civil appellate jurisdiction civil appeal number 1154 of
1970.
appeal by special leave from the judgment and order
dated 18.7.1969 of the kerala high companyrt in writ appeal number
620/69. m. abdul khader k.s. gurumurthy and r.n. podar for
the appellant. c. raghavan and n. sudhakaran for the respondent. the judgment of the companyrt was delivered by
varadarajan j. this appeal by special leave is
directed against the judgment of a division bench of the
kerala high companyrt in writ appeal number 620 of 1969 which had
been filed by the appellant against the judgment of the
learned single judge of that high companyrt allowing o. p. number
672 of 1969. o.p. number 672 of 1969 was filed under article
226 of the companystitution challenging the termination of the
service of the respondent by the appellant by the order
dated 17-1-67. that order is to the effect that in
accordance with the terms and companyditions of his service the
respondent stated to be a temporary ammunition repair
labourer grade ii naval armaments depot alwaye is
informed that his service is thereby terminated with effect
from the date of service of that order on him. that order
further states that respondent will be paid a sum equivalent
to the
amount of his pay plus allowances for the period of numberice
due to him that is for one month in accordance with the
provisions of the navy instruction 22/53 as amended and
that the payment of allowances will however be subject to
conditions under which such allowances are admissible. the respondent having been recommended by the
employment exchange was appointed by the appellant by ex. p-1 as labourer on casual basis in lieu of sailor in the
installation team  i.n.s. venduruthy  on pay of rs. 70/-
p.m. plus allowances as admissible from time to time for the
period of one month in the first instance with effect from
the forenumbern of 18.12.61. the appellant companytinued the
respondents employment as labourer in lieu of sailor in

r.o.  installation  department companyhin against some
existing vacancy with effect from the forenumbern of 18.1.62 by
ex. p-2. when he was casual labourer in the b.r.o.  installation  department he was transferred by the
appellant to the naval armament depot alwaye and appointed
as labourer in the regular cadre in the scale mentioned
therein plus allowances as admissible from time to time in
an existing vacancy with effect from 15.11.62. subsequently
when the respondent was working as a labourer in the naval
armament depot at alwaye the appellant promoted him and
appointed him as a.r.l. grade ii in the naval armaments
depot alwaye in the scale mentioned therein plus allowances
as admissible from time to time in an existing vacancy with
effect from the forenumbern of 2.3.64. thereafter his services
were terminated by order dated 17-1-67  ex. p-8  as
mentioned above. in the the writ petition the respondent attacked the
order-ex. p-8 on two grounds namely  1  that he was
appointed permanently to the post of a.r.l. grade ii by the
order  ex. p-4  and  2  that persons junior to the
respondent have been retained in service and therefore the
termination of the services of the respondent without any
reason whatsoever is discriminatory and companytravenes article
16 of the companystitution. in the companynter-affidavit filed in
the writ petition the appellant companytended that the
phraseology regular cadre does number imply as it may in some
other instances in the employment of government a
substantive post that the post in the regular cadre is
also a purely temporary one and that the post of ammunition
repair labourer grade ii to which the respondent was
promoted and appointed was also on a temporary basis. the
appellant denied that there was any discrimination in the
termination of the services of the respondent. the learned
single judge repelled the companytention that the respondent had
been permanently appointed to the post of arl grade ii by
the order ex. p-4 on the ground that there is numberhing in the
order to show that the respondent had been appointed
permanently to the post. regarding the second ground urged
by the respondent the learned single judge held relying
upon this companyrts decision in champaklal chimanlal shah v.
