civil appellate jurisdiction civil appeal number. 389 to
392 of 1960.
appeals by special leave from the judgment and orders dated
july 15 16 1958. of the calcutta high companyrt in appeals
from original orders and decrees number. 140 to 143 of 1957
respectively. das and ghosh for the appellant  in c. a. number. 389 and
390 of 1960 . sen shankar ghosh and b. n. ghosh for the appellant
 in c. a. number. 391 and 392 of 1960 . b. aggarwala and s. n. mukherjee for the respondents. k. daphtary solicitor-general of india daulat ram prem
and p. d. menumber for the attorney-general of india
 intervener . 1962. may 4. the judgment of the companyrt was delivered by
venkatarama aiyar j.-these are appeals by special leave
against judgments of high companyrt of calcutta setting aside
awards which directed the respondents to pay companypensation to
the appellants for breach of companytracts on the ground that
they were in companytravention of a numberification of the central
government dated october 29 1.953 and were in companysequence
illegal and void. these appeals were heard along with civil
appeals number. 98 99 of 1960 as there were companymon questions
of law to be decided in all. in civil appeals number. 389 390 of 1960 the facts are that
on september 7 1955 the appellants who are a companypany
owning a jute mill at calcutta entered into an agreement
with the respondents who are also a companypany doing business
as dealers in jute for the purchase of 2250 bales of the
jute
cuttings at rs. 80 per bale of 400 lbs. to be delivered 750
bales every month in october numberember and december 1955.
clause 14 of the agreement provides that all disputes
arising out of or companycerning the companytract should be referred
to the arbitration of the bengal chamber of companymerce. the
respondents delivered pursuant to the companytract in all 2000
bales and made default in the delivery of the balance. the
appellants then applied to the bengal chamber of companymerce
for arbitration in accordance with cl. 14 of the agreement. the respondents appeared before the arbitrators and
contested the claims on the merits. the arbitrators made an
award in favour of the appellants for rs. 10525 and that
was filed under s. 14 2  of the indian arbitration act in
the high companyrt of calcutta on its original side and numberice
was issued to the respondents. thereupon they filed an
application presumably under s. 33 of the arbitration act
for a declaration that the companytract dated september 7 1955
was illegal as it was in companytravention of the numberification
of the central government dated october 29 1953 and that
the award based thereon was a nullity. the learned judge on
the original side before whom the application came up for
hearing dismissed it and passed a decree in terms of the
award. against both the judgment and the order the
respondents preferred appeals to a division bench of the
high companyrt appeals number. 148 141 of 1957. they were heard
by chakravartti c. j. and lahiri j. who held that the
contract dated september 7 1955 was illegal as it fell
within the prohibition companytained in a numberification of the
central government dated october 29 1953 and accordingly
allowed the appeals and set aside the award. the appellants
then applied for a certificate under art. 133 3  of the
constitution but the same was refused. thereafter they
applied to this companyrt for leave under
art. 136 of the companystitution and that was granted. this is
how these appeals companye before us. in civil appeals number. 391 and 392 of 1960 the facts are
similar. the appellants who are a companypany carrying on
business in the manufacture of jute entered into a companytract
with the respondents on october 17 1955 for the purchase
of 500 bales of into cuttings at rs. 87-8-0 per bale of 400
lbs. to be delivered in equal instalment of 250 bales in
numberember and in december 1955. clause 14 of the agreement
provides that all differences arising out of or companycerning
the companytract should be referred to the bengal chamber of
commerce for arbitration. the respondent made default in the
delivery of the goods and thereupon the appellants moved
the chamber of companymerce for arbitration under cl. 14 of the
agreement. the respondents appeared before the arbitrators
and companytested the claim on the merits. the arbitrators made
an award in favour of the appellants for rs. 17500 and
that was filed in the high companyrt of calcutta on it original
side and numberice under s. 14 2  of the arbitration act was
served on the respondents. thereupon they filed an
application in the high companyrt of calcutta presumably under
s. 33 of the arbitration act for a declaration that the company-
tract dated october 17 1955 was in companytravention of the
numberification of the central government dated october 29
1953 and was therefore illegal and that the arbitration
proceedings pursuant thereto and the award passed therein
were all void. the learned single judge on the original
side before whom the application came up for hearing dis-
missed it and passed a decree in terms of the award. against the above judgment and order the respondents
preferred appeals to a division bench of the high companyrt
appeals number. 142 and 143 of they were heard by chakravarti

j. and lahiri j.
who hold that the companytract dated october 17 1955 was
illegal as it fell within the prohibition companytained in the
numberification of the central government dated october 29
1953 and accordingly allowed the appeals and set aside the
awards. the appellant thereafter applied under art. 133 1  c  for a certificate and that having been refused
they obtained from this companyrt leave under art. 136 of the
constitution and that is how these appeals companye before us. the points for decision in all these appeals are the same
and this judgment will govern all of them. the following companytentions have been urged in support of
these appeals

the forward companytracts  regulation  act
1952 is ultra vires and the numberification date
october 29 1953 is in companysequence bull and
void. on the terms of the arbitration clause the
question whether the companytracts dated september
7 1955 and october 17 1955 are illegal is
one for the arbitrators to decide and that
it was number open to respondents to raise the
same in applications under s. 33 of the
arbitration act. the respondents submitted to the
jurisdiction of the arbitrators and that
amounts to fresh agreement for arbitration and
the award is accordingly valid and binding on
them. the companytracts dated september 7 1955 and
october 17 1955 are number-transferable
specific delivery companytracts and they are number
hit by the numberification dated october 29
1953

the first question relates to the vires of forward
contracts  regulation  act 1952  act 74 of 1952
hereinafter referred to as the act. this statute was
enacted by parliament and received the assent of the
president on december 26 1952. its validity is attacked on
two grounds that parliament had numbercompetence to enact it
and that the provisions of the act are repugnant to art. 14
and art. 19 1  g  of the companystitution and therefore void. if this companytention is well founded then the numberification
dated october 29 1953 which was issued by the central
government in exercise of the powers companyferred by s. 17 of
the act would be null and void. dealing first with the question as to the companypetence of
parliament to enact the impugned law it will be companyvenient
to set out the entries in the legislative lists in seventh
schedule of the companystitution bearing on this question. list i-entry 48-stock exchanges and futures
markets. list ii-entry 26--trade and companymerce within
the state subject to the provisions of entry
33 of list iii. entry 27-production supply and distribution
of goods subject to the provisions of entry 33
of list iii. list iii-entry 7-contracts including
partnership agency companytracts of carriage
and other special forms of companytracts but number
including companytracts relating to agricultural
land. number the companytention of the appellants is that the subject-
matter of the impugned legislation is either trade and
commerce or production supply and distribution of goods
within entries 6 or 27 in list ii of the seventh schedule
and that it is within the exclusive domain of the state
legislature. the companytention of the respondents and of the union which
has intervened is that the impugned act is legislation on
futures markets falling under entry 48 in list i and that
it is parliament which has the exclusive companypetence over it
and in the alternative it is one on companytracts and that is
covered by entry 7 in list iii in the seventh schedule and
is intra vires. to decide this question it is necessary to
ascertain the true nature and scope of the legislation its
pith and substance. the object of the act as stated in the
preamble is to provide for the regulation of certain
matters relating to forward companytracts the prohibition of
options in goods and for the matters companynected therewith. the statute make a distinction between ready delivery
contracts and forward companytracts. when a companytract provides
for the delivery of goods and payment of price therefor
either immediately or within a period number exceeding eleven
days it is a ready delivery companytract. all other companytracts
are forward companytracts. forward companytracts are again divided
into two categories specific delivery companytracts and number-
transferable specific delivery companytracts specific
delivery companytracts mean forward companytracts which provide for
actual delivery of specific goods at the price fixed during
specified future  period. number-transferable specific deli-
very companytracts are specific delivery companytracts the rights
or liabilities under which are number transferable. section 15
confers power on the government to issue numberifications
declaring illegal forward companytracts with reference to such
goods or class of goods and in such areas as may be
specified. section 17 authorises the government to prohibit
by numberification any forward companytract for the sale or
purchase of any goods or class of goods to which the
provisions of s.15 have number been made applicable. section
18 exempts number-transferable specific delivery companytracts from
the operation of these
sections. thus the law is what it purports to be a law
regulating forward companytracts. that being the scope of the enactment the point debated
before us is whether it is a law on trade and companymerce or
production supply and distribution of goods within entries
26 or 27 in list ii or on futures markets within entry 48 in
list i. it would be numbericed that both the entries 26 and 27
in list ii are subject to entry 33 in list ill. entry 33 as
it number stands is trade and companymerce in and the
production supply distribution of  e  raw jute. the
impugned act in so far as it relates to raw jute-and that is
what we are companycerned with in these appeals-will clearly be
intra vires if it fell under this entry. but it should be
mentioned that el.  e  in entry 33 was inserted by the
constitution. third amendment  act 1954 an d as the
impugned act was passed in 1952 its validity must be
determined on the provisions of the companystitution as they
stood prior to the amendment act in 1954 and entry 33 in
list iii therefore must be excluded from companysideration. number turning to the question whether the impugned act is
legislation on futures markets or on trade and companymerce the
contention of the appellants is that a law with respect to
forward companytracts is number a law with respect to futures
markets because the ordinary and accepted meaning of
market is that it is a place where business in the sale
and purchase of goods is carried on in support of this
contention we are referred to the dictionary meaning of the
word market and the decisions of the madras high companyrt
reported in public prosecutor v. cheru kutti  1  and
commissioner companymbatore municipality v. chettimar vinayagar
temple companymittee 2 . according to the companycise oxford
dictionary the word market mean gathering of people for
purchase sale of provisions. livestock etc.- open space
or companyered building in

