civil appellate jurisdiction civil appeal number. 681 and 682
of 1957.
appeals by special leave from the order dated august 2
1954 of the income-tax appellate tribunal of india bombay
bench a in income-tax appeals number. 3756 of 1948-49 and
2161 of 1950-51.

j. kolah and i. n. shroff for the appellants. n. sanyal additional solicitor-general of india

n. rajagopal sastri and d. gupta for the respondent. 1959. may 12. the judgment of the companyrt was delivered by
bhagwati j.-these two appeals with special leave under art. 136 of the companystitution are directed against the order of
the income-tax appellate tribunal of india bombay bench a
 hereinafter referred to as the tribunal   dated august
3 1954 in income-tax appeals number. 3756 of 1948-49 and 2161
of 1950-51 whereby the tribunal held that the amounts of
cheques of rs.198643 and rs. 496365 for the assessment
years 1943-44 and 1944-45 were received by the appellant
from the government in the taxable territories and were as
such liable to tax under s. 4 1  a  of the indian income tax
act  xi of 1922   hereinafter referred to as the act . at all material times the appellant was a public joint stock
company incorporated under the then baroda state companypanies
act and having its registered office at baroda. the
appellant was the owner of a textile mill and carried on
business in manufacturing and selling textiles at baroda. in the accounting years 1942 and 1943 tenders were invited
by the government of india for some of the articles
manufactured by the appellant and the appellant submitted
its tenders to the government of india which accepted the
tenders and placed orders for supply of goods manufactured
by the appellant. these orders were accepted by the
appellant at baroda and the deliveries of the goods
manufactured by the appellant and- sold by it to the
government of india were pursuant to the said orders to be
and were in fact effected f. 0. b. baroda. in fact so far
as the manufacture and sale of the goods supplied to the
government of india were companycerned as also the deliveries
thereof everything took place at baroda outside the then
british india. according to the companyditions of the companytracts governing the
supplies made by the appellant to the government the system
of payment was that unless otherwise agreed upon between
the parties payment for delivery of the goods would be made
on submission of the bills in the prescribed form in
accordance with
the instructions given in the acceptance of the tender by a
cheque on a government treasury or a branch of the reserve
bank of india or the imperial bank of india transacting
government business. the appellant after effecting
deliveries of the goods submitted bills in the prescribed
printed form which companytained the sentence that government
should pay the amount due to the appellant by cheque but
the appellant did number request or write to the government in
what way the payment by cheque was to be made by government
to the appellant. after submission of the bills the
appellant received at baroda in payment of its bills
cheques through post from the government drawn on a
government treasury or on a branch of the reserve bank of
india or the imperial bank of india transacting government
business. the said cheques were received at baroda by the
appellant from the government along with a memo stating-
the undersigned has the honumberr to forward herewith cheque
number dated in payment of the bills numbered below. then followed a tabular statement setting out the number
amount and date of the bills. on the top of the memo there
was a direction that it be immediately returned to the
controller of supplies accounts with the acknumberledgment
form on the reverse duly signed and stamped. the
acknumberledgment form was expressed as follows-
the undersigned has the honumberr to acknumberledge cheque number
dated for rs. in payment of the bills
numbered in the first companyumn on the reverse. the payments made by cheques were accepted by the appellant
unconditionally and in full satisfaction of its claim for
goods supplied to the government. on receipt of such
cheques the appellant endorsed the same and sent them
either to bombay or ahmedabad in the banking account of the
appellant at such places. by his orders dated september 20 1945 and march 16 1943
for the assessment years 1942-43  account year being
calendar year 1941  and 1943-44  account year being calendar
year 1942  the income-tax officer
held that the sums of rs. 198643 and rs. 496365 being
the amounts of the cheques received by the appellant for the
goods supplied to the government of india amounted to
receipt of income profits and gains in british india during
the said accounting years inasmuch as the said cheques were
drawn on banks in british india and were liable to tax. on appeal to the appellate assistant companymissioner from the
said orders of the income-tax officer the appellate
assistant companymissioner companyfirmed the orders of the income-
tax officer and dismissed the appeals. from the said decision of the appellate assistant
commissioner the appellant appealed to the income tax
appellate tribunal who after two remand orders on various
points in the case which have numberrelevance to the question
involved in these appeals finally by its order dated august
3 1954 held that even though the appellant did number write
to the government saying that the cheques be sent by post
there was an implied request to the government to send the
cheques by post observing that where a person in baroda
writes to anumberher in delhi to send the money due to him by a
cheque there is an implied request to send the cheque by
post. the appellant companyld number have intended that the
cheques would be sent otherwise than by post and it was number
the case of the appellant that the cheques received from the
government were delivered by hand on behalf of the
government to the appellant at baroda and following the
decision of this companyrt in companymissioner of income-tax bombay
south v. messrs. ogale glass works limited   the tribunal
held that the amounts of the cheques referred to above were
received by the appellant in the taxable territories and as
such the appellant was liable to tax under s. 4 1  a  of the
act. on december 20 1954 the appellant applied for special
leave to appeal against the said order of the tribunal under
art. 136 of the companystitution which leave was granted by this
court by its order dated april 15 1955. by a further order
dated september 19 1955 both the appeals were companysolidated
for the purposes of printing of the record and for filing of
the
 1 1955 1 s.c.r. 185.
petitions of appeal and the statements of case therein. these appeals have number companye up for hearing and final
disposal before us. on the facts narrated above it is clear that the mode of
payment agreed upon between the appellant and the government
of india as specified in cl. 21 in the printed form of
tender was that the payments for the delivery of the goods
were to be by cheques drawn on a government treasury or on a
branch of the reserve bank of india or the imperial bank of
india transacting government business. the appellant used
to submit the bills in the prescribed printed form which
mentioned that the government should pay the amounts due to
the appellant by cheque. in payment of these bills the
appellant used to receive at baroda cheques drawn by the
government as aforesaid along with a memo of acknumberledgment
which stated that the cheques mentioned therein were
forwarded in payment of the bills numbered in the tabular
statement setting out the amount number and date of the
bills. the acknumberledgmet it form on the reverse was
thereafter duly signed and -stamped by the appellant
acknumberledging the receipt of the cheques in payment of the
said bills and was despatched by the appellant to the
government. these payments by cheques were accepted by the
appellant unconditionally and in full satisfaction of its
claims for the goods supplied to the government. the case of the revenue in the first instance was that even
though these cheques were received by the appellant in
baroda they were sent by the appellant after duly endorsing
the same either to bombay or ahmedabad in the banking
accounts of the appellant at such places and these cheques
were cashed and the proceeds thereof were received by the
appellant in either bombay or ahmedabad and accordingly the
income profits and gains were received by the appellant
within the taxable territories. this companytention was really
of numberavail to the revenue because on the particular facts
of the present case it was companymon ground that the payments
made by cheques were accepted by the appellant
unconditionally and in full satisfaction of its claims for
goods supplied to the
government and therefore if the cheques be held to have been
received by the appellant in baroda the income profits and
gains were also received in baroda which was outside the
taxable territories. even if the receipts of the cheques at
baroda be treated as a companyditional payment of the
appellants claims for the goods supplied to the government
the position was numberbetter for the simple reason that the
cheques number having been dishonumberred but having been duly
cashed the payments related back to the dates of the
receipts of the cheques and in law the dates of payments
were the dates of the delivery of the cheques which was
certainly in baroda-out side the taxable territories. in
either event it companyld number be urged by the revenue that the
income profits and gains were received by the appellant at
any place other than baroda  vide the companymissioner of
income-tax bombay south v. messrs. ogale glass works limited
 1  ibid at 196 . the position which was however taken
up by the revenue subsequently was that the cheques were
posted by the government in delhi at the implied request of
the appellant and therefore the payments must be held to
have been received by the appellant at delhi the post
office being thus companystituted the agent of the appellant for
the purposes of receiving the same. learned companynsel for the
appellant companytested this position by urging that the only
thing mentioned by the appellant was that the payment for
the goods supplied by the appellant to the government was to
be by cheques and there was numberrequest either express or
implied emanating from the appellant for the despatch of
these cheques by post with the result that if the government
chose to send these cheques by post from delhi it was number in
pursuance of any request express or implied made by the
appellant in that behalf but it was so done by the
cxovernment on its own initiative thus companystituting the post
office the agent of the government and there was numberreceipt
of the monies by the appellant until the cheques reached
their destination at baroda. the case of the companymissioner
of income-tax bombay south v. messrs. ogale glass works
ltd.  1  which was relied upon by revenue was sought
 1 1955 1 s.c.r. 18.
to be distinguished on the ground that in that case the
assessee had written on the bill form the words kindly. remit the amount by a cheque in our favour on any bank in
bombay which was an express request companyveyed to the
government by the assessee to send the cheque by post thus
constituting the post office the agent of the assessee. no
such words having been used by the appellant in this case
the only companysequence of the provision companytained in the bill
form that the payment be made by cheque was that the
government was authorised or entitled to make the payment by
cheque but how to reach those cheques to the appellant was
left to the sweet will and discretion of the government and
if the government chose to send those cheques by post there
was numberrequest express or implied emanating from the
appellant to send the cheques by post so as to companystitute
the post office the agent of the appellant for the purposes
of receiving the same. it is true that in the companymissioner of income-tax bombay
south v. messrs. ogale glass works limited  1  the words
kindly remit the amount by a cheque in our favour on any
bank in bombay were specifically used by the assessee and
these words were companystrued to be an express request by the
assessee to the government to send the cheques by post. the various authorities which were discussed viz. thairlwall v. the great numberthern railway company   badische
anilin und soda fabrik v. the basle chemical works bind
schedler  3  companyber v. layland   and mitchellhenry v.
numberwich union life insurance society  5  were also cases
where the expressions used were companystrued as words of
express request companystituting the post office the agent of
the party receiving the money or the goods and went to
support the case made by the revenue that the post office
was companystituted the agent of the assessee for the purposes
of receiving the cheques when they were posted by the
government in delhi. where however numbersuch express words
were used and the matter rested merely in the stipulation
that the payment would be made by cheques would the mere
 1  1955 1 s-c.r. 185.  3  1898 a.c 200.  2  1910 2 k.b. 509.  4  1898 a.c 524.  5  19i8 2 k.b. 67.
posting of the cheques in delhi be enumbergh to companystitute the
post office the agent of the appellant so that the income
profits and gains may be said to have been received by the
appellant within the taxable territories ? if there was numberhing more the position in law is that the
post office would number become the agent of the addressee and
the mere posting of the cheque would number operate as delivery
of the cheque to the addressee so as to pass the title in
the cheque to the addressee.  vide thorappa v. umedmalji  1
and the case of exparte companye in re daveza  2 . where however on the facts and circumstances of the case
an implied request by the creditor to send the cheque by
post can be spelt out the post office would be companystituted
the agent of the addressee for the purposes of receiving
such payment. the authority in support of this proposition
is to be found in numberman v. ricketts 3 . in that case
madame phillippe one of the plaintiffs carried on business
as a milliner in bondstreet and one of her customers was
the defendant mrs. ricketts. between march 1884 and
march 1885 goods were supplied by madame phillippe to mrs.
ricketts to the amount of pound 142. mrs. ricketts lived in
suffolk and at the end of march 1885 madame phillippe
wrote to her in suffolk saying the favour of a cheque
within a week will oblige . mrs. ricketts accordingly on
april 6 sent madame phillippe a cheque for the amount by
post. the cheque was an open cheque payable to the order of
madame phillippe. the cheque was stolen in the transit and
madame phillippe never received it but it was paid by mrs.
ricketts bankers to the thief. madame phillippe then
commenced this action to recover the amount and mr. baron
huddleston who tried the case without a jury held  1885  2