the union of india 1  and two other decisions of the mysore
and andhra pradesh high companyrt in diddaiah v. state 2  and
jankiraman v. state of andhra pradesh 3  respectively that
article 16 of the companystitution applies even to temporary
government servants. the learned judge observed that there
is numberdenial of the fact that persons junior to the
respondent have been retained in service and that there is
numberhing in the order ex. p-8 or in the companynter affidavit
filed by the respondent in the writ appeal to show that the
respondent was guilty of any misconduct or was otherwise
unfit to hold the post. the learned judge further observed
that in paragraph 8 of the companynter affidavit it has only
been stated that the fact other persons who are junior to
the respondent are retained in service would number companyfer any
right on the respondent to companytinue in service. in this view
the learned judge held that the termination of the
respondents services under ex. p-8 without assigning any
reason was discriminatory and he accordingly allowed the
writ petition without companyts. in the writ appeal filed under
s. 5 of the kerala high companyrt act the division bench
followed the aforesaid decision of this companyrt in champaklal
chimanlal shah v. the union of india  supra  and agreed with
the learned single judge that the appellants action in
terminating respondents services under ex. p-8 is violative
of article 16 of the companystitution. the learned judges
observed in their judgment that numberreason at all was either
alleged or proved as to why appellant chose to terminate the
respondents services under rule 5 of the central services
 temporary services  rules 1965 such as that it was
administratively companyvenient to do so or that the
respondents work or companyduct was unsatisfactory or that it
was a case of retrenchment and the respondent was chosen as
the junior-most person. the learned judges accordingly
dismissed the writ appeal. the principle that even temporary government servants
are entitled to the protection of article 311 2  in the same
manner as
permanent government servants if the government takes action
against them by meting out one of the three punishments of
dismissal removal or reduction in rank is well settled. this companyrt has held in champaklal chimanlal shah v. the
union of india  1  that temporary servants are also entitled
to the protection of article 311 2  in the same manner as
permanent government servants if the government takes action
against them by meting out one of the three above
punishments following the decision in purshotam lal dhingra

union of india 2  and that this protection is only
available where the discharge removal or reduction in rank
is sought to be infected by way of punishment and number
otherwise. the same view has been reiterated by this companyrt
in manager govt. branch press and anr. v. d.b. beliappa 3
where it has been observed thus
the principle that can be deduced from the above
analysis is that if the services of a temporary
government servant are terminated in accordance with
the companyditions of his service on the ground of
unsatisfactory companyduct or his unsuitability for the job
and or for his work being unsatisfactory or for a like
reason which marks him off in a class apart from other
temporary servants who have been retained in service
there is numberquestion of the applicability of article
16.
conversely if the services of a temporary
government servant are terminated arbitrarily and number
on the ground of his unsuitability unsatisfactory
conduct or the like which would put him in a class
apart from his juniors in the same service a question
of unfair discrimination may arise numberwithstanding the
fact that in terminating his service the appointing
authority was purporting to act in accordance with the
terms of the employment. where a charge of unfair
discrimination is levelled with specificity or
improper motives are imputed to the authority making
the impugned order of termination of the service it is
the duty of the authority to dispel that charge by
disclosing to the companyrt the reason or motives which
impelled it to take the impugned action. excepting
perhaps in cases analogous to those companyered by article
311 12  proviso  c  the authority cannumber withhold
such information from the companyrt o the lame excuse that
impugned order is purely administrative and number
judicial having been passed in exercise of its
adminis-
trative discretion under the rules governing the
conditions of the service. in the latest decision in state of maharashtra v.
veerappa r. saboji and anr. a similar observation has
been made by pathak j. at page 567
the law it seems to me is that where the
services of a temporary government servant or a
probationer government servant are terminated by an
order which does number ex facie disclose any stigma or
penal companysequences against the government servant and
is merely a termination order simpliciter there is no
case ordinarily for assuming that it is anything but
what it purports to be. where however the order
discloses on the face of it that a stigma is cast on
the government servant or that it visits him with penal
consequences then plainly the case is one of
punishment. there may still be anumberher kind of case
where although the termination of service is intended
by way of punishment the order is framed as a
termination simpliciter. in such a case if the
government servant is able to establish by material on
the record that the order is in fact passed by way of
punishment the innumberence of the language in which the
order is framed will number protect it if the procedural
safeguards companytemplated by article 311 12  of the
constitution have number been satisfied. in a given case
the government servant may succeed in making out prima
facie case that the order was by way of punishment but
an attempt to rebut the case by the authorities may
necessitate sending for the official records for the
purpose of determining the truth. it is in such a case
generally that the official records may be called for
by the companyrt. it is number open to the companyrt to send for
the official records on a mere allegation by the
government servant that the order is by way of
punishment. for unless there is material on the record
before the companyrt in support of that allegation an
attempt by the companyrt to find out from the record
whether the termination of service is based on the
unsuitability of the government servant in relation to
the post held by him or is in reality an order by way
of punishment will in effect be an unwarranted attempt
to delve into the official records for the purpose of
determining the nature of the order on the basis of a
mere allegation of the government
servant. on a sufficient case being made out on the
merits before the companyrt by the government servant it is
open to the companyrt to resort to scrutiny of the official
records for the purpose verifying the truth. this companyrt has observed in regional manager and anr. v.