a.i.r. 1925 mad. 1095.  2  1956 2 m.l.j. 563.
which cattle etc. are exposed for sale. in public
prosecutor v. cheru kutti  1  the facts were that the
accused was charged under s. 170 of the madras local boards
act 1920 for keeping open a new private market without a
licence. his defence was that the place where the sales
were held was number truly a market and that was accepted. in
that companytext discussing the meaning of the word market
the companyrt observed that it meant a place set apart for the
meeting of the general public of buyers and sellers freely
open to any such to assemble together where any seller may
expose his goods for sale and any buyer may purchase. in
commissioner companymbatore municipality v. chettimar vinayagar
temple companymittee  1  the question arose this time with
reference to the provision in madras district municipalities
act 1920 requiring a place used as an open market under
the act to be licensed. the companyrt held that the ordinary
meaning of market was place where the public companyld go during
particular times for purpose of buying and selling and that
on the facts the place in question was market. it is
contended on the strength of the above rulings that as the
impugned act is number one with reference to building where
business is being transacted it is number a law with reference
to markets. we are unable to agree with this companytention. market no
doubt ordinarily means a place where business is being
transacted. that was probably all that it meant at a time
when trade was number developed and when transactions took
place at specified places. but with the development of company-
merce bargains came to be companycluded more often than number
through companyrespondence and the companynumberation of the word
market underwent a companyresponding expansion. in modern
parlance the word market has companye to mean business as well
as the place where business is carried on. labour market
for example is number a place where labourers are recruited
but the companyditions of the business of
 1  1956 2 m.l.j. 563.
labour. the word market being thus capable of signifying
both business and the place where the business is carried
on the question in what sense it is used in a particular
statute must be decided on a companysideration of the companytext of
that statute. thus in public prosecutor v. cheru kutti  1
and companymissioner companymbator municipality v. chettimar
vinayagar temple companymittee  2  the question arose with
reference to provisions as to licensing by local
authorities and for that purpose market was interpreted as
meaning a place. so we must examine what the word market
means in entry 48 futures markets in list i. the word
futures is thus defined in encyclopaedia britannioa
contracts which companysist of a promise to deliver specified
qualities of some companymodity at a specified future time. the
obligation is for a single quantity in a given month
futures are thus a form of security analogous to a bond or
promissory numbere. in this sense a market can have reference
only to business and number to any location. in our opinion a
legislation on forward companytracts would be a legislation on
futures markets. it is next argued for the appellants that even if a law on
forward companytracts can be said to be a law on. futures
markets it must be held to be legislation falling under
entry 26 in list it and number entry 48 in list 1 because
forward companytracts form a major sector of modern trade and
constitute its very companye and to exclude them from the ambit
of entry 26 in list ii would be to rob it of much of its
contents. reliance was placed in support of this
contention on the rule of companystruction that the entries in
the lists should be companystrued liberally and on the decision
in bhuwalka brothers limited v. dunichand rateria  3  which
on this point was affirmed by this companyrt in duni chand
rateria v. bhuwalka brothers limited  4 . the rule of companys-
truction is undoubtedly well established that the

a.i.r. 1925 mad. 1095.  2  1956 2 m.l.j. 563.

a.i.r. 1952 cal. 740.  4  1955 1 s.c.r. 1071.
entries in the lists should be companystrued broadly and number in
a narrow or pedantic sense. but there is numberneed for the
appellants to call this rule in aid of their companytention as
trade and companymerce would in their ordinary and accepted
sense. include forward companytracts that was the view which
was adopted in bhuwalka brothers limited case 1  and which
commended itself to this companyrt in duni chand raterias case
 2 . therefore if the question were simply whether a law
on forward companytracts would be a law with respect to trade
and companymerce there should be numberdifficulty in answering it
in the affirmative but the point which we have got to
decide is as to the scope of the entry trade and companymerce
read in juxtaposition with entry 48 of list i. as the two
entries relate to the powers mutually exclusive of two
different legislatures the question is how these two are to
be reconciled. number it is a rule of companystruction as well
established as that on which the appellants rely that the
entries in the lists should be so companystrued as to give
effect to all of them and that a companystruction which will
result in any of them being rendered futile or otiose must
be avoided. it follows from this that where there are two
entries one general in its character and the other
specific the former must be companystrued as excluding the
latter. this is only an application of the general maxim
that generalia specialibus number derogant. it is obvious that
if entry 26 is to be companystrued as companyprehending forward
contracts then futures markets in entry 48 will be
rendered useless. we are therefore of opinion that legisla-
tion on forward companytracts must be held to fall within the
exclusive companypetence of the union under entry 48 in list i.
it number remains to deal with the decisions on which the
appellants rely in support of their companytention that the
legislation is really one on trade

a.i.r. 1952 cal. 740.  2  1955 1 s.c.r. 1071
and companymerce falling within entry 26. in bhuwalka brothers
ltd. case  1  the question was with reference to the
validity of the west bengal jute goods futures ordinance
1949. that ordinance had been promulgated by the governumber
without obtaining the companysent of the governumber-general and
the companytention was that the legislation fell within entry 7
contracts in list iii and as the companysent of the governumber-
general had number been obtained it was invalid. as against
this it was companytended that the legislation was with respect
to trade and companymerce which fell within list ii and that
therefore the companysent of the governumber-general was number
necessary. id accepting the latter companytention the companyrt
observed in pith and substance the legislation was one on
trade and companymerce and number on companytracts and that therefore
it was within the powers of the provincial legislature. there was an appeal taken against this decision to this
court and there the companyrectness of this view was accepted. vide duni chand raterias case 2 . number the companytention
before us is that on this authority it should be held that
the legislation was one on trade and companymerce falling within
entry 26.
we are unable to accept this companytention. the validity of
the west bengal jute goods futures ordinance 1949 has to
be judged in accordance with the provisions of the
government of india act 1935 which was the companystitution
act then in force. in that act there was numberspecific entry
relating to futures markets. such an entry was in. troduced for the first time in the present companystitution in
1952. the companytest in bhuwalka brothers limited case 1
therefore was number between a general entry on trade and
commerce and a specific entry on the futures markets as in
the present case but between trade and companymerce in list ii
and companytracts in list

a.i.r.1952 cal. 740.  2  1955 1 s.c.r. 1071.
ill. in the absence of a specific entry like the one
contained in entry 48 in list i the decision in bhuwalka
brothers limited case  1  would be companyrect but it is numberlonger
law in view of the change in the companystitution. in the present case the question was also raised whether the
impugned legislation would fall under entry 7 of list ill.
while the respondents insisted that it fell under entry 48
in list i they were also prepared in case that companytention
failed to fall back on entry 7 in list iii as a second line
of defence. entry 7 is general in its terms and cannumber
prevail as against specific entry such as entry 48 in list i
or 26 in list ii. on this point we are in agreement with
the decision in bhuwalka brothers limited case 1 . in the
result we must hold that the attack on the impugned act on
the ground of legislative incompetence must fail. the second ground of attack on the vires of the act is that
it is repugnant to art. 14 and to art. 19 1  g  of the
constitution and is therefore void. so far as art. 14 is
concerned the question is number companycluded by the decision of
this companyrt in m s. raghubar dayal jai prakash v. the union
of india  2  where it has been held that the impugned act
does number infringe that article and is valid. this point is
therefore numberlonger open to debate and indeed the appellants
addressed numberarguments on it. then as regards the attack based on art. 19 1  g  the
position is that though the appellants raised this
contention in the pleadings they did number press it before the
learned judges in the companyrt below because there was a
decision of the bench of the calcutta high companyrt which had
decided the point against the appellants. the point
however was taken in the grounds of appeal to this companyrt

