two leases by virtue of which the latter claimed to have exercised rights with respect to minerals. There was no evidence whatever that the zamindar Raja had ever granted mineral rights to the Goswamis or any other person. The courts in India concurrently found that, no prescriptive rights had been proved by the respondents to any underground rights in the village. The High Court took the view that the Goswamis being tenure-holders had per- manent heritable and transferable rights, from which it was inferred that the underground rights also belonged to them. The Subordinate Judge had however inferred from the smallness of the jumma (rent) that only the surface rights and not the underground rights were intended to be let out to the Goswamis. The Board held that (p. 146) : ". . . . the title of the zamindar raja to the village Pctena as part of his zamindari before the arrival of the Goswamis on the scene being established as it has been, (1) 371. A. 136. 19-1 S.C. India/71 he must be presumed to be the owner of the underground rights thereto appertaining in the absence of evidence that he ever parted with them, and no such evidence has been produced." Durga Prasad Singh v. Braja Nath Bose (1) was a case where the zamindar of a permanently settled estate who asked for a declaration of his right to minerals as against a lessee from a digwar tenure holder. The digwar tenure was originally granted in consideration of the performance of military service to which police duties were attached. The tenure was hereditary and inalienable, the digwar being appointed by Government and being liable to be dismissed by Government for misconduct. On such dismissal the next male heir if fit to be appointed had the right to be appointed. The digwar of Tasra granted a perpetual lease of the coal mines underlying two villages to Tasra Coal Company in 1892. On the question as to whether the digwar had a proprietary right in the underground minerals the Board took the view that the permanent settlement having been made between the Government and the zamindar of Jharia and no attempt having been made to prove that the mineral rights were vested in the digwar before or at the time of the permanent settlement and there being no evidence to show that the zamindar had ever parted with mineral rights to the digwar, the latter could not be held to have any proprietary right in the minerals. In Girdhari Singh v. Megh Lai Pandey (2) the question before the Board was whether a mokarari lease of land with all rights carried a right to the subjecent minerals in a permanently settled estate. According to the Board (see page 248) "It is unavailing to urge that the right granted by the mokrari State Of Mysore vs Swamy Satyanand Saraswati, ... on 31 March, 1971 6 pottah to the lessee is of a permanent, heritable, and transferable character, as, even although this be the case, it does not advance the question whether the lease itself embraced within its scope the mineral rights. On the contrary, unless there. be by the terms of the lease an express or plainly implied grant of those rights, they remain reserved to the zamindar as part of the zamindari." Their Lordships referred to the decisions mentioned above as also to that of Sashi Bhushan Misra v. Jyoti Prasahad Singh Deo(3) and adopted the principle (p. 249) : "....... when a grant is made by a zamindar of a tenure at a fixed rent although the tenure may be permanent, heritable, and 'transferable, minerals will not be (1) 391. A. 133. (2) 441. A. 246. (3)44 I. A. 46. held to have formed part of the grant in the absence of express evidence to that effect." According to the Board "On the assumption that the expression (mai hak hakuk) means 'with all rights'. or may be properly amplified as 'with all right, title and interest', such expressions ... did not increase the actual corpus of the subject affected by the pottah. They only give expressly what might otherwise quite well be implied, namely, that that corpus being once ascertained, there will be carried with it all rights appurtenant thereto, including not only possession of the subject itself, but it may be of rights of passage, water or the like which enure to the subject of the potta and may even be derivable from outside properties. It must be borne in mind also that the essential characteristics of a lease is that the subject is one which is occupied and enjoyed and the corpus of which does not in the nature of things and by reason of the user disappear. In order to cause the latter specially to arise, minerals must be expressly denominated, so as thus to permit of the idea of partial consumption of the subject leased." Accordingly it was held that the words founded on did not add to the true scope of the grant nor cause mineral rights to be included within it. It should be noted here that there was a reference to the trees on the land in the pottas it being expressly provided that the lessee would be entitled to take the price of the trees by cutting and selling them and the zamindar would not have any right thereto. This was held by the Board to negative the idea that mokarari pottab could be comprehensively viewed to include mineral rights. According to the Board : "Such a lease is a lessee of the surface only. This is the general case to which in the present case there is alone superadded a right to the trees. The minerals are not included." Most of the above cases were referred to again by the, Board in Govinda Narayan Singh v. Sham Lai Singh (1) where after noting the earlier cases the Board concluded that' in the case of any claim against the zamindar to the lands which were included at the permanent settlement the burden of proof is upon the (1) 58 I. A. 125. State Of Mysore vs Swamy Satyanand Saraswati, ... on 31 March, 1971 7 claimant. Reference may also be made to Bejoy Singh Dudhoria v. Surendra Narayan Singh (1) where the Board held that the grant of a patni lease by a zamindar of his zamindari lands "including all interest therein, and jalkar, banker, falkar, beels and jhils at an annual jama containing a stipulation that the grantee should not cut trees or excavate a tank was only consistent with the theory that the lessee and those claiming under him were not entitled to excavate the soil for the purpose of making bricks and that there was no transfer of the property in the soil". In our view the principle which is to be deduced from these cases is not one which is to be confined to the case of zamindars in permanently settled estates. What has to be considered in each case is the purpose for which the lands are leased or an interest created therein with all the clauses which throw any light on the question as to whether the grantor purported to include his rights to the subsoil in the grant when there was no express mention of it. If the lease shows that the purpose of the grant was to allow the user of the surface only it would be wrong to presume that sub-soil rights were also covered thereby. The patta Ex. 49 in this case amply demonstrates that what was in contemplation of the parties at the time of the grant in .1930 was the cultivation thereof or grazing cattle thereon. The grantor was even careful to reserve the right to fruit-baring trees. It would be a strange construction to hold that although the grantor expressly excluded such trees from his grant he must be taken to have parted with his sub-soil rights by implication. We may also note that in State of Andhra Pradesh v. Duvvuru Balarami Reddy (2) where the respondents had obtained mining leases for mining mica from the owners of a certain shor- triem village it was held that shortriemdars had no rights in the minerals and the leases granted by them to the respondent had no legal effect. It is true that this Court was there dealing with rights of a different class of persons and it was claimed on behalf of the respondent that inasmuch as the grant included poramboke if followed that mere surface rights were not the subject matter of the grant. Rejecting this contention the Court observed (p. 183) : "So far as the sub-soil rights are concerned, they can only pass to the grantee if they are conferred as such by the grant or if it can be inferred from the grant that subsoil rights were also included therein.' (1) I. L.R. 61 Calcutta 1 (2) [1963] 1 S. C. R. 173 It is not in our view possible to hold otherwise than that granite is a mineral. According to Halsbury's Laws of England : "There is no generad definition of the word 'mineral'. The word is susceptible of expansion or limitation in meaning according to the intention with which it is used... It is a question of fact whether in a particular case a substance is a mineral or not. . . The test of what is a mineral is what, at the date of the instrument in question, the word meant in the vernacular of the mining world, the commercial world, and among landowners, and in case of conflict this meaning must prevail over the purely scientific meaning". State Of Mysore vs Swamy Satyanand Saraswati, ... on 31 March, 1971 8 (See Vol. 26, 3rd edition, Art. 674 page 320). In Article 675 at page 322 the learned authors summarise the case law on the subject as to whether particular substances are minerals or not. Reference is there made to the case of Attorney General v. Welsh Granite Co.(1) where granite was held to be included under the reservation of "minerals" in the Enclosure Act which reserved all mines, minerals, ores, coal, limestone, and slate to the Crown. According to Lord Coleridge, the word "minerals" was large enough to include granite. In the view we have taken, it is not necessary to consider the effect of the Farmans or Section 63 of the Hyderabad Land Revenue Act. In our view the pattas only indicating that the grant was for the purpose of cultivation or grazing of cattle with the express reservation of the trees on the land to the grantor, the question of grant of sub-soil rights by implication does not arise. It is therefore not necessary to consider the effect of the Farmans Exs. A-21 and A-22 or of Section 63 of the Hyderabad Land Revenue Act. The claim to compensation on the basis of the sub-soil rights to the hillock must therefore be negatived and the appeal allowed. In the result the decree of the High Court regarding the minerals in the land or quarry rights will be set aside and the judgement and order of the District Judge on that point restored. The respondent will be entitled to the costs of the appeal in pursuance of the, order of this Court made as a condition for setting aside the abatement of the appeal. V.P.S. Appeal allowed. (1) 1 The Law Times Reports 549. State Of Mysore vs Swamy Satyanand Saraswati, ... on 31 March, 1971 9 | {