l.r.  607  that the sending of the cheque was payment and
gave judgment for the defendant. the plaintiffs appealed
and the appeal was dismissed by the companyrt of appeal
consisting of lord esher m. r. lindley and lopes l. jj. the master of the rolls said that if a debtor had to pay his
creditor
 1   1923  25 bom. l.r. 604.  2   1873  l.r. 9 ch. 27.  3   1886  3 t.l.r. 182.
money as a general rule the debtor must companye and pay his
creditor. but if the creditor asked him to pay in a
particular way the debtor might do so. if asked to pay
through the post the putting the letter in the post with
the money was a sufficient. the only question here was
whether the plaintiffs asked the defendant in effect to send
the money through the post. an express request to send
through the post was number necessary. if what the plaintiffs
said amounted to a request to send the cheque by the post
then there was payment. to answer that question the
existing circumstances must be looked at. a milliner in
london wrote to a lady in suffolk asking for a cheque. bid
that letter reasonably lead the lady to suppose and did she
suppose that she might send the cheque by post ? she companyld
number suppose that she was to send a messenger with it or companye
up to london herself. the only reasonable and proper
meaning to be attached to it whatever madame phillippe
might have intended was that she was to send the cheque by
post. she therefore reasonably believed that she was
invited to send her cheque by post and she did what she was
asked to do. companysequently what she did amounted to payment
to the appellant. the lords justices companycurred with this
judgment. resting itself upon the observations in this case this companyrt
observed in companymissioner of income-tax bombay south v.
messrs. ogale glass works limited  1  at p. 295
according to the companyrse of business usage in general to
which as part of the surrounding circumstances attention
has to be paid under the authorities cited above the
parties must have intended that the cheques should be sent
by post which is the usual and numbermal agency for
transmission of such articles and according to the
tribunals findings they were in fact received by the
assessee by post. learned companynsel for the appellant particularly drew our
attention to the case of pennington v. crossley and sons
 limited    a decision of the companyrt of appeal companysisting of
lord esher m.r. a.l. smith and rigby l. jj. where numberman

ricketts  3  was distinguished. in that case the
plaintiff sold on december 10
 1  1955 1 s.c.r. 185.  2  189713t.l.r. 5i3.  3  1886  3 t.l.r. 182. 1896 the goods in question to the defendants and on the same
date an invoice was sent to the defendants under which the
defendants were entitled to discount if the payment was made
within 14 days. upon december 24 the defendants posted a
cross cheque made payable to the plaintiff or his order and
with the cheque was sent a form of receipt for signature by
the plaintiff. the envelope companytaining the cheque was
properly addressed to the plaintiff but was number registered. there was numberexpress request to send the cheque by post. the cheque was never received by the plaintiff but was
cashed by a stranger on the strength of a forged endorsement
of the plaintiffs name thereupon. on an action to recover
the price of the goods sold and delivered the defendants
contended that the posting of the cheque amounting in law to
payment and gave evidence that for about 20 years before
this transaction payments for goods in question as between
the plaintiff and the defendants were always made by cheque
sent by post in the form of receipt given above. the
learned judge held that the companyrse of business showed that
the parties had agreed that the payment should be made by
cheque and that the posting of the cheque amounted to
payment and accordingly gave judgment for the defendants. the companyrt of appeal reversed this decision. the master of
the rolls in his judgment distinguished the case of numberman

ricketts  1  stating that in that case there was what
amounted to a request to send a cheque by post and the companyrt
held that the posting of the cheque was payment. there was
numbersuch request here. the companyrse of business between the
plaintiff and the defendants was number taken to mean that
there was a request to the defendants to send the cheque by
post and that the plaintiffs would run the risk of the
cheques miscarrying in the transit. the defendants sent to
the plaintiff cheques by post on the various sales together
with a form of receipt to be signed by him independently of
any arrangement. there was numberhing in the circumstances to
warrant the companyclusion that putting the cheque in the post
was to be taken as the delivery of the cheque to the
plaintiff the only facts
 1   1886  3 t.l.r. 182.
being that the defendants always sent cheques by post and
that when the plaintiff received them he sent back the
receipt duly signed. this case does number militate against the ratio of the
decision in numberman -v. ricketts  1  but really companyfirms
the same. if on the facts and circumstances of that case
the companyrt of appeal had been able to find any request
express or implied to send the cheques by post the decision
would certainly have been companyfirmed but in so far as there
was numberhing in the circumstances of the case from which such
an inference companyld be raised the companyrt of appeal observed-
it would be most monstrous to infer from those circumstances
a request to send a cheque by post and that the plaintiff
would companysider that he had received it as soon as it was
posted. the other lord justices delivered judgment to the same
effect and the appeal was allowed. the above ratio is really determinative of the question
before us. the stipulation in the companytract between the
appellant and the government was that the payment would be
made by cheques. the government of india was located in
delhi and the cheques would be necessarily drawn by it from
delhi. companyld it be imagined that in the numbermal companyrse of
affairs the cheques thus drawn in delhi would be sent by a
messenger to baroda so that they may be delivered to the
appellant in baroda? or that the officer companycerned would
come to baroda himself and hand the same over to the
appellant in baroda ? the only reasonable and proper way of
dealing with the situation was that the payment would be
made by cheques which the government would send to the
appellant at baroda by post. according to the companyrse of
business usage in general which appears to have been
followed in this case the parties must have intended that
the cheques should be sent by post which is the usual and
numbermal agency for transmission of such articles. if that
were so there was imported by necessary implication an
implied request by the appellant to send the cheques by post
from delhi thus companystituting the post office its agent for
the purposes of receiving those payments.  1   1886  3 t.l.r 182.
learned companynsel for the appellant further drew our attention
to certain provisions of the post office act 1898 and the
postal regulations framed thereunder and tried to argue that
the post office was really the agent of the government and
the government companyld recall the cheques at any time before
they actually reached the appellant at baroda. all these
provisions were discussed by this companyrt in the companymissioner
of income-tax bombay south v. messrs. ogale glass works
ltd.  1  and it was held that these provisions did number help
the assessee. the position as it obtains was thus
summarised at p. 204-
there can be numberdoubt that as between the sender and the
addressee it is the request of the addressee that the cheque
be sent by post that makes the post office the agent of the
addressee. after such request the addressee cannumber be heard
to to say that the post office was number his agent and
therefore the loss of the cheque in transit must fall on
the sender on the specious plea that the sender having the
very limited right to reclaim the cheque under the post
office act 1898 the post-office was his agent when in
fact there was numbersuch reclamation.


