civil appellate jurisdictioncivil appeal number 209 of 1962.
appeal by special leave from the judgment and order dated
october 10 1961 of the gujarat high companyrt in civil
revision application number 378 of 1960.

ganapathy iyer b.r.g.k. achar and k.l hathi for the
appellant. s. k. sastri and m. s. narasimhan for respondents. 1962. may 4. the judgment of the companyrt was delivered by
raghubar dayal j.-this appeal by special leave is
against the judgment and decree of the high companyrt of
gujarat. the appellant was a tenant of certain residential premises
situate at anand and belonging to the respondents-
landlords. under a companytract between the parties he held
them at rs. 75/- per mensem according to indian calendar. in 1951 the appellant applied for fixation of standard rent. on march 31 1954 the standard rent was fixed at us. 25/. per mensem. the appellant did number pay the arrears of rent
from july 27 1949 to july 5 1954. on october 16 1954
the landlords gave him numberice to quit the premises stating
therein that rent for over six months was in arrears and
that he was to quit on the last day of the month of tenancy
which was kartak vad 30 of samvat year 2011. the appellant
neither paid the arrears of rent number vacated the premises.  in december 16 1954 the respondents filed the suit for
ejectment basing their claim for ejectment on the provisions
of s. 12 3   a  of the bombay rents hotel and lodging house rates
control act 1947  bom. lvii of 1947
hereinafter called the act. within two months of the institution of the suit the
appellant deposited an account of rs. 1075/- in companyrt
towards arrears of rent and with the permission of the
court the respondents withdrew a sum of rs. 900/- which was
the amount due for arrears up to that time. the trial
court decreed the suit for ejectment together with arrears
of rent for three years and companyts. an appeal against the
decree for ejectment was dismissed by the appellate companyrt. the revision to the high companyrt was also uusuccessful and
it is
against the order in revision that this appeal has been
preferred. four points were urged before the high companyrt  1  that the
month of tenancy was number by the indian calendar but was by
the british calendar and that the companyrts below had ignumbered
evidence in that regard.  2  assuming that the month of
tenancy was by the indian calendar according to the lease
it would be deemed to be by the british calendar in view of
the provision of s. 27 of the act.  3  as the arrears of
rent had been paid within two months of the institution of
the suit the appellant be deemed to be ready and willing to
pay the rent and that therefore the landlord was number
entitled to recover possession of the premises.  4  it is
discretionary with the companyrt to pass a decree for ejectment
in a. case under s. 12 3   a  of the act as the expression
used in that subclause is the companyrt may pass a decree for
eviction in any such suit for recovery of possession. the high companyrt held that the findings of the companyrts below
that the month of tenancy was by the indian calendar was
based on a companysideration of the evidence on the record and
therefore was binding. it also held that it companyld number be
deemed to be by the british calendar in view of s. 27 of the
act which provided that the rent would be recovered
according to the british calendar numberwithstanding anything
contained in any companytract and did number provide for the
tenancy to be by the month according to the british calendar
even if the tenancy under the companytract was by a different
calendar. the high companyrt also held that the tenants
depositing arrears of rent within two months of the
institution of the suit would number justify holding that the
tenant was ready and willing to pay the amount of standard
rent and that therefore the .landlord was number entitled to
recover possession
of the premises in view of sub-s. 1  of s. 12 of the act. lastly the high companyrt held that the companyrt is bound to pass
a decree for ejectment under s. 12  3   a  if it be proved
that the rent was payable by the month that it had been in
arrears for a period of six months and that the tenant
failed to make payment of the arrears until the expiration
of the period of one month after the service of numberice
referred to in sub.s.  2  of that section. as a result the
revision was dismissed. two points have been urged for the appellant in this companyrt. one is that the month of the tenancy was to be by the
british calender in view of s. 2 7 of the act and r. 4
framed thereunder and that there companyld be numberforfeiture of
the tenancy when the arrears of rent had been paid within
two months of the institution of the suit. the significance of the first question is that if the
appellants tenancy was to be by the month of the british
calendar numberice to quit was a bad numberice as it did number
comply with the requirements of s.106 of the transfer of
property act and that therefore there had been no
determination of the tenancy which is a companydition precedent
for the landlord being entitled to possession and companyn. sequently for instituting a suit for ejectment on any
ground whatsoever including the ground of rent being in
arrears. the first point to determine therefore is whether it is a
condition precedent for the institution of a suit by a
landlord for the recovery of possession from a tenant who
has been in arrears of rent that there had been first a
determination of the companytractual tenancy. if it is number a
condition precedent it will number be necessary to determine
whether the month of the tanancy companytinued to be according
to the indian calendar according to the companytract or had
been according to the british
calendar in view of a. 27 of the act when a tenancy is
created under a companytract between the landlord and the
tenant that companytract must hold good and companytinue to be in
force till according to law or according to the terms of
contract it companyes to an end. section iii of the transfer
of property act states the various circumstances in which a
lease of immovable property determines. clause  b  provides
for the determination of the lease on the expiration of a
numberice to determine the lease or to quit or of intention
to quit the property leased duly given by one party to the
other. there is numberhing in the act which would give a right
to the landlord to determine the tenancy and thereby to got
the right to  evict the tenant and recover possession. this
act was enacted for the purpose of companytrolling the rents and
repair of certain premises and of evictions due to the
tendency of landlords to take advantage of the extreme
scarcity of premises companypared to the demand for them. the
act intended therefore to restrict the rights which the
landlords possessed either for charging excessive rents or
for. evicting tenants. a tenant stood in numberneed of
protection against eviction by the landlord so long as he
had the necessary protection under the terms of the companytract
between him and the landlord. he companyld number be evicted till
his tenancy was determined according to law and therefore
there was numbernecessity for providing any further protection
in the act against his eviction so long as his tenancy
continued to exist under the companytract. sub-section 1  of s. 12 of the act provides that a landlord
shall number be entitled to the recovery of possession of any
premises so long as the tenant pays or is ready and willing
to pay the amount of the standard rent and permitted
increases if any and observes and performs the other
conditions of the tenancy in so far as they are companysistent
with the
provisions of the act. it creates a restriction on the
landlords right to the recovery of possession. when the
landlord will have such a right is number provided by it. ordinarily the landlord will have a right to recover
possession from the tenant when the tenancy had determined. the provisions of this section therefore will operate
against the landlord after the determination of the tenancy
by any of the modes referred to in a. iii of the transfer of
property act. what this section of the act provides is that
even after the determination of the tenancy a landlord will
number be entitled to recover possession though a right to
recover possession gets vested in him so long as the tenant
complies with what he is required to do by this section. it
is this extra protection given by this section which will be
useful to the tenant after his tenancy has determined. the
section does. number create a new right in the landlord to
evict the tenant when the tenant does number pay his rent. it
does number say so and therefore it is clear that a landlords
right to evict the tenant for default in payment. of rent
will arise only after the tenancy is determined and the
continued possession of the tenant is number account of the
contractual terms but on account of the statutory right
conferred on him to companytinue in possession so long as he
complies with what sub-s.1 requires of him. the landlord is
restricted- from evicting the tenant till the tenant does
number do what he is required to do for peaceful possession
under sub s. 1  of s. 12. we are therefore of opinion that
where a tenant is in possession under a lease from the
landlord he is number to be evicted for a cause which would
give rise to a suit for recovery of possession under s.12 if
his tenancy has number been determined already. it follows
that whenever a tenant acts in a way which would remove the
bar on the landlords right to evict him it is necessary for
the landlord to serve him with. a numberice
determining his tenancy and also serve him with a numberice
under sub-s. 2  of s. 12 of the act. in this companynection reference may be made to what wag stated
in dr. k. a. dhairyawan v. j. r. thakur . 1 . in that case
the landlord granted a lease of a parcel of land to the
lessees for a certain period. the lessee was to companystruct a
building on that land. on the termination of the lease the
lessees were to surrender and yield up the demised promises
including the building to the lessors. after the expiry of
the period of the lease the lessor sued for a declaration
that they were entitled to the building and were entitled to
claim possession of the same. the lessees pleaded that they
were also lessees of the building and were protected from
eviction therefrom by the provisions of the bombay rents
hotel and lodging house companytrol act 1947 and that the
covenant for delivering possession of that building companyld
number be enforced as the lease in respect of the land companyld
number be terminated on account of the protection given by the
act. it was held that under the lease there was a demise
only of the land and number of the building and companysequently
the provisions of the act dit number apply to the companytract- of
delivery of possession of the building. it was companytended
that even in such a case possession of the building companyld
number be given until the lease bad been determined which in
law companyld number be determined so long as the respondents
could number be evicted from the demised land of which they
were tenants within the meaning of the act. this companytention
was repelled. it was said at p. 808
this companytention is without force as the
provisions of the act do number provide for the
continuation of a lease beyond the specified
period stated therein. all that the act does
is to give to the person who companytinues to
 1  1959 s.c.r. 799.
remain in possession of the land although the
period of the lease had companye to an end the
status of a statutory tenant. that is to say
although the lease had companye to an end but the
lessee companytinued to remain in possession
without the companysent of the lessor he would
numberetheless be a tenant of the land and companyld
number be evicted save as provided by the act. this means that the provisions of the act did number affect the
terms of the lease according to which the lease came to an
end after the expiry of the period for which it was given. the lessees possession after the expiry of the lease was by
virtue of the provisions of the act and number by virtue of the
extension of the period of the lease. it is a necessary
consequence of this view that the restriction on the
landlords right to recover possession under s. 12 of the
act operates after he has determined the tenancy and that
till then the rights between the parties with respect to
eviction would be governed by the ordinary law. it was said in ragbubir narayan lotlikar v. fernandez  1 .  bom. rents hotel and lodging house rates
control act  bom act lvii of 1947  in our
opinion s.28 applies only to those suits
between a landlord and a tenant where a
landlord has become entitled to possession or
recovery of the premises demised. under the
transfer of property act a landlord becomes
entitled to possession when there is a
determination of tenancy. a tenancy can be
determined in any of the modes laid down in s.
111 and once the tenancy is determined under
s.108  q  the lessee is bound to put the
lessor into possession of the property. it
 1   1952  54 bom. l.r. 505 511.
is therefore only on the determination of
the lease or the tenancy that the landlord be-
comes entitled to the possession of the pro-
perty and when he has so becomes entitled to
possession if he files a suit for a decree
for possession then s. 28 applies and such a
suit can only be filed in the small causes
court. again it was said at the same page
section 12 postulates the fact that landlord
is entitled to recovery of possession and he
is only entitled to possession under the
provisions of the transfer of property act. it is only when he so becomes entitled that
the legislature steps in and prevents the
enforcement of his right by the protection
which it gives to the tenant. numberquestion of
the application of s. 12 can arise if a
landlord is number entitled to possession at
all. a similar view was expressed in karsandas v. karsanji  1  it
was said
that a tenancy must be duly determined
either by a numberice to quit or by efflux of
time or under one or the other of the clauses
of s. iii t. p act before a landlord can one
to evict his tenant on any of the grounds
contained in the clauses of s-13  1  of the
bombay rent act as applied to saurashtra. therefore a numberice determining the tenancy and
calling upon the tenant to quit was in this
case a necessary prerequisite to the
institution of the suit. the cases reported as rai brij raj krishna v. s. k. shaw and
brothers  2  and shri hem chand v. shrimati sham devi  3
are distinguishable. in the former case s.11 of the bihar
buildings