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Lekh Raj Khurana vs Union Of India on 3 March, 1971 Equivalent citations: 1971 AIR 2111, 1971 SCR (3) 908, AIR 1971 SUPREME COURT 2111, 1971 LAB. I. C. 1240 Author: A.N. Grover Bench: A.N. Grover, S.M. Sikri, G.K. Mitter, K.S. Hegde, P. Jaganmohan Reddy PETITIONER: LEKH RAJ KHURANA, Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT03/03/1971 BENCH: GROVER, A.N. BENCH: GROVER, A.N. SIKRI, S.M. (CJ) MITTER, G.K. HEGDE, K.S. REDDY, P. JAGANMOHAN CITATION: 1971 AIR 2111 1971 SCR (3) 908 1971 SCC (1) 780 ACT: Constitution of India, 1950-Article 311-Civilian employee of Defence Service-If entitled to protection of Article. Statuory Rules-Breach of-justiciability Natural Justice-If can be invoked under general law of master and servant. HEADNOTE: The appellant was appointed in 1942 as Labour Supervisor, Army Ordnance Corps. In 1951, pending inquiry into certain charges against him his service was terminated by giving him one month's notice under rule 5 of the Civilians in Defence Services (Temporary Service) Rules, 1949. He challenged the legality of the order of termination on the grounds that it had been passed by an officer subordinate to the authority Lekh Raj Khurana vs Union Of India on 3 March, 1971 1 who appointed him and that no adequate opportunity had been afforded to him of defending himself. He also alleged that the Order was vitiated by mala fides. In the appellant's appeal against the dismissal of his suit the High Court held that Article 311 of the Constitution was inapplicable, that breach of the Rules did not give an aggrieved party a right to go to the Court and that the Order was not vitiated by mala fides.-Dismissing the appeal to this Court. HELD : The appellant, holding a post connected with Defence cannot claim the protection of Article 311 of the Constitution. Jugatrai Mahinchand Ajwani v. Union of India C.A. 1185 of 1965 dt. 6-2-67 and S. P. Bahl v. Union of India C.A. 1918 of 1966 dt. 8-3-68: followed. (ii)The view of the High Court that the rules are not justifiable cannot be sustained. Breach of statutory rules in relation to conditions ,of service would entitle the aggrieved government servant to have recourse to the court for redress. R. Venkataro v. Secretary of State, A.I.R. 1937 P.C. 31, The State ,of Uttar Pradesh & Others v. Ajodhya Prasad, [1961] 2 S.C.R. 671 and State of Mysore v. M. H. Bellary, [1964] 7 S.C.R. 471, referred to. In the present case the order of discharge has been passed by the ,appointing authority as required by rule 5. (iii)In the appeal before this Court the finding on the point of mala fides must be accepted as final and the appellant cannot be allowed to re-agitate that matters. (iv)As regards the applicability of the rule-of natural justice it has not been shown how under the general law of master and servant, in the absence of any protection conferred by Article 311 of the Constitution such a rule can be invoked. 909 JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 17-19 or 67. Appeal from the judgment and decree dated May 23, 1961 of e Punjab High Court, Circuit Bench at Delhi in Regular Second appeal No. 43-D of 1956. N. N. Keswani, for the appellant. V. A. Seyid Muhammad and S. P. Nayar, for the respondent. The Judgment of the Court was delivered by Grover, L This is an appeal by certificate from a judgment and decree of the Punjab High Court (Circuit Bench, Delhi) by which the suit filed by the appellant for a declaration that the order dated May 26, 1951 directing his removal from service was wrongful, illegal and void and that he still continued to be in the service of the respondent as Supervisor, Army Ordnance Corps. Lekh Raj Khurana vs Union Of India on 3 March, 1971 2 According to the allegations in the plaint the appellant was appointed by the Governor-General in July 1942 as Supervisor, Army Ordnance Corps which, according to him, was a civil post under the Crown in India. In the months of September and October, 1950 the appellant was served with chargesheets by the Ordnance Officer, Administration, Shakurbasti, Delhi State, where he was posted at that time calling upon him to submit his defence to the charges of making serious false allegations against his superior officer Maj. H. S. Dhillon. The appellant asked for grant of time for submitting his defence and be also demanded copies of certain documents etc to prove his case. On May 26, 1951 while this inquiry was pending he was served with an order by the Ordnance Officer, Administration, Shakur- basti, Delhi which was as follows-- "Under instructions received from Army Head- quarters you are hereby given one month's notice of discharge with immediate effect, services being no longer required. Your services will be terminated on 25th June, 1951". The appellant challenged the legality of the above order principally on the ground that it had been passed by an officer who was subordinate to the authority who appointed him and that no inquiry "as required by Fundamental Rules and under the provisions of the Constitution of India" had been held in the matter of allegations against him and that no adequate opportunity had been afforded to him of defending himself or of show- ing cause against the action proposed to be taken. He all raised the question of the order being vitiated by mala fid In the written statement filed by the Union of India it was stat that the appellant had been appointed as a Labour Supervisor he Extra Temporary Establishment by the COO/Ordnan Officer Incharge, Ammunition Depot, Kasubegu under t authority of Financial Regulations, India, Part 1, Volume and not by the Governor General. It was pleaded, inter all that it was decided by the Government of India vide Army Headquarter's letter dated May, 25, 1951 to terminate the services by serving one month's notice. Consequently a notice of discharge from the service was given to him by the Ordnance Officer, Administration, who was competent to serve the notice on him under the authority of the Army Order No. 1202/1943 read in conjunction with 'Financial Regulations referred to before. The sole material issue which was framed was whether the order dated May 26, 1951 removing the appellant from service was illegal, wrong, void, ultra vires and inoperative. The trial judge held that Art. 311 of the Constitution was applicable to the case of the appellant and that his removal had not been ordered by the appointing authority. The suit was decreed. respondent preferred an appeal which was decided by the Additional District Judge, Delhi. It :Was held by him that Art. 311 was not applicable to the appellant as he held a post connected with defence. According to the learned judge the appellant's services were terminated under Rule 5 of the Civilians in Defence (Temporary Services) Rules, 1949, hereinafter called the 'Rules'. It was found that the order terminating the services had been passed by the proper authority. The appeal was allowed and the suit was dismissed. The appellant appealed to the High Court which was dismissed. His appeal was heard along with certain other appeals in which similar points were involved. It was found that the salary of the appellant was paid out of the estimates of the Mnistry of Defence and he was intimately connected with the defence of the country not as a combatant but as a person holding a post the object of which was exclusively to serve the Military Department. In the opinion of the High' Court Articles 309 and 310 were applicable to the case of the appellant but Article 311 was inapplicable. On Lekh Raj Khurana vs Union Of India on 3 March, 1971 3 the question whether the services of the appellant were terminated without complying with the rules the High Court expressed the view that the breach of such rules did not give the aggrieved party a right to go to the court Reliance in that connection was placed on the decision of the Privy Council in R. Venkatarao v. Secretary of State(1) and certain other cases in which that decision was followed. In the case of the appellant the only other point which appears to have appear to have been argued on his behalf and which was decided by the High Court related to the allegation of mala fides. The decision went against him on that, point. The question whether the case of the appellant was governed by Art. 311 of the Constitution stands concluded by two decisions of this court. In Jagatrai Mahinchand Ajwani v. Union of India(2) it was held that an Engineer in the Military Service who was drawing these salary from the Defence Estimates could not claim the protection of Art. 311(2) of the Constitution. In that case also the appellant was found to have held a post connected with Defence as in the present case. This decision was followed in S. P. Bell v. Union of India (3). Both these decisions fully cover the case of the appellant so far as the applicability of Art. 3 1 1 is concerned. Learned counsel for the appellant sought to argue that since the appellant was admittedly governed by the rules which framed under s. 241(2) 'of the Government of India Act 1935 he was entitled to the protection of s. 240 of that Act. Chapter I of Part 10 of that Act related to the Defence Services. According to ss. 239, 235, 236 and 237 were applicable to persons who not being members of His Majest's Forces held or had held posts in India connected with the equipment or administration of those forces or otherwise connected with Defence as they applied in relation to persons who were or had been members of those forces. Section 240, to the extent it is material was in the following terms:- "240(1) Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty's pleasure. (2) No such' person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed. (3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reason able opportunity or showing cause against the action proposed to be taken in regard to him : (1) A.I.R. (1937) P.C. 31. (3) C, A 1918 of 1966 dt. 8-3-68. 14-L1100sup.CI/72 (2) C. A. 1185 of 1965 dt. 6-2-67. Provided................ Section 241 provided for recruitment and conditions of service. On behalf of the appellant it was contended that since his conditions of service were governed by the rules which were framed under the above section, s.240 was clearly applicable and his services could not have been terminated in terms of subs. (2) of that section by any authority subordinate to that by which Lekh Raj Khurana vs Union Of India on 3 March, 1971 4 he was appointed nor could he be dismissed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. At no stage of the proceedings in the courts below the appellant relied on s. 240 of the Government of India Act and rightly so because the order of his discharge or termination of service was made after the Constitution had come into force. It was apparently for that reason. that protection was sought from Art 311 and not s. 240 of the Government of India Act 1935. We see no reason or justification in the present case for determining whether a person holding a civilian post which is connected with the defence and for which he is paid salary and emoluments from the Defence Estimates would be governed by the provisions of section 240 of the Government of India Act if the provisions of that Act were not applicable to the case of such a servant. The next question is whether rule 5 of the Rules was applique able and whether the appellant could claim the benefit of that rule. It provided, inter-alia, that the service of a temporary government servant who is not in quasi-permanent service shall be liable to termination at any time by notice in writing given either by the", government servant to the appointing authority or by the appointing authority to the government servant. The view of the High Court that the rules were not justifiable cannot be sustained as the decision of the Privy Council in Venkatarao's case (supra) and the other cases following that view have not been accepted as laying down the law correctly by this court. It has been held that the breach of a statutory rule in relation to the conditions of service would entitle the government servant to have recourse to the court for redress; vide The State of Uttar Pradesh & Others v. Ajodhya Prasad(1) and State of Mysore v. M. R. Bellary(1). Now Exhibit P. 3 which is a letter dated May 26, 1951 and which was produced by the appellant himself shows that one months notice of discharge was given by the ordnance Officer, Administration, under instructions received from the Army Headquarters. A copy of another letter Exht. P-2 dated May 27, 1951 was produced according to which it had been decided by the Government (1) [1951] 2 S.C.R.671. (2) [1964] 7 S.C.R.471. of India that the services of the appellant be terminated by giving him one month's notice. It is true that the origin of that letter was not produced although it had been summoned by the appellant It is at least clear that the. Ordnance Officer, Administration, had served the notice of discharge under instructions from the Army Headquarters. In this view of the matter there is no substance in the contention raised on behalf of the appellant that the order of discharge had not been made by the appointing authority. At any rate before the High Court there was no challenge to the finding of the learned District Judge on the point and a question of fact cannot be allowed to be reopened at this stage. The learned counsel for the appellant attempted to reopen the finding on the question of mala fides and also invoked the rule of natural Justice in so far as the appellant had not been afforded any opportunity of showing cause against his discharge or termination of services. In the appeal before this Court the finding on the point of mala fides must be accepted as final and the appellant cannot be allowed to reagitate that matter. As regards the applicability of the rule of natural justice it has not been shown to us how under the general law of master and servant, in the absence of any protection conferred by Article 311 of the Constitution such a rule can be invoked. The appeal fails and it is dismissed but in view of the cir- cumstances we leave the parties to bear their own costs in this Court. Lekh Raj Khurana vs Union Of India on 3 March, 1971 5 R.K.P.S. Appeal dismissed. Lekh Raj Khurana vs Union Of India on 3 March, 1971 6 | {