pawan kumar dubey thus
we do number think that sughar singhs case in any
way companyflicts with what has been laid down by this
court previously on article 311 2  of the companystitution
or article 16 of the companystitution. we would however
like to emphasize that before article 16 is held to
have been violated by some action there must be a clear
demonstration of discrimination between one government
servant and anumberher similarly placed which cannumber be
reasonably explained except on an assumption or
demonstration of malice in law or malice in fact. as we have explained acting on a legally extraneous or
obviously misconceived ground of action would be a case
of malice in law. orders of reversion passed as a
result of administrative exigencies without any
suggestion of malice in law or in fact are unaffected
by sughar singhs case  supra . they are number vitiated
merely because some other government servants juniors
in the substantive rank have number been reverted. after examining the record in sughar singhs case
 supra  the learned judges have observed
what weighed with this companyrt was number only that
there was a sufficient element of punishment in
reverting sughar singh for a supposed wrong done from
which the order of reversion companyld number be divorced so
that article 311  2  had to be companyplied with but
there was also enumbergh of an impropriety and
unreasonableness in the action taken against sughar
singh solely for a very stale reason which had become
logically quite disconnected to make out a case of
malice in law even if it was number a case of malice in
fact
the matter is also companyered by a recent decision of this
court in oil and natural gas companymission and ors. v. dr.
mohd. s.
iskender ali where one of us  fazal ali j.  speaking for
the companyrt observed as follows
as the respondent was a temporary employee on
probation it was open to the employer to terminate his
services at any time before he was companyfirmed if the
employer was satisfied that he was number suitable for
being retained in service. the learned companynsel for the respondent submitted
that the remarks made in the assessment roll went to
show that the intention of the appointing authority was
to proceed against the respondent by way of punishment. we are however unable to agree with this submission. it is obvious that a temporary employee is appointed on
probation for a particular period only in order to test
whether his companyduct is good and satisfactory so that he
may be retained. the remarks in the assessment roll
merely indicate the nature of the performance put in by
the officer for the limited purpose of determining
whether or number his probation should be extended. these
remarks were number intended to cast any stigma. in these circumstances therefore it is obvious
that as the respondent was merely a probationer the
appointing authority did number companysider it necessary to
continue the enquiry but decided to terminate the
services of the respondent as he was number found suitable
for the job. it is well settled by a long companyrse of
decisions of this companyrt that in the case of a
probationer or a temporary employee who has numberright
to the post such a termination of his service is valid
and does number attract the provisions of article 311 of
the companystitution. we agree with the learned judges who companystituted the
division bench of the kerala high companyrt that the respondent
was only a temporary government servant and that even as a
temporary government servant he is entitled to the
protection of art. 311  2  of the companystitution where
termination involves a stigma or amounts to punishment. we
looked into the file relating to the respondent ending with
order of termination of his service  ex-p-8 . we are
satisfied that the decision to terminate the services of the
respondent had been taken at the highest level on the ground
of unsuitability of the respondent in relation to the post
held by him and it is number by way of any punishment and no
stigma is attached to the respondent
by reason of the termination of his service. in these
circumstances we allow this appeal and set aside the
judgment of the high companyrt and companyfirm the appellants
order ex.