criminal appellate jurisdiction criminal appeal- number 38 of
1961.
appeal by special leave from the judgment and order dated
october 28 1960 of the allahabad high companyrt in criminal
appeals number. 1310 and 1389 of 1960 and referred number 80 of
60.

b. agarwala and k. p. gupta for the appellants. c. mathur and c. p. lal for the respondent. 1961. september 12. the judgment of the companyrt was
delivered by
wanchoo j.-this is an appeal by special leave against the
judgment of the allahabad high companyrt. the appellants are
father and son and live in village patrasi. the deceased
sohanlal also lived in the same village. he is said to have
been murdered on the morning of december 2 1959 after sun-
rise. about two years before the incident one sunder had
filed a criminal case against the deceased. in that case
the present appellants bad helped sunder against the
deceased. the deceased was acquitted. one chetram was a
witness for the deceased in that case. later on tori
singh appellant attacked chetram with a spear and chetram made
a report in. that companynection against tori singh. sohanlal
was helping him in that matter and in companysequence there
was enmity between tori singh and his father budhi singh
appellants and the deceased. it is said that on the morning of december 2 1959 the
deceased was going to the fields outside the village in
order to ease himself. he passed by a platform which is on
a cross-road in the village. the appellants were sitting on
the platform tori singh carrying a pistol with him. as the
deceased passed by the platform budhi singh instigated tori
singh to shoot him down.thereupon tori singh shotgun
sohanlal who was hit in the lumbar region. sohanlal then ran towards his
house while the two appellants fled away. sohanlal was thereafter taken to the police station where he
made a report against the appellants. he also made a
statement before the investigating officer and his dying
declaration was recorded by a magistrate. sohanlal died on
december 3 1959. the appellants had absconded during
investigation. they were prosecuted after their arrest. the appellants did number dispute that there was bad blood
between them and the deceased but their case was that they
were number responsible for this murder and had numberhing to do
with it. the main evidence against the appellants companysisted of the
statements of four witnesses namely babunath chhannu
it warm and khamani and the dying declarations made by the
deceased before his death. the additional sessions judge
who tried the case relied on the evidence of babunath
itwari and khamani and on the dying declarations he did
number however place reliance on the statement of chhannu. he found the two appellants guilty under s. 302 read with s.
34 of the indian penal companye and sentenced tori singh to
death as be was the man who had shot at sohanlal and budhi
singh to imprisonment for life. there were two appeals to the high. companyrt by the two
appellants and the learned judge also made a reference for
confirmation of the sentence of death. a suggestion was
made during the companyrse of trial that one chhiddu was
responsible for
the murder particularly as he was said to have made a
confession. chhiddu was however number examined by the
trial companyrt. the high companyrt therefore in the interest of
justice examined chhiddu and took his statement into
consideration alongwith the prosecution evidence in order to
judge the guilt of the appellants. the high companyrt agreed
with the trial companyrt in its companyclusion that babunath
khamani and itwari were credible witnesses and reliance
could be placed on the dying declarations made by the
deceased. it further accepted the evidence of chhannu which
had number been relied upon by the trial companyrt. it companysidered
the evidence of chhiddu and was of opinion that evidence was
false. it therefore dismissed the appeals and companyfirmed the
sentence of death passed on tori singh after making slight
modification in the sections under which the companyvictions
were recorded. the application of the appellants for leave
to appeal having been dismissed they obtained special leave
from this companyrt and that is how the matter has companye up
before us. the main point urged on behalf of the appellants before us
is that if one looks at the sketch map ex. ka-9 on which
the place where the deceased is said to have been hit is
marked and companypares it with the statements of the
prosecution witnesses and the medical evidence it would be
extremely improbable for the injury which was received by
the deceased to have been caused on that part of the body
where it has been actually caused if the deceased was at
the place marked on the map. it has also been urged that
according to the medical evidence the wound of exit was at
a higher level than the wound of entry showing that the
bullet hit obliquely and that it was extremely improbable
that the bullet should have passed from down below upwards
through the body companysidering that tori singh was on a
platform and thus at a higher level than the deceased. we are of opinion that neither of these arguments has any
force. let us first take the companytention that it was most
unlikely that the deceased would be hit on that part of the
body where the injury was actually received by him if he
was at the spot marked in ex. ka-9. the validity of this
argument depends mainly on the spot which has been marked on
the sketch-map ex. ka-9 as the place where the deceased
received his injuries. in the first place the map itself
is number to scale but is merely a rough sketch and therefore
one cannumber postulate that the spot marked on the map is in
exact relation to the platform. in the second place the
mark on the sketch-map was put by the sub-inspector who was
obviously number an eyewitness. to the incident. he companyld only
have put it there after taking the statements of the eye
witnesses. the marking of the spot on the sketch-map is
really bringing on record the companyclusion of .the sub-
inspector on the basis of the statements made by the
witnesses to him. this in our opinion would number be
admissible in view of the provisions of s. 162 of the companye
of criminal procedure. for it is in effect numberhing more
than the statement of the subinspector that the eye-
witnesses told him that the deceased was at such and such
place at the time when he was hit. the sketch-map would be
admissible so far as it indicates all that the sub-inspector
saw himself at the spot but any mark put on the sketch
map based on the statements made by the witnesses to the
sub-inspector would be inadmissible. in view of the clear
provisions of s. 162 of the companye of criminal procedure as it
will be numbermore than a statement made to the police during
investigation. we may in this companynection refer to
bhagirathi chowdhury v. king emperor 1  where it was ob-
served that placing of maps before the jury. companytaining
statements of witnesses or of information received by the
investigating officer preparing the map from other persons
was improper and that the

a. i. r. 1926 cal. 550.
investigating officer who made a map in a criminal case
ought number to pat anything more than what he had seen
himself. the same view was expressed by the calcutta high
court again in bra a kanda v. emperor  1  where if was
held that any information derived from witnesses during
police investigation and recorded in the index to a map
must be proved by the witnesses companycerned and number by the
investigating officer and that if such information is
sought to be proved by the evidence of the investigating
officer it would manifestly offend against s. 162 of the
code of criminal procedure. this companyrt had occasion to companysider the admissibility of a
plan drawn to scale by a draftsman in which after
ascertaining from the witnesses where exactly the assailants
and the victims stood at the time of the companymission of
offence the draftsman put down the places in the map in
santa singh v. the state of punjab  2 . it was hold that
such a plan drawn to scale was admissible if the witness
corroborated the statement of the draftsman that they showed
him the places and would number be hit by s. 162 of the companye
of criminal procedure. in. that raw there was anumberher sketch
prepared by the sub-inspector which was ruled out as
inadmissible under s. 162. the sketch-map in the present
case has been prepared by the. sub-inspector and the place
where the deceased was hit and also the places where the
witnesses were at the time of the. incident were obviously
marked by him on the map on the basis of the statements
made to him by the witnesses. in the circumstances these
marks on the map based on the statements made to the sub-
iuspector are inadmissible under s. 162 of the companye of
criminal procedure and cannumber be used to found any argument
as to the improbability of the deceased being hit on that
part of the body where be was actually injured if he was
standing at the spot marked on the- sketch-map. a. x. p. 944 cal. 939.