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K. D. Kamath & Co vs C.I.T., Bangalore on 11 October, 1971 Equivalent citations: 1972 TAX. L. R. 197, (1972) 1 S C R 1034, (1972) 1 I T J 491, 1972 U P T C 64, (1972) 1 S C J 734, 82 I T R 680 PETITIONER: K. D. KAMATH & CO Vs. RESPONDENT: C.I.T., BANGALORE DATE OF JUDGMENT11/10/1971 BENCH: ACT: Indian Income-tax Act, 1922, s. 26A-Indian Partnership Act, 1932, ss. 4, 14, 18-Working partners to work under direction and control of managing partner-Working Partners not authorised to pledge property of firm or raise loans on behalf of firm-Whether partnership lacks essential element of agency of partners--Firm whether to be registered under s. 26A of Income-tax Act. HEADNOTE: The appellant was a firm consisting of six partners and the partnership was constituted under a document dated March 20, 1959, the business of the partnership having already commenced from October 1, 1958. The partnership was registered under the Indian Partnership Act 1932 on or about August 11, 1959. For the assessment year 1959-60 corresponding to the previous year ending March 31, 1959 the appellant filed an application for registration under s. 26A of the Indian Income-tax Act, 1922. The Income-tax Officer by his order dated September 28, 1960 declined to grant registration on the ground that there was no . relationship of partners inter se created under the partnership deed. The Appellate Assistant Commissioner upheld the order of the Income-tax Officer. The Tribunal held that there was agreement to share profits between partners and each of the partners could act as agent of all and therefore the requirements of partnership were fully satisfied. In the reference the High Court held that cls. 8, 9 and 16 of the deed showed that the management as well as the control of business was entirely left in the hands of the first partner and that the other partners were on to K. D. Kamath & Co vs C.I.T., Bangalore on 11 October, 1971 1 serve under his directions and further they had no authority to ac cept any business except with the consent of the first partner nor could they raise any loan or pledge the firm's interest. On this reasoning the High Court came to the conclusion that there was no relationship of partners created under the partnership deed and as the essential element of agency was lacking the appellant was not eligible to be granted registration under s. 26A. In appeal to this Court, HELD : (i) The mere nomenclature given to a document is by itself not sufficient to hold that the document in question is one of partnership. Two essential conditions to be satisfied are (1).that there should be an agreement to share profits as well as. the losses of the business and (2) the business must he carried on by all or any of them acting for all within the meaning of the definition of partnership under s. 4 of the partnership Act. The fact that the exclusive power to control by agreement of the parties is vested in one partner or the further circumstance that only one partner can operate the bank account or borrow on behalf of the firm are not destructive of the theory of partnership provided the two essential conditions mentioned earlier are satisfied. [1050 F-G] (ii)Under the partnership deed in question the relationship which had been brought into existence between the six parties was a relationship of partners who had agreed to share profits and losses of the, business carried on by all or any of them acting for all and it satisfied the defini- tion of partnership under s. 4 of the Partnership Act. There was sharing 1035 of the profits or losses of the business by the partners in the ratio of the proportion mentioned in cl. 5. That clause read with other clauses clearly showed that the first condition namely of all persons agreeing to share profits or losses was satisfied. Even on the basis that the entire control or management of the business was vested in Party No. 1 and that parties 2 to 6 were working partners who had to work under his directions, from all the other %circumstances it was clear that the conduct of business by Party No. 1 was done by him acting for all the partners. There was no indication to the contrary in the partnership deed. Therefore even without anything more it was clear that as the partnership business was carried on by Party No. 1 acting for all, the second condition of agency was also satisfied. This idea was further reinforced by cl. 16 of the deed which provided that the firm's affairs were to be carried on for mutual benefits. [1051 C-F] (iii)The High Court was wrong in holding that cl. 9 of the deed under which parties 2 to 6 had no right to raise loans for and on behalf of the firm or pledge the firm's interest was destructive of the element of partnership. No doubt under s. 18 of the Partnership Act a partner is the K. D. Kamath & Co vs C.I.T., Bangalore on 11 October, 1971 2 agent of the firm for the business of the firm. But that section itself clearly says, that it is subject to the provisions of the Act. It is open to the parties under s. 11 to enter into an agreement regarding their mutual rights and duties as partners of the firm. Further if the ingredi- ents of partnership referred to in s. 4 of the Act are found to exist there is no escape from the conclusion that a partnership has come into existence. So far as the outside world was concerned, so long as parties 2 to 6 were held out as partners of the firm, as had been done under the partnership deed their acts would bind the partnership. The provision in cl. 9 was only an inter se arrangement entered into by the partners in and by which the working partners had agreed not to raise loans or pledge the firms interest. [1052 A-E] (iv)The provisions of s. 14 of the Act could not sustain the argument that cl. 9 of the deed negatived the theory of agency. Section 14 itself clearly shows that the provisions contained therein are subject to the contract between the parties. [1052 G-H] In the result, the appeal must be allowed. Babubhai Gulabdas Navlakhi v. C.I.T., Bombay, [1962] 46 I.T.R. 492, C.I.T., Gujarat v. A. Abdul Rahim & Co., [1965] 55 I.T.R. 651, C.I.T. Kerala v. Pathrose Rice & Oil Mills, [1960] 40 I.T.R. 353, P.G. C. Ratnaswamy Nadar & Sons v. C. I. T., Madras, [1962] 46 I.T.R. 1148, C.I.T. v. R. S. Shoe Factory, [1963] 47 I.T.R. 917, Murlidhar Kishangopal v. C. I. T.. M.P. Nagpur & Bhandara, [1963] 50 I.T.R., 628 and City Tobacco Mart v. C.I.T., Mysore, [1967] 64 I.T.R. 478, referred to. Umarbhai Chandbhai v. C.I.T., Bombay City, [1952] 22 I.T.R. 27 and M. P. Davis v. Commissioner of Agricultural, Income- tax, [1959] 35 I.T.R. 803, distinguished. Steel Brothers & Co. v. C.I.T., [1958] 33 I.T.R. 1 and Agarwal & Co. C.I.T., U.P., [1970] 77 I.T.R. 10, relied on. C.I.T., Mysore V. K. D. Kamath & Co., [1964] 54 I.T.R. 72, reversed. 1036 JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1242 of 1968. Appeal by special leave from the judgment and order dated January 21, 1964 of _the Mysore High Court in I.T.R.C. No. 13 of 1963. S.K. Venkataranga Iyengar and J. Ramamurthi, for the appellant. K. D. Kamath & Co vs C.I.T., Bangalore on 11 October, 1971 3 S. K. lyer and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Vaidialingam, J. This appeal, by special leave, raises the. question whether the, deed dated March 20, 1959 and marked Ex. A is an Instrument of Partnership on the basis of which the ,appellant firm is eligible to be granted registration under S. 26A of the Indian Income-tax Act, 1922 (hereinafter to be referred as the Income-tax Act). The appellant is a firm consisting of six, partners and the partnership was constituted under the document dated March 20, 1959. The 'business of the partnership, as recited in the deed. is stated to have been carried on in partnership from October 1, 1958. The partnership was registered under the Indian Partnership Act, 1932, (hereinafter to be referred as the Partnership Act) on or about August II,, 1959. For the assessment year 1959-60, corresponding to the previous year ending March 31, 1959, the appellant filed an application to the Income-tax Officer, 'A' Ward, Dharawat under s. 26A for registration of the partnership in the name of M/s. K. D. Kamath and Company. The Income-tax Officer by his order dated September 28, 1960 declined to grant registration on the ground that there was no genuine partnership brought into existence by the deed of March 20, 1959 and that the claim of the firm having been constituted is not genuine. The said officer further held that the business should be held to be the sole concern of K. D. Kamath. For coming to this conclusion, the Income-tax Officer has mainly relied on clauses 8, 9, 12 and 16 of the partnership deed. Though the Income-tax Officer has used a loose expression that there is no genuine partnership, the sum. and substance of his finding is that there is no relationship of partners inter se created under the said document. Mr. S. k. Iyer, learned counsel for the Revenue, has also ,clarified the position before us by stating that the Department is not challenging the genuineness of the document. According to the learned counsel, the stand taken by the Revenue is that no legal relationship of partners has been brought about as between the parties to the document. In short, his contention is that the arrangement evidenced by Ex. A is not that of "partnership" as understood in law. On appeal by the assessee, the Appellate Assistant Commis- sioner on May 5, 1961 confirmed the order of the Income-tax Officer. According to the Appellate Assistant Commissioner no partnership has been brought about by the deed dated March 20, 1959 and that the business continues to be the proprietary concerti of K. D. Kamath. In coming to. this conclusion 'the appellate authority has laid special emphasis on clause 12 of the deed-. The assessee carried the matter in further appeal I.T.A. No. 3220 of 1961-62 (Assessment year 1959-60) before the. Income-, tax Appellate Tribunal, Bombay Bench 'B'. The Appellate Tribunal, after a reference to the relevant clauses in the partnership deed, came to the conclusion that the two essential requirements as laid down by the courts for determining whether there is a partnership, namely, an agreement between the parties to ;hare profits and each of the parties acting as agent of all, are fully satisfied in this case. In this connection the Tribunal placed reliance on the decision of the Bombay High Court in Balubhai Gulabdas Navlakhi v. Commissioner of Income-Tax, Bombay(1) and distinguished an earlier decision of the same court reported in Umarbhai Chandbhai v. Commissioner of Income- tax, Bombay City(2). Ultimately, the Appellate Tribunal held that the partnership deed makes it clear that profits and losses are to be shared between the parties and that, K. D. Kamath & Co