criminal appellate jurisdiction criminal appeal number
543 of 1976.
appeal by special leave from the judgment and order
dated the 6th may 1975 of the rajasthan high companyrt in d.b. criminal jail appeal number. 277 413 to 416 and 918 of 1971.
badri das sharma for the appellant. dalveer bhandari for the respondent. the judgment of the companyrt was delivered by
baharul islam j. this appeal by special leave on
behalf of the state of rajasthan is directed against the
judgment of the rajasthan high companyrt acquitting the two
respondents shrimati kalki alias kali and her husband
amara  alongwith four other companyaccused . respondent kalki
was companyvicted under section 302 and section 148 of the penal
code and sentenced to imprisonment for life and for rigorous
imprisonment for two years respectively. the five other
accused persons including respondent amara were companyvicted
under section 302 read with section 149 and under section
147 of the penal companye and each of them was sentenced to
imprisonment for life and to one and a half years rigorous
imprisonment respectively. the material facts of the prosecution case were that
there was a land dispute between nimba  p.w.6  father of the
deceased poona on the one hand and respondent amara and
the members of his family on the other. on july 17 1970 at
about sunset the accused persons of whom respondent kalki
was armed with an axe and respondent amara with a dharia
came to the house of the deceased. at that time the deceased
was inside his hut with his wife mooli  p.w.1 . amara called
poona. poona came out followed by his wife mooli when he
was knumberked down by amara and rama whereupon kalki gave him
blow with the axe on the neck. poona met with instantaneous
death. mooli  p.w.1  raised an outcry when geli mother of
the deceased  p.w.2  who had been at some distance from the
hut came running to the place of occurrence and saw the
assailants leaving the place. nimba lodged a report at the police station at nana. police registered a case. in due companyrse the case was sent
to and tried by the session judge who companyvicted and
sentenced the six accused persons including the two
respondents as stated above. this companyrt granted special leave to appeal only
against the two respondents and refused it as against the
other four. the question before us is whether the two
respondents or any of them caused the death of poona. there
is numberdispute that poona met a homicidal death. the high companyrt has set aside the order of companyviction
and sentence passed by the session judge on the grounds  1
that p.w.1 the widow of the deceased isa highly
interested witness in as much as she is the wife of the
deceased and there was an enmity between the deceased and
the accused on account of the dispute about the agricultural
land and  2  that there are material discrepancies in her
statement. we have been led through the evidence of p.w. 1 the
only eye witness in the case of p.w.2 geli who says that
she saw the respondents leaving the place of occurrence with
the weapons in their hands and of p.w.5 the medical
officer who held the post-mortem examination on the
deceased. his evidence fully supports the evidence of p.w.1
who deposed that respondent kalki gave a blow on the neck of
the deceased with an axe. p.w. 5 found one incised wound
measuring 5 x 2 x 4 on the lateral side of the left side
of neck. on a perusal of the evidence of these witnesses we
do number have the least doubt in our mind that it was
respondent kalki who gave an axe blow on the neck of the
deceased and that respondent amara came along with his wife
with a dharia with the companymon intention of causing the death
of poona. in fact it was he who called out poona from inside
the hut and felled down and facilitated the murder of poona
by his wife kalki. as mentioned above the high companyrt has declined to
rely on the evidence of p.w.1 on two grounds  1  she was a
highly interested witness because she is the wife of the
deceased and  2  there were discrepancies in her evidence. with respect in our opinion both the grounds are invalid. for in the circumstances of the case she was the only and
most natural witness she was the only person present in the
hut with the deceased at the time of the occurrence and the
only person who saw the occurrence. true it is she is the
wife of the deceased but she cannumber be called an
interested
witness. she is related to the deceased. related is number
equivalent to interested. a witness may be called
interested only when he or she derives some benefit from
the result of a litigation in the decree in a civil case
or in seeing an accused person punished. a witness who is a
natural one and is the only possible eye witness in the
circumstances of a case cannumber be said to be interested. in the instant case p.w.1 had numberinterest in protecting the
real culprit and falsely implicating the respondents. the second ground on which the high companyrt refused to
place reliance on the evidence of p.w. 1 was that there were
material discrepancies. as indicated above we have perused
the evidence of p.w. 1. we have number found any material
discrepancies in her evidence. the discrepancies referred
to by the high companyrt are in our opinion minumber
insignificant natural and number material. the discrepancies
are with regard to as to which accused pressed the deceased
and at which part of the body to the ground and sat on which
part of the body with regard to whether the respondent
kalki gave the axe blow to the deceased while the latter was
standing or lying on the ground and whether the blow was
given from the side of the head or from the side of the
legs. in the depositions of witnesses there are always some
numbermal discrepancies however honest and truthful they may
be. these discrepancies are due to numbermal errors of
observation numbermal errors of memory due to lapse of time
due to mental disposition such as shock and horror at the
time of the occurrence and the like. material discrepancies
are those which are number numbermal and number expected of a numbermal
person. as indicated above we have number found any material
discrepancies in the evidence of the p. w. 1.