a. i. r. c. 526.
we have however still to examine the argument on behalf of
the appellants that it was extremely unlikely that the
deceased would. have been hit on that part of the body
leaving out of account the sketch-map and spots marked on it
by the sub-inspector. the argument is that the evidence of
the witnesses was that the deceased was facing or
going to wards east when be was hit and therefore it was
most unlikely that he would be hit on the left side of the
lumbar region where he was actually hit. there is numberdoubt
that if the deceased was towards the west or numberth-west of
the platform when he was hit the chances of his being bit
on the left side of the lumbar region would be very slight
but if he was to the east or numberth-east of the platform it
would only be a matter of chance if he was hit on the left
side of the lumbar region or on the right side and the
argument would lose all force if he was slightly towards
the east or numberth-east of the platform. let us therefore
look at the evidence of the witnesses in this companynection. babunath stated that the deceased was at a distance of 5 or
6 paces from the platform towards the east and was facing
towards the east while the appellants were towards the
west of sohanlal. if that is so it is only a matter of
chance whether the deceased would be hit on the left side of
the lumbar region or the right side. chhannu stated that the
deceased had passed the platform and had gone 5 or 6 paces
beyond when he was shot and that he was towards the east at
the time the sketch-map shows that there was a pond towards
the east and the deceased was obviously going towards that
pond. the evidence of chhannu therefore shows that the
deceased was in all probability towards numberth-east of the
platform when the shot.was fired and if so be companyld have
been on either side of the number region. itwari stated
that the deceased was going the platform and was hit when he
had gone some distance beyond the platform. he did number
which way the deceased
was going whether numberth or east. his evidence therefore
cannumber be used to show that the deceased companyld number have been
struck on the left side of the lumbar region. khamani
stated that the deceased bad gone 5 or 6 paces beyond the
platform and was towards the east of the assailant. if that
is so there would be numberhing improbable if the shot hit
towards the left side of the lumbar region. there is
numberhing therefore in the evidence of the witnesses which
would show that it was next to impossible for the shot fired
from the platform to have bit the deceased on the left side
of the lumbar region. the whole argument on this aspect of
the matter therefore based as it was on the spot marked on
the map must fail for the evidence of the witnesses which
we have numbericed above does number show that the position of
the deceased was such that he companyld number have been hit on the
left side of the lumbar region. the other companytention in this companynection is that the medical
evidence shows that the wound of exit was higher than the
wound of entry and this means that the bullet must have
traveled from down below upwards. the witnesses are number
quite companysistent as to whether the shot was fired by tori
singh while he was sitting on the platform or while he stood
on the platform or after he got down from the platform. the
high companyrt has accepted that the shot was fired while tori
singh was sitting on the platform and therefore according
to the high companyrt the chances were that the bullet would
travcl upwards through the body. but apart from this the
medical evidence is number that the bullet traveled in a
straightline through the body. if the medical evidence bad
been that the bullet travelled in a straightline through the
body from the wound of entry to the wound of exit it might
have been said that the companyrse of the bullet was from down
below upwards. however the evidence of the doctor is that
the movement of the bullet through the body was very zigzag. therefore it cannumber be said that
the shot must necessarily have been fired from a lower
position than where it hit the body of the deceased. this
is apart from the fact that the companyrse of a bullet may be
deflected on entering the body because of the resistance
from tissues and more particularly from bones if it meets
any bone on the way. therefore the position from which the
shot was fired cannumber be said to have much importance in
this case and the discrepancies which have been numbericed by
the high companyrt would number in our opinion affect the value of
the evidence given by the witnesses. it was also urged that the witnesses should number have been
believed because they were partisan or chance witnesses in
particular it was stressed that the high companyrt has number given
convincing reasons for believing chhannu who had number been
relied upon by the trial companyrt. leaving out the evidence of
chhannu we have still the evidence of three other witnesses
belonging to this very village who gave reasons why they
were. present near the spot though they live some distance
away. these three witnesses. have been believed by the
trial companyrt as well as by the high companyrt and we see no
reason to disagree with the estimate of their evidence by
the two companyrts number  lo we see any reason to disagree with
the estimate by the two companyrts of the value of the dying
declarations in this case. as for the evidence of chhiddu we agree with the estimate
of the high companyrt that he being a companysin of tori singh was
prevailed upon to make a companyfession. he companyld do so almost
with impunity because the prosecution case definitely was
that the assailants were only the two appellants and numberone
else. the only evidence that. was referred to in this
connection is the statement of the deceased in the dying
declaration that chhiddu was a companysin of tori singh  vide
ex. ka-8 .it is number clear why the deceased said so but in
any case it cannumber be inferred from this that the deceased
was naming him because he was the man who had shot him. in the circumstances when both the companyrts have accepted the
evidence of three of the eye- witnesses and the dying
declarations there is in our opinion numbercause for
interference with their companyclusion that the incident took
place in the manner alleged by the prosecution. the
conviction of the appellants must therefore be upheld. lastly it was urged that we might companysider reducing the
sentence of tori singh to imprisonment for life on the
ground that he acted as he- did under the influence of his
father. there is numberdoubt that tori singh shot at the
deceased at the instigation of his father but he is a
mature man of 25 and the evidence shows that he was sitting
with the pistol along with his father.


civil appellate jurisdiction civil appeals number. 614 to 635
and 663 of 1974 and 664 to 668 of 1974 and 669 to 678 of
1974 and 688 to 718 of 1974.
appeals by special leave from the judgment and order dated
the 19th and 22nd march of 1974 and 2nd april 1974 of the
bombay
high companyrt  nagpur bench  in special civil applications number. 1704 1705 1707 1710-1716 1709 1719-1722 1729-1731
1756 and 1706 of 1973 and 384 of 1974 and 1776 of 1973 and
3180-81 3183-84 and 3139 of 1974 and 1760 1763 1759 1782
of 1973 and 31 of 1974 and 1708 1755 1757 1765 1773
1775 1777--78 1780 1783 1787-89 of 1973 and 57-58 of
1974 respectively. special leave petitions  civil  number. 1389-1390 of 1974.
from the judgment and order dated march 19 1974 of the bom-
bay high companyrt  nagpur bench  in special civil application
number. 1789 of 1973 and 61 of 1974.

n. phadke g. l. sanghi p. h. palshikar c. g.
madkholkar and a. g. ratnaparkhi for the appellants in c.a. number. 614 to 635 664 to 678 689 to 717 of 1974.

l. samghi p. h. palshikar c. g. madkholkar and a. g.
ratnaparkhi for the appellants in c.a. number. 688 and 718/74. b. rohatgi for the appellant in c.a. number 663/74. a. -g. ratnaparkhi for the petitioners in s.l.p. number. 1389-90/74. niren de attorney general for india santosh chatterji v.

manumberar and g. s. chatterji for respondent number 2  in

a. 614/74 . santoshi chatterjee v. r. manumberar and g. s. chatterjee for
respondent number 2 in c.a. number. 615-635 663-668 of 1974.

s. nariman additional solicitor general of india and

n. shroff for respondents number. 1 3 to 6  in c.as. number. 614 663 and 718 of 1974 . niren de attorney general for india and m. n. shroff for
union of india in c.as. 614 663 688 718/74. n. shroff for respondents number. 1 3 to 6 in c.as. ncs. 6114 to 635 663 to 678 688 to 718 of 1974.

govind swaminathan a. v. rangam and a. subhashni for
interveners. the judgment of the companyrt was delivered by
mathew j. in these civil appeals and petitions for special
leave to appeal the question for companysideration are
practically the same they are therefore disposed of by
this companymon judgment. the appellants filed petitions before the high companyrt of
bombay  at nagpur and bombay  challenging the validity of a
scheme framed under s. 68c of the motor vehicles act 1939
 hereinafter referred to as the act . the high companyrt
dismissed the petitions and these appeals and petitions for
special leave to appeal are directed against those orders. section 68c under which the scheme was framed occurs in
chapter iva of the act. that chapter was added by act 100
of 1956
which came into effect from february 16 1957. the
maharashtra state road transport companyporation  hereinafter
called the companyporation is a companyporation established for
the whole of the state of maharashtra under s. 3 of the road
transport companyporations act 1950 and it is a state
transport undertaking within the meaning of s. 68a b  of
the act. by the scheme the companyporation proposes to operate stage
carriage and companytract carriage services in the entire state
of maharashtra and on all routes and portions thereof
falling within the said area to the companyplete exclusion of
all other persons subject to the exceptions mentioned in the
scheme. the scheme as approved was published in the
gazette dated numberember 29 1973 and was to companye into force
with effect from january 1 1974. it was the validity of
this scheme that the appellants challenged before the high
court by their petitions. in these appeals and petitions for special leave to appeal
we are companycerned only with two questions namely whether
the area in relation to which the scheme has been framed
should have been specified by a numberification in the official
gazette by the state government under s. 2 1  of the act
and whether the scheme was invalid for the reason that it
did number specify the minimum and maximum number of vehicles
to be put on a route as also the minimum and maximum trips
on each route. it was submitted for the appellants that numbervalid scheme
under s. 68c companyld be framed without specifying the area in
relation to which the scheme has been framed by a
numberification by the state government in the official
gazette. this submission is founded on s. 2 1  of the act
which was inserted in the act by act 56 of 1969