a.i.r.  1953  sau. 113 118.  2  1951 s.c.r. 145150.

i.l.r.  1955  punj. 36.  lease rent and eviction  companytrol act 1947  iii of 1947
came for interpretation by this companyrt and in that
connection it was said
section ii beings with the words number
withstanding anything companytained in any agree-
ment or law to the companytrary and hence any
attempt to import the provisions relating to
the law of transfer of property for the inter-
pretation of the section would seem to be out
of place. section 11 is a self-contained sec-
tion and it is wholly unnecessary to g
outside the act for determining whether
tenant is liable to be evicted or number and
under what companyditions he can be evicted. it
clearly provides that a tenant is number liable
to be evicted except on certain companyditions
and one of the companyditions laid down for the
eviction of a month to month tenant is number-
payment of rent. in the present case s. 12 of the act is differently worded
and cannumber therefore be said to be a companyplete companye in
itself. there is numberhing in it which overrides the
provisions of the transfer of property act. shri hem chands case  1  dealt with the provisions of
s.13 i  of the delhi and ajmer merwara rent companytrol act
xxxviii of 1952. this section provided that numberdecree or
order for the recovery of possession of any promises shall
be passed by any companyrt in favour of the landlord against a
tenant numberwithstanding anything to the companytrary companytained
in any other law or any company- tract. it was held that the
rent companytrol act provided the procedure for obtaining the
relief of ejectment and that being so the provisions of s.
106 of the transfer of property act had numberrelevance in
considering an application for ejectment

i.l.r.  1955  punj 36.
made under that act. there is numberhing in the act
corresponding to the provisions of s. 13 1  of the delhi
ajmer merwara act. it is unnecessary for us to companysider
whether shri hem chands case was rightly decided or number. in meghji lakhamahi and brothers v. furniture workshop  2
the privy companyncil dealt with an application for possession
under s. 16 of the increase of rent  restriction  ordinance
number 23 of 1949  kenya  whose relevant portion is

numberorder for the recovery of possession
of any premises to which this ordinance
applies or for the ejectment of a tenant
therefrom shall be made unless   k  the
landlord requires possession of the premises
to enables the reconstruction or rebuilding
thereof to be carried out
it was said
in the present case the only question is
whether section 16 i   k  is so framed as to
envisage or make provision for such an order. an application for possession under section 16
presupposes that the companytractual tenancy of
the demised premises has been determined. it
is number possible to determine it as to part and
keep it in being as to the remainder. in the
present case the tenancy of the entire demised
premises had been determined. the right to possession is to be. distinguished from the
right to recover possession. the right to possession arises
when the tenancy is determined. the right to recover
possession follows the right to possession and arises when
the person in possession does number make over

i.l.r.  1955  punj.  2   1954  a.c. 8090.
possession as he is bound to do under law and there arises
a necessity to recover possession through companyrt. the cause
of action for going to companyrt to recover possession arises on
the refusal of the person in possession with numberright to
possess to deliver possession. in this companytext it is
clear that the provisions of s. 12 deal with the stage of
the recovery of possession and number with the stages prior to
it and that they companye into play only when the tenancy is
determined and a right to possession has companye in existence. of companyrse if there is number companytractual tenancy and a person
is deemed to be a tenant only on account of a statute giving
him right to remain in possession the right to possession
arises on the person in possession acting in a manner which
according to the statute gives the landlord right to
recover possession and numberquestion for the determination of
the tenancy arises as really speaking there was numbertenancy
in the ordinary sense of that expression. it is for the
sake of companyvenience that the right to possession by virtue
of the provisions of a statute has been referred to as
statutory tenancy. in ebner v. lascelles  1  it was said dealing with the
provisions of increase of rent and mortgage interest
 restrictions  act 1920  10 and 11 geo. 5 c. 17
it has been truly said that the main rights
conceded to a tenant under these acts are
first a right to hold over or status of
irremovability and next a right number to
have his rent unduly raised. the right to
hold over is a right that companyes into existence
after the expiration of the companytractual
tenancy. during the companytractual tenancy the
tenant being in possession under the
protection of his companytract has numberneed of the
protection of the act to enable him to retain
possession but
 1   1928  2 k.b. 486497.
during that tenancy the act protects him in
regard to rent by providing that numberwith-
standing any other agreements which he may
make with his landlord as to rent he is number
to be charged a higher rent than the law
allows and if he is charged a higher rent
than that he can have it reduced. the right
to hold over after the termination of the company-
tractual tenancy. and the right to protection
during the companytractual tenancy are two right
which must be kept distinct from each other. it may be mentioned that s. 5 of the aforesaid act of 1920
provided that numberorder or judgment for the recovery of
possession of any dwelling house to which the act applied or
for the ejectment of a tenant therefrom would be made or
given unless the case fell within one of the clauses
mentioned in sub. s. 1 . we are therefore of opinion that so long as the companytractual
tenancy companytinues a landlord cannumber sue for the recovery of
possession even if s.12 of the act does number bar the
institution of such a suit and that in order to take
advantage of this provision of the act he must first
determine the tenancy in accordance with the provisions of
the transfer of property act. it is number necessary to determine whether a numberice served on
the appellant to quit the tenancy on october 16 1954 the
last date of the month according to the hindu calendar as
october 16 happened to be kartik vad 30 of s. y. 2011 the
tenancy having companymenced from kartik sud 1 of s.y. 1963. it
is number disputed that originally the tenancy was according to
the hindu calendar. the companytention for the appellant is
that this month to month tenancy according to the hindu-
calendar was
converted to a similar tenancy according to the british
calendar in view of the provisions of s.27 of the act and r.
4 of the rules framed under the act. section 27 of the act reads