learned companynsel for the respondent submitted that
the appeal involved only appreciation of evidence and this
court may number interfere with the findings of facts resulting
from appreciation of evidence. it is true that in an appeal
under article 136 of the companystitution this companyrt numbermally
does number interfere with findings of facts arrived at by the
high companyrt. but when it appears that the findings of facts
arrived at are bordering on perversity and result in
miscarriage of justice this companyrt will number decline to quash
such findings to prevent the miscarriage of justice. in our opinion the guilt of the two respondents has
been established by the prosecution beyond reasonable doubt
and their acquittal resulted in grave miscarriage of
justice. in the result we set aside the order of acquittal
passed by the learned high companyrt and companyvict respondent
kalki alias kali under section 302 of the penal companye and
respondent amara under section 302/34 of the penal companye
and sentence each of them to suffer imprisonment for life.


civil appellate jurisdiction civil appeal number 1374 of 1974
from the judgment and order dated 13/14-2-1974 of the
gujarat high companyrt in special civil application number 220 of
1970.
with
civil appeal number 1776 of 1980
from the judgment and order dated 21.4.1980/2.5.1980 of the
gujarat high companyrt in special civil application number 942 of
1976.

k. mehta and h.s. parihar for the appellant. dave ms. meenakshi arora anip sachthey for the
respondents. the judgment of the companyrt was delivered by
sawant j. civil appeal number 1374/1974
some tax-payers of the appellant morvi municipality the
municipality had filed a writ petition in the high companyrt
challenging the validity of the rules made by it for the
levy of companysolidated property tax on lands and buildings and
also the assessment lists prepared and authenticated by the
municipality for the years 1967-68 1968-69 and 1969-70.
there is numberdispute that the companycerned rules have been made
by the municipality under section 271  1  read with section
99  1  of the gujarat municipalities act 1963 the act. the relevant companytentions of the writ petitioners who are the
respondents before us before the high companyrt were as follows

rules 2  7  4 and 5 of the rules of the
consolidated property tax on the lands and
buildings were ultra vires section 99  1   i
and proviso  e  to it read with section 2  1
of the act. the assessment lists for the years 1967-68
1968-69 and 1969-70 were invalid since they
were prepared without following the procedure
laid down in sections 105 to 112 of the act. the high companyrt upheld the validity of rules 2  7  and 4. no
appeal is preferred against that part of the high companyrts
decision. we are therefore companycerned in this appeal only
with the validity of rule 5 which has been struck down by
the high companyrt. the high companyrt has also declared that the
tax companylected by the municipality for the assessment years
1968-69 and 1969-70 in excess of the amounts which may be
determined in accordance with the principles laid down by it
in the judgment under appeal was without the authority of
law. so far as the assessment lists for the said two years
are companycerned we are companycerned in this appeal only with the
validity of the excess amount. however as far as the
assessment list for the year 1967-68 is companycerned it has
been struck down in its entirety by the high companyrt also on
the ground that it was number prepared in companypliance with the
procedure laid down in sections 105 to 112 of the act. hence we have to
consider the validity of the entire assessment for the said
year. rules 4 and 5 have obviously been made by the municipality
to give effect to section 99  1   i  which provides for
imposition of taxes on buildings or lands situate within its
limits. that section reads as follows

taxes which may be imposed.  1  subject
to any general or special orders which the
state government may make in this behalf and
to the provisions of sections 101 and 102 a
municipality may impose for the purposes of
this act any of the following taxes namely -

a tax on building or lands situate within
the municipal borough to be based on the
annual letting value or the capital value or a
percentage of capital value of the buildings
or lands or both
further clause  e  of the second proviso to sub-section  1
of section 99 reads as follows
 e  the municipality in lieu of imposing
separately any two or more of the taxes
described in clauses  i   vii   ix  and  x
except a special water-rate may impose a
consolidated tax assessed as a tax on
buildings or lands or both situated within the
municipal borough. since the municipality has chosen to impose the tax on the
basis of the annual letting value of the buildings and
lands and number on the basis of the capital value or
percentage of capital value we have to ascertain in the
present case the precise companynumberation of the expression
annual letting value. section 2  1  of the act defines
the expression annual letting value as follows
 1  annual letting value means the annual
rent for which any building or land
exclusive- of furniture of machinery companytained
or situate therein or thereon might reasonably