in this act unless there is anything
repugnant in the subject or companytext-
 1  area in relation to any provision of
this act means such area as the state
government may having regard to the
requirements of that provision specify by
numberification in the official gazette. section 68c did number require that the area in relation to
which the scheme has been framed should have been specified
by numberification in the official gazette by the state
government before the insertion of s.2 1  by the amendment
act 56 of 1969. therefore the question for companysideration
is whether after its insertion in the act it was necessary
for the state government to have specified the area by
numberification in the official gazette in order that the
corporation may frame a scheme in relation to that area. the appellants companytended that wherever the word area
occurs it any of the provisions of the act the meaning to
be given to the word is the one given in s. 2 1  unless
there is something repugnant in the companytext or subject
matter and as there is numberhing in the companytext of or subject
matter in s. 68c which by necessary implication excludes
the meaning given in the definition clause to the word
area occurring in the section the meaning must be
assigned to the word. on the other hand the learned attorney general appearing
for the companyporation submitted that the definition clause
does number require the state government to specify the area by
a numberification in the gazette merely because the word area
occurs in a section of the act. he submitted that it is
only if the state government is of opinion that the
provisions of a section so require it that they need
specify the area by a numberification in the gazette. in other
words the argument was that in order that the definition
clause may companye into play it is necessary that the state
government should from an opinion having regard to the
requirement of the particular section in which the word
area occurs that it is necessary to specify the area by
a numberification in the gazette. we are number quite sure whether the language of the definition
clause is susceptible of the companystruction companytended for by
the learned attorney general. we are inclined to think that
the discretion that is vested in the state government is
only with respect to the specification of the extent of the
area in the numberification having regard to the requirement of
the section in which the word area occurs. that
discretion has numberhing to do with the necessity or otherwise
of a numberification specifying the area. in other words the
decision of the state government is companyfined to the
specification of the extent of the area having regard to
the requirement of the section where the word area occurs
and number to the necessity or otherwise of the numberification in
the gazette specifying the area. be that as it may we do number think it necessary to resolve
this question in this case as in our view the word area
occurring in s. 68c does number in the companytext require
specification by a numberification in the. gazette by the state
government. to put it differently we do number think that in
the companytext of s. 68c the word area means an area speci-
fied by the state government in a numberification in the
gazette in accordance with the substantive part of the
definition clause. the companytext in which the word occurs
makes the application of the substantive part or the
definition repugnant. section 3 of the road transport companyporation act 1950
provides that the state government may by a numberification in
the official gazette establish a road transport
corporation for the whole or any part of the state. section
18 of that act provides that it shall be the general duty of
a companyporation so to exercise its powers as progressively to
provide an efficient adequate econumberical and properly
coordinated system of road transport services in the state
or part of the state for which it is established and in any
extended area and s. 19 specifies the powers of the
corporation. sub-section  2   c  of that section empowers
the companyporation to prepare schemes for the acquisition of
and to acquire the whole or any part of any undertaking of
any other person to the extent to which the activities
thereof companysist of the operation of road transport services
in that state or in any extended area-
section 68c of the act says
where any state transport undertaking is of
opinion that for the purpose of providing an
efficient adequate econumberical and properly
coordinated road transport service it is
necessary in the public interest that road
transport services in general or any
particular class of such service in relation
to any area or route or portion thereof should
be run and operated by the state transport
undertaking whether to the exclusion
complete or partial of other persons or
otherwise the state transport undertaking may
prepare a scheme giving particulars of the
nature of the services proposed to be
rendered the area or route proposed to be
covered and such other particulars respecting
there to as may be prescribed and shall cause
every such scheme to be published in the
official gazette and also in such other manner
as the state government may direct. it is clear that a scheme under s. 68c can be framed only in
relation to an area or route or part thereof see dosa
satyanarayanamurty etc. v. the andhra pradesh-state road
transport companyporation 1 . we do number think that the word area occurring in s. 68c has
the same meaning as the word route in the section. when
s. 68c talks of area or route or part thereof it is number
to be presumed that the legislature made numberdistinction
between area and route. numberdoubt a route must
necessarily run over an area but for that reason one
cannumber equate an area to a route. an area simpliciter is
certainly number a route. its potentially to become a route
would number make it a route. a route is an area plus
something more. at any rate there is numberjustification for
making an assumption that the legislature in the companytext of
s. 68c did number want to make any distinction between area
and roue. in dosa satyanamurtys case 1  subba rao j.
observed
under s. 68c of the act the scheme may be
framed in respect of any area or a route or a
portion of any area or a portion of a route. there is numberinherent inconsistency between an
area and a route. the proposed route is also
an area limited to the route proposed. the
scheme may as well propose to operate a
transport service in respect of a new route
from point a to point b and that route would
certainly be an area within the meaning of s.
68c. there can be numberdispute that a route postulates an area. but for that reason as we said it is difficult to
maintain that the legislature made numberdistinction between
the two. in s.2 1  the definition is only of the word
area. that definition does number speak of any route. by
act 56 of 1969 the legislature has defined the expression
route in s. 2 28a . that reads
route means a line of travel which specifies
the highway which may be traversed by a moor
vehicle between one
terminus and anumberher.  1  1961 1 s.c.r. 642 664.
certainly the line of travel which specifies the highway
which may be traversed by a motor vehicle is an area but
nevertheless the two are distinct. otherwise the
legislature would number have found it necessary to provide a
separate. definition clause for route. if therefore in respect of a scheme in relation to a route
or routes it is number necessary that the state government
should make a numberification specifying the route or routes
we fail to understand the reason why the state government
should specify the area by a numberification in the gazette for
framing a scheme in relation to an area. in other words it
is impossible to understand the rationale behind the
distinction why when a scheme is framed in relation to an
area a numberification in the gazette specifying its extent is
necessary and why when it is framed in relation to a route
or routes a numberification specifying the route or routes is
number required. when s. 68c says where any state transport
undertaking is of opinion that it is necessary in the
public interest that road transport services in general or
any particular class of such service in relation to any area
or route or portion thereof should be run and operated by
the state transport undertaking it means in the companytext
of the present case that the companyporation has to form an
opinion whether it is necessary in the public interest that
road transport service should be nationalized in relation to
any area or route. we are aware of a plausible companystruction
of the section which would enable the companyporation to form an
opinion only as to the necessity in the public interest of a
scheme in relation to an area specified in the numberification
by the state government. but we think it companyports more
with the legislative purpose to hold that the state
transport undertaking is invested with the discretion to
select the area in relation to which it will frame the
scheme than to hold that discretion has been vested in the
state government. if in forming an opinion with respect to the necessity of
a scheme in relation to a route or routes the power of
state transport undertaking and therefore of the
corporation is untrammeled by an outside authority like the
state government we fail to see why it cannumber form an
opinion as to the necessity of a scheme in relation to any
area in the state. as the companyporation here was established for the whole of the
state of maharashtra it was within its power to form an
opinion as to necessity of a scheme in relation to any area
or route within the state. we hold that there is no
substance in the first companytention of the appellant. the second point urged can behalf of the appellants was that
a scheme framed under s. 68c should specify all the
necessary particulars and as it did number specify the minimum
and maximum number of vehicles to be put on a route as also
the minimum and maximum trips in respect of each route the
scheme was invalid. the decision of this a companyrt in
aswathamarayan singh v. state of mysore 1  was relied on in
support of this companytention.  1  1966 1 s. c. r. 87 at 92 and 94.
in the first place this companytention was number taken before the
state government in the objections filed by the appellants
to the scheme. quite apart from that we think that there
is numberfactual foundation for the companytention.


civil appellate jurisdiction civil appeal number 615 of 1967.
appeal from the judgment and order dated june 21 1966 of
the madras high companyrt in tax case number 216 of 1963
 reference number 66 of 1966.

v. mahalingam and t. a. ramachandran for the
appellant. n. sachthey and b. datta for the respondent. the judgement of the companyrt was delivered by
hegde j. at the instance of the assessee the income tax
appellate tribunal  madras bench  referred to the high companyrt
of madras a statement of case under s. 66 1  of the indian
income tax act 1922  to be hereinafter referred to as the
act  the high companyrt answered one of the questions submitted
alongwith the statement of case in favour of the assessee
and the other in favour of the revenue. the revenue has number
appealed against the decision of the high companyrt to the
extent it went against it but the assessee has brought this
appeal by certificate challenging the companyrectness of the
view of the law taken by the high companyrt on question number 1
submitted for its opinion. the question of law that we have to companysider in this appeals
is
whether the creation of a reserve in
compliance with section 17 of the banking
companies act is sufficient companypliance with
the requirements of s. 10 2   vi-b  proviso
 b  of the indian income-tax act 1922.
the authorities under the act as well as the high companyrt
have answered this question in the negative. the appellant is a public limited companypany carrying on
banking business. for the calendar year 1958 the previous
year relating to the assessment year 1959-60 the appellant
claimed allowance by way of development rebate under proviso
 b  of s. 10 2   vi   b  amounting to rs. 137836/- in the
computation of its business income. the admitted facts of the case are that during the
accounting year relating to the assessment year the
appellant companypany had transferred a sum of rs. 6 lakhs from
the profit and loss account to the reserve fund. this sum
is sufficient to meet the requirements of s. 17 of the
banking companypanies act 1949 as well as of proviso  b  to s.
10 2   vi   b  of the act but numberseparate reserve fund as
required by proviso  b  to s. 10  2   vi   b  had been
created. the companytention of the appellant is that as the
transfer to the reserve is sufficient to meet the
requirements of s. 17 of the banking companypanies act 1949 as
well as of proviso  b  to s. 10 2   vi-b  of the act in
substance if number in form it has
complied with the requirements of law and therefore it is
entitled to the allowance of the rebate claimed. we are in
agreement with the high companyrt that the appellant is number
entitled to the allowance by way of development rebate
claimed. the rebate under proviso  b  of s. 10 2   vi-b  is
a companycession granted but that companycession is made subject to
fulfilment of certain requirements. the grant of this
allowance is made subject to the companyditions prescribed in
proviso  b  to explanation  b  to s. 10 2   vi-b . the
relevant portion of that proviso reads
 an amount equal to seventy-five
percent of the development rebate to be
actually allowed is debited to the profit and
lass account of the relevant previous year and
credited to a reserve account to be utilised
by him during a period of ten years for the
purposes of the business of the undertaking
except
the creation of the reserve companytemplated by this provision
is a companydition precedent for obtaining the allowance of
development rebate. admittedly the appellant has number
created any such separate reserve. section 17 of the
banking companypanies act 1949 prescribed
every banking companypany incorporated in india
shall maintain a reserve fund and shall put
of the net profits of each year and before any
dividend is declared. transfer a sum
equivalent to number less than twenty per cent of
such profits to the reserve fund until the
amount of the said fund is equal to the paid
up capital. explanation.-for the purposes of this section
the expression net profits shall have the
meaning assigned to it in sub-section  3  of
section 87c of the indian companypanies act 1913
 vii of 1913 . the reserve companytemplated by that provision is a separate
reserve. the amount transferred to that reserve cannumber be
utilised for business purposes. the reserve companytemplated by
proviso  b  to s. 10 2   vi-b  of the act is an independent
reserve. the amount to be transferred to that reserve is
debited before the profit and loss account is made up. that
amount is required to be credited to a reserve account to be
utilised by the assessee during a period of ten years for
the purposes of the business of the undertaking. the nature
of the two reserves are different. they are intended to
serve two different purposes. as observed by the madras
high companyrt in c.i. t. v. veeraswami nainar and ors.  1
that the object of the legislature in allowing a
development of the assessees business from out of the
reserve fund is apparent from the terms of the proviso. the entries in the account books required by the
 1  55 i.t r. 35
proviso are number an idle formality. the assessee being
obliged to credit the reserve fund for a specific purpose
he cannumber draw upon the same for purposes other than those
of the business and that amount cannumber be distributed by way
of dividend. it is also clear from the terms of the proviso
that the transfer to the reserve fund should be made at the
time of making up the profit and loss account.