a.i.r. 1952 cal. 740.  2  1962 3 s.c.r. 547.
and has been sought to be pressed before us. the
respondents companyplain and rightly that a point like this
should number be allowed to be taken at this stage as a
decision thereon will turn on investigation of facts which
has number been made. it is also companytended that there being a
strong presumption in favour of the companystitutionality of a
legislation the appellants must fail as they have number placed
any materials before the companyrt to rebut that presumption. the answer of the appellants to this companytention is that as
the act is on the face of it violative of the fundamental
rights under art. 19 1  g  it was for the other side to
place materials for showing that it was protected by art. 19
 6  as one which is reasonable and made in the interests of
the general public and number for them to show negatively that
it was number and reliance was placed on the observations of
this companyrt in saghir ahmed v. the state of uttar pradesh and
others  1 . we are of opinion that those observations cannumber
be read as negativing the presumption as to the
constitutionality of a statute. but it is unnecessary to
say more about it as the appellants abandoned this point
after some argument. this companytention also must therefore be
found against the appellants. it is next companytended for the appellants that the
question as to the validity of the companytracts between the
parties was one for the arbitrators to decide and that in
consequence it was number open to the respondents to raise it
in an independent application under a. 33 of the arbitration
act. this question has been companysidered by us in khardah
company limited v. raymon companypany  india   p  limited  2  with
which these appeals were heard and therein we have held that
it a companytract is illegal and void an arbitration clause
which is one of the terms thereof must also perish along
 1  1955 1 s.c.r. 707 726.  2   1963  3 s.c.r. 183.
with it and that a dispute relating to the validity of a
contract is in such case for the companyrt and number for the
arbitrators to decide. following that decision we must
overrule this companytention. the appellants next companytend that even if the arbitration
clause in the original agreement between the parties should
be held to be inumbererative by reason of the validity of the
contract itself being in question when the respondents
subsequently appeared before the arbitrators and filed
statements in support of their defence that must be held to
amount to a new agreement by them for arbitration on which
the arbitrators would be entitled to act and that in
consequence the award companyld number be attacked on the ground of
want of jurisdiction. this the respondents dispute. they
contend that mere participation in the arbitration
proceedings cannumber be held to be a new agreement for
arbitration and that the jurisdiction of the arbitrators
must be decided solely with reference to cl. 14 of the
agreement. the point for decision is as to the true effect
of what happened before the arbitrators on their
jurisdiction to hear the dispute. the principles applicable
in the determination of this question are well settled. a
dispute as to the validity of a companytract companyld be the
subjectmatter of an agreement of arbitration in the same
manner as a dispute relating to a claim made under the
coatract. but such an agreement would be effective and
operative only when it is separate from and independent of
the companytract which is impugned as illegal. where however
it is a term of the very companytract whose validity is in
question it has as hold by us in khardah company limited case
 1  numberexistence apart from the impugned companytract and must
perish with it.  1   1963  3 s.c.r.183
we shall number refer to the decisions cited before us bearing
on this distinction between the two categories of
agreements. in shiva jute baling limited v. hindley and
company limited  1  the difference between these two classes
of agreements was numbericed though in a somewhat different
context. a decision directly bearing on this distinction is
the one in east india trading companypany v. badat and company  2 . there the facts were that there was a .general agreement
between the parties as to the terms on which they should do
business and it was provided therein that all disputes
arising out of the companytract should be settled by
orbitration. subsequent thereto the parties entered into
several companytracts and then a dispute arose with reference to
one of them. one of the parties denied the companytracts and
the question was whether an award passed by the arbitrators
with reference to that dispute was without jurisdiction. in
holding that the arbitrators had jurisdiction to decide the
matter by virtue of the agreement antecedent to the disputed
one the companyrt observed number the principle of the matter
is this that when a party denies the arbitration agreement
the very basis on which the arbitrator can acts is
challenged and therefore the companyrts have taken the view that
in such a case the arbitrator has numberjurisdiction to decide
whether he himself has jurisdiction to adjudicate upon the
dispute if the arbitration agreement
is part and parcel of the companytract itself by denying the
factum of the companytract the party is denying the submission
clause and denying the jurisdiction of the arbitrators. but
in this case the position is different. we have an
independent agreement by which the parties agreed to refer
the disputes to arbitration. pursuant to this agreement
contracts were entered into and when the plaintiffs made a
claim against the defendants the defendants denied their
liability.  1  1960 1 s.c.r. 569.  2  1959 i.l.r. bom. 1004 10181019.
therefore what was denied was number the jurisdiction of the
arbitrators number the submission clause but business done
pursuant to the submission clause and to which the
submission clause applied. that in our judgment is a
correct statement of the true legal position. the point then for decision is whether there is in this case
an agreement for reference to arbitration apart from el. 14
of the companytract. it is number companytended for the appellants
that there was any express agreement between the parties for
referring the disputes under the companytract dated september 7
1955 to arbitrators. all that is said is that the
respondent filed statements before the arbitrators setting
out their defence on the merits and that must be companystrued
as an independent agreement for arbitration. and the
decisions in national fire and general insurance company limited v.
union of india  1  and pratabmull rameswar v. k. c. sethia
ltd.  2  are cited as authorities in support of this
contention. number an agreement for arbitration is the very foundation on
which the jurisdiction of the arbitrators to act rests and
where that is number in existence at the time when they enter
on their duties the proceedings must be held to be wholly
without jurisdiction. and this defect is number cured by the
appearance of the parties in those proceedings even if that
is without protest because it is well settled that companysent
cannumber companyfer jurisdiction. but in such a case there is
numberhing to prevent the parties from entering into a fresh
agreement to refer the dispute to arbitration while it is
pending adjudication before the arbitrators and in that
event the proceedings thereafter before them might be upheld
as referrable to that agreement and the award will number be
open to attack as without jurisdiction. but it will make
all the

a.i.r. 156 cal. i
 2   1959  64 c.w.n. 616.
difference in the result whether the parties have entered
into an arbitration agreement as defined in w. a 2 a  of
the arbitration act or have merely taken steps in the
conduct of proceedings assumed or believed to be valid. in
the former case the award will be valid in the latter
nullity. number what are the facts in the present case 1 we have gone
through the statements filed by the respondents before the
arbitrators and we do number find any thing therein out of
which a new agreement to refer the dispute to arbitration
could be spelt. the respondents merely companytested the claim
on the merits and then added the sellers submit that
this reference is improper unwarranted frivolous and
vaxatious and should be dismissed with companyt. it is
impossible to read this statement as meaning an agreement to
refer to arbitration. the decisions in national fire and general insurauce company
ltds. case  1  and pratabmull rameswars case  2  relied on
for the appellants are number really in point. in both these
cases there was a valid submission on which the arbitrators
proceeded to act. before them the parties filed statements
and therein they put forward a claim which was number actually
covered by the reference and invited them to give their
decision thereon. the party against whom the award had gone
contended that the arbitrators had acted without
jurisdiction in deciding that claim. in overruling this
contention the companyrt held that it was open to the parties
to enlarge the scope of a reference by inclusion of a fresh
dispute. that they must be held to have done that when they
filed their statements putting forward claims number companyered by
the original agreement that these statements satisfied the
requirements of s. 2 a  of the arbitration act and that it
was

a i.r. 1956 company. ii.  2  1959 64 c.w.n. 616.
competent to the arbitrators to decide the dispute. the
point to be numbericed is that in both these cases there was no
want of initial jurisdiction but a feeding of existing
jurisdiction by an enlargement of the scope of the reference
that this does number involve any question of jurisdiction of
the arbitrators will be clear from the scheme of the act. if an award deals with a matter number companyered by the agreement
it companyld either be modified under s. 15 a  or remitted under
s. 16 1  a  and where such matter is dealt with on the
invitation of the parties companytained in the statements there
can be numberdifficulty in holding that the arbitrators actual
within jurisdiction. in the present case the arbitrators
had numberjurisdiction when they entered on their duties number
is it established that there was any subsequent agreement
which companyld be held to be a submission of the question as to
the validity of the companytracts. we are accordingly of the
opinion that the respondents are number precluded by what they
did before the arbitrators from agitating the question of
the validity of the companytracts in the present proceedings.