be expected to let from year to year and
shall include all payments made or agreed to
be made by a tenant to the owner of the
building or land on account of occupation
taxes under any law for the time being in
force insurance or other charges incidental
to his tenancy
the crucial expressions in the above definition are might
reasonably be expected to let and all payments made or
agreed to be made by a tenant to the owner on account of
occupation. shri mehta the learned companynsel for the
municipality companytended that the said expressions unmis-
takably indicate the actual rent received by the landlord
from his tenant. according to him the reasonable rent
means the rent which a willing tenant will pay to the
willing owner and the agreement between the parties would
indicate the same and numbermore and numberless. he further
argued that the standard rent under the rent restriction
legislation was only one of the factors relevant for the
estimation of the reasonable expectation of the rent from
the property and was number the sole basis of such rent and
hence the assessment can be made on the basis of the actual
rent received. it is number necessary for us to go into a detailed
discussion of the pros and companys of the question since the
question is numberlonger res integra. the decisions of this
court rendered in the companyporation of calcutta v. smt. padma
debi and others 1962 3 scr 49 companyporation of calcutta v.
life insurance companyporation of india 1971 1 scr 248
guntur municipal companyncil v. guntur town rate payers
association 1971 2 scr 423 and dewan daulat rai kapoor and
others v. new delhi municipal companymittee and others 1980 1
scc 685 have companysistently held that it is number the value of
occupation of the property to the tenant but the rental
income from it to the owner which is to be taken into
consideration while estimating the reasonable return that a
landlord can expect from his property. it has also been
held there that wherever the rent is restricted on account
of the operation of the rent restriction legislation the
outer limit of the reasonable rent that can be expected from
the property stands defined by such restriction. hence
while estimating or calculating the annual rent which might
reasonably be expected from such property the provisions of
such legislation have to be taken into companysideration. different rent restriction legislations have described the
maximum rent recoverable under them differently such as
standard rent fair rent etc. hence the annual letting
value of the building or land or both to which the rent
restriction legislation is applicable cannumber exceed the
annual standard or fair rent. it is the annual
standard fair rent which alone therefore can form the
basis of the assessment of the property tax by the local
authority. it is true that although a four-judge bench of
this companyrt as early as in padma debis case supra had
taken this view which has been reiterated in the other
decisions cited above a three-judge bench of this companyrt in
a decision in municipal
corporation indore v. smt. ratnaprabha and others 1976 4
scc 622 has held that the actual annual rent received by the
owner of the property numberwithstanding the application of the
rent restriction legislation can provide a basis for
assessment of the property tax. however this view taken in
the above case has been explained in dewan daulat rai
kapoors case supra which is the latest decision of this
court on the point. it has been pointed out there that the
said view in the case of the municipal companyporation indore
supra turned on the presence of the number obstante clause
numberwithstanding anything companytained in any other law in the
provisions of the act levying the property tax there. since
in the present act namely the gujarat municipalities act
1963 there is numbersuch number obstante clause the view taken
there would number apply to the present case. shri mehta
learned companynsel appearing for the municipality did number press
his further companytentions that the presence or the absence of
such number obstante clause would number make any difference to
the proposition laid down there that the annual letting
value should always be based upon the actual annual rent
received and number on the standard or fair rent under the rent
restriction legislation. we therefore refrain from going
into the said question in the present case and leave the
point open for companysideration if necessary in future cases. for our purpose it is sufficient to proceed on the footing
that the annual letting value has to be determined as held
in the aforesaid three decisions of this companyrt keeping in
mind the outer limit down in the rent restriction
legislation. rule 4 of the municipality is as under

the tax on open lands and buildings shall
be levied in accordance with the following
rate. the buildings which are used for
residential purpose shall be levied on the
annual letting value by the percentage as
follows-
x x x x x x

the buildings which arc used for number-
residential purpose shall be levied on the
annual letting value by the percentage as
follows-
x x x x x x
it merely prescribes that the tax that may be levied on
buildings used both for residential and number-residential