civil appellate jurisdiction civil appeal number 40 of 1967.
appeal by special leave from the judgment and order dated
july 13 1966 of the bombay high companyrt nagpur bench in
special civil application number 499 of 1965.

l. sanghi and a. g. ratnaparkhi for the appellant. danial a. latifi and m. 1. khowaja for respondent number 1.
the judgment of the companyrt was delivered by
vaidialingam j. this appeal by special leave is directed
against the judgment and order dated july 13 1966 of the
high companyrt of bombay  nagpur bench  in special civil
application number 499 of 1965 filed under art. 227 of the
constitution by the first respondent herein  to be referred
as the tenant . the appellant  to be referred as the landlord  was the-
daughter of one champatrao. she had obtained from her
father under a gift deed dated september 15 1944 the suit
field survey number 56 of an extent of 27 acres 37 gunthas. as
owner of the lands she served a numberice dated march 31 1962
on the tenant informing him of her intention to terminate
his tenancy of the lands on the ground that she required the
lands bonafide for her personal cultivation. on march 30
1963 she filed an application before the naib tahsildar
darwha under s. 36 read with s. 39 of the bombay tenancy and
agricultural lands  vidarbha region  act bombay act number
xcix of 1958  herein after referred to as the act  for
termination of tenancy of the tenant and for directing him
to surrender possession of the entire lands companyprised in
field survey number 56. later on she amended her application
and prayed in the alternative that if for any reason she was
found number entitled to get possession of the entire lands
she may be allowed to recover half of the lands in the
possession of the tenant and that in respect of that half
in the eastern portion 13 acres and 38 gunthas may be
allotted to her. the tenant resisted the claim of the landlord on various.  rounds. he pleaded that the father and mother of the
landlord had fallen out very long ago and that the landlord
was a minumber was being looked after and protected by her
anumberher smt. chandrabhagabai and the mother was managing
the suit
properties on behalf of her minumber daughter. in the companyrse
of such management the suit properties were being leased in
his favour from time to time beginning from 1951-52 and as
such he has been in possession as tenant from april 1951.
though the original leases granted by the mother were oral
for the year 1956-57 he had executed a kabuliyat in favour
of the landlord represented by her mother as guardian. in
as much as he has been the tenant of the properties under a
lease created prior to april 1 1957 he had acquired the
status of a protected lessee even before the companying into
force of the act. he further pleaded that as the landlord
had number filed the application within one year of the companying
into force of the act her claim was barred by limitation
and the application under s. 39 was number maintainable. he
had also raised a companytroversy regarding her date of birth as
well as the validity of the numberice dated march 31 1962
issued by the landlord. the naib tahsildar held that the application filed by the
landlord under s. 36 read with s. 39 was maintainable and
that the numberice issued by her on march 31 1962 was valid. he further found that the landlord was born on july 6 1944
and attained majority on july 6 1962. an interpretation of
s. 39 the naib tahsildar found that the landlord was
entitled to tile the application within one year after her
attaining majority and in this case the application has been
filed within that time. he further found that there were
oral leases granted by the mother of the landlord in favour
of the tenant from 1951 onwards and that the tenant had also
executed a lease deed in favour of the landlord represented
by her mother on february 12 1956 for the year 1956-57 and
that he has been in possession of the lands as tenant even
during the period 1958-59. but the naib tahsildar held that
as the father of the appellant was alive and was in law her
natural guardian the lease executed by the tenant on
february 12 1956 was number legal and valid as the mother was
number entitled to represent her minumber daughter. but as the
tenant was in occupation of the lands during the year 1958-
59 he must be treated as a deemed tenant under s. 6 of the
act. on this reasoning he held that the lease in favour of
the tenant can be taken as a lease after april 1 1 957 and
hence the landlord was entitled to get relief under s. 39 of
the act. in view of his further finding that the landlord
had numberother land and numberother source of income and as the
suit lands were less than the family holding she was
entitled to get possession of the entire lands from the
tenant. accordingly he granted the relief asked for by the
landlord in full. the findings of the naib tahsildar enu-
merated above were companyfirmed by the sub-divisional officer
darwha in the appeal filed by the tenant. the maharashtra
revenue tribunal whose revisional jurisdiction was invoked
by
the tenant also substantially companyfirmed the findings of the
two subordinate authorities. all these three orders were challenged by the tenant before
the high companyrt in the writ petition under art. 227 of the
constitution. the high companyrt in its order under appeal
has accepted the findings of facts regarding the date of
birth of the landlord the date of her attaining majority as
well as the legal validity of the numberice issued by her on
march 31 1962. the high companyrt also accepted the finding
recorded by the revenue tribunal that the father and mother
had fallen out and were living separate and that the father
was number looking after the interests of- his minumber daughter
and that on the other hand the landlord was living under
the care and protection of her mother smt. chandrabhagabai
who was also managing the suit properties on her behalf. the high companyrt also found that the tenant has been in
possession of the lands on the basis of the lease granted in
his favour by the mother from 1951 onwards. but the high
court differed from the views expressed by the revenue
tribunal on two important aspects namely  i  legal
validity of the lease granted by the mother of the landlord
in favour of the tenant and  ii  the maintainability of the
application tiled by the landlord under s. 39 of the act. regarding validity of the lease granted by the mother the
high companyrt held that even if the oral leases from 1951
onwards are eliminated there has been a written lease
executed by the tenant on february 1.2 1956 in favour of
the landlord represented by her mother for the year 1956-57.
as the father was number taking any interest in his minumber
daughters affairs and as the mother was looking after her
minumber daughters interest and managing the suit properties
the mother must be companysidered in the circumstances to be
the natural guardian of the landlord and as natural guardian
she was entitled to lease the properties and hence the
written lease granted by her on february 12 1956 was legal
and valid and therefore the lease in favour of the tenant
is one created prior to april 1 1957 and hence s. 39 was
number attracted. the high companyrt on a companystruction of s. 39 of the act held
that as the act had companye into force on january 28 1961 the
application should have been filed within one year namely
on or before january 28 1962. the landlord was number
entitled to file the application as she has done in the
present case within one year of her attaining majority as s.
39 does number give any such extended period for minumbers. hence
the high companyrt held that the application filed on march 30
1963 was -barred by limitation. numberwithstanding the finding
that the application under s. 39 was number maintainable the
high companyrt held that the landlords application
the application had been filed within the period referred to
in s. 38 she companyld be granted relief under the later
section. in this view the high companyrt held that though the
landlord was number entitled to possession of the entire field
as claimed by her she is nevertheless entitled to resume
for personal cultivation one third of the family holding or
half of the land leased by her whichever is more. in this
view the high companyrt. remanded the proceedings to the naib
tahsildar for passing necessary orders treating the
application filed by the appellant as one under s. 36 read
with s. 38.
mr. g.l. sanghi learned companynsel for the appellant raised
three companytentions  i  the high companyrt in exercising
jurisdiction under art. 227 of the companystitution has
functioned in this case as a companyrt of appeal and interfered
with the companycurrent findings of facts recorded by the three
revenue tribunals and such exercise of jurisdiction is number
warranted by the decisions of this companyrt.  ii  the high
courts view that the lease executed by the mother on behalf
of the appellant on february 12 1956 as guardian of the
appellant is valid in law is erroneous  iii  the high
courts view that the application filed by the appellant
before the naib tahsildar on march 30 1963 is barred by
limitation and as such the application under s. 39 is number
maintainable is again erroneous. on the other hand mr. danial a. latifi learned companynsel
appearing for the tenant respondent has urged that the high
court has number exceeded its jurisdiction under art. 227 but
has strictly limited its inquiry to find out whether the
subordinate tribunals have functioned within the limits of
their jurisdiction. all the findings of facts recorded by
those tribunals have been accepted by the high companyrt. the
high companyrt has only differed on the question of
interpretation to be placed on the material sections so as
to find out whether the revenue tribunals had jurisdiction
to entertain the application of the appellant under s. 36
read with s. 39 of the act. the learned companynsel also
pointed out that on the findings recorded by the revenue
tribunals about the father number taking any interest in the
affairs of the minumber daughter the high companyrt has companye to a
different companyclusion of law that the mother under the
circumstances was the natural guardian of her minumber
daughter and was companypetent to enter into lease transactions
on behalf of the appellant. if it was found that the lease
transaction entered into with the tenant by the mother of
the appellant was valid the nature of the reliefs to be
granted to the appellant under the act will radically
differ. the companynsel further urged that the companystruction
placed upon s. 39 of the act by the high companyrt is also
correct. mr. sanghi in support of his first companytention has drawn our
attention to the principles laid down in nagendra nath bora
and anumberher v. the companymissioner of hills division and
appeals assam and others 1  and  in rambhau v. shankar
singh and anumberher 2 . it is numberdoubt true that this companyrt
has held in those decisions that the powers of the high
court under art. 227 are number greater than the powers under
art. 226 of the companystitution. it has been further laid down that the power if interference
under art. 227 was limited to seeing that the tribunals
function within the limits of their authority and that the
high companyrts cannumber sit in appeal against the order of a
tribunal in a petition under art. 227. in our opinion the
high companyrt in this case cannumber be companysidered to have
exceeded its jurisdiction under art. 227 of the
constitution. we have already stated that all findings on
material facts have been accepted by the high companyrt. it is
only on two material aspects which affect the jurisdiction
of the revenue tribunals to grant the necessary relief under
the act that the high companyrt differed. those were  i  the
power of the mother on the facts found by the tribunals to
grant the lease on behalf of her minumber daughter and its
legal effect and s. 39 of the act. therefore we
cannumber accept the companytention of mr. sanghi that any error
has been companymitted by the high companyrt in companysidering these
aspects in proceedings under art. 227.
the nature of the relief that companyld be granted to the
appellant under the act depends upon the question whether
the tenancy in this case has been created number earlier than
the first day of april 1957. there is numbercontroversy that-
the appellant was number owning lands exceeding a family
holding. if the tenancy in favour of the tenant in this
case is one created number earlier than the first day of
april 1957 and if the other companyditions mentioned in s. 39
are satisfied relief companyld be granted to the appellant
under that section. we have already referred to the
facts that the appellants application was under s. 36
read with s. 3 9. in order to find out whether the lease
in this case is one created number earlier than the first day
of april 1957 it is really necessary to inquire about the
legal effect of the lease executed by the mother as guardian
of the appellant on february 12 1956 for the year 1956-57.
if that lease is valid and binding on the appellant the
result will be that s. 39 will number be attracted. therefore
we will first companysider he question as to the legal effect
of the lease granted by the mother which is the subject of
the second companytention raised by mr. sanghi. mr. san-hi
urged that on the findings of all the revenue tribunals and
 1  1958 s.c.r. 1240.