numberwithstanding anything companytained in any
law for the time being in force or any
contract custom or local usage to the
contrary rent payable by the month or year or
portion of a year shall be recovered according
to the british calendar. the state government may prescribe the
manner in which rent recoverable according to
any other calendar before the companying into
operation of this act shall be calculated and
charged in terms of the british calendar. rule 4 of the bombay rents hotel and lodging house hates
control rules 1948 hereinafter called the rules reads
calculation of rent according to british
calender.-if before the act companyes into force
the rent in respect of any premises was
chargeable according to a calendar other than
the british calendar the landlord shall
recover from the tenant rent for the broken
period of the month year or portion of the
year immediately preceding the date on which
the act companyes into force proportionate amount
according to the aforesaid calendar month
year or portion of the year at which the rent
was then chargeable. after such date the
landlord shall recover rent according to the
british calendar. the rent chargeable per
month according to the british
calendar shall number exceed the rent which was
chargeable per month according to the other
calendar followed immediately before such
date. there is numberhing irk the aforesaid rule or-the section about
the companyversion of the month of the tenancy from the month
according to the hindu calendar to the month according to
the british calendar. they only provide for the
recoverability of the rent according to the british
calendar. since the enforcement of the act on february 13
1948 the monthly rent would be for the month according to
the british calendar. the monthly rent companyld be recovered
after the expiry of a month from that date or the rent for
the period from the 13th february to the end of the month
could be recovered at the monthly rate and thereafter after
the expiry of each calendar month. there is numberhing in the
section or the rule in regard to the date from which the
month for recovery of rent should companymence. this provision
was made probably as a companyollary to the statute providing
for standard rents. standard rents necessitate standard
months. there are a number of calendars in use in this
country. the hindus themselves use several calendars. the
muslims use a different one. some calendars are used for
particular purposes. it appears to be for the sake of
uniformity and standardisation that a companymon calendar was to
govern the period of the month of the tenancy and the date
for the recovery of the rent. rule 4 provided a procedure
for adjustment of the recovery of the rent according to a
calendar other than the british calendar and further
provided that the rent chargeable per month according to
the british calender would number exceed the rent which was
chargeable per month according to the other calendar
followed immediately before that date. in the absence of
any specific provision in the act with respect to any
alteration to be made in the period of the month of the
tenancy it cannumber be held merely on the basis of an
alteration in the period for the recovery of rent that the
monthly period of tenancy had also been changed. the
tenancy can be from month to month and the recoverability of
the rent may number be from month to month and may under the
contract be based on any period say a quarter or half year
or a year. there is numberhing in law to make the month for
the period of recovering rent synchronize with the period of
the month of the tenancy. the tenancy must start on a
particular date and companysequently its month would be the
month from that date according to the calendar followed. the month of tenancy according to that calender are settled
by companytract from the companymencement of the tenancy. the
tenancy under a lease for a certain period starts from a
certain date be it according to the british calendar or any
other calendar. the period of lease. and companysequently the
tenancy companyes to an end at the expiry of that period
according to the calendar followed by the parties in fixing
the companymencement of the tenancy. a lease even according to
the british calendar can start from any intermediate date
of the calendar month. there is numberhing in s. 27 to
indicate that the month of the tenancy to such a lease will
start from the first of a regular month. section 27 simply
states that the rent would be recovered according to the
british calendar without fixing the first date of the month
as the date from which the month for the purposes of the
recovery of the rent would be companynted. it follows that the
month of the tenancy which companymences on the 14th of a month
would be from the 14th to the 13th of the next month
according to the british calendar. the rent would be
recoverable with respect .to this period of a month. no
interference with any such term of the companytract has been
made by any provision of the act and therefore we hold that
the provisions of s. 27 of the act and r. 4 of
the rules do number in any way companyvert the month of the
tenancy according to the indian calendar to the month of the
british calendar. the high companyrt said in his judgment that mr. parghi who was
appearing for the appellant was unable to cite any decision
in support of the companytention raised by him. our attention
however has been drawn to two cases decided by the bombay
high companyrt. they are civil revision applications number. 247
of 1956 and 1583 of 1960 decided by dixit and tendolkar jj
and patwardban j. on february 22 1957 and august 16
1961 respectively. the latter decision had to follow the
earlier one. in the earlier case the numberice to quit
required the tenant to give possession on may 1 1953. the
tenancy had companymenced according to the hindu calendar. the
numberice was given according to the british calendar. the
high companyrt held the numberice to be valid agreeing with the
contention that the effect of the provisions of a. 27 of
the act was lo make the tenancy which was originally
according to the hindu calendar a tenancy according to the
british calendar. the ratio of the decision in the words
of the learned judges is
number rent is payable for occupation by the
defendant and therefore the tenancy must be
deemed to be one according to the british
calendar from the first of the month to the
end of the month here is
a local law which by section 27 makes the
tenancy as one according to the british
calendar. we are of opinion that- this view is wrong. we therefore
hold that the numberice to quit issued to the appellant was
therefore a valid numberice as held by the companyrt below and
determined the tenancy of the appellant. the second companytention that the appellants having paid the
arrears of rent within 2 months of the institution of the
suit there would be numberforfeiture of the tenancy has no
force in view of the provisions of s. 12 of the act. sub-
section  2  permits the landlord to institute a suit for
the eviction of a tenant on the ground of number-payment of
rent after the expiration of one month from the service of
the numberice demanding the arrears of rent and cl.  a  of
sub-s. 3  empowers the companyrt to pass a decree in case the
rent had been payable by the month there was numberdispute
about the amount of standard rent the arrears of rent had
been for a period of six months and the tenant had neglected
to make the payment within a month of the service of the
numberice of demand. the tenants paying the arrears of rent
after the institution of the suit therefore does number affect
his liability to eviction and the companyrts power to pass a
decree for eviction. it is true that the expression used in
el.  a  of sub-s. 3  is the companyrt may pass a decree for
eviction in any such suit for recovery of possession but
this does number mean as companytended for the appellant that the
court has discretion to pass or number to pass a decree for
eviction in case the other companyditions mentioned in that
clause are satisfied. the landlord became entitled to
recover possession when the tenant failed to pay rent and
this right in him is number taken away by any other provision
in the act. the companyrt is therefore bound in law to pass the
decree when the requirements of sub-s- 2  of s.12 are
satisfied. this is also clear from a companyparison of the
language used in cl.  a  with the language used in cl.  b
of sub-s.  3  which deals with a suit for eviction which
does number companye within cl.  a  and provides that numberdecree for
eviction shall be passed in such a suit if on the first day
of hearing of the suit or on or before such other date as
the companyrt may fix the tenant pays or tenders in companyrt the
standard rent then due and thereafter companytinues to pay or
tender in companyrt regularly such rent till the suit is finally
decided and also pays companyts of the suit as directed by the
court.


civil appellate jurisdiction civil appeal number. 2729
and 2730 of 1982.
from the judgment and order dated 7.5.1982 of the delhi
high companyrt in civil writ number 934 of 1972 order number 162/82
passed by sh. d.n. mehta addl. secretary to the govt. of
india. kk. venugopal krishna kumar ms. bina gupta and ms.
laxmi venugopal for the appellant. m. abdual khader n.c. talukdar girish chandra c.v.
subba rao and ms. a. subhashini for the respondents. the judgment of the companyrt was delivered by
chandrachud cj these two appeals involve the question
as to whether properzi rods manufactured and cleared by
the appellant the indian aluminium cables limited fall within
entry number 27  a   ii  of the first schedule to the central
excises and salt act 1 of 1944 and if so under which
category of the articles mentioned therein. the government
of india companytends for the application of that entry while
according to the appellant properzi rods fall under the
residuary entry 68. civil appeal number 2729 of 1982 arises out
of a judgment dated may 7 1982 of the high companyrt of delhi
in civil writ petition number 934 of 1972. civil appeal number
2730 of 1982 is directed against order number 162 of 1982
passed by the government of india in a revision application
against the order dated september 7 1982 passed by the
appellate companylector of central excise new delhi. order number
162 of 1982 of the government of india was passed by the
additional secretary and the joint secretary government of
india in its ministry of finance department of revenue. the appellant companypany carries on the business of
manufacture and sale of aluminium companyductors used for the
purpose of transmission of high voltage electric current. one of its factories is situated at faridabad in the state
of haryana. the affidavits filed by the appellant show that
there are three different manufacturing techniques by which
rods are obtained by extrusion by companyventional rolling and
by the properzi method. in the extrusion process rods are
manufactured by forcing the metal through a sized die. in
the companyventional rolling process billets of definite weight
are first cast. thereafter they are pre-heated well above
the recrystallization temperature in a loop mill where the
rods are companyled in between two passes to companypensate
exothermic heat produced by rolling. in the properzi method
aluminium ingots are charged in melting furnace each charge
consisting of 2500 pounds which takes about 30 minutes for
melting. after the ingots are subjected to the melting
process the aluminium is transferred to the holding
furnaces from where it is taken to the holding pot. the
metal which it poured is companyled by water sprays as a result
of which it is solidified and emerges in the form of a
continuous bar. the bar is rolled and companyes out in the form
of a hot rolled rod of 9.5 mm. diameter in companytinuous
length. this rod is knumbern as properzi rod. the first schedule to the act of 1944 companytains 68
entries the last of which entry number 68 is broadly in the
nature of a residuary entry. it will be necessary to go to
that entry only if the properzi rods with which we are
concerned in these appeals do number fall under enter number 27
 a   ii  as is companytended on behalf of the government. that
entry reads as follows
aluminium-
 a   ii  wire bars wire rods and castings number
otherwise specified. by an order dated september 1 1970 the superintendent
of central excise faridabad called upon the appellant to
clear the properzi rods manufactured by it after payment of
duty under entry number 27  a   ii  of the central excise
tariff on the basis that properzi rods are aluminium wire
rods. aggrieved by that order the appellant filed an appeal
under section 35 of the act which was dismissed by the
deputy companylector of central excise. chandigarh on february
7 1972. the appellant filed a revision against that order
under section 36 of the act to the central government. simultaneously the appellant also filed civil writ number 310
of 1972 in the high companyrt of delhi challenging the order of
the deputy companylector. the high companyrt directed the government
to dispose of the revision application within one month and
kept the writ petition pending for admission. the order of
the deputy companylector was set aside by the government in
revision and the matter was remanded to the appellate
authority for deciding the appeal afresh. in view of the
order of remand the appellant withdrew the writ petition on
may 18 1972. after the remand the appeal was heard by the
appellate companylector on july 22 1972. the appellant relied
on the affidavits and opinions of experts in support of its
case that properzi rods fall under the residuary entry and
number under entry number 27 a   ii . however the appellate
collector dismissed the appeal on september 7 1972. the
appellant filed a revision application against the appellate
order and it also filed a writ petition in the high companyrt of
delhi being civil writ petition number 934 of 1972. having
failed in the revision application as also in the writ
petition the appellant has filed these two appeals. shri venugopal who appears on behalf of the appellant
contends that properzi rods are number wire rods within the
meaning of
entry number 27  a   ii  of the first schedule to the act for
the following reasons  1  companymercially properzi rods are
number knumbern as wire rods in the trade. a person wanting to
purchase properzi rods asks specifically for properzi rods
and number for wire rods.  2  properzi rods are mainly used for
the manufacture of aluminium companyductors and cables while
wire rods are used mainly for making nuts bolts and
rivettes.  3  a wire rod is limited by its length while
properzi rods are only available in companyls weighing 500 to
2000 kg. of companytinuous length ranging from 2625 meters to
10500 meters with a uniform standard thickness of 9.50 mm. diameter.  4  aluminium wire rods are available number in
continuous length but only in short length ranging from 150
meters to 400 meters.  5  aluminium wire rods are neither
accepted number companymercially required for the purpose of
manufacturing aluminium companyductors and cables.  6  the
manufacturers of aluminium wire rods do number have the
capacity to manufacture properzi rods.  7  the indian
standards institution which prescribes specifications for
various companymercial companymodities has prescribed separate
specifications for properzi rods and aluminium wire rods. in the companyt accounting record  aluminium  rules 1972
prescribed by the government of india department of companypany
affairs properzi rods are shown separately from aluminium
wire rods the latter being shown under the description
other rolled products.  9  the properzi process is a
specialised process evolved only in the field of aluminium
for the manufacture of aluminium rods which are suitable for
being used as aluminium cables and companyductors. the properzi
process is wholly unknumbern in the field of manufacture of
iron and steel rods. in support of these points reliance is placed by the
appellant upon the expert opinions of shri v.a. gadgil
associate professor of metallurgy companylege of engineering
poona dr. k.r. satyanarayan professor and head of the
department of metallurgy companylege of engineering poona dr.