vs C.I.T., Bangalore on 11 October, 1971 4 subject to the over-riding authority of K. D. Kamath, the other partners could act for the firm. In this view, the Appellate Tribunal held that the deed does create a relationship of partners inter se between the parties thereto and directed the Income-tax Officer to register the firm under s. 26A of the Income-tax Act. herein, made an application on October 4, 1962 under s. 66(1) of the Income-tax Act praying for a reference being made by the Appellate Tribunal to the High Court of the question of law mentioned in the application. The said application was numbered as 66-RA-978 of 1962-63. The Appellate Tribunal accordingly submitted an agreed statement of case and referred to the High Court for its opinion the following question of law : "Whether, on the facts and in the circumstances of the case, M/s. K. D. Kamath & Co., could be granted registration under Section 26A of the 1 Act for the assessment year 1959-60 ?". (1) [1962] 46 I.T.R. 492. (2) [1952] 22 I.T.R. 27 The High Court by its judgment and order dated January 21, 1964 in I.T.R. C. No. 13 of 1963 answered the question ,referred to it against the assessee and held that the appellant firm could not be granted registration under s. 26A for the assessment year 1959-60. It is against this decision of the, High Court that the assessee has filed the above appeal. The High Court has generally considered the effect of cls. 5 to 9, 12 and 16 of the partnership deed. The High Court also considered the question whether the partnership deed satisfies the two essential requisites to constitute the partnership, namely, (1) whether there is an agreement to share profits as well as the losses of the business, and (2) whether each of the partners under the deed can act as agent of all. From the discussion in the judgment, the learned Judges. so far as we could see, have not thought it necessary to consider elaborately the question whether there is an. agreement in the partnership deed to share the profits and losses of the business. Obviously, the High Court must have been satisfied from the recitals in the partnership deed that this requirement is amply satisfied in this case. That is why we find that the learned Judges have focused their attention as they themselves say in the Judgment, on the question whether it is possible to hold from the recitals in the partnership deed that each partner is entitled to act as agent of all. In considering this aspect, the learned Judges have referred particularly to cls. 8, 9 and 16 of the partnership deed and have held that it is clear from these clauses that the management, as well as the control of the business, is entirely left in the hands of the alleged first partner K. D. Kamath and that the other partners are only to work under his directions and share profits and losses in accordance with the proportions mentioned in cl. 5. It is the further view of the High Court that it is not within the power of the other five parties to act as agent of the other partners as they cannot accept any business except with the consent of K. D. Kamath nor can they raise any loan or pledge the firm's interest. On this reasoning, the High Court has come to the conclusion that there is no relationship of partners created under the partnership deed and as this essefftial element of agency is lacking, the appellant was not eligible K. D. Kamath & Co vs C.I.T., Bangalore on 11 October, 1971 5 to be granted registration under S. 26A. The learned Judges, in coming to this conclusion, have placed considerable reliance on the decision of the Bombay High Court in Umarbhai Chanbhai v. Commissioner Of Income-tax, Bombay City(1) as well as the decision of this Court in M. P. Davis v. Commissioner of Agricultural Income-tax(2). At this stage we may mention that the judgment of the Mysore High Court, which is under appeal before us, is reported in Commissioner of Income-tax, Mysore v. K. D. Kamath & Co.($). (1) [1952] 22 I.T.R. 27. (2) [1959] 35 I.T.R. 803. (3) [1964] 54 I.T.R. 72. Mr. S. K. Venkataranga Iyengar, learned counsel for the assessee-appellant referred us to the various clauses in the partnership deed and urged that the view of the High Court that the essential element of agency is absent in this case, is erroneous. The counsel further urged that the, partnership deed, read as a whole, leaves no room for doubt that there is an agreement to share the profits and losses of the business in the proportion mentioned in the deed. Therefore, one of the essential ingredients to constitute a partnership is satisfied in this case. He further urged that though a large amount of control regarding the conduct of business may have been left in the hands of the first partner K. D. Kamath, that circumstance, by itself, does not militate against the view of one partner acting as a of the other partners. He referred us, in this connection, tip- certain decisions of the High Courts, as well as of this Court, where under circumstances similar to the one exisitng before us, it has been held that the mere fact that more control is to be exercised only by one of the partners, is 'not a circumstance which militates against the parties having, entered into a partnership arrangement as understood in law, Mr. S. K. Iyer, learned counsel for the Revenue, supported the reasoning of the High Court its entirety. According to the learned counsel, the question whether there is an agreement to share the profits and the losses of the business and the further question whether each of the partners is entitled to act as agent of all are to be determined by looking into all the facts as borne out by the deed of partnership. He urged that on a consideration of all such facts, the High Court ha' held that one of the essential conditions, namely, the right of one partner to act as. agent of all, does not exist in the present case. If so, the counsel urged, the opinion expressed by the High Court that the appellant is not eligible for registration under s. 26A is correct. 'In support of his contentions, the counsel also referred us to certain clauses in the partnership deed as well as to certain provisions of the Partnership Act. From what is stated above, it is clear that the various authorities as well as the High Court have only considered some of the clauses of the partnership deed for coming to the conclusion one way or the other. In considering the question whether the partnership deed creates the relationship of partners as between the parties thereto, as understood in law, it is desirable to have a complete picture of the entire document. Ex. A, the partnership deed runs as follows "INSTRUMENT OF PARTNERSHIP. Articles of agreement made at Hubli, this 20th day of March, 1959, Among (1) Shri krishnarao Dadasaheb Kamat, hereinafter called the Party hereto of the 1st part, (2) Shri Narayan Ganesh. K. D. Kamath & Co vs C.I.T., Bangalore on 11 October, 1971 6 kamat hereinafter called the party hereto of the 2nd part, (3) Shri Shripadrao Damodara Kamat, hereinafter called the party hereto of the 3rd part, (4) Shri Dnyanoba Jotiram Mohite, hereinafter called the party hereto of the 4th part, (5) Shri Shankar Govind Joshi, hereinafter, called the party, hereto of the 5th party, and (6) Shri Yashavant Bhawoo Kate, hereinafter called the party of the 6th part, All Hindu inhabitants. residing at Hubli, and whereas the parteis from 2 to 6, who have been serving with party No. 1since a very long time and in view of the appreciation of their honest and sincere services which the above parties have rendered in past and with the object that the above parties should also have their material and economical- progress, party No. i.e. Shri K. D. Kamat has been pleased to convert his sole proprietary concern, as a partnership concern, by admitting the above parties from 2 to 6 as working partners and the party No. 1 shall be the main financing and managing partner and the, business of the partnership is agreed and is being carried on accordingly in partnership as from 1st Day of October, 1958, as "Contractors" or any other business that the parties may think fit under the name and style of "Messrs. K. D. Kamat & Co., Engineers and Contractors, Hubli" and it is hereby agreed by and among, the parties to this Agreement as under 2.That the business of the partnership is running under the name and style of "Messrs K. D. Kamat & Co., Engineers & Contractors, Hubli" as from the 1st day of October 1958 and this agreement shall take retrospective effect and shall be deemed to have come into operation as from the commencement of 1st October, 1958. 3. That the duration of the partnership shall be at will. 4.That the business of the partnership is running at Hubli and shall run at Hubli or at such other place or places, as the case may be under the name and style, of "Messrs. K. D. Kamat & Co., Engineers & Contractors" or in such other name or names that the parties may from time to time decide and agree upon. 5.That the final accounts of the partnership firm shall be made up on the last day of each year of account, which shall generally be on 31st day of March every year of account and the accounts shall be taken upto that date of all the stock-in-trade and after providing for all the working expenses, the remaining net profits or losses, as the case may be, shall as shared by the parties hereto as under:- ----------------------------------------------------------- Names of Partners Extent of Individual Share ------------- - -- - --- - -------------------------------- 1.Shri Krishnarao Dadasaheb Kamat 5 shars 2.Shri Narayan Ganesh Kamat 2 shares 3.Shri Shri Dadarao Damodara Kamat 2 shares K. D. Kamath & Co vs C.I.T., Bangalore on 11 October, 1971 7 4.Shri Dayanoba Jotiram Mohite 2 shares 5.Shri Shankar Govind Joshi 2 shares 6.Shri Yashavant Bhawoo Kate 2 shares ------------------- TOTAL 15 shares --------------------- 6. That it is agreed among the partners that the party No. 1, i.e., Shri K. D. Kamat, shall be the principal and financing partner and the rest of the partners i.e. from 2 to 6 are admitted only as working partners contributing labour. 7. That the Good-will of the firm shall be wholly and solely belong to party No. 1 i.e. Shri K. D. Kamath. 8. That the party No. 1, i.e., Shri K. D. Kamat, who is the principal and financing partner and by virtue of his having the long standing experience.in the line of business together with the technical knowledge of Engineer, shall have full right of control and management of the firm's business and in the best interest of the firm, it is thus decided and agreed upon among all the partners that all the working partners from 2 to 6 shall always work according to the instructions and directions given from time to time by Shri K. D. Kamat, in the actual execution of works and in any other matter connecting thereof, pertaining to this partnership business. The decision of the principal partner on the aspect of taking any new business or giving Lenders for, new works, shall always vest with him, whose decision shall be final and 'binding upon all the working partners. 9. That it, is also agreed among the partners that no working partner or partners is/are authorised to raise a loan for and on behalf of the firm or pledge the firm's interest directly or indirectly and such an act shall not be binding on the firm, except under the written authority of the principal partner. 10. That it is further expressly agreed, that excepting the parties No. 1 and 2 i.e. Shri K. D. Kamat and Shri N. G. Kamat, the other Parties from 3 to 6 shall not do contract business, so long as they are partners in this firm and this clause is inserted in the betterment of the firm's business and with the object that the firm's business should not suffer and the works if taken or standing in the name of the said parties from 3 to 6, the same, shall be the business of the firm. 11. That it is also further agreed that the Managing Partner Shri K. D. Kamat shall alone operate the Bank accounts and in case of any need for convenience, the partner authorised by him in writing and so intimated to the Bank or Banks, shall operate, K. D. Kamath & Co vs C.I.T., Bangalore on 11 October, 1971 8 ,the Bank accounts. 