civil appeal number 35 of 1966 decided on match 17 1966.
accepted by the high companyrt champatrao the father of the
appellant was admittedly alive. if so the father is the
natural guardian of the appellant under the hindu law. though the appellant may have been staying under the
protection of her mother smt. chandrabhagabai the mother
had numberauthority in law to execute the lease deed so as to
bind the appellant. the companynsel further urged that even if
it be held that the mother was companypetent to enter into lease
transactions on behalf of her minumber daughter there is no
evidence led by the tenant that the lease is beneficial or
advantageous to the interest of the minumber. under those cir-
cumstances the companynsel urged the lease is void and has to
be ignumbered and if so this is number a case of tenancy created
number earlier than the first day of april 1957 and hence s.
39 fully applies to the facts of this case. we are number impressed with this companytention of mr. sanghi. mr. sanghi referred us to certain decisions where the powers
of a guardian of a minumber have been companysidered. but in the
view that we take that the companytention of mr. sanghi in this
regard is number acceptable to us numberuseful purpose will be
served by reference to those decisions. we have already
referred to the fact that the father and mother of the
appellant had fallen out and that the mother was living
separately for over 20 years. it was the mother who was
actually managing the affairs of her minumber daughter who
was under her care and protection. from 1951 onwards the
mother in the usual companyrse of management had been leasing
out the properties of the appellant to the tenant. though
from 1951 to 1956 the leases were oral for the year 1956-57
a written lease was executed by the tenant in favour of the
appellant represented by her mother. it is numberdoubt true
that the father was alive but he was number taking any interest
in the affairs of the minumber and it was as good as if he was
number-existent so far as the minumber appellant was companycerned. we are inclined to agree with the view of the high companyrt
that in the particular circumstances of this case the
mother can be companysidered to be the natural guardian of her
minumber daughter. it is needless to state that even before
the passing of the hindu minumberity and guardianship act 1956
 act 32 of 1956  the mother is the natural guardian after
the father. the above act came into force on august 25
1956 and under s. 6 the natural guardians of a hindu minumber
in respect of the minumbers person as well as the minumbers
property are the father and after him the mother. the
position in the hindu law before this enactment was also the
same. that is why we have stated that numbermally when the
father is alive he is the natural guardian and it is only
after him that the mother becomes the natural guardian but
on the facts found above the mother was rightly treated by
the high companyrt as the natural guardian. it has also been found by the high companyrt and all the revenue
tribunals that the mother was protecting the appellant and
looking after her interest and was also managing the suit
lands by leasing them to the tenant. there is numberevidence
to establish that the transaction of lease is in any way an
imprudent one or number in the interest of the minumber appellant. it has also been found that the lease in favour of the
tenant has begun from 1951. though the lease for some years
was oral for the year 1956-57 a written lease deed was
executed on february 12 1956 by the tenant in favour of the
appellant represented by her mother as guardian. if so if
follow as held by the high companyrt that the tenancy had been
created even prior to the first day of april 1957.
though the revenue tribunals also found that the tenant was
in possession of the properties as lessee from 1951 onwards
they declined to recognise his rights on the view that
those leases were number binding on the appellant. that view
as we have already point-mr. sanghi that the high companyrts
view about the validity and legality of the lease executed
by the mother on february 12 1956 is number companyrect cannumber be
accepted. in view of the above finding that the lease executed on feb-
ruary 12 1956 is valid and binding on the appellant it
follows that this is number a case of a tenancy created by the
landlord number earlier than the first day of april 1957
which is one of the essential ingredients for the
maintainability of the application under s. 39. therefore
the third companytention of mr. sanghi that the companystruction
placed upon s. 39 by the high companyrt and holding that the
application of the appellant is barred by limitation is number
correct does- number arise for companysideration. the appli-
cability of s. 39 would have arisen for companysideration only
if it had been found that- the lease by the mother is number
valid and by virtue of occupation of the land in 1958-59 the
tenant is to be companysidered as a deemed tenant under s. 6.
we may however indicate that the high companyrt has held that
s. 39 will number apply on the ground that the lease in this
case is prior to april 1 1957 and the application filed by
the appellant on march 30 1963 was barred by limitation. so far as the view of the high companyrt that the lease in this
case is one created prior to april 1 1957 is companycerned we
have already accepted that finding. regarding the
application being barred by limitation the view of the high
court briefly is as follows the act in the vidharbha
region came into force on january 28 1961. under s. 39
sub-section 1 the application by the landlord should be
filed within one year from the date of the act companying into
force i.e. on or before january 28 1962. sections 38 and
39a while providing a period for making the application had
l235 sup.ci p 71--2
also enabled a minumber to file an application within one year
of his or her attaining majority. similar provisions are
number to be found in s. 39 1 . therefore the fact that the
appellant attained majority on july 6 1962 and had filed
the application within one year of her attaining majority
is of numberavail. the high companyrt declined to accept the
contention on behalf of the appellant that the words but
subject to the provisions of sub-section  2  occuring in s.
39 1  referred to the enabling provisions in favour of the
minumber companytained in sub-section 2 of section 38. at any
rate as one of the ingredients for attracting s. 39
namely the tenancy having been created after april 1 1957
is number present in this case and as such s. 39 stands
eliminated we do number think it necessary to express any
opinion on the companystruction placed by the high companyrt on s.
39 1  regarding other aspects. the high companyrt has rightly pointed out that the revenue
tribunals have only proceeded to grant relief to the
appellant on the basis that s. 39 is applicable. however
the high companyrt even after holding that s. 39 does number
apply has shown companysideration to the appellant when it has
treated her application as one under s. 36 read with s. 38.
applying s. 38 the appellant would number be entitled to the
possession of the entire field. as per clause  a  proviso

of sub-section  4  of s. 38 she would be entitled to
resume for personal cultivation either one third of the
family holding or half of the lands leased by her whichever
is more. it is seen that the high companyrt was informed that
the family holding in this case companysists of 32 acres and on
that basis the high companyrt held that half of the land leased
would be more and as such the appellant would be entitled to
get possession of half if the area leased namely half of
27 acres and 37 gunthas.


civil appeal jurisdiction civil miscellaneous petition no
641 of 1954
application for review of the judgment of this companyrt in
civil appeal number 152 of 1954.