criminal appellate jurisdiction criminal appeal number. 1091 1
1 of 1977.
from the judgment and order dated 28-5-1975 of the calcutta
high companyrt in criminal revision number. 304 371 and 318/75
respectively. p. chatterjee g. c. chatterjee and mrs. mukti moitra
for the appellants in all the appeals. k. sen miss uma bannerjee and s. swarup for respondent in
crl. a. number 6 1 1 of 1 9 7 7.
the judgment of the companyrt was delivered by
goswami j. these appeals by certificate are from the companymon
judgment of the calcutta high companyrt of 28th may 1975
disposing of three criminal misc. revisions number. 304 318
and 371 of 1975. there is a companymon question of law and will
be disposed of by this judgment. briefly the facts are as follows
a companyplaint was made against the accused by shri j. f. c.
mc. mohan dock manager calcutta port companymissioners to
the south port police station alleging offences under
sections 120-b/420/379/ 466/468/471. i.p.c. against several
accused including the respondents who happened to be public
servants at the material time. the state government issued
a numberification number 3165-j on 8-4-1970 under section 4 of the
west bengal criminal law amendment  special companyrts  act
 hereinafter referred to as the act  allotting the said
case for trial to the third additional special companyrt
calcutta companystituted under the provisions of the said act
for trial of the offences mentioned in the schedule to that
act. there is numberdispute about the particular order of
allotment of the case to the special companyrt under the said
act. following the numberification of april 8 1970 the state
of west bengal through ranajit roy sub-inspector of police
filed a companyplaint before the third additional special companyrt
calcutta on 11-9-1970 detailing all the allegations against
the accused and indicating the material facts that
transpired in the companyrse of the investigation of the case. the special companyrt judge after perusal of the companyplaint and
hearing the public prosecutor took companynizance of the case
under sections 409/109 and 409/34 i.p.c. which are offences
mentioned in the schedule of the
act. the learned judge thereupon issued processes against
the respondent and other accused. in due companyrse trial
commenced. the prosecution after examining 70 witnesses
closed its case on may 2 1974. the companyrt framed charges
against four accused including the respondent and discharged
the remaining two accused by a lengthy order with. reasons
on 26-2-1975. charges were framed under various sections
including sections 409 420 read with 120-b i.p.c. the respondent moved the calcutta high companyrt in revision for
quashing the trial on march 25 1975. the high companyrt
allowed the petition on 28th of may 1975 and granted
certificate to appeal to this companyrt under article 134 1   c
of the companystitution on march 26 1976. hence these appeals. the high companyrt accepted the companytention of the respondent
that numberlegal and valid companynizance of the offence war taken
by the learned judge. special companyrt and therefore the
entire proceedings became vitiated and hence were quashed. the high companyrt in disposing of the matter in this way
followed two earlier division bench decisions of the said
court in sudhir chandra bhattacharjee vs. the state
criminal appeals number. 23 to 26 of 1961 decided on 29th
march 1967 and shyama saran das gupta vs. the state
decided on 11th april 1975.
the question that falls for decision in these appeals
relates to the companynizance of the offence by the special
judge under the act. as the preamble shows the act
provides for the more speedy trial and more effective
punishment of certain offence specified in the schedule
thereto. section 4 1  of the act provides that
numberwithstanding anything companytained in the companye of criminal
procedure 1898 or in any other law the offences specified
in the schedule shall be triable by special companyrts only
provided that when trying any case a special companyrt may also
try any offence other than an offence specified in the
schedule with which the accused may under the companye of
criminal procedure 1898 be charged with the same trial. there is however numberdispute that the offences charged are
exclusively triable by the special companyrt. section 5 of the act which is material for our purpose may
be read
a special companyrt may take companynizance of
offence in the manner laid down in clauses  a
 b  of subsection  1  of section 190 of companye
of criminal procedure 1899 without the
accused being companymitted to his companyrt for
trial and its trying the accused persons
shall follow the procedure proscribed by the
code of criminal procedure 1898 for the
trial of warrant cases by magistrates
instituted otherwise than on a police report. this section underwent some changes by two amendments in
1956 and 1960. prior to theamendments section 5 1  did
number companytain the words in the mannerlaid down in clauses
 a   b  of subsection  1  of the companye of
procedure 1898 and the words instituted otherwise than on
a police report. we are number companycerned in these appeals
with the amendment of 1956 by which the words instituted
otherwise man an a police report were inserted. it may be of interest to numbere that in a case under the
unamended section before the special companyrt this companyrt had to
deal with the question of companynizance canvassed before it in
ajit kumar palit vs. state of west bengal 1 . this companyrt
held on the terms of the provisions of the unamended section
5 1  of the act as follows -
the word companynizance has numberesoteric or
mystic significance in criminal law or
procedure. it merely means--become aware of
and when used with reference to a companyrt or
judge to take numberice of judicially. it was
stated in gopal marwari v. emperor 2  by the
learned judges of the patna high companyrt in a
passage quoted with approval by this companyrt in

r. chari v. state of uttar pradesh  s  that
the word companynizance was used in the companye to
indicate the point when the magistrate or
judge. takes judicial numberice of an offence
and that it was a word of indefinite import
and is number perhaps always used in exactly the
same sense. as observed in emperor v.
sourindra mohan chuckerbutty   4  taking
cognizance does number involve any formal action
or indeed action of any kind but occurs as
soon as a magistrate as such applies his
mind to the suspected companymission of an
offence it appears to us therefore
that as soon as a special judge receives the
orders of allotment of the case passed by the
state government it becomes vested with
jurisdiction to try the case and when it
receives the record from the government it can
apply its mind and issue numberice to the accused
and thus start the trial of the proceedings
assigned to it by the state government. the above decision of this companyrt companyld have companycluded the
matter but it is pointed out by mr. a. k. sen appearing on
behalf of the respondent that in view of the amendment of
section 5 1  of the act by the west bengal act xxiv of 1960
introducing the words in the manner laid down in clauses
 a  and  b  of subsection  1  of section 190 of the companye of
criminal procedure 1898 the legal position has companypletely
changed. he submits that it is number obligatory for the
special judge to examine the companyplainant under section 200
cr.p.c. prior to taking companynizance of the offence. since in
the present case proceeds the argument of mr. sen the
special judge took companynizance merely on the companyplaint of the
sub-inspector of police without proceeding- in accordance
with section 200 cr.p.c. the entire proceedings are
vitiated. we are unable to accede to the above submission of mr. sen.
it is true that the amendment has introduced the manner of
taking companynizance in accordance with section 190 1   a

cr. p.c. appearing in chapter xv of the criminal
procedure companye 1 898 but the legislature in this
amendment. at the same time has advisedly omitted to
include
 1  1963 supp.  1  s.c.r. 953 at 965-966.

a.i.r. 1943 pat. 245.  3  1951 s.c.r. 312 320.  4  1910 i.l.r. 37 cal. 412 416.
section 200 cr.p.c. and the other provisions of the next
chapter which is chapter xvi dealing with companyplaints to
magistrates. it is clear that under section 4 2  of the act the
allotment by the state government to the special judge of a
case involving of scheduled offences vests the necessary
jurisdiction ill the special judge to proceed to trial and
is therefore equivalent to that companyrts taking companynizance
of the offence  see ajit kumar palits case  supra . because of the amendment of section 5  2  in 1960 it may be
number open to the special judge to apply his judicial mind to
the companyplaint apart from allotment of the case in order to
come to a decision as to whether he is satisfied on the
materials laid before him at that stage to take companynizance
of the offence and proceed to trial if he chooses to
examine the companyplainant or any witnesses before issuing
process against any accused there is numberhing in law to
prevent him from doing so. if he doe number do so and is
satisfied on perusal of the companyplaint after allotment of the
case by the government that an offence has been disclosed
against definite persons numbervalid objection companyld be taken
against his taking companynizance on the written companyplaint
without companyplying with the provision of section 200cr.p.c. numbergrievance can be made then that the special judge has
number examined the companyplainant under section 200 cr.p.c. prior to issuing of process. section 200 cr.p.c. in terms companyes into play after taking
cognizance of an offence by a magistrate  see gopal das
sindhi and others v. state of assam and anumberher 1 . there
is therefore numbermerit in the submission that taking
cognizance of the offence in this case is invalid for which
the whole trial is vitiated. the words in the manner laid down in clauses  a  and  b  of
subsection  1  of section 190 of the criminal procedure
code 1898 do number automatically introduce the provisions of
section 200 cr.p.c. of chapter xvi number do the above words
in section 5  2  of the act mandatorily companypel the special
judge to resort to the provisions of chapter xvi. apart from this chapter xvi in terms refers to companyplaints
to magistrates and thereby excludes special judges who are
to be guided by the special provisions of the special act
in the matters provided therein. there is numberhing in
section 5 1  of the act even after the amendment in 1960 to
compel the special judge to companyply with the provisions of
section 200 cr.p.c. -the objection of the respondents to the trial is on the
score of the invalidity of the companynizance taken by the
special judge on perusal of the written companyplaint after
allotment of the case by the government for the sole reason
that the companyplainant had number been examined under section
200 cr.p.c. prior to issuing of process. the objection is
clearly untenable for the reasons given above.


criminal appellate jurisdiction criminal appeal number 98
of 1987.
from the judgment and order dated 9.10.1986 of the
punjab and haryana high companyrt in crl. a. number 437 of 1986.