12. That in the course of the business or during the existence of the firm's business, the principal partner has reason to believe that any working partner or partners is/are not working and conducting to the best interest of the firm, the principal partner shall have a right to remove such a working partner or partners from the "Partnership concern and in such an eventuality the out going working partner or-partners, shall have only right of the profit, or loss upto the date of his retirement, as may be decided by the principal partner in Jump sum either by paying or receiving. regard being had to the progress of the business or otherwise upto the date of retirement, only on the completed works.. 13. That proper books of accounts shall be kept by the said parties and entries made therein of all such matters, transactions and things. as are usually entered in the books of accounts kept by the persons engaged in business of a similar nature; all books of accounts, documents, papers and things shall be kept at the principal place of business of the firm and each partner shall at all times, have free and equal access to them. 14. That each partner shall be just and faithful to the other or others in all matters relating to the business of the firm, shall attend deligently to the firm's business and give a true account and shall give information relating to the same without fail. 15. That each partner shall withdraw such sums as will be mutually determined by the partners from time to time, in anticipation of the Profit falling to-their individual share and in case of loss, the same shall be made good by the partners. 16. Thus subject to the provisions herein mentioned and laid ,down and made thoroughly known by each of the parties to this Agreement with sound mind and body, the firm's affairs be carried on for mutual gain and benefit and if any questions which may ..arise or occur touching to the conduct or management or liability of the firm, the same shall be amicably settled among the parties with the consent of principal partner, whose decision in the matter shall be final and binding on all partners. In witness whereof the parties to this agreement have set their hands and seals to this Agreement as under: 1. Signed and Delivered by the within named Shri K. D. Kamat, himself Sd. K. D. Kamat 2. Signed & Delivered by the within named Shri N. G. Kamat, himself Sd. N. G. Kamat K. D. Kamath & Co vs C.I.T., Bangalore on 11 October, 1971 9 3. Signed & Delivered by the within Sd.S. D. Kamat named Shri S. D. Kamat, himself Sd. V. D. Jituri in the presence of 4. Signed & Delivered by the within named Shri D. J. Mohite, himself Sd. D. J. Mohite 5. Signed & Delivered by the within named Shri S. G. Joshi, himself Sd. S. G. Joshi 6. Signed & Delivered by the within named Shri Y. B. Kate, himself Sd. Y. B. Kate. Sd./ Certified to be the true copy of the original. For K. K. D. KAMAT & CO." The High Court, so far as we could see, has rested its decision On five circumstances for holding that there is no relationship of partners as between the parties inter se, created under the partnership deed. They are based on consideration in particular of cls. 8, 9 and 16. The following are the circumstances, which according to the learned Judges militate against holding in favour of the assessee; (1) The management as well as the control of the business is entirely left in the hands of the alleged first partner k. D. Kamath; (2) The other partners can merely work under his directions and share in the profits and losses in accordance with the proportion mentioned in cl. 5; (3). It is not within the power of the parties Nos. 2 to 6 to act as agent of other partners; (4) The said parties cannot accept any business except with the consent of K. D. Kamath; and (5) Those parties cannot raise any loan or pledge the, firm's interest, directly or indirectly, except under the written authority of K. D. Kamath. In view of all these circumstances, according to the High Court, one of the essential element to constitute partnership, namely, agency is lacking. We will now refer to some of the provisions of the Income- tax Act as well as the Partnership Act. Section 2 (6B) of the Income-tax Act provides that the expressions "firm", "partner" and "Partnership" have the same meaning respectively as in the Partnership Act. There is no doubt a proviso with which We are not concerned. Section 26A of the Income-tax Act lays down the procedure regarding registration of films. Section 59 authorises the Central Board of Revenue, subject to, the control of the Central Government, to make rules for carrying out the purpose of the Act. The relevant Income-tax Rules Jay down the details of the procedure for making an application for registration of a firm as contemplated under s. 26A. As there is no controversy that the application has been made by the appel- lant in accordance with s. 26A and the relevant Rules, it is 'unnecessary for us to quote the section and the relevant Rules. Coming to the Partnership Act, s. 4 which defines "partner- ship" runs as follows : " Partnership" is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all." K. D. Kamath & Co vs C.I.T., Bangalore on 11 October, 1971 10 Section 6 deals with the made of determining the existence of partnership. As per that section in determining whether a group of persons is or is not a firm or whether a person is or is not a partner in a firm, regard is to be had to the real relation between the parties as shown by all relevant facts taken together. Section 11(1) provides that subject to the provisions of the Act, the mutual rights and duties of the partners of a firm may be determined by contract between the partners and such contract may be expressed or may be implied by a course of dealing. It further provides that such contract may be varied by consent of all the partners and such consent may be expressed or may be implied by a course of dealing. Sub-s. (2) clearly provides that notwithstanding anything contained in s. 27 of the Indian Contract Act, the contract between the partners may provide that a partner shall not carry on any business other than that of the firm while he is a partner. Section 12 in cls. (a) to (d) deals with the rights and duties of a partner, but that again is subject to contract between the partners. Section 14, on which some reliance has been placed by the counsel for the Revenue is as follows "Section 14 : The property of the firm : Subject to contract between the partners, the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of the business of the firm, and includes also the goodwill of the business. Unless the contrary intention appears, property and rights and interests in property acquired With money belonging to the firm are deemed to have been acquired for the firm." Section 18 provides that subject to the provisions of the Act, a partner, is the agent of the firm for the Purpose of the business of the firm. Section 19(1) provides that subject to the provisions of s. 22, the act of a partner which is done to carry on, in the usual way, the business of the kind carried on by the firm binds the firm. It further states that the authority of a partner to so bind the firm conferred by the said section is called his "implied autho- rity." Sub-section (2) enumerates the various matters, which a partner cannot do under the implied authority, in the absence of any usage or custom or trade to the contrary. Section 20 dealing with the extension and restriction of partner's implied authority runs as follows "Section 20. Extension and restriction of partner's implied authority : The partners in a firm may, by contract between the partners, extend or restrict the implied authority of any partner. Notwithstanding any such restriction, any act done by a partner on behalf of the firm which falls within his implied authority binds the firm, unless, the person with whom he is dealing, knows of the restriction or doesnot know or believe that partner to be a partner." From a perusal of the partnership deed one thing is clear, namely, under cl. (1) what was originally the sole proprietary concern of K. D. Kamath has been converted as partnership concern by admitting parties Nos. 2 to 6 as working partners, along with party No. 1, and party No. 1 is the main financing and managing K. D. Kamath & Co vs C.I.T., Bangalore on 11 October, 1971 11 partner of the business. That clause has to be read a-long with cl. (6) whereunder the partners have agreed that K. D. Kamath shall be the principal and financing partner and the rest of the partners, namely, parties Nos. 2 to 6 are admitted only as working partners contributing labour. Clause (4) deals with the running of the partnership business at Hubli as also other place or places or with such other name or names that the parties (which means partners Nos. 1 to 6) may from time to time decide and agree upon. From clauses (1), (2) and (3), it is clear that the business of the partnership is that of Engineers and Con-tractors. We are referring to this aspect because it will have a bearing regarding the control of the business agreed to be vested in K. D. Kamath. There does not appear to be any controversy that party No. 1 has been carrying on such business as a proprietary concern for a long time before the partnership was formed and as such he is considerably experienced in the said technical type of business. Clause" (5) provides that final accounting is to be taken as on March 31 of every year and the net profits and losses are to be shared by the parties thereto in the proportion of the shares specified in the said clause. Under clause 11, apart from the managing partner, K. D. Kamath operating the bank accounts, any other partner authorised by him isalsoeligibletooperatethebankaccounts. Clause,(12) entitles a partner, when he ceases to be a partner to be paid his share of profit or loss, upto the date of his so ceasing to be a partner. Clause (13) provides that books of accounts are to be properly maintained and each partner has a right at all times to have free and equal access to them. Clause (14) enjoins on each part-; ner to be just and faithful to the other partners in all matters relating to the business of the firm and each of them has got a duty to diligently attend to the business of the firm. Each of them has also an obligation to give a true account and information regarding the business of the firm. Clause (15) enables the partners to withdraw the amounts in anticipation of profits falling to their individual share; and in case of loss, each of them is also liable to make good the same in proportion to his share in the partnership. Clause (16) enjoins on the partners to carry on the affairs of the firm for mutual gain and benefit. All the above clauses clearly, in our opinion, establish that the sole proprietary concern of K. D. Kamath has vanished. The above clauses also establish the right of each of the partners to share the profits and also to bear the losses in 'the proportion of their shares mentioned in cl. (5). Therefore, one of the essential ingredients to constitute partnership, namely, that there should be an agreement to share the profits and the losses of the business is more than amply satisfied in this case. Then the question is whether the circumstances pointed out by the High Court and referred to by us earlier, necessarily lead to the conclusion that no relationship of partners, as understood in law, has been created as between the parties under the partnership deed. For this purpose it is necessary to refer to certain decisions of this Court as well as of the High Courts, which may have a bearing on this aspect. In Steel Brothers & Co. Ltd. vs. Commissioner of Income-tax(1) one of the questions this Court had to consider was whether the fact that the control and manage'- ment of a business was in the hands of one person when there were (1) [1958] 33 I.T.R. 1. three partners is destructive of the element of partnership. The facts were that A and B, two companies were carrying on trade in Burma rice. Later on, an agreement was entered into between K. D. Kamath & Co vs C.I.T., Bangalore on 11 October, 1971 12 A B and C for the working of the Burma rice business. It was, provided that the entire management of the business and the conduct of its affairs was to be done by A in its absolute discretion. The profit and loss was provided to be shared in the proportion mentioned under the agreement. There was a restriction on B and C against hiring the properties of the firm without the consent of At was held by this Court that notwithstanding the fact that the management and conduct or the business in its own discretion was vested with A, that circumstance is not destructive of the partnership relationship that exists between the parties to the agreement. In this decision two conditions have been laid down as essential to constitute a partnership in law: (1) sharing of profit or loss of the business; and (2) business being carried on by all the parties or any of them acting for all, in which is implicit the theory of agency. In M. P. Davis v. Commissioner of Agricultural Income- tax(1), this Court had to consider whether the relationship as partners. had been created by the agreement of partnership relied on by the parties. From the relevant facts it is seen that it was an extreme case where two brothers ostensibly entered into a partnership arrangement. But the recitals in the document, as pointed out by this Court, clearly showed that the entire management was with one brother A and that B had no right to make any con- tribution towards capital. There was no provision as to how losses are to be dealt with and there was a very complicated manner for ascertaining the so called profits. Having due regard to the tenor of the document and the clauses contained therein, this Court held that there was no intention to bring about the, relationship of partners between the two brothers. On the other hand, it is the view of this Court that the document had been executed to continue under the cloak of a partnership the pre-existing and real relationship, namely, that of master and servant. It is to be noted that this Court did not hold that there was no relationship of partners created under the document only on the basis that the exclusive control and management was left in the hands of A. Such a conclusion was reached having due, regard to the various other clauses in the deed. lo fact this Court, has already held in the earlier decision referred to above. that the mere circumstance that the control and management are vested in One partner is not destructive of the existence of partnership. No doubt. the High Court in the case on hand, has placed some reliance upon the decision in M. P. Davis v. Commissioner of Agricultural Income-tax(1), in support of its conclusion that no partnership (1) [1959] 35 I.T. 803. arrangement can be spelled out from the document before us. In our opinion, there has not been a proper appreciation by the High Court of the reasons which led to this Court for holding. in the said decision that there was no relationship of partners between the two brothers A and B. That was an extreme case where the clauses in the partnership deed were entirely different. In Commissioner of Income-tax, Gujarat v. A. Abdul Rahim ,and Co.(1) this Court has held that it is the settled law that if a partnership is _genuine and valid one, the Income- tax Officer has no power to reject its registration, if the other provisions of s. 26A and the Rules made thereunder are complied with. In Agarwal and Co. v. Commissioner of Income-tax, U.P.(2) this Court dealing with the conditions of registration prescribed in S. 26A and the relevant Rules observed as follows : K. D. Kamath & Co vs C.I.T., Bangalore on 11 October, 1971 13 "The conditions of registration prescribed in this section and the relevant rules are: (1) on behalf of the firm, an application should be made to the Income-tax Officer by such person and at such time and containing such particulars, being is such form and verified in such manner as are prescribed by the rules: (2) ;the firm should be constituted under an instrument of partner,ship. (3) the instrument must specify the individual snares of the partners, and (4) the partnership must be valid and genuine and must actually exist in the terms specified in the instrument. If all the above conditions are fulfilled, the Income-tax Officer is bound to register the firm unless the assessee has contravened section 23 (4) of the Act." In certain decisions of the High Courts the two essential conditions necessary to form the relation of partnership have, been stated to be: (1) that there should be an agreement to share the profits and losses of the business, and (2) that each of the partners should,be acting as agent of all. Though, these two conditions, by and large, have to be satisfied when the, relationship of partners is created between the parties, we would emphasise that the legal requirements under s. 4 of the Partnership Act to constitute a partnership in law are: (1) there must be an agreement to share the profits or losses of the business; and (2) the, business must be carried on by all the partners or any of them acting for all. There is implicit in the second requirement the principle of agency. The tests laid down by the High Courts have again been appli ed by the Bombay High Court in Balubhai Gulabdas Navlakhi (1) [1965] 55 I.T. R. 651. (2) [1970] 77 I.T.R. 10. v. Commissioner of Income-tax(1) to consider whether the document before them created a relationship of partners between the parties thereto. One of the main contention that was urged, as militating against theory of partnership was that very wide powers of control and management were given to one of the partners so much so that he is to be considered to be the owner or proprietor of the concern. This contention was rejected by the High Court. After a reference to the various clauses in the document, the Bombay High Court came to the conclusion that the two essential conditions necessary to form a relation of partnership, re- ferred to above-, were present in the document constituting the partnership. The High Court further held that the fact that some of the terms of the document gave enlarged powers of management and control to one of the partners, who has brought in all the finances, is not by itself sufficient to hold, having due regard to the other clauses that the real agree ment between the parties is not that of partners, but that of master and servant. We may also observe that most of the clauses in the document before the Bombay High Court were more or less similar to the clauses in the partnership deed before us. In similar cases, where the control and management was vested in the hands of one partner and where it was also provided that only one partner can operate on the bank account and the others can do so, only if authorised by him, and that only one party can borrow on behalf of the firm for all, have been held not to militate against holding a particular document as creating the relationship of K. D. Kamath & Co vs C.I.T., Bangalore on 11 October, 1971 14 master and servant. Those decisions are of Kerala High Courts in Commissioner of Income-tax, Kerala v. Pathrose Rice & Oil MillS(2); by the Madras High Court in P.A C. Ratnaswamy Nadar & Sons v. Commissioner of Income-tax, Madras(3); by the Allahabad High Court in Commissioner of Income-tax V. R. S. Shoe Factory (4) ; by the Madhya Pradesh High Court in Murlidhar Kishangopal v. Commissioner of Income-tax, M.P. Nagpur and Bhandara(5) and by the Mysore High Court in City Tobacco Mart v. Commissioner Of Income-tax Mysore(,). We have already referred to the fact that the Bombay High Court in Balubhai Gulabdas Navlakhi vs. Commissioner of In- come-tax(1), has also taken the same view. In addition to the existence of clauses to the above effect in the partnership deed, we may mention that in the Allahabad decision. referred to above, in a partnership between A, B and C, there was a clause that C (1) [1962] 46 I.T.R. 492. (2) [1960] 40 I.T. R. 353. (3) [1962] 46 I.T.R. 1148. (4) [1963] 471.T.R.917. (5) [1963] 50 I.T.R. 628. (6) [1967] 64 I.T.R. 478. 119Sup CI/72 was not entitled to invest any capital and that the,business is to be carried on only by A and B and that C has no power to interfere with the management of the business. The Allahabad. High Court, in spite of all these clauses held that the document created a relationship of partners as the two essential conditions, referred to by us earlier, existed in that case. We have already referred to the decision of this Court in Agarwal and Company v. Commissioner of Income-tax, U.P.(1) laying down the conditions, which if fulfilled makes it obligatory on the Income-tax Officer to register the firm, unless the assessee has contravened s. 23 (4) of the Act. It is not the case of the Revenue that the assessee before us has-contravened section 23 (4). There is also no controversy that the application has been made in accordance with S. 26A as well as the relevant Rules. The firm has been constituted under an instrument of partnership dated March 20, 1959. From the clauses of the partnership deed, extracted above, particularly cl. (5), the shares of the partners regarding the profit and loss have also been specified. Therefore, it follows that conditions Nos. 1, 2 and 3 specified in the above decision are fully satisfied. Regarding Condition No. 4 also there is no controversy that the partnership is genuine in the sense that it is not a fictitious document. Then the only other requirement referred to in condition No. 4 to be satisfied is whether the partnership is valid in the sense that it creates relationship of partners between the parties thereto. From our discussion in this judgment, according to us, the relationship of partners inter se has been created under the partnership deed and that such relationship had actually existed in accordance with the terms specified in the said document From a review of the above decisions, it is clear that the mere nomenclature given to a document is by itself not sufficient to hold that the document in question is one of partnership. Two essential conditions to be satisfied are : (1) that there should be an agreement to share the profits as well as the losses of the business, and (2) the business must be carried on by all or any of them acting for all, within the meaning of the definition of " partnership" under s. 4 of the Partnership Act. The fact that the exclusive power and control, by agreement of the parties is vested in one partner or the further circumstance that only one partner can operate the bank accounts or borrow on behalf of the firm are not destructive of the theory of partnership provided the two essential conditions, mentioned earlier are satisfied. K. D. Kamath & Co vs C.I.T., Bangalore on 11 October, 1971 15 In the light of the principles laid down by this Court in Steel Brothers & Co. Ltd. v. Commissioner of Income-tax (2 ) and in the decisions of the High Courts, referred to above, the reasons (1) [1970] 77 I.T.R. 10. (2) [1958] 33 I.T.R. 1. given by the High Court for holding that the relationship of partners has not been created under the deed of partnership before us, cannot be sustained. As the control and management of business can be left by agreement in the hands of one partner to be exercised on behalf of all the partners, the other consequence by way of restriction on the rights of the other partners lose all significance. In fact the clauses providing that the working partners are to work under the directions of the managing partner and the further clause restricting their right to accept 'business or raise any loans or pledge the firm's interest except with the consent of the managing partner K. D. Kamath, have all to be related with the agreement entered into by the partners regarding the management and control by K. D. Kamath. We are of the opinion that under the partnership deed the relationship which has been brought into existence between the six parties is a relationship of partners who have agreed to share the profits and losses of business carried on by all or any of them acting for all and it satisfies the definition of "Partnership under s. 4 of the Partnership Act. W.