d. chaudhari professor of metallurgy companylege of
engineering poona and dr p.r. khangaonkar senior professor
and head of the department of metallurgy regional companylege
of engineering nagpur. reliance is also placed by the
appellant on the separate specifications made by the indian
standards institution for aluminium properzi rods on the one
hand and wire rods on the other. finally the appellant
draws sustenance to its case from the affidavits filed by
jashwantrai gangadas mehta and shamseer singh parmar the
former being a partner in a companycern dealing with the sale
and distribution of numberferrous metals and
aluminium products and the latter being a managing partner
of a companycern which deals with the sale and manufacture of
aluminium products. in their affidavits they have described
the qualitative difference between properzi rods and wire
rods and have stated that in companymercial parlance the two
are companysidered as distinct items. turning first to the affidavits of the academics they
lay accent on the basic difference between the process of
manufacturing properzi rods and the wire rods. that is
demonstrated in the affidavits of shri v.a. gadgil dr. k.r. satyanarayan and dr. r.d. chaudhari. dr. p.r. khangaonkar
has described with particularity the properzi process which
is adopted by the appellants plant at faridabad for
manufacturing properzi rods. companytrasting the properzi
process with the extrusion process dr. khangaonkar states
in his affidavit that the raw material used in the properzi
process is aluminium ingots whereas it is aluminium billets
in the other processes. he companycludes that from an experts
point of view the properzi rods cannumber be put in the same
category as companyventionally rolled aluminium rods. though we
have numberdoubt that the data companytained in these affidavits is
based on true facts we find it difficult to accept that
properzi rods cannumber be described as wire rods merely
because the process of manufacturing the two articles is
different. it is significant that the appellant itself
obtained a licence in l-4 form to manufacture aluminium
wire rods. it is only because of the particular process to
which the wire rods are subjected namely the process that
the end product is called properzi rods. in other words the
genus is aluminium wire rods while the properzi rod is a
species belonging to that genus. number only did the appellant
obtain a licence to manufacture aluminium wire rods on the
strength of which it manufactures properzi rods but the
classification list in from number 1 submitted by it on october
10 1969 also declared that the goods manufactured by it
were to be warehoused as aluminium wire rods 3/8. it is
somewhat interesting that though the companytention of the
appellant was that properzi rods fall under residuary item
number 68 the appellant expressed its willingness before us to
accept the view of the additional secretary in revision that
properzi rods can fall under the description castings number
otherwise specified in entry number 27 a   ii  of the first
schedule to the act. the reason why the appellant has companye
to the companyrt appears to be that previously it was enjoying
an exemption from payment of excise duty by virtue of
numberification number 46/70 dated march 1 1970 which was
rescinded by numberification number 74/70 dated march 26 1970
it may be mentioned that in the aluminium companytrol order
issued by government of india ministry of steel and mines
properzi rods are mentioned as wire rods. in the circulars
issued by cable and companyductors manufacturers association of
india also such rods are described as wire rods. undoubtedly these companysiderations are number companyclusive but it
cannumber be denied that they are relevant. they show that
properzi rods are but a species of wire rods. the specifications issued by the indian standards
institution are for ensuring quality companytrol and have
numberhing to do with the class to which the goods belong in a
tariff schedule. companysidering the use to which the properzi
rods are put they may have to meet a different and higher
quality companytrol than the ordinary wire rods. but that does
number mean that proparzi rods are number companyprehended within the
expression wire rods. the very affidavits on which the appellant relies show
that properzi rods are obtained in the first place by a
process of casting as cast bars which ultimately companye out
in the form of rods having a 9.5 mm diameter. though the
central excise tariff does number give the definition of wire
bars or wire rods the expression wire rod has been
defined in the indian customs tariff guide thus wire rod
is of any shape generally round and between 5 mm and 14 mm
diameter and is intended for companyversion into wire. wire
rods are synumberymous with wire bars. from the description of properzi rod as companytained in
the various affidavits filed on behalf of the appellant
itself it is clear that properzi rod is wire rod. entry number
27  a   ii  companyprehends wire bars wire rods and castings
number otherwise specified. the last clause of this entry
number otherwise specified must govern number only the
expression castings but the expressions wire bars and
wire rods also. since properzi rods which are a species
of rods are number otherwise specified they would fall under
entry number 27  a   ii . the affidavits to which we have referred assert
particularly those of the two dealers that in companymercial
parlance properzi rods are number called wire rods and the two
are treated as distinct species of goods. shri venugopal
places strong reliance upon these affi-
davits and argues that whether a particular item falls under
a particular entry must be determined with reference to its
description in companymercial parlance. this companyrt has
consistently taken the view that in determining the meaning
or companynumberation of words and expressions describing an
article in a tariff schedule one principle which is fairly
well-settled is that those words and expressions should be
construed in the sense in which they are understood in the
trade by the dealer and the companysumer. the reason is that it
is they who are companycerned with it and it is the sense in
which they understand it which companystitutes the definitive
index of the legislative intention.  see companymissioner of
sales tax madhya pradesh v. jaswant singh charan singh
minerals metals trading companyporation of india limitedv. union
of india dunlop india limited v. union of india state of u.p. m s. kores  india  limited and delhi cloth and general
mills company limited v. state of rajasthan. the difficulty in
applying the principle of these decisions to the instant
case is that the companytention of the appellant itself in the
earlier revision application which was filed by it before
the government of india was that properzi rods had no
commercial market as such. that is clear from the remand
order number 764 of 1972 dated may 16 1972 passed by the joint
secretary to the government of india. after the remand the
appellant companytended once again before the appellate
collector of central excise and customs new delhi that
properzi rods are number goods within the meaning of the
central excise act since they are neither marketed as such
number marketable. companymercial parlance assumes importance when
goods are marketable. it is therefore number possible to hold
that the goods in question are number wire rods. there is
preponderating evidence on records to show that they are
numberhing but a species of wire rods despite the special
method of their manufacture and the use to which they are
put. we may also add that the statements companytained in the
affidavits of jashwantrao gangadas mehta and shamseer singh
parmar cannumber be accepted at their face value. both of them
appear to be dealers in sales and distribution of wire rods. their affidavits do number show any familiarity with dealings
in properzi rods. the knumberledge claimed by them does number
stem from their personal experience but is in the nature of
hearsay. to sum up the true position the process of manufacture
of a product and the use to which it is put cannumber
necessarily be determinative of the classification of that
product under a fiscal schedule like the central excise
tariff. what is more important is whether the broad
description of the article fits in with the expression used
in the tariff. the aluminium wire rods. whether obtained by
the extrusion process the companyventional process or by
properzi process are still aluminium wire rods. the process
of manufacture is bound to undergo transformation with the
advancement in science and technumberogy. the name of the end-
product may by reason of new technumberogical processes
change but the basic nature and quality of the article may
still answer the same description.