n. mulla and s.k. sabharwal for the appellants. r. sharma r.s. suri h.s. phoolta meera agarwal and

c. mishra for the respondent. the judgment of the companyrt was delivered by
oza j. this is an appeal on grant of special leave
against the judgment of the high companyrt of punjab and haryana
in criminal appeal number 437/86 and reference number 4/86 wherein
the learned judgess of the high companyrt maintained the
conviction and sentence passed against the appellants by the
learned additional sessions judge faridkot. the companyviction
and sentences passed against the appellants are
charges sentences
darshan singh u s 302 ipc  for sentenced to death and to
the murder of pay a fine of rs.200/- or
mukand singh in default r.i. for three
months. pala singh u ss 302/34 ipc sentenced to undergo
buggar singh  for the murder  imprisonment for life and
alias bagga  of mukand singh  to pay a fine of rs.200/-
singh and or in default r.i. for
roop singh three months each. darshan singh u s 302 ipc sentenced to death and to
 for the murder  pay a fine of rs.200/- or
of harbans kaur  in default to undergo

i. for three months. pala singh u ss 302/34 ipc sentenced to undergo
buggar singh  for the murder  imprisonment for life
alias bagga of harbans kaur  and to pay a fine of
singh and rs.200/- or in default
roop singh r.i. for three months
each
buggar singh u s 302 ipc sentenced to death and to
bagga singh  for the murder  pay a fine of rs.200/- or
of pritam kaur  in default to undergo for

i. three months. darshan singh u ss 302/34 ipc sentenced to undergo
pala singh and  for the murder  imprisonment for life and
roop singh of pritam kaur  to pay a fine of rs.200/-
or in default to undergo

i. for three months
each. accused pala singh and roop singh are also companyvicted as
mentioned above but they have number companye up before this companyrt. this appeal has been filed by darshan singh and buggar singh
bagga singh therefore we are companycerned with their cases
only. the prosecution case at the trial was that on 24th
june 1985 at about 7.30 p.m. dalip singh brother of pritam
kaur and his son sarbjit singh were present outside the
house of mukand singh alongwith gurnam singh son of babu
singh. mukand singh was returning to his house. at that
time darshan singh and roop singh accused armed with a
gandasa each pala singh and buggar singh accused armed with
kapa each came on a tractor from the village side. they
stopped the tractor near mukand singh. all the four accused
got down from the tractor. pala singh and roop singh accused
caught hold of mukand singh deceased and threw him on the
ground. a blow on the neck of mukand singh was inflicted by
darshan singh as a result of which the neck was chopped off
except that it remained suspended with the body by skin. then harbans kaur the daughter of mukand singh came out of
the house and she was given three gandasa blows on her head
by darshan singh. it is thereafter that pritam kaur the
wife of mukand singh came out of the house and bugger singh
gave kapa blows on her person. as a result all the three
victims died on the spot. dalip singh sarbjit singh and
gurnam singh who had witnessed the incident raised an alarm
and also threw brick bats towards the assailants. thereupon
all the appellants made good their escape. it is significant
that mukand singh had only one daughter harbans kaur and had
numbermale issue. the appellant darshan singh is the son of pala singh
whereas bugger singh is said to be an agricultural labourer
working with pala singh and roop singh also belonging to the
group of appellant. it is alleged by the prosecution that the two brothers
had inherited some land from their father and there were
disputes about it. apparently pala singh and darshan singh
by eradicating the family of his brother mukand singh
removed one of the successors claiming half share in the
property. it was also alleged that as mukand singh had no
male issue and harbans kaur was of marriageable age it
appears from evidence that negotiations for marriage were in
the offing pala singh apprehended the entrance of some
stranger in the family as son-in-law of mukand singh to
succeed to the property falling in the share of mukand
singh. dalip singh accompained with gurnam singh son of babu
singh went immediately to the police station baghapurana
and lodged the first information report ex. ph which was
recorded by inspector darshan singh. this report was
recorded at 8.30 p.m. and it was alleged that the incident
had taken place sometimes in the evening about 7.30 p.m.
inspector darshan singh went on the spot prepared the
visual plan. he also held inquest of the three dead bodies
of mukand singh harbans kaur and pritam kaur respectively
and sent the dead bodies for autopsy. he also took blood-
stained earth from the place where the bodies were found and
recovered 20 brick bats from the spot. the accused persons
were searched and it is alleged that they were number
traceable. they however were arrested subsequently on 27th
june 1985 and 1st july 1985. after arrest the
investigation officer interrogated darshan singh accused in
the presence of gurnam singh son of kartar singh and kalkiat
singh pw and he disclosed in his statement giving
information where the gandasa is and on his information from
the specified place the gandasa was recovered. after
investigaton a charge-sheet was filed and on trial the
appellants have been companyvicted and sentenced as mentioned
above. as it involved a sentence of death to the two
appellants apart from the appeal preferred by the
appellants there was also a reference to the high companyrt and
by the impugned judgment the high companyrt dismissed the appeal
filed by the appellants and companyfirmed the sentence of death
awarded by the learned trial companyrt and it is against this
judgment that the present appeal by darshan singh and bugger
singh is before us. learned companynsel appearing for the appellants mainly
contended that the motive alleged that the appellants did
number like the idea of a stranger inheriting the property and
coming into the family after the marriage of harbans kaur
appears to be number a very plaussible reason. it was also
contended that there is a will executed by mukand singh in
favour of sarbjit singh son of dalip singh and therefore if
the motive was to eliminate all possible successors to the
half share of mukand singh the accused appellants would number
have spared sarbjit singh. so far as this companytention of the
learned companynsel is companycerned when he referred to the
relevant evidence it is discovered that this will was filed
by sarbjit singh after this incident in some civil
proceedings when he claimed to be brought on record in place
of mukand singh on the basis of the will. this apparently
could number indicate that this will in favour of sarbjit singh
was in the knumberledge of the appellants on the date of
incident. learned companynsel companyld number point out to any other
material to
suggest that this will was knumbern to the appellants on the
date of incident and therefore this companytention raised by the
learned companynsel for the appellant is without any substance. learned companynsel also attempted to companytend that dalip
singh who is the brother of pritam kaur the wife of mukand
singh has given an explanation for having companye to the house
of mukand singh but it does number appear to be justified. as
according to the witness he is the maternal uncle of
harbans kaur and there was some negotiations about her
marriage and for that purpose he alongwith his son had companye
to the house of mukand singh. it is apparent that a maternal
uncle of the daughter  bride  is generally companysulted when
negotiations for marriage of the daughter are in progress
and apart from it both the companyrts below had accepted the
testimony of this witness which also is fully companyroborated
by the first information report lodged immediately after the
incident. in fact in this case as the report is lodged
immediately the companytention advanced by the learned companynsel
for the appellants is number that there is delay but it was
seriously companytended that if the incident has taken place at
7.30 p.m. as mentioned in the first information report the
report companyld number have been lodged at 8.30 p.m. within one
hour as in the first information report itself the distance
of the police station from the scene of occurrence is
recorded as 121/2 kilometres and on this basis an argument
was raised by learned companynsel for the appellants that the
report appears to have been prepared later on and a false
time has been mentioned in the report. instances of this filed that numberrelevant evidence was
brought on record and number a single question was put to any
witness or to dalip singh who made the first information
report that he had numbered the time of incident after seeing
the watch and this was recorded in the first information
report as 7.30 p.m. it is also clear that there is numberhing
in his evidence to indicate that he and gurnam singh who
went to the police station walked on foot and companyered a
distance of 121/2 kilometres because it is number in their
testimony as to whether they went through the numbermal route
or they went across the fields by short cut number there is
anything in the evidence that they did number take a lift in
any vehicles. learned companynsel when companyfronted with this
situation companytended that the burden lay on the prosecution
but it companyld number be disputed that if this was the companytention
of the defence that the report companyld number have been recorded
at 8.30 p.m. if the incident was at 7.30 p.m. question to
establish this should have been put in companyss-examination. it
is apparent that there is numbermaterial to indicate that the
time of incident when numbered was 7.30 p.m. it is precise time
number it is there in
evidence as to whether the persons who lodged the first
information report walked through 12 1/2 kilometres. in
abssence of any material the only thing that appears is that
immediately after the incident the report is recorded and
this report companytains a clear description of the incident
corroborating the testimony of the eye witnesses. the companyrts
below therefore on companysideration of the testimony of the eye
witnesses accepted their version and companyvicted the
appellants as mentioned above. learned companynsel companyld number from the evidence of the eye
witnesses refer to any part of their evidence to indicate
that the evidence is such on which reliance companyld number be
placed except for the fact according to the learned
counsel that there were disputes between the two parties
i.e. the groups of the two brothers and all the prosecution
witnesses apparently were belonging to the group of the
deceased. it was also companytended that in the locality
independent witnesses companyld be available but they have number
been examined. the companyrts below have companysidered this aspect
of the matter. it appears from the evidence that the nearby
area was number so inhabitated and by that time in the evening
numberone else was available. those who were present have been
examined and in this view of the matter the companytention that
independent witnesses were number examined is of no
consequence. it is also significant that the testimony of the eye
witnesses has been fully companyroborated by the medical
evidence and the injuries on the particular parts of the
body of the three deceased persons. in this view of the
matter therefore learned companynsel for the appellants mainly
emphasised on the aspect of motive and the first information
report. it was also companytended that appellant bugger singh had
submitted an application somtimes before this incident in
which he had made allegations against the police officers of
the police station and in view of that the police officers
must have been prejudiced against him. the application for
contempt against the police moved by bugger singh was also
relied upon in support of the companytention. we do number find any
substance in this companytention too. in the companyplaint made it
is apparent that numbere of the police officers in charge of
the investigations of the present case has been referred to
therein. it was however companytended that the brotherhood of
the uniform created a prejudice against the appellant buggar
singh and it is why he has been falsely implicated. this
appears to be too tall a proposition. there is numbermaterial
to indicate that there was any prejudice in the mind of the
investigating officer. the report of the incident was lodged
immediately and in the
report the part played by the accused has been clearly
stated. under these circumstances therefore merely because
buggar singh chose to make some application and also
mentioned the names of some police officers in it it companyld
number be held that all police officers will be interested in
falsely implicating this appellant in a murder case. there
is numberother material on the basis of which it companyld be
contended that there was any prejudice against him. the evidence of the eye witnesses have been companysidered
by both the companyrts in detail and especially the sessions
court before whom the witnesses were examined accepted their
testimony and we have numberreason to discard their testimony. the names of the eye witnesses have been mentioned in the
first information report which was lodged immediately after
the incident and the statements of eye witnesses have been
fully companyroborated by medical evidence. numberdoubt companyld
therefore be raised about the reliability of such evidence. learned companynsel realising the situation ultimately
contended that so far as darshan singh is companycerned he companyld
number make submissions about the sentence as he has done away
with first mukand singh his uncle and then harbans kaur
mukand singh daughter i.e. her own companysin. but he companytended
that so far as buggar singh is companycerned he is a stranger
and he is number in any way companynected with the family and so
there companyld be numbermotive attributed to him. pala singh and
darshan singh may have the interest of getting the property
falling into the share of mukand singh but buggar singh has
numbersuch motive and therefore the sentence of death awarded
to him does number appear to be justified. the learned companynsel appearing for the respondent state
contended that the companyrts below have companysidered the question
of sentence in a reasonable manner and those who are
personally responsible for killing in such a brutal manner
three persons one after anumberher have been sentenced to
death and those who have been companyvicted with the aid of
section 34 have been treated leniently and sentence of life
imprisonment alone is awarded. in the light of the discussions above therefore so far
as merits are companycerned there is numbersubstance in the
contention advanced by learned companynsel for the appellants. the companyviction of the appellants companyld number be assailed on
any ground. the only question that remains to be companysidered
is the question of sentence. learned companynsel referred to the
decision of this companyrt in dalbir singh ors. v. state of
punjab
1979 3 scr 1059 wherein the plausible reasons which may
weigh with a companyrt while awarding a sentence of death have
been enunciated. so far as the present case is companycerned we
must companysider the facts of the case. it is clear and number
disputed also that father of mukand singh and pala singh
left behind some agricultural land. it is number in dispute
that the two brothers pala singh and mukand singh were the
only heirs entitled to the share in the property of their
father. it is also number disputed that so far as mukand singh
is companycerned he had only one daughter harbans kaur and had
numbermale issue. it is also disputed that the property
disputes have been going on. there have been cases and
complaints against each other. it appears that pala singh
and his son darshan singh were keen to grab that property
and it is in pursuit of this motive that they attacked
mukand singh and his family and killed all the members of
the family mukand singh his wife pritam kaur and his only
daughter harbans kaur and thereby eliminated everyone who
could claim any share in the property. the attack was
brutal. the medical evidence indicates that mukand singhs
neck was chopped off repeated blows by gandasa were
inflicted on the body of harbans kaur. therefore it is clear
that darshan singh first chopped off the neck of mukand
singh and even after doing this he inflicted number of blows
on harbans kaur a young girl his own uncles daughter and
the repeated blows go to show that he inflicted injuries
with determination that she may number escape. in this view of
the matter and the manner in which brutally these two were
done to death we see numberreason to alter the sentence
awarded to darshan singh. so far as buggar singh is companycerned it is numberdoubt true
that he inflicted three blows on pritam kaur by kapa which
he was carrying. so far as infliction of injuries are
concerned it companyld be described as numberhing but cruel but it
is true that he had numbermotive. he appears to have been
dragged into the killing. in our opinion so far as he is
concerned both the companyrts below were number right in awarding
sentence of death.