-. have already pointed out that there is a sharing of the profits or losses of the business by the partners in the ratio of the proportion mentioned in Cl. (5). That clause read with other clauses already discussed by us, clearly shows that the first condition, namely, all persons agreeing to share profits or losses is satisfied. Even on the basis that the entire control and management of the business is vested in K. D. Kamath, party No. 1 and that parties Nos. 2 to 6 as working partners have to work under his direction, from all the other circumstances it is clear that the conduct of business by party No. 1 is done by him acting for all the partners. There is no indication to the contrary in the partnership deed. Therefore, even without anything more, it is clear that as the partnership business is carried on by party No. 1, acting for all, the second condition of agency is also satisfied. This idea reinforced by cl.(16) which provides that the firm's affairs are to be carried on for mutual benefits. That clause is to the effect that the firm's affairs which are managed by party No. 1 is really for the mutual gain and benefits of all the partners. It is no doubt, true that the second essential test of the business being carried on by all or any of the partners acting for all must be satisfied. The provisions in the partnership deed clearly establish that K. D. Kamath, the managing partner, carries on the business, acting for all the partners. Much stress has been laid by the High Court on the fact that under Cl. (9) parties Nos. 2 to 6 have no Tight to raise loans for and on behalf of the firm or pledge the firm's interest. This circumstance, according to the High Court, is destructive of the element of partnership. We have already held that the management and control of the business done by party go. 1, is carrying on of the business on behalf of all the partners. No doubt under s. 18 of the Partnership Act, a partner is the agent of the firm for the purpose of the business of the firm. But that section itself clearly says that it is subject to the provisions of the Act. It is open to ,the- parties, under s. 11, to enter into_an agreement regarding their mutual rights and duties as partners of the firm and that can be done by contract, which in this case is evidenced by the deed of partnership. Further s. 18 will have to be read along K. D. Kamath & Co vs C.I.T., Bangalore on 11 October, 1971 16 with s. 4. If the relationship of partners is established as a "partnership" as defined in s. 4, and if the necessary ingredients referred to in that section are found to exist,' there is no escape from the conclusion that in law a partnership has come into exist- ence. lit is in the light of these provisions that s. 18, will have to be appreciated. Section 18 only emphasises the principle of agency which is already incorporated in the definition of "partnership" under s. 4. It should be remembered that so far as the outside world is concerned, so long as the parties Nos. 2 to 6 are held out, as partners of this firm, as has been done under the partnership deed. their acts would bind the whole partner- ship. The provision in cl. (9) in our opinion, is only an inter se arrangement enter, into by the partners, in and by which the-working partners have agreed not to raise loans or pledge the firm's interest. Mr. S. K. lyer, learned counsel for the Revenue placed some reliance on s. 14 of the Partnership Act. According to the counsel, there is no contract to the contrary in the partnership deed that the assets brought in by party No. 1, do not belong to the partnership. It is his further contention that under s. 14, those assets will belong to the partnership, in which case, it will be open to any partner, as agent of the other partners to pledge the firm's interest or raise loan for partnership purposes. This right, accor- ding to the counsel is restricted by cl. (9) and that clause negatives the theory of agency. In our opinion, this contention of the learned counsel cannot be accepted. Section 14 of the Partnership Act itself clearly shows- that the provisions contained therein are subject to the contract between the parties. We have already held that the provision regarding the control and management vesting in party No.1 is not itself destructive of the theory of partnership. Clause (9) in our opinion, itself shows that the theory of agency is recognised. But the parties, by mutual agreement, have placed a restriction on the working partners' right to borrow on behalf of the firm or pledge the firm's interest without the written authority of the principal partner. Mr. Iyer placed considerable reliance as the High Court has also done, on the earlier decision of the Bombay High Court in Umarbhai Chandbhai v. Commissioner of Income-tax, Bombay City(1). That again, in our opinion, was a case of an extreme nature where, under a partnership deed, between the father and his two sons, the former had a right to exclude either or born his sons from the management of the firm, wholly or in part. There was also a provision to the effect that the father was entitled to entrust the management to any other person and also determine what quantum of profits should be distributed and what ,is to be done regarding the remaining profits. There were further provisions to the effect that the father could terminate the partnership and- on such termination, the share of the partner was to revert to the father. The Bombay High Court, having due regard to the clauses, referred to above, as well as other clauses of the partnership deed, held that the document offended against the two principles which were essential to constitute a partnership, namely, agreement to share the profits and losses and the business being carried on by all or any of them for all of them. The learned Judges held that there was no agreement to share the profits and loses of the business and even the business carried on by the father was not, on behalf of all the partners. In such circumstances, it was held, that the arrangement evidenced by the deed cannot be considered in law to be a partnership. In our opinion, reliance placed upon this decision by the High Court as well as by Mr. Iyer is misplaced. In fact, from a perusal of the clauses in the document which- the Bombay High Court had to consider, it is clear that the business continued to K. D. Kamath & Co vs C.I.T., Bangalore on 11 October, 1971 17 be the proprietary concern of one single individual namely, the father. Excepting that the two sons were styled as partners in the document, the essential requisites for constituting the relationship of partners inter se between the father and the two sons were 'totally absent. The clause in the case before us are totally different. We have already indicated that there is an agreement for sharing the profits and losses and that even though vast powers of control and management have been given to K. D. Kamath, the managing partner, the business was being carried on by the said managing partner, on behalf of all the partners. These conditions fully satisfy the requirements of the definition of "partnership" under s. 4 of the Partnership Act. To conclude we are of the opinion that all the ingredients of partnership are satisfied under the partnership deed dated March 20, 1959 and that the view of the High Court that the appellant firm cannot be granted registration under s. 26A of the Incometax Act for the assessment year 1959-60, cannot be sustained. (1) [1952] 22 I.T.R. 27. In, the result, we answer the question of law in the affirmative in favour of the assessee. This answer given by, us to the question referred to the High Court by the Income-tax Appellate Tribunal will be substituted in the place of that given by the High Court. We accordingly reverse the Judgment and order of the High Court and-allow the appeal with costs. G. C. Appeal allowed. K. D. Kamath & Co vs C.I.T., Bangalore on 11 October, 1971 18 | {
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The State Of West Bengal vs Shebaits Of Iswar Sri Saradia Thakurani ... on 4 March, 1971 Equivalent citations: AIR1971SC2097, (1972)4SCC158, 1971(III)UJ458(SC), AIR 1971 SUPREME COURT 2097, 1972 4 SCC 158 1971 U J (SC) 458, 1971 U J (SC) 458 Author: J.M. Shelat Bench: C.A. Vaidialingam, J.M. Shelat JUDGMENT J.M. Shelat, J. 1. This appeal, by special leave, arises out of proceedings Under Section 44(2a) of the West Bengal Estates Acquisition Act, 1 of 1954 (hereinafter referred to as the Act) and concerns a tank fishery known as 'Napukar' situate in Mauza Kandi, District Murshidabad. 2. The tank is the absolute debuttar property of the deity known as Iswar Sri Sri Saradia Thakurani, of whom the respondents are and have at all material times been the shebaits. The last District settlement Record recorded the interest of the deity in the said tank and described it as a rent free tenure. The maintenance of the deity and expenses connected with her seba nuia are met from the income and usufruct of the tank. The Revisional Record of Right under the Act also described the tank as the absolute debuttar property of the deity. But the entry also mentioned that one Kumarish Chandra Saba and Aswini Kumar Saba were the tenants of the tank paying an annual rent of Rs. 63/-. A receipt issued by the respondents also stated that the tank had been leased for a period of nine years; i.e., from 1358 B.S. to 1366 B.S., at the rate of Rs. 60/-a year. But there was no registered deed or any document at all in respect of the said alleged lease The appellant State relied on the said entry and the said receipt for its case that the tank was under a lease for a period of 9 years and the said Sabas were in possession as lesses thereof. 