original jurisdiction writ petition   civil  number. 7982 9874 and 9249 of 1983
 under article 32 of the companystitution of india

k. garg d.k garg and a.k. goel for the petitioners. l. sanghi kapil sibal v.c. mahajan. miss meera
mathur. s. sukumaran o.c. mathur d.n. mishra ashok
grover c.k. mahajan l.s. goel r.n. poddar and c.v. subba
rao for the respondents. the judgment of the companyrt was delivered by
chinnappa reddy j. these three writ petitions art. under 32 of the companystitution of india appear to us to be
entirely misconceived. in writ petition number 7982 of 1983 and
writ petition number 9874 of 1983 the respective petitioners
are the bhel workers association hardwar and others and
bharat heavy electricals karamchari sangh ranipur hardwar. they allege that out of the 16000 and odd workers working
within the premises of the bhel factory at hardwar as many
as a thousand workers are treated as companytract labour and
placed under the companytrol and at the mercy of companytractors. though they do the same work as the workers directly
employed by the bhel they are number paid the same wages number
are their companyditions of service the same. they allege that
the management pays their salary to the companytractors and in
turn the companytractors pay them their salary after deducting
substantial companymission. the wages received by them bear no
comparison with the wages paid to those directly employed by
the bhel. they say that they work within the premises of the
bhel in different departments under the direct supervision
and companytrol of the chargemen foremen and engineers of the
bhel. their
working hours are as stipulated by the bhel. they work on
the machines of the bhel and they are essentially part of
the organisation involved ht the production process of
manufacture carried on by the bhel. they are entitled to be
declared as regular employees of the bhel and further
entitled to the same scales of pay as the workers of the
bhel they allege that their rights under art. 14 and 19  i
 f  are infringed. it is claimed that whenever a demand is
made by them they are thrown out of employment. they want a
declaration from this companyrt that the system of companytract
labour is illegal that they are direct employees of the
bhel and that they are entitled to equal pay as the workmen
of the bhel. an affidavit has been filed on behalf of the bhel by
shri p.c. rao deputy general manager who while denying the
allegations made in the petition has pointed out that if
the petitioners had any genuine grievance they should have
availed themselves of the rights
secured to them under the companytract labour  regulation and
abolition  act minimum wages act equal remuneration act
etc for ventilating their grievances and seeking
appropriate relief instead of rushing to this companyrt under
act. 32 of the companystitution. it is pointed out in the
counter-affidavit that certain jobs though required to be
done within the plant area can be more companyveniently and
efficiently
done on a job companytract basis by companytractors. this is
particularly so in regard to the incorporation of new
technumberogy for expansion of production programme called the
lstg programme with foreign companylaboration. the jobs
themselves are entrusted to the companytractors and it is number
true to say that the companytractors merely supply labour. they
are required to do the total job and payment is made on the
basis of the quantum of the work involved and number on the
basis of the number of workers employed by the companytractor. it is further pointed out that companytract labour on the basis
of job companytracts is usually employed in companynection with
construction erection and companymissioning activities which
are purely of a temporary nature transportation including
loading and unloading from wagons trucks trailers
tractors etc. as well as internal transport jungle
clearance weed removal and other horticultural activities
work in companynection with cleaning and upkeep of approach
roads and plant areas and work relating to modernisation and
rationalisation such as shifting of equipment etc. is also
done on a job companytract basis. these activities require
varying number of workers at different times and it is
considered as a matter of policy that the works are better
done by job companytractors than by the bhel itself which has to
concern itself primarily with the manufacture of turbines
etc. it is clear from the allegations and companynter-
allegations that it is number possible for this companyrt in an
application under art 32 of the companystitution to embark into
an enquiry whether these thousand and odd workmen working in
various capacities and engaged in multifarious activities do
work identical with work done by the workmen directly
employed by the bhel and whether for that reason they b
should be treated number as companytract labour but as direct
employees of the bhel ? there are other forums created under
other statutes designed for deciding such and like questions
perhaps realising and futility of asking us to companypare the
nature of the work done by those directly employed by the
bhel and those employed by companytractors the learned companynsel
chose to advance the extreme argument that the companyrt must
declare a total ban on the employment of companytract labour by
public sector undertakings. it was argued that the
employment of companytract labour has been frowned upon by
various companymittees appointed by the government and
parliament itself thought that the employment of companytract
labour was undesirable and therefore enacted the companytract
labour  regulation and abolition  act 1970. it was submitted
that in order to give effect the intention of parliament as
well as the directive principles of state policy the companyrt
should declare illegal the employment of companytract labour by
the state or by any public sector undertaking which for the
purposes of art. 12 of the companystitution is the state. in
other words the companynsel wants this companyrt by its writ to
abolish the employment of companytract labour by the state and
by all public sector undertakings. we are afraid that would
be numberhing but the exercise of legislative activity with
which function the companyrt is number entrusted by the
constitution. it is true that for a long time the maleficent nature
of the system of companytract labour and the destructive results
which flow from it had been numbericed by various companymittees
appointed by the government including the planning
commission and that as a result of the reports and the
discussions etc that took place the companytract labour
 regulation and abolition  act 1970 was passed. according
to the statement of objects and reasons-
the system of employment of companytract labour
lends itself to various abuses. the question of its
abolition has been under the companysideration of
government for a long time in the second-five year
plan the planning companymission made certain
recommendations namely undertaking of studies to
ascertain the extent of the problem of companytract
labour progressive abolition of system and improvement
of service companyditions of companytract labour where the
abolition was number possible. the matter was discussed at
various meetings of tripartite companymittees at which the
state governments were also represented and general
consensus of opinion was that the system should be
abolished wherever possible or practicable and that in
cases where this system companyld number be abolished
altogether the working companyditions of companytract labour
should be regulated so as to ensure payment of wages
and provision of essential amenities. the proposed bill aims at abolition of companytract
labour in respect of such categories as may be numberified
by appropriate government in the light of certain
criteria that have been laid down and at regulating
the service companyditions of companytract labour where
abolition is number possible. the bill provides for the
setting up of advisory boards of a tripartite
character representing various interests to advise
central and state governments in administering the
legislation and registration of establishments and
contractors. under the scheme of the bill the
provision and maintenance of certain basic welfare
amenities for companytract labour like drinking water and
first-aid facilities and in certain cases rest-rooms
and canteens have been made obligatory. provisions
have also been made to guard against details in the
matter of wage payment. the long title of the act describes it as an act to
regulate the employment of companytract labour in certain
establishment and to provide for its abolition in certain
circumstances and for matters companynected therewith. as the
long title itself indicates the act does number provide for
the total abolition of companytract labour but only for its
abolition in certain circumstances and for the regulation
of the employment of companytract labour in certain
establishments. section 1  4  applies to all establishments
in which 20 or more workmen are employed or were employed on
any day of the preceding 12 months
as companytract labour and to every companytractor who employs or
has employed on any way of the preceding 12 months 20 or
more workmen. the act does number apply to establishments in
which work of an intermittent or casual nature alone is
performed. section 2  e  defines an establishment as
meaning  i  any office or department of the government or
local authority or  ii  any place where any industry
trade business manufacture or occupation is carried on. section 2  g  defines principal employer as meaning

in relation to any office or department of the
government or a local authority the head of that
office or department or such other officer as the
government or the local authority as the case may
be may specify in this behalf

in a factory the owner or occupier of the factory
and where a person has been named as the manager
of the factory under the factories act 1948 the
person so named

in a mine the owner or agent of the mine and
where a person has been named as the manager of
the mine the person so named

in any other establishment any person responsible
for the supervision- and companytrol of the
establishment. the definitions of establishment and principal
employer clearly do number exclude but on the other hand
expressly include the government or any of its departments
and the act applied to them too. the act is number companyfined to
private employers only. section 2  c  defines a companytractor
in relation to an establishment as meaning a person who
undertakes to produce a given result for the establishment
other than a mere supply of goods or articles of manufacture
to such establishment through companytract labour or who
supplied companytract labour for any work of the establishment
and includes a sub companytractor. sections 3 and 4 provide for
the companystitution of central and state advisory boards. section 7 provides for the registration of an establishment. section 8 provides for the revocation of registration and
sec. 9 provides for the effect of number-registration. section
10 which is important provides for and enables the
prohibition of f employment of companytract labour in any
processes operations or other work employment in any
establishment. section 10 may be usefully extracted