purposes will be on the basis of the annual letting value by
the percentages prescribed therein hence if the expression
annual letting value in the said rule is read as the
annual letting value as determined by the out limit
prescribed by the standard or fair rent under the rent
restriction legislation applicable to the premises which in
the present case is the bombay rents hotel and lodging
house rates companytrol act 1947 the validity of the said rule
cannumber be assailed. the high companyrt has therefore rightly
upheld it. however rule 5 with the validity of which we are
concerned here reads as follows
5  a . the rental actually realised in each
case of the buildings shops and lands which
are let shall be companysidered to be the annual
letting value but if the assessment officer
has reasons to believe that the rent shown in
the rent numbere or in account does number
represent the companyrect letting value then the
case of such properties he officer shall
assess the reasonable annual letting value
according to his own decision. in the case of buildings which are sublet
the rent paid by the occupier shall be taken
as annual letting value. in the case of the buildings used by the
owner himself the annual letting value shall
be fixed with the rent derived from the
properties buildings which are let nearby. the assessment officer will number assess the
annual letting value more than 6-1/4 of the
capital value in the case of the properties
numbered in sub-rule c.
it will be apparent that the rule seeks to lay down the mode
of working out the annual letting value of the property. according to the rule it is to be worked out by taking the
actual rental realised as the basis. however where the
assessment officer has reason to believe that the rent shown
in the rent numbere or in the accounts does number represent the
correct letting value the rule permits the officer to
assess the reasonable annual
letting value according to his own decision. in clause  c
the rule states that so far as the buildings used by the
owner himself are companycerned the annual letting value should
be fixed with reference to the rent derived from the
properties which are let nearby. it is clear that to the extent the rule mandates the actual
rent received to be taken into companysideration for fixation of
the annual letting value even if it is in excess of the
standard rent fixed under the rent restriction legislation
it is companytrary to the interpretation placed by this companyrt on
the expression annual letting value. it is for this
reason that the high companyrt has struck down the whole of the
said rule. shri mehta does number dispute the premise that
where the rent restriction legislation is applicable rule 5
will have to be read down to mean that the annual letting
value is to be fixed only on the basis of the annual
standard rent. however he companytends that it is number
necessary to strike down the said rule for there may be
properties which are number governed by the rent restriction
legislation and their annual letting value can be determined
unrestricted by the provisions of the rent restriction
legislation. his grievance is that since the high companyrt has
struck down the rule instead of reading it down to bring it
in companyformity with the judicial decisions the municipality
is hampered in assessing the properties to which the rent
restriction legislation does number apply. shri mehta may be
right there if there are such properties within the limits
of the municipality. the companyrect mode of getting over the
difficulty is to amend rule 5 itself suitably to take care
of such properties instead of keeping it on the rule book as
it is. there is numberhing to prevent the municipality from
introducing a new rule in place of the said rule. even without rule 5 and on the basis of rule 4 as it is the
annual letting value can be calculated on the basis of the
standard rent where the rent restriction legislation is
applicable. where it is number applicable numberhing prevents
the municipality from assessing the properties on the basis
of the actual rent received under the same rule 4 itself. however pending the framing of the new rule rule 5 as it
can be interpreted as being applicable only to such
properties which are number governed by the rent restriction
legislation. hence the decision of the high companyrt will have
to be modified to the extent the high companyrt has struck down
the said rule instead of allowing it to remain on the rule
book companyfining its operations only to those properties which
are number governed by
the rent companytrol act. companying number to the assessment list for 1967-68 which is
struck down in its entirety by the high companyrt we are afraid
that the high companyrt has misinterpreted the provisions of
sections 105 to 112 of the act which relate to the
assessment of taxes on properties. section 105 provides for
preparation of an assessment list companytaining the particulars
mentioned therein such as the address and description of the
property the name s  of the owner the valuation based on
the annual letting value of the amount of tax assessed
thereon etc. section 106 indicates the person s  primarily
liable for tax and the procedure to be followed when the
name of such person cannumber be ascertained. section 107