3. The Act was passed with the object of compulsory acquisition by the State of estates and all rights of intermediaries therein. It came into force on February 12, 1954. Section 4 of the Act empowers the State Government to declare by notification that with effect from the date therein mentioned all estates and the rights of every intermediary in each such estate situated in the district specified in the notification shall vest in the State free from all incumbents. Under Section 5(1)(a), upon the notification Under Section 4 and from the date of vesting, the estates and the rights of intermediaries therein, to which the declaration Under Section 4 applies; shall vest in the State, and under Clause (c) of Section 5(1), every non-agricultural tenant holding any land under an The State Of West Bengal vs Shebaits Of Iswar Sri Saradia Thakurani ... on 4 March, 1971 1 intermediary shall hold, subject to the provisions of Section 6(3) the same directly under the State, as if the State had been the intermediary, on the same terms and conditions as immediately before the date of vesting. A non-agricultural tenant Under Section 2(k) means a tenant of non-agricultural land who holds inter alia under a tenure-holder. If the Sabas were the lessees, as was the case of the State, they would be non-agricultural tenants of the deity, an intermediary and under the combined effect of Sections 4, 5(1)(a) and (c) would become the direct tenants of the State. Section 6(1) however, provides that: Notwithstanding anything contained in Sections 4 and 5, an intermediary shall, except in the cases mentioned in the proviso to Sub-section (2) but subject to the other provisions of that sub-section, be entitled to retain with effect from the date of vesting- (c) non-agricultural land in his khas possession including land held under him by any person, not being a tenant, by lease or license; (e) tank fisheries; Tank fisheries, as defined by the explanation to Section 6(1) means a reservoir or place for the storage of water used for pisciculture or for fishing, together with sub-soil and the banks of such reservoir or place and includes any right of pisciculture or fishing in such reservoir or place. Section 6(2) provides that an intermediary, who under Sub-section (1) is entitled to retain possession of any land, shall be deemed to hold such land directly under the State as a tenant subject to such terms and conditions as laid down therein. But the proviso to this Sub-section, which is by way of an exception, lays down that if any tank fishery or any land of the description there set out "was held immediately before the date of vesting under a lease, such base shill be deemed to have been given by the State Government.... Briefly stated, the effect of these provisions is that if the tank fishery in question was under a lease in favour of the said Sabas immediately before the date of vesting, as the State authorities asserted, the interest of the deity as an intermediary would, by reason of Section 5 and this proviso, be wiped off and the said Sabas would become the direct tenants of and under the State Government. 4. Gh. V of the Act deals with preparation of Record-if rights which presumably became necessary in consequence of the changes which came about in the rights of holders of lands as a result of the vesting of estates in the State Government, Section 39 in that Chapter authories, therefore, the Government to make an order, for carrying out the purposes of the Act, directing preparation of a record.of rights. Under Section 42, when an intermediary is entitled to retain possession of any land Under Section 6(1) then, except incases falling under the proviso to Section 6(2), the Revenue Officer shall determine the rent payable by him to the State in accordance with the principles set out in the section. Under Section 44(i), when the record-of-rights has been prepared or revised, the Revenue Officer has to publish a draft thereof and to receive objections thereto, if any. On disposal of such objection, that officer would finally frame the record and cause such record to be published in the prescribed manner. Sub-section (2)a of Section 44 then provides that an officer especially empowered by the Government may, either on an application or suo-motu within the time The State Of West Bengal vs Shebaits Of Iswar Sri Saradia Thakurani ... on 4 March, 1971 2 prescribed therein revise an entry in the record-of-rights, even though it has been finalised and published under Sub-section (i) 5. As stated earlier, both the last District settlement and the Revisional Settlement have recorded the tank fishery as the debuttor property in respect of which the names of the respondents were entered as shebaits. But in view of the names of the Sahas appearing therein as tenants paying Rs. 60/-as annual rent, a notice was served on the respondent by the Collector of Murshidabad to hand over possession of the said tank. The respondents object to the said notice. The State Government thereupon filed an objection Under Section 44(2A) for revising the entry in the record-of-rights. The objection was heard by the Settlement Officer, Kandi, Under Section 44(2a). He rejected the Government's objection and held that the said tank was not leased out to the said Sabas, that what was described as lease in the said entry was no more than a right of fishing without any right in the sub-soil of the tank or its embankments, and therefore, the deity must be died have been in the khas possession thereof immediately before the date of vesting under the Act. In an appeal by the Government, the District Judge, as the appellate tribunal under the Act, reversed the order of the Settlement Officer and held that the said Sabas were the tenants of the tank fishery immediately before the date of vesting, and that therefore, the proviso to Section 6(2) applied and the said Sabas must be deemed to be the direct tenants of the Government 6. The respondents thereupon filed a writ petition in the High Court for having the said order of the tribunal quashed. The High Court agreed with the Settlement Officer and held that what was mentioned in the Revisional Record was an arrangement between the respondents and the said Sabas, under which the latter, in consideration of their cleansing the tank and payment of Rs. 60/-per year, were to have the fish which they might catch from the tank, and that therefore, Section 6(2) proviso, was not attracted. This appeal by the State Government disputes that view. 7. On the facts on record there can be no manner of doubt that the deity was the intermediary in respect of the tank fishery within the meaning of Section 2(i). It is also beyond doubt that if the proviso to Sub-section (2) of Section 6 were not to apply, the respondents as the shebaits of the deity would be entitled notwithstanding sees 4 and 5, to retain the said tank fishery Under Section 6(1) but would hold it, under Sub-section (2) of Section 6, directly under the state as tenants from the date of vesting. 8. Did the proviso to Section 6(2) then apply to the present case ? The answer to that question depends upon, as the proviso says, whether the tank fishery was held immediately before the date of vesting under a lease by the said sabas. If so, the lessees under such a lease, and not the lessors, would become the direct tenants of the Slate. In other words, the interest in the tank of the intermediary would disappear. 9. It is true that the entry in the Divisional Record and the receipt passed by the Respondents in favour of the Sabas mentioned them as tenants. The receipt mentions that the tank was leased to them for a period of 9 years at an annual rent of Rs. 60/-from 1358. B. S. to 1366 B. S Two facts however emerge from the record. The first is that there was no deed, much less a registered deed, evidencing the alleged lease. The second is that neither the sub-soil nor the embankments of the The State Of West Bengal vs Shebaits Of Iswar Sri Saradia Thakurani ... on 4 March, 1971 3 tank were the subject matter of the alleged lease. In the absence of any registered deed there could be no valid lease of the tank for a period of 9 years as was the case of the appellant-State No right, either in the sub-soil of the tank or its embankments, was acquired by the said sabas. The only interest, therefore, they could have acquired was in the fish in the tank. The materials on record show that their interest was confined to the fish they would catch from the tank in consideration for which they had they agree to pay Rs. 60/-per year and in addition were under the obligation to cleanse the tank and keep it cleaned. Such an arrangement would not mean a lease within the meaning of the proviso to Section 6(2), but only Constitution a licence under which, for the consideration above-stated, they became entitled to fish yielded by and caught by them from the tank. 10. A point somewhat similar to the one in this appeal arose in Anand Bebera v. Orissa where it was held that a right to catch fish it profit a prendre which is immovable property within the meaning of the Transfer of property Act read with Section 2(25) of the General Clauses Act, which would be accompanied by a licence to enter upon the land, in the present case the embankments, for the purpose of going into the tank to catch the fish and to keep the tank cleansed. It is clear, therefore, that there was no legally enforceable lease of the tank in favour of the Sabas immediately before the date of vesting, so as to attack the proviso to Section 6(2). Therefore, it was the deity through the respondents, who was entitled under Sub-Section 6(2) read with Section 6(1) to become to tenant, of the State and not the said Sabas. The notice directing the respondents to hand over possession the State was, therefore, without jurisdiction and was liable to be quashed. 11. In our view, the High Court was right in quashing the order of the appellate tribunal, inasmuch as the tribunal by wrongly interpreting the Revisional Record appropriated to itself the jurisdiction Under Section 44(2) of the Act to revise the entry in the Record of rights. 12. The appeal fails and is dismissed with costs. The State Of West Bengal vs Shebaits Of Iswar Sri Saradia Thakurani ... on 4 March, 1971 4 | {
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"R. N. Nanjundappa vs T. Thimmiah & Anr on 8 December, 1971 Equivalent citations: 1972 AIR 1767, 197(...TRUNCATED) | {"source":"R_N_Nanjundappa_vs_T_Thimmiah_Anr_on_8_December_1971_1.PDF","year":"1971","path":"1971/R_(...TRUNCATED) |
"Dalmia Jain & Co. Ltd vs Commissioner Of Income-Tax,Bihar & ... on 29 July, 1971 Equivalent citatio(...TRUNCATED) | {"source":"Dalmia_Jain_Co_Ltd_vs_Commissioner_Of_Income_Tax_Bihar_on_29_July_1971_1.PDF","year":"197(...TRUNCATED) |
"Indian Oxygen Limited vs Their Workmen on 9 December, 1971 Equivalent citations: 1972 AIR 471, 1972(...TRUNCATED) | {"source":"Indian_Oxygen_Limited_vs_Their_Workmen_on_9_December_1971_1.PDF","year":"1971","path":"19(...TRUNCATED) |
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Supreme Court of India Judgments Dataset (1950-2025)
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This dataset contains a comprehensive collection of judgments and orders from the Supreme Court of India, spanning from its inception in 1950 up to early 2025.
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- Total Documents: 26,688
- Total Tokens: ~196.9 Million (counted using
cl100k_baseencoding) - Format: JSONL (JSON Lines)
- Language: English
- Time Range: 1950 - 2025
Data Fields
Each entry in the .jsonl file contains:
text: The full-length text of the judgment.metadata:source: The original PDF filename.year: The year the judgment was delivered.path: The relative directory path in the original source structure.
Example Instance
{
"text": "Chanan Singh Son Of Kartar Singh vs State Of Haryana...",
"metadata": {
"source": "Chanan_Singh_Son_Of_Kartar_Singh_vs_State_Of_Haryana_on_2_April_1971_1.PDF",
"year": "1971",
"path": "1971/Chanan_Singh_Son_Of_Kartar_Singh_vs_State_Of_Haryana_on_2_April_1971_1.PDF"
}
}
Dataset Creation
The dataset was compiled by extracting text from digitized versions of Supreme Court judgments. The documents are organized chronologically by year.
Applications
This dataset is intended for researchers and developers working on:
- Legal NLP: Precedence search, citation analysis, and legal reasoning.
- Text Summarization: Generating concise summaries of long legal documents.
- Classification: Identifying case types, statutes, or legal themes.
- Large Language Models: Fine-tuning models on formal Indian legal English.
Considerations & Limitations
- Source Accuracy: The text is extracted from PDFs; while generally accurate, minor OCR or extraction artifacts may exist.
- Sensitivity: This data consists of public court records. Users should ensure their use cases comply with ethical standards and regional data privacy regulations.
- Legal Advice: This dataset is for informational and research purposes only and does not constitute legal advice.
License
The judgments of the Supreme Court of India are public records. Under Section 52(1)(q)(iv) of the Indian Copyright Act, 1957, the reproduction or publication of any judgment or order of a court, tribunal, or other judicial authority does not constitute an infringement of copyright, unless the reproduction or publication is prohibited by the court or authority.
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