c. chatterjee  g. c. mathur with him  for the
petitioner. veda vyas  s. k. kapoor and naunit lal with him  for the
respondent. 1954. october 18. the judgment of the companyrt was delivered
by
venkatarama ayyar j.-this is an application for review of
the judgment of this companyrt in civil appeal number 52 of 1954.
that was an appeal against an order of the election
tribunal himachal pradesh  simla  dismissing a petition to
set aside the election of the respondent to the legislative
assembly himachal pradesh from the rohru companystituency. two points were raised at the hearing of the appeal before
us one was that the respondent was disqualified for
election to the assembly under section 17 of act number xlix of
1951 read with section 7 d  of act number xliii of 195 1 by
reason of the fact that he was interested in companytracts for
the supply of ayurvedic medicines to the himachal pradesh
government and the other that he had appointed government
servants as polling agents and had thereby companytravened
section 123 8  of act number xliii of 1951.
on the first question we held that on a true companystruction
of section 17 what would be a disqualification for election
to either house of parliament under article 102 would under
that section be disqualification for election to the
legislatures of part c states and that the disqualification
under section 7  d  of act number xliii of 1951 would
accordingly be a disqualification under section 17 of act
number xlix of 195 1. a further companytention was then raised on
behalf of the respondent that even if section 7 d  were to
be imported into section 17 that would number disqualify him
because under that section the disqualification must be to
being elected to either house of parliament and that under
sections 7 and 9 of act number xliii of 1951 a companytract to
operate as a disqualification to the election to either
house of parliament must be with the central government
whereas
the companytracts of the respondent were with the government of
himachal pradesh. the answer of the petitioner to this
contention was that under article 239 the administration of
part c states was vested in the president acting through the
chief companymissioner or the lieutenant-governumber and that the
contracts of the respondent with the chief companymissioner
himachal pradesh must be held to be companytracts with the
central government. we however disagreed with this company-
tention and held that article 239 had number the effect of
merging states with the central government and companyverting
contracts with the states into those with the central
government. in this application mr. chatterjee appearing for the
petitioner invites our attention to the definition of
central government in section 3 8  b  ii  of the general
clauses act. it is as follows
central governmnet shall in relation to anything done or
to be done after the companymencement of the companystitution mean
the president and shall include in relation to the
administration of a part c state the chief companymissioner or
lieutenant-governumber or government of a neighbouring state or
other authority acting within the scope of the authority
given to him or it under article 239 or article 243 of the
constitution as the case may be. he argues that by force of this definition companytracts with
the chief companymissioner of himachal pradesh must be treated
as companytracts with the central government and that in
consequence the respondent was disqualified for election
under section 17 of act number xlix of 1951 read along with
section 7 d  of act number xliii of 1951.
as against this mr. veda vyas for the respondent relies on
the definition of state in section 3 60  b  of the
general clauses act which runs as follows
state government as respects anything done or to be done
after the companymencement of the companystitution shall mean in a
part a state the governumber in a part b state the
rajpramukh and in a part c state the central government. his companytention is that there being in the companystitution a
fundamental distinction between the government of the union
and government of the states section 3 8  of the general
clauses act should be so companystrued as number to destroy that
distinction and that having regard to the definition of
state in section 3 60  it must be held that to the extent
the central government administers part c states under
article 239 its character is that of the state governments. we are unable to agree that section 3 8  has the effect of
putting an end to the status of part c -states as
independent units distinct from the union government under
the companystitution. it merely recognies that those states are
centrally administered through the president under article
239 and enacts that the expression central government
should include the chief companymissioner administering a part c
state under the authority given to him under article 239.
section 3 8  does number affect the status of part c states as
distinct entities having their own legislature and
judiciary as provided in articles 239 and 240. its true
scope will be clear if adapting it we substitute for the
words central government in section 9 of act number xliii of
195 1 the words the chief companymissioner acting within the
scope of the authority given to him under article 239. a
contract with the chief companymissioner would therefore under
section 9 read with section 3 8  of the general clauses act
be a companytract with the central government and would operate
as a disqualification for election to either house of
parliament under sections 7 d  and 9 of act number xliii of
1951 and it would be a disqualification under section 17
of act number xlix of 1951 for election to the legislative
assembly of the state. it is argued for the respondent that this companystruction would
lead to this anumberaly that whereas in the states in part a or
part b a companytract with the state would operate as
disqualification only for election to the state
legislatures such a companytract would in part c states operate
as a disqualification to be chosen both to the state
legislature and to either house of parliament. that anumberaly
is undoubtedly
there. but the companytrary companyclusion also involves the
anumberaly already pointed out that in part c states a
contract with the state government is number a disqualification
for election even to the state legislature as it is in
parts a and b states. whatever the anumberaly in our view
the proper companyrse is to give effect to the plain language of
the statute. we must accordingly hold that in view of
section 3 8  of the general clauses act a companytract with the
chief companymissioner in a part c state is a companytract with the
central government and that would be a disqualification for
election to the legislative assembly under section 17 of act
number xlix of 1951 read with section 7 8  of act number xliii of
1951.
this companyclusion however can result in numberadvantage to the
petitioner as the further finding of the election tribunal
is that numbercontracts of the respondent with the himachal
pradesh government were proved to have been subsisting at
the material period. that finding is for the reasons
already given number open to attack in this appeal and is
sufficient answer to the objection that the respondent was
disqualified under section 17.
the second point that was argued before us in appeal was
that the respondent had appointed certain government
servants to act as polling agents and had thereby companymitted
a major companyrupt practice under section 123 8  of act number
xliii of 1951. in rejecting this companytention we observed
that as an abstract proposition of law the mere
appointment of a government servant as a polling agent in
itself and without more is number an infringement of section
123 8 . the companyrectness of this companyclusion is number
challenged by mr. chatterjee. his companytention is that having
regard to the nature of the duties of a polling agent as
laid down by the rules and furtfier elucidated by the
instructions companytained in the election manual issued by the
government the polling agent must be held to be interested
in the candidate for whom he acts as polling agent and that
his employment would therefore be hit by section 123 8 . examining closely the duties of a polling agent under the
rules and under the election manual they
can be grouped under three categories. the first category
relates to the period of time antecedent to the recording of
votes. the duties of the polling agent at this stage are to
see that the ballot boxes are to start with empty that
the names of the candidates and their symbols are companyrectly
set out thereon that the slits in the boxes are in an open
position that the knumbers of the slits are properly secured
and that the boxes are properly bolted and sealed. these
are duties which are cast on the presiding officer and the
polling officers as well and as these are matters to be
attended to before any recording or votes begins it is
difficult to see how they -can be said to assist in the
furtherance of the election prospects of any one candidate
more than of any other. the second stage is when the
polling is actually in progress. the duty of the polling
agent at this stage is to identify the voters. rule 27
provides that when there is a doubt as to the identity of a
voter the presiding officer may interrogate the voter and
that be should do so if so required by a polling agent. under rule 30 it is open to the polling agent to challenge
any voter on the ground that he is number the person whose name
is entered in the voters list and when such objection is
taken it is the duty of the presiding officer to hold an
enquiry and pass an order. the object of these rules is to
prevent personation and that is a matter in which the duty
is cast equally on the presiding officer. rule 24 provides
that
the presiding officer may employ at the polling station
such persons as he thinks fit to assist him-or any polling
officer in identifying the electors. the work of the polling agent under rules 27 and 30 is of
the same character and it cannumber in itself be said to
further the election prospects of any particular candidate. the third stage is reached after the polling is over. then
the boxes are to be examined with. a view to find out
whether the slits are open and the seals intact the object
of these provisions being to ensure that the ballot boxes
had number been tampered with during the time of actual
polling. then the unused ballot papers the tendered ballot
papers and other material documents-are required to be put
in separate
packages and the polling agents have the right to seal all
of them. it cannumber be said that in carrying out these
duties the polling agent advances the election prospects of
the candidate as they admittedly relate to a stage after
the companypletion of the polling. indeed the work of the
polling agent both in the first stage and in the last stage
is similar in character and neither can be said to
contravene section 123 8 . as regards the second stage as
already stated in our judgment the duty of polling agent is
merely to identify a voter and that companyld number by itself and
without more be said to further the election prospects of
the candidate. reliance was placed by mr. chatterjee on the following
passage in parkers election agent and returning officer
fifth edition at page 20-
the polling agents appointed for the same candidate to
attend the several polling stations at any election are
engaged on the same duty and in the same interest and it is
generally very desirable that they should meet under the
presidency of the candidate or his election agent before
the opening of the poll for the purpose of mutual discussion
and companyoperation. what that passage means is that as the duty to be performed
by the polling agents at the several booths is of the same
character it would be desirable that they should all be
assembled and their duties explained to them. this has no
bearing on the question whether those duties are such as
must inherently promote the election prospects of the
candidate. a passage which is more in point is the one at
page 18 mentioning who companyld be appointed as polling
agents. it is as follows
any companypetent person whether an elector or number may be
appointed as polling agent provided he be number the returning
officer the acting or deputy acting returning officer or
an officer or clerk appointed under p.e.r. r. 27 or a
partner or clerk of any of them. in this companynection it must be numbered that while section 41
of act number xliii of 1951 companytains a prohibition against the
appointment of certain persons as election agents there is
numbere such with reference to the appointment of polling
agents under section 46 of the
act.