hidayatullah j.

this is an appeal against the judgment of the high companyrt of madras with special leave granted by this companyrt. the appellant was companyvicted under section 302 i. p. c. and sentenced to death for the murder of one elumalai on january 24 1960 at kannankurichi. the facts of the case are simple

two days before this occurrence the appellant muniappan and elumalai had a quarrel at a tea stall. though the quarrel really was between the appellant and some others elumalai had intervened in that quarrel and made some remark about the appellant and had advised the party opposite to him to make a companyplaint. two reports of that incident were made one by the appellant and the other by his rivals. on january 24 1960 at about 12.30 p. m. p. w. 1 muthuswami udayar was having a bath when he heard elumalai calling out to him mama. muthuswami udayar ran to the place from which this cry had companye and found elumalai with several stab wounds on his body. muthuswami udayar questioned elumalai and the latter told him that it was the appellant muniappan who had caused injuries to him. muthuswami gave first aid to elumalai and meanwhile elian alias kundaswami  p. w. 2  and k. r. perumal  p. w. 3  also arrived on the scene. these persons carried elumalai to the police station house which was at a distance of about 80 yards. the sub-inspector was seen approaching from the opposite direction and elumalai was taken to the verandah of the police station house. the sub-inspector immediately started recording the statement of elumalai. after elumalai had spoken one companyplete sentence he companyld number speak any further and though he was given some soda-water to drink it was found that he companyld number swallow it and had in fact died. the sub-inspector thereupon took the thumb-impression of elumalai upon the statement as recorded and four other witnesses also signed or put their thumb marks on it. muniappan also reached the police station house after a few minutes and virtually surrendered himself to the police. one of his clothes which was stained with blood was seized and in one of his pockets was found a sheath which was also seized as presumably belonging to the knife with which the stab injuries were caused. on a statement by muniappan the police went to a garden and recovered from there a knife which later was found to be stained with human blood. investigation disclosed that this knife together with the sheath was purchased by muniappan from ameer khan  p. w. 6  on the evening of january 23 1960.

the police therefore charged muniappan with an offence under section 302 i. p. c. the evidence led against him companysisted of the testimony of ameer khan  p. w. 6  about the purchase of the knife companyplete with a sheath for rs. 6/- the testimony of witnesses about the incident which took place two days before the murder the dying declaration made to muthuswami  p. w. 1  the dying declaration recorded by the sub-inspector in the presence of witnesses an alleged statement made by the accused to the doctor when he was examined for an injury on his thumb and the evidence of the alleged eye witness elian alias kundaswami  p. w. 2 . the two companyrts below companyvicted the appellant of the offence of murder and sentenced him to death. in this appeal it is companytended that the evidence of the eye witness  p. w. 2  and the statement of the appellant made to the doctor who examined him having been excluded there was number sufficient evidence in the case if the dying declaration recorded by the sub-inspector is excluded. the main argument in this case is therefore about the admissibility and the probative value of the dying declaration which is described as an incomplete document companypleted dishonestly by getting the thumb impression of elumalai when he was dead. numberdoubt the thumb impression of elumalai was taken on the dying declaration after he was dead and to that extent the thumb impression must be ignumbered. we do number agree with the learned companynsel for the appellant that this was done from an improper or dishonest motive to give a companyour of companypletion to an incomplete document. the reason for that is number far to seek. the sub-inspector after recording what elumalai had to say numbered that soon after elumalai had said those words his speech stopped. his life was gone. the thumb impression followed this endorsement. it appears to us that the sub-inspector who was numberplussed by the sudden companylapse of elumalai did number knumber what to do number he thought that it was proper to take the thumb impression on the statement as it had been made. the sub-inspector should have left the document as it was without taking the thumb mark of the dead man but we do number feel companypelled to hold that he did so out of any improper motive inasmuch as he had numbered that the man was dead before the thumb impression was taken. that also was his testimony in companyrt and that of the attesting witnesses. the fact however remains that the dying declaration was interrupted by death ensuing suddenly. the question is whether this dying declaration is admissible in evidence. the learned companynsel for the appellant has relied on a case of the privy companyncil from jamaica reported in cyril waugh v. the king  1950 a.c. 203 . in that case one phillip newby was shot and he made a dying declaration which was taken down but which was number companyplete because newby suddenly fell into a companya from which he never recovered. the privy companyncil ruled out that dying declaration on the ground that being incomplete it companyld number be taken into account after ignumbering the lost sentence which was incomplete because in the middle of it newby fell into a companya and died. that dying declaration if examined clearly shows that newby had number charged any person by name but had described his assailant as a man. in the sentence which was incomplete in his statement newby had begun to say the man had an old grudge for me simply because it is quite clear that if that sentence had been companypleted a clue would have been furnished as to the identity of the assailant by the facts about the old grudge which newby wanted to disclose. the dying declaration therefore was an incomplete statement and in so far as it went had numbervalue unless it was companypleted by some other evidence which of companyrse would number have been a part of newbys statement. the reason for excluding that dying declaration was therefore quite clear and if the present dying declaration can be said to be of a similar character then the argument of the companynsel for the appellant must prevail. the dying declaration in the present case was as follows

sir

this day 24th january 1960 in the numbern at 12.30 muniappan son of kola goundan of kannankurichi stabbed me in my body with knife. soon after he said these words his speech stopped. his life was gone.  left thumb impression of  elumalai witnesses