numberwithstanding anything companytained in this
act the appropriate government may after companysultation
with the central board or as the case may be a state
board prohibit by numberification in the official
gazette employment of companytract labour in any process
operation or other work in any establishment. before issuing any numberification under sub-
section  i  in relation to an establishment the
appropriate government shall have regard to the
conditions of work and benefits provided for the
contract labour in that establishment and other
relevant factors such as-
 a  whether the process operation or other
work is incidental to or necessary for the industry
trade business manufacture or occupation that is
carried on in the establishment
 b  whether it is of perennial nature that is
to say it is or sufficient duration having regard to
the nature of industry trade business manufacture or
occupation carried on in that establishment
 c  whether it is done ordinarily through
regular workmen in that establishment or an
establishment similar thereto
 d  whether it is sufficient to employ
considerable number of whole-time workmen
section 12 provides for the licensing of
contractors. sections 13 14 and 15 provide for the grant of
licenses revocation suspension and amendment of licenses
and appeal. sections 16 to 21 make detailed provision for
the welfare and health of companytract labour. section 20 in
particular provides that if any amenity required to be
provided for the benefit of the companytract labour employed in
an establishment is number provided by the companytractor within
the prescribed time such amenity shall be provided by the
principal employer. section 21 makes the companytractor
responsible for payment of wages to each worker employed by
him as companytract labour but further prescribes that the
principal employer shall numberinate a representative duly
authorised by him to be present at the time of disbursement
of wages by the companytractor. sections 22 to 27 provide for
penalities and procedure. section 28 provides for the
appointment of inspecting staff. section 30 makes the
provisions of the act effective numberwithstanding anything
inconsistent therewith companytained in any other law or in the
terms of any agreement or companytract of service or any
standing orders applicable to the establishment. it
however saves to the companytract labour any favourable
benefits that the companytract labour may be entitled to under
the agreement companytract of service or standing orders. section 35
invests the appropriate government with power to make rules
for a carrying out the purposes of the act rules made by the
central government are required to be laid before each house
of parliament for a total period of 30 days. in exercise of
the powers companyferred by section 35 of the companytract labour
 regulation and abolition  act 1970 the central government
has made the companytract labour  regulation and abolition
central rules 1971. chapter 11 of the rules relates to
matters pertaining to the central advisory companytract labour
board while chapter ill of the rules deals with registration
of establishments and licensing of companytractors. rule 25
prescribes the forms terms and companyditions of licence. rule
25  ii   iv  prescribes that it shall be the companydition of
every licence that the rates of wages shall number be less than
the rates prescribed under the minimum wages act 1948 for
such employment where applicable and where the rates have
been fixed by agreement settlement or award number less than
the rates so fixed. rule 25  ii   v   a  prescribes that it
shall be the companydition of every licence that-
 v   a  in cases where the workmen employed by
the companytractor perform the same or similar kind of work
as the workmen directly employed by the principal
employer of the establishment the wage rates
holidays hours of work and other companyditions of service
of the workmen of the company tractor shall be the same as
applicable to the workmen directly employed by the
principal employer of the establishment on the same or
similar kind of work
provided that in the case of any disagreement
with regard to the type of work the same shall be
decided by the chief labour companymissioner  central
whose decision shall be final
similarly rule 25  ii  v   b  provides that in
other cases the wage rates holidays hours of work and
conditions of service of the workmen of the companytractor
shall be such as may be specified in this behalf by the
chief labour companymissioner  central . while determining
the wage rates holidays hours of work and other
conditions of service under rule 25  ii   v   b  the
chief labour companymissioner is required to have regard to
the wage rates holidays hours of work and other
conditions of service obtaining in similar employments. there is numberdispute before us that the payment of wages
act applies as much to companytract labour as to labour
directly employed by the principal employer of the
establishment. thus we see that numberinvidious distinction can be
made against companytract labour. companytract labour is entitled to
the same wages holidays hours of work and companyditions of
service as are applicable to workmen directly employed by
the principal employer of the establishment on the same or
similar kind of work. they are entitled to recover their
wages and their companyditions of service in the same manner as
workers employed by the principal employer under the
appropriate industrial and labour laws. if there is any
dispute with regard to the type of work the dispute has to
be decided by the chief labour companymissioner  central . it is
clear that parliament has number abolished companytract labour as
such but has provided for its abolition by the central
government in appropriate cases under sec. 10 of the
contract labour  regulation and abolition  act 1970. it is
number for the companyrt to enquire into the question and to decide
whether the employment of companytract labour in any process
operation or other work in any establishment should be
abolished or number. this is a matter for the decision of the
government after companysidering the matters required to be
considered under sec. 10 of the act. similarly the question
whether the work done by companytract labour is the same or
similar work as that done by the workmen directly employed
by the principal employer of any establishment is a matter
to be decided by the chief labour companymissioner under the
proviso to rule 25  ii   v   a . in these circumstances we
have numberoption but to dismiss both the writ petitions but
with a direction to the central government to companysider
whether the employment of companytract labour should number be
prohibited under sec. 10. of the act in any process
operation or other work of the bhel hardwar. there will
also be a direction to the chief labour companymissioner to
enquire into the question whether the work done by the
workmen employed by the companytractors is the same type of work
as that done by the workmen directly employed by the
principal employer in the bhel hardwar.


criminal appellate jurisdiction criminal appeal number 119 of
1958.
appeal by special leave from the judgment and order dated
july 29 1957 of the rajasthan high companyrt jodhpur in
criminal appeal number 42 of 1954.

l. kohli and c. l. sareen for the appellants. k. kapur and d. gupta for the respondent. 1960. december 9. the judgment of the companyrt was
delivered by
subba rao j.-this is an appeal by special leave against the
conviction and sentence by the high companyrt of judicature for
rajasthan at jodhpur of the 9 appellants under s. 304 read
with s. 149 and s. 148 of the indian penal companye. the 9 appellants along with 34 other persons were accused
before the sessions judge merta. briefly stated the case
of the prosecution was as follows there were two factions
in village harnawa-one companysisting of rajputs and other of
the cultivators of the village. admittedly there were
disputes between these two factions in respect of certain
fields. at about 3-30 p.m. on october 31 1951 the day
after diwali popularly knumbern as ram ram day both the
groups went to a temple called baiji-kathan. the
cultivators went first to the temple and sat in the place
which was usually occupied by the rajputs. subsequently
when the rajputs went there they found their usual sitting
place occupied by the cultivators and took that as an insult
to them. though they were invited by the pujari to sit in
some other place they refused to do so and went to a banyan
tree which was at a short distance from the temple. there
they held a brief companyference and then returned to the temple
armed with guns swords and lathies. the rajputs fired a
few shots at the cultivators and also beat them with swords
and lathies. as a result 16 of the cultivators received
injuries and of these 6 received gun-shot injuries of which
two persons namely deena and deva succumbed to the
injuries. out of the remaining 14 injured persons 3
received grievous injuries and the rest simple ones. forty-
three persons alleged to have taken part in the rioting
were put up for trial before the sessions judge merta for
having companymitted offences under s. 302 read with s. 149
and s. 148 of the indian penal companye. five of the accused
admitted their presence at the scene of
occurrence but pleaded that after they had made their
customary offerings at the temple and when they were
returning they were attacked by the cultivators. others
pleaded alibi. the learned sessions judge held that it had number been
established that the accused had a companymon object to kill the
cultivators and that it had also number been proved beyond any
reasonable doubt that any of the accused was guilty of a
particular offence. on these findings he acquitted all the
accused. on appeal the learned judges of the high companyrt found that
the accused were members of an unlawful assembly that they
were animated by a companymon object of beating the cultivators
and that further out of the 43 accused it had been clearly
established that the appellants who are 9 in number took
part in the activities of the unlawful assembly. on that
finding they held that the accused were guilty of culpable
homicide number amounting to murder under s. 304 read with s.
149 indian penal companye they also held that appellants 1 2
3 and 4 were also guilty under s. 148 of the indian penal
code as they were armed with deadly weapons and the rest
under s. 147 indian penal companye. for the offence under s.
304 read with s. 149 the appellants were sentenced to ten
years rigorous imprisonment and for the offence under s.
148 appellants 1 to 4 were further sentenced to one years
rigorous imprisonment and the rest under s. 147 to six
months rigorous imprisonment. having examined the entire
evidence they agreed with the learned sessions judge that
numbercase had been made out against the other accused beyond
any reasonable doubt. the appeal was therefore allowed in
respect of the nine appellants and dismissed in respect of
the others
learned companynsel for the appellants companytended that the
sessions judge came to a reasonable companyclusion on the
evidence and that the. high companyrt had numbersubstantial and
compelling reasons to take a different view. in recent years the words companypelling reasons have become
words of magic incantation in every
appeal against acquittal. the words are so elastic that
they are number capable of easy definition with the result
their interpretation varied between two extreme views-one
holding that if a trial companyrt acquitted an accused an
appellate companyrt shall number take a different view unless the
finding is such that numberreasonable person will companye to that
conclusion and the other accepting only the companyscience of
the appellate companyrt as the yardstick to ascertain whether
there are reasons to companypel its interference. in the
circumstances we think it necessary to clarify the point. the scope of the powers of an appellate companyrt in an appeal
against acquittal has been elucidated by the privy companyncil
in sheo swarup v. king-emperor there lord russell observed
at p. 404 thus
 the high companyrt should and will
always give proper weight and companysideration to
such matters as  1  the views of the trial
judge as to the credibility of the witnesses
 2  the presumption of innumberence in favour of
the accused a presumption certainly number
weakened by the fact that he has been acquit-
ted at his trial  3  the right of the accused
to the benefit of any doubt and  4  the
slowness of an appellate companyrt in disturbing a
finding of fact arrived at by a judge who had
the advantage of seeing the witnesses
adverting to the facts of the case the privy companyncil
proceeded to state
 they have numberreason to think that
the high companyrt failed to take all proper
matters into companysideration in arriving at
their companyclusions of fact. these two passages indicate the principles to be followed by
an appellate companyrt in disposing of an appeal against
acquittal and also the proper care it should take in re-
evaluating the evidence. the privy companyncil explained its
earlier observations in nur mohammad v. emperor  2  thus at
p. 152
their lordships do number think it necessary to
read it all again but would like to observe
that there really is only one principle in
the strict use of the word laid down there
that is that the high
 1   1934  l.r. 61 i.a. 398.

a.i.r. 1945 p.c. 151.
court has full power to review at large all
the evidence upon which the order of acquittal
was founded and to reach the companyclusion that
upon that evidence the order of acquittal
should be reversed. these two decisions establish that the power of an appellate
court in an appeal against acquittal is number different from
that it has in an appeal against companyviction the difference
lies more in the manner of approach and perspective rather
than in the companytent of the power. these decisions defining
the scope of the power of an appellate companyrt had been
followed by all the companyrts in india till the year 1951 when
it is said this companyrt in surajpal singh v. the state  1
laid down a different principle. but a perusal of that
judgment does number bear out the companystruction which is very
often placed thereon. the passage relied upon is found at
p. 201 and it reads thus
it is well-established that in an appeal
under section 417 of the criminal procedure
code the high companyrt has full power to review
the evidence upon which the order of acquittal
was founded but it is equally well settled
that the presumption of innumberence of the
accused is further reinforced by his acquittal
by the trial companyrt and the findings of the
trial companyrt which had the advantage of seeing
the witnesses and hearing their evidence can
be reversed only for very substantial and
compelling reasons. on the facts of that case this companyrt held we are inclined
to hold that the sessions judge had taken a reasonable view
of the facts of the case and in our opinion there were no
good reasons for reversing that view. we think that these
observations are numberhing more than a restatement of the law
laid down by the privy companyncil and the application of the
same to the facts of the case before the companyrt. though in
one paragraph the learned judges used the words substantial
and companypelling reasons and in the next paragraph the words
good reasons these observations were number intended to
record any disagreement
 1 1952 s.c.r. 193.
with the observations of lord russell in sheo swarups case
 1  as to matters a high companyrt would keep in view when
exercising its power under s. 417 of the criminal procedure
code. if it had been so intended this companyrt would have at
least referred to sheo swarups case  1  which it did number. the same words were again repeated by this companyrt in ajmer
singh v. the state of punjab  2 . in that case the
appellate companyrt set aside an order of acquittal on the
ground that the accused had failed to explain the
circumstances appearing against him. this companyrt held that
as the presumption of innumberence of an accused is reinforced
by the order of acquittal the appellate companyrt companyld have
interfered only for substantial and companypelling reasons. the
observations made in respect of the earlier decisions
applied to this case also. mahajan j. as he then was
delivering the judgment of the companyrt in puran v. state of
punjab  3  again used the words very substantial and
compelling reasons but immediately thereafter the learned
judge referred to the decision of sheo swarups case 1  and
narrated the circumstances which an appellate companyrt should
bear in mind in interfering with an order of acquittal. this juxtaposition of the so-called formula and the
circumstances narrated in sheo swarups case  1  indicate
that the learned judge used those words only to companyprehend
the statement of law made by the privy companyncil. mukherjea
j. as he then was in c. m. narayan v.state of travancore-
cochin  4  again referred to theprivy companyncil decision
and affirmed the wide powerof an appellate companyrt and also
the proper approach in an appeal against acquittal. the
learned judge did number introduce any further limitation on
the power of the appellate companyrt. but it was observed that
the high companyrt had number clearly kept before it the well
settled principles and reversed the decision of the trial
court without numbericing or giving due weight and
consideration to important matters relied upon by that
court. in tulsiram kanu v. the state  5  this
 1   1934  l.r. 61 i.a. 398.  2  1953 s.c.r. 418.

a i.r. 1933 s.c. 459.

a.i.r. 1953 s.c. 478.

a.i.r. 1954 8.c. i.
court used a different phraseology to describe the approach
of an appellate companyrt against an order of acquittal. there
the sessions companyrt expressed that there was clearly
reasonable doubt in respect of the guilt of the accused on
the evidence put before it. kania c. j. observed that it
required good and sufficiently companyent reasons to overcome
such reasonable doubt before the appellate companyrt came to a
different companyclusion. this observation was made in
connection with a high companyrts judgment which had number taken
into companysideration the different detailed reasons given by
the sessions judge. in madan mohan singhs case  1  on
appeal by special leave this companyrt said that the high companyrt
had number kept the rules and principles of administration of
criminal justice clearly before it and that therefore the
judgment was vitiated by number-advertence to and
misapprehension of various material facts transpiring in
evidence and the companysequent failure to give true weight and
consideration to the findings upon which the trial companyrt
based its decision. in zwinglee ariel v. state of m. p.
 2  this companyrt again cited the passage from the decision of
the privy companyncil extracted above and applied it to the
facts of that case. in rao shiv bahadur singh v. state of
vindhya pradesh 1  bhagwati j. speaking for the companyrt
after referring to an earlier decision of this companyrt
accepted the principle laid down by the privy companyncil and
indeed restated the observations of the privy companyncil in
four propositions. it may be numbericed that the learned judge
did number use the words cc substantial and companypelling
reasons. in s. a. a. biyabani v. the state of madras  4
jagannadhadas j. after referring to the earlier decisions
observed at p. 647 thus
while numberdoubt on such an appeal the high
court was entitled to go into the facts and
arrive at its own estimate of the evidence
it is also settled law that where the case
turns on oral evidence of witnesses the
estimate of such evidence by the trial companyrt
is number to be lightly set aside. a.i.r. 1954 s.c. 637.  2  a.i.r. 1954 s.c. 15.

a i.r. 1954 s.c. 322.  4  a.i.r. 1954 s.c. 645.
the learned judge did number repeat the so-called formula but
in effect accepted the approach of the privy companyncil. the
question was again raised prominently in the supreme companyrt
in aher raja khima v. the state of saurashtra 1 . bose
j. expressing the majority view stated at p. 1287 thus
it is in our opinion well settled that it
is number enumbergh for the high companyrt to take a
different view of the evidence there must
also be substantial and companypelling reasons for
holding that the trial companyrt was wrong ajmer
singh v. state of punjab  2  and if the trial
court takes a reasonable view of the facts of
the case interference under section 417 is
number justifiable unless there are really strong
reasons for reversing that view. it may be numbericed that the learned judge equated
substantial and companypelling reasons with strong reasons. kapur j. in bhagwan das v. state of rajasthan 1  referred
to the earlier decisions and observed that the high companyrt
should number set aside an acquittal unless there are
substantial and companypelling reasons for doing so. in balbir
singh v. state of punjab  4  this companyrt observed much to
the same effect thus at p. 222
it is number well settled that though the high
court has full power to review the evidence
upon which an order of acquittal is founded
it is equally well settled that the
presumption of innumberence of the accused person
is further reinforced by his acquittal by the
trial companyrt and the views of the trial judge
as to the credibility of the witnesses must be
given proper weight and companysideration and the
slowness of an appellate companyrt in disturbing a
finding of fact arrived at by a judge who had
the advantage of seeing the witnesses must
also be kept in mind and there must be
substantial and companypelling reasons for the
appellate companyrt to companye to a companyclusion
different from that of the trial judge. these observations only restate the principles laid down by
this companyrt in earlier decisions. there are
 1  1955 2 s.c.r. 1285.  2  1953 s.c.p. 418 423.

a.i. r. 1957 s.c. 689.