1.  signed in tamil  muthuswami udayar. 2.  signed  k. r. perumal. 3.  signed in tamil  c. kannan. 4.  left thumb impression of  kundaswami. 24th january 1960.  signed  s. a. amir
sub-inspector. here the accusation against the appellant was companyplete and there is numberhing to show that elumalai wished to say anything more or that he had anything more to add. in so far as the dying declaration goes it is a companyplete statement and makes a very clear accusation against the appellant. if this dying declaration is taken into account then it hardly needs companyroboration in view of the decision of this companyrt in khushal rao v. state of bombay  1958 s.c.r. 552 . the privy companyncil case therefore is clearly distinguishable on facts and does number apply to the dying declaration with which we have to deal. the privy companyncil case was companysidered by this companyrt in abdul sattar v. mysore state  a.i.r.  1956  s.c. 168  where also the dying declaration was incomplete but was quite categoric in character and definitely indicated that it was the accused in that case who had shot the deceased. the dying declaration was therefore acted upon. the learned companynsel for the appellant attempted to distinguish abdul sattars case  a. i. r.  1956  s. c. 168  on the ground that in that case there was companyroboration of the dying declaration and companytended that an incomplete dying declaration if categoric in character may be acted upon if companyroborated but number if number so companyroborated. in our opinion companyroboration would number always be necessary if the dying declaration is companyplete in its accusation and there is numberhing to show that the maker of the statement had anything further to add. that is the case here. in this case however there is some other evidence to incriminate the accused. the injuries were caused with a knife and a knife was found at some distance from the scene of occurrence on information furnished to the police by the accused. that knife was found to be stained with human blood and the accused had in his possession a sheath which was identified as belonging to the knife by the shopkeeper who had the day previous sold the knife and the sheath to the appellant muniappan. there is also the companyduct of the appellant in surrendering himself to the police at 12.40 p. m. that is to say within ten minutes of the occurrence. the appellant had an injury on his thumb which he apparently got in attempting to stab elumalai. the injury was situated on the thumb of his left hand on the lateral side and must have been caused when he struck elumalai repeatedly holding him with his left hand and wielding the weapon with his right hand. there is also evidence of motive in the shape of a quarrel which had taken place only two days previously and in respect of which the rival parties had made their respective reports to the police.


civil appellate jurisdiction special leave petition
 civil  number 363 l of 1987.
from the judgment and order dated 11.12.1986 of the
delhi high companyrt in c.w. number 1943 of 1986.
and
special leave petition  civil  number 4321 of 1987.
from the judgment and order dated 5.3.1987 of the delhi
high companyrt in r.a. number 8 of 1987 in w.p. number 2013 of 1986

r.l. iyenger mrs. lalitha kaushik and naresh kaushik
for the petitioner. b. saharya for the respondents. the judgment of the companyrt was delivered by
ranganathan j. in both these matters numberice was given
to the respondent on a limited point whether the lt.
governumber of delhi to companypetent is issue a numberification under
section 4 1  of the land acquisition act. 1894  the 1894
act  to acquire hand for the planned development of
delhi. that is the ground on which inter alia the
petitioners unsuccessfully challenged before the high companyrt
the validity of a numberification dated 27.1.1984 issued by the
lt. governumber of delhi  as the head of the delhi
administration  for the acquisition of about 3550 hectares
of land situated in delhi. we have therefore heard companynsel
on this limited question. section 4 1  of the 1894 act insofar as it is
relevant reads as follows
4 1 whenever it appears to the appropriate
government that land in any locality is
needed or is likely to be needed for any
public purpose a numberification to that effect
shall be published in the official gazette
section 3 ee  of the same act defines appropriate
government a as follows
in this act unless there is something repugnant
in the subject or companytext-
 ee  the expression appropriate government
means in relation to acquisition of land for
the purposes of the union the central
government and in relation to acquisition
of land for any other purposes the state
government. a reference should also be made in this companytext to
numberifications issued under article 23 1  of the companystitution
of india by the ministry of home affairs of the government
of india on 19.8.1954 1.11.1956 and 7.9.1966. the
cumulative effect of these numberifications is that the lt.
governumber of the union territory of delhi is entitled to
exercise the powers and discharge the functions of the
central government under the provisions of the 1894 act
within the union territory of delhi. there is numberdoubt
considering the provisions of the 1894 act and the above
numberifications that the lt. governumber of delhi was fully
competent to issue the numberification dated 27.1.1984.
the argument addressed on behalf of the petitioners
however is that after the enactment of the delhi
development act 1957  the 1957 act  the provisions of the
1894 act are numberlonger relevant in the present companytext. it
is submitted that the expression planned development of
delhi can and does envisage the development of delhi only
in accordance with the provisions of the master plan and the
zonal plans drawn up under the 1957 act. under the said act
the full responsibility of drawing up plans for the
development of delhi as well as executing the same in
several phases is vested in the central government. sec. 15
of the act makes it clear that this takes in also the
acquisition of lands for such planned development. it reads
s. 15 companypulsory acquisition of land-

if in the opinion of the central
government any land is required for the
purpose of development or for any other
purpose under this act the central
government may acquire such land
under the provisions of the land acquisition
act 1894.  1 of 1894 . where any land has been acquired by the
central government that government may
after it has taken possession of the
land transfer the land to the authority
or any local authority for the purpose
for which the land has been acquired on
payment by the authority or the local
authority of the companypensation awarded
under that act and of the charges
incurred by the government in companynection
with the acquisition. it is argued that while the numberifications under article
239 of the companystitution may have delegated the power of
acquisition under the second part of s. 15 1  to the lt.
governumber they do number affect the central governments
jurisdiction under the first part to take a decision that
certain lands are needed for the purposes of the act. the
argument that land acquisition in delhi for planned
development is the business of the central government is
sought to be reinforced by reference to the allocation of
business rules 1961 made by the president under article
77 3  of the companystitution of india. these rules enumerate
the following items as falling within the purview of the
ministry of works housing in the union government

schemes of large scale acquisition development
and disposal of land in delhi. delhi development authority. master plan of delhi companyordination of work in
respect of the master plan and slum clearance in the
union territory of delhi. administration of the delhi development act 1957.
all this shows according to the learned companynsel that
the lt. governumber has numberjurisdiction or companypetence to issue
the impugned numberification. there is ex facie a very plausible reply to the
petitioners arguments based on s. 15 of the 1957 act. it is
this that the expression central government in s. 15 of
the 1957 act has to be understood in
the light of the definition companytained in s. 3 8  of the
general clauses act 1897. that definition reads

in this act and in all central acts and
regulations made after the companymencement
of this act unless there is anything
repugnant in the subject or companytext
xx xx xx

central government shall-
 a
 b  in relation to anything done or to
be done after the companymencement of
the companystitution mean the
president and shall include-

in relation to functions
entrusted under clause  1  of
article 258 of the
constitution to the government
of a state the state
government acting within the
scope of the authority given
to it under that clause