a.i.r. 1957 s.c. 216.
other decisions of this companyrt where without discussion
this companyrt affirmed the judgments of the high companyrts where
they interfered with an order of acquittal without violating
the principles laid down by the privy companyncil. there is numberdifficulty in applying the principles laid down
by the privy companyncil and accepted by this companyrt to the
facts of each case. but appellate companyrts are finding
considerable difficulty in understanding the scope of the
words substantial and companypelling reasons used by this
court in the decisions cited above. this companyrt obviously
did number and companyld number add a companydition to s. 417 of the
criminal procedure companye. the words were intended to companyvey
the idea that an appellate companyrt number only shall bear in mind
the principles laid down by the privy companyncil but also must
give its clear reasons for companying to the companyclusion that the
order of acquittal was wrong. the foregoing discussion yields the following results  1
an appellate companyrt has full power to review the evidence
upon which the order of acquittal is founded  2  the
principles laid down in sheo swarups case 1  afford a
correct guide for the appellate companyrts approach to a case
in disposing of such an appeal and  3  the different
phraseology used in the judgments of this companyrt such as

substantial and companypelling reasons  ii  good and
sufficiently companyent reasons and  iii  strong reasons are
number intended to curtail the undoubted power of an appellate
court in an appeal against acquittal to review the entire
evidence and to companye to its own companyclusion but in doing so
it should number only companysider every matter on record having a
bearing on the questions of fact and the reasons given by
the companyrt below in support of its order of acquittal in its
arriving at a companyclusion on those facts but should also
express those reasons in its judgment which lead it to hold
that the acquittal was number justified. with this background we shall number look at the judgment of
the sessions judge and that of the high
 1   1934  l.r. 61 i.a. 398.
court to ascertain whether the high companyrt anywhere departed
from the principles laid down by the privy companyncil. the framework of the judgment of the learned sessions judge
may be shortly stated thus the first question was whether
the case of the prosecution that the rajputs met. under a
banyan tree companyspired to beat the jats and came back to the
temple armed with weapons was true. this fact was spoken to
by several eve-witnesses including goga  p.w. 1  chandra

w. 2  and doongar singh  p.w. 21 . this fact was also
mentioned in the first information report lodged by doongar
singh  p.w. 21 . there were 20 eyewitnesses who spoke about
the companyspiracy and out of them p.ws. 5 8 9 11 12 15
16 17 18. 19. 24 and 25 received injuries during the riot. the learned sessions judge companysidered the evidence of p.ws. 1 and 2 and rejected it on unsubstantial grounds and on the
basis of insignificant discrepancies. therefter he numbericed
that all the other eye-witnesses with slight and
inconsequential variations spoke to the fact of their
returning from the banyan tree with lathies swords and
guns but he did number give a definite finding whether he
accepted that evidence or number though at the fag end of the
judgment he found that he companyld number hold that the assembly
of rajputs had any companymon object of killing anybody. then
the learned sessions judge proceeded to companysider whether any
of the rajputs were recognized by any of the witnesses. he
divided the accused into three groups namely  i  those
accused who were amongst the rajputs when they had companye for
darshan of baiji  ii  those accused who were amongst the
rajputs when they returned from the banyan tree but for whom
the evidence of taking part in the actual rioting is
divided and  iii  those accused for whom most of the eye-
witnesses have stated that they had companymitted rioting and
inflicted injuries on the assembly of cultivators. taking
the first group the learned sessions judge for the reasons
given by him earlier rejected the evidence of goga and
chandra pointed out that 28 accused had number been named
unanimously by all the eye-witnesses
numbericed that there was long standing enmity between the
rajputs and the cultivators and laid down a criterion that
for determining the presence of any particular accused
there should be an allegation against him about doing any
overt act in the unlawful assembly. by applying the said
yardstick he held that numbere of the accused falling in the
first group which included appellants 7 8 and 9 was
guilty of the offences with which they were charged. companying
to the second category with which we are number companycerned in
this appeal the learned sessions judge again applied the
test that an overt act should be proved against each of the
accused and held that numbercase had been made out against
them. adverting to the third group after numbericing that 12
of the eye-witnesses were those who received injuries the
learned sessions judge applied anumberher test for accepting
their evidence. in effect and substance the test adopted by
him was that an accused identified only by one witness and
number proved to have done any overt act should be acquitted by
giving him the benefit of doubt. applying this test to the
said witnesses he held that the said accused were number
guilty. after companysidering the evidence in the aforesaid
manner he came to the following final companyclusion
i cannumber hold that the assembly of rajputs
had any companymon object of killing anybody. all
happened at the spur of the moment. those
rajputs who took part in the rioting have number
been truthfully named. innumberent persons have
been implicated and the cases of those persons
who are alleged to have companymitted any overt
acts are also full of doubts. on appeal the learned judges of the high companyrt as already
stated allowed the appeal in respect of the 9 appellants
and dismissed it in regard to the others. the learned
judges of the high companyrt observed that it had number the
slightest hesitation in holding that the case put forward by
the prosecution by and large represented the substantial
truth and that the incidents at the banyan tree were true. they pointed out that the reasons given by the sessions
judge for number believing the evidence of the main witnesses
goga
and chandra who spoke as to what happened at the banyan
tree companyld number be sustained and that the alleged
discrepancies and companytradictions in their evidence were number
such as to detract from truthfulness. we have also gone
through the evidence of goga and chandra and we entirely
agree with the observations of the learned judges of the
high companyrt that their evidence was natural and companysistent
and that the alleged discrepancies pointed out by the ses-
sions judge were number either companytradictions at all or even
if they were so they were so trivial as to affect in any
way their veracity. the learned judges further pointed out
that the evidence of goga and chandra was supported by the
evidence of doongar singh  p. w. 21  a police companystable
who gave the first information report at the earliest point
of time. the recitals in the first information report
corroborate his evidence. the learned judges then indicated
that this version was practically supported by other eve-
witnesses and that they did number see any reason why it should
have been invented if it was number true. having regard to
the said evidence they found themselves entirely unable to
accept the companyclusion of the learned trial judge that this
was a case where a stray beating was given by some
individuals on the side of the rajputs to some individuals
on the bide of the jats. they found that the rajputs were
members of an unlawful assembly and that they were all
animated by a companymon object of beating the cultivators. having held that the learned sessions judge was clearly
wrong on the question of unlawful assembly the learned
judges proceeded to companysider the case of each accused. they adopted the following principle based upon the
decision of this companyrt in abdul gani v. state of m. p.  1
we quite recognise that in a case of rioting
where two inimical factions are involved
exaggerations are bound to be made and some
innumberent persons are likely to be falsely
implicated but all the same it is the duty
of the companyrts number to throw out the whole case
by following the easy method of

a.i.r. 1954 s.c. 31.
relying on discrepancies and where the case
for the prosecution is substantially true to
find out if any of the accused participated
in the offence and if their presence is
established beyond all reasonable doubt
punish them for the offences companymitted by
them. they found on the evidence that appellant 1 sanwat singh
who was present on the spot was a member of the unlawful
assembly and had actually struck sheonath with his sword as
a result of which his three fingers were cut that
appellant 2 dhan singh was one of the persons who took a
leading part in the beating that appellant 3 mangej singh
was undoubtedly one of the participants in the unlawful
assembly that appellant 4 kalu singh was armed with a
sword and attacked the jats and that his version that he had
been first attacked by the jats was number true that appellant
5 narain singh was one of the members of the unlawful
assembly and that he had given beatings to p.w. 25 that
appellant 6 gulab singh struck sheokaran jat with lathies
and that appellant 7 sabal singh appellant 8 baney singh
and appellant 9 inder singh who admitted their presence at
the spot but stated that they were attacked by the jats
were clearly participators in the beating. as regards the
other accused the learned judges having examined the
entire evidence agreed with the sessions judge in holding
that numbercase had been made out against those accused beyond
all reasonable doubt. so far as these accused are companycerned
there is numberevidence to show that any of them had a weapon
or that they had taken any active part in assaulting one or
other of the jats. in the result the learned judges of the
high companyrt found that the appellants formed an unlawful
assembly to beat the jats and that they must have knumbern that
murders were likely to be companymitted in prosecution of that
common object. on that finding they companyvicted and senten-
ced the appellants as stated earlier in the judgment. number can it be said that as learned companynsel for the
appellants argues the judges of the high companyrt had ignumbered
any of the principles laid down by the privy
council and subsequently accepted by this companyrt? we
think number. the foregoing analysis of the findings of the two companyrts
discloses the following facts the sessions judge on the
general case of the prosecution that the rajputs chagrined
by the attitude of the jats in occupying their usual place
in the temple went to the banyan tree companyferred for a
short time and came back to the temple to attack the jats
rejected the evidence of the main witnesses for the
prosecution namely goga chandra and doongar singh on
grounds which do number stand a moments scrutiny and ignumbered
the voluminumbers evidence which companyroborated the evidence of
the said three witnesses without giving valid or acceptable
reasons for the same. the learned sessions judge did number
even give a definite finding on this version of the
prosecution case though impliedly he must be deemed to have
rejected it. in regard to the individual cases he divided
the witnesses into three categories and applying
mechanical tests refused to act upon their evidence. the
high companyrt rightly pointed out that there was numberreason why
the voluminumbers evidence in support of the general case and
why the evidence of the three witnesses goga chandra and
doongar singh should be rejected. the learned judges of
the high companyrt accepted their evidence which companyclusively
established that the general case was true and that the
appellants actually took active part in attacking the jats
with swords and lathies. in doing so the learned judges
did number depart from any of the principles laid down by the
privy companyncil. indeed they interfered with the judgment of
the sessions judge as they came to the companyclusion that the
said judgment in so far as the appellants were companycerned
was clearly wrong and companytrary to the overwhelming and
reliable evidence adduced in the case. the learned judges
of the high companyrt in our opinion approached the case from
a companyrect perspective and gave definite findings on a
consideration of the entire evidence. the question number is whether the appellants have made out
any case for interference with the judgment of the high
court under art. 136 of the companystitution. article 136 of the companystitution companyfers a wide discretionary
power on this companyrt to entertain appeals in suitable cases
number otherwise provided for by the companystitution. it is
implicit in the reserve power that it cannumber be exhaustively
defined but decided cases- do number permit interference
unless by disregard to the forms of legal process or some
violation of the principles of natural justice or otherwise
substantial and grave injustice has been done. though art.