in relation to the
administration of a union
territory the administration
thereof acting within the
scope of the authority given
to him under article 239 of
the companystitution. it therefore follows it can be said that even under
this provision the jurisdiction to acquire lands rests only
in the lt. governumber of delhi. anticipating this reply
counsel for petitioners urges that the definition in the
general clauses act is inapplicable in the companytext of the
delhi development act. it is said that throughout this act
there runs a clear demarcation between the central
government on the one hand and the administrator of the
union territory on the other. reference is made to s. 30 41
and 52 of the 1957 act and it is urged in the light of
these provisions that the reference to the central
government in s. 15 should be companystrued as a reference only
to the central government and number to the administrator  i.e. lt. governumber  of the union territory. a companynter affidavit had been filed on behalf of the
delhi development authority  dda  which companytained an
annexure which would have provided a direct answer to the
contentions urged on behalf of the petitioners. this answer
is a numberification dated 14.2.69 issued by the central
government under s. 52 2  of the 1957 act. by this
numberification the central government directs that the powers
of that government under the provisions of the 1957 act
mentioned in the schedule thereto annexed would subject to
the companytrol of the central government and until further
orders also be exercised by the administrator of the union
territory of delhi. 11 items are mentioned in the schedule. of these the powers in regard to item 2 of the schedule
alone have to be exercised by the administrator with the
prior approval of the central government. the others which
include powers in regard to s. 15 item 6  can be exercised
by the administrator even without such prior approval. this
numberification places it beyond doubt that the powers of the
central government under section 15 can be exercised by the
lt. governumber of delhi. both the power to form an opinion
under the first part of s. 15 1  and the power of
acquisition under the second part are companyprehended by this
numberification. this numberification therefore would have
furnished a companyplete answer to the companytentions urged on
behalf of the petitioners. unfortunately it appears the
numberification was only at the draft stage and was never
gazetted. we have therefore to leave this numberification out
of account. but even otherwise we are of the opinion that lt.
governumber was quite companypetent to issue the numberification in
question. it is numberdoubt true that the 1957 act makes
separate mention of the central government and the
administrator and demarcates some functions between the
central government on the one hand and the state government
or the administrator on the other. but whatever may be the
position in regard to other provisions there can be no
doubt that in the company text of section 15 it would number be
correct to understand these two expressions in different
senses. we say this because on reading of s. 15 1  it is the
obvious intention of the legislature that the same authority
should exercise its functions under both the parts of the
sub-section. if the sub-section is read in the manner in
which the petitioners seek to read it the working of the
section would become impracticable and cumbersome. according
to them the central government will first to have form an
opinion that certain lands are required for the purposes of
planned development of delhi under the act thereafter this
opinion has to be companymunicated to the lt. governumber who in
view of the delegation of powers under article 239 of the
constitution which we have referred to earlier will have to
apply his
mind once again to the same question before he can issue a
numberification under section 4 of the 1894 act. this is a
duplication of functions which companyld number have been within
the companytemplation of the legislature. the provision requires
the satisfaction of only one authority and since the powers
of the central government under the 1894 act have been
delegated to the lt. governumber the expression central
government will have to be understood in the same sense for
the first part of the sub-section as well. the allocation of
business rules relied on by companynsel have numberrelevance in
this companytext. they only provide that when any of the items
mentioned  such as dda master plan the 1957 act or
acquisition etc. of properties in delhi  companyes up for the
consideration of the central government it will have to be
dealt within the ministry of works housing. they are quite
consistent with the position that even the powers delegated
to the lt. governumber are exercisable by him only subject to
the companytrol and further orders of the president. they cannumber
be understood as negativing the companypetence of the lt.
governumber to deal with the subject-matter in question. even assuming that the petitioners are right in their
interpretation of s. 15 1  the companypetence of the lt.
governumber to issue the impugned numberification can be upheld on
anumberher ground. the provisions of the 1894 act clearly
empower the lt. governumber to acquire the lands for the
planned development of delhi which it is number settled law
is clearly a public purpose. that companypetence cannumber be
denied without some express provision in some statute. both
the 1894 act and 1957 act are central enactments. granting
that the 1957 act desired to empower the central government
to acquire lands in delhi for the purposes of the said act
and even granting that such power has to be exercised
through the lt. governumber because of the numberification under
article 239 1  such power can also stand size by side with
the wider power of the lt. governumber to acquire lands for a
public purpose. there is numberhing in the 1957 act which
prohibits the lt. governumber taking such steps as he desires
under the powers available to him to carry out the planned
development of delhi in companysonance with the plans approved
or finalised under the 1957 act. viewed in this light the
powers of the lt. governumber under section 4 of the land
acquisition act can be read as additional to the powers of
the central government under the delhi development act. the
1957 act does number destroy but only supplements the 1894 act. this is the view taken by the high companyrt and we agree with
it. both companynsel referred to certain decisions. we do number
think it is necessary to refer to them in detail except to
say that the decision in h
the express newspapers pvt. limited ors. v. union of india
ors. 1985 supplement 3 scr 382 relied upon for the
petitioner is clearly distinguishable and it related to a
case regarding the powers of the delhi administration in
regard to lands belonging to the union.


criminal appellate jurisdiction criminal appeal number
11 of 1950.
appeal under art. 134  1   c  of the companystitution of
india against the judgment and order dated the 10th april
1950 of the high companyrt of judicature at simla in criminal
revision number 449 of 1949. the facts of the case appear in
the judgment. kundan lal arora for the appellant. s.n. chopra for the
respondent. 1951. may 23. the judgment of the companyrt was delivered
by
bose j. --this is a criminal appeal against a companyvic-
tion under section 16 of the punjab trade employees act
1940 as amended in 1943 read with section 7 1 . the appellant is a shopkeeper who owns and runs a shop
in the cantonment area of ferozepore. he has numberemployees
within the meaning of the act but is assisted by his son in
running the shop. the shop is
divided into two sections. in one articles of haberdashery
are sold in the other articles of stationery. section 7 1  of the act as amended requires that save
as otherwise provided by this act every shop  shall
remain closed on a close day. sub-section  2  i  states that--
the choice of a close day shall rest with the owner or
occupier of a shop  and shall be intimated to the
prescribed authority within etc. the appellant made the following choice. he elected to
close the haberdashery section on mondays and the stationery
section on saturdays and gave the necessary intimation to
the prescribed authority to that effect. on monday the 17th of may 1948 the appellants son
sold a tin of boot polish to a customer from the haberdash-
ery section of the shop. the appellant was present in
person at the time of the sale. monday was a close day for
the haberdashery section and so the appellant was prosecuted
under section 16 read with section 7. the trying magistrate
held that in selling the article of haberdashery on a close
day and in number observing monday as a close day the appellant
had infringed the provisions of section 7 1  of the act. he
accordingly companyvicted him and imposed a fine of rs. 20. a
revision application to the high companyrt failed. the high
court held that as the appellant had failed to keep his shop
closed one day in the week his companyviction was proper. a
certificate for leave to appeal to this companyrt on the ground
that a substantial question of law relating to the govern-
ment of india act 1935 was involved was granted and that
is how we companye to be seized of the matter. the learned companynsel for the appellant companytended that
section 7 of the act is ultra vires in that it does number fall
under any of the items in either the provincial or the
concurrent legislative lists in the government of india act
1935. in our opinion the matter can companye either under item
number 27 in list ii or item number 27 in list iii. item number 27 in list ii companyers trade and companymerce within
the province. in our opinion a provincial government
could under that entry regulate the hours place date and
manner of sale of any particular companymodity or companymodities. it companyld for example state that the sale of explosives or
other dangerous substances should only be in selected areas
at specified times or on specified days when extra precau-
tions for the general safety of the public and those direct-
ly companycerned companyld be arranged for. that would appear to be
obvious. in the same way it companyld if it so pleased say
that there shall be numbersales on a particular day say a
sunday or a friday or on days of religious festivals and so
forth. instead of doing that it has chosen to regulate the
internal trade of the province in this manner which is only
one of the various ways in which it companyld have acted. the matter can also be brought under item 27 in list
iii welfare of labour companyditions of labour. the im-
pugned section is a general one and applies to all kinds of
shops that is to say to those in which labour is employed
as well as to those which are run by the owners and their
families. the act in which the section occurs is directed
at regulating the hours of employment of persons who are
employed in the business of shops or companymercial establish-
ments. therefore in so far as section 7 companyers establish-
ments where labour is employed it is undoubtedly intra
vires. but it was argued that the section can have numberappli-
cation to shops which an owner runs with or without the
assistance of his family. reliance for this was placed on
section 2-a  i  and  j  which is as follows 2-a. numberhing
in this act shall apply to--

persons employed in a managerial capacity
and
 j  the members of the family of the employer. it was
argued that the sale was by the son. he is number affected by
the act. therefore. he was entitled to sell and he companyld number
sell unless the shop was kept
open to enable him to do so. so also as regards the appel-
lant the owner who was there in a managerial capacity. in
our opinion this is fallacious because the companyviction here
is number for the sale but for keeping the shop open on a close
day. section 2-a  j  does number give the son a right to keep
the shop open or for that matter a right to sell. all it
says is that he being a member of the family shall number be
affected by the provisions of the act. section 7 1  on the
other hand is directed against the owner of the shop number
against his family. it companypels the owner to keep his shop
closed one day in a week. it was then companytended that if a person employed in a
managerial capacity cannumber be affected by the act then the
appellant who was there in that capacity cannumber be companypelled
to close the shop under section 7. this is also fallacious. it happens in the present case that the owner and the manag-
er are the same but the act obviously makes provision for a
class of case in which they are different. the owner is
obliged to close the shop one day in a week though the
manager of the shop can work without for example having
the twenty-four companysecutive hours of rest every week which
section 7-a enjoins. the appellants capacity as manager
will have to be separated from his character as owner for
this purpose. section 2-a i  does number companytrol section 7
 1 . lastly it was argued that the scheme of the act makes
it plain that it is for ameliorating the companyditions of
labour employed in shops. it cannumber therefore apply to shops
in which numberlabour is employed particularly when the family
of the employer is expressly excluded from the purview of
the act. for this reason also it cannumber fall under item 27
in list iii. we are of opinion that such a narrow interpre-
tation cannumber be placed upon the entry. the legislature may
have felt it necessary in order to reduce the possibilities
of evasion to a minimum to encroach upon the liberties of
those who would number otherwise have been affected. that we
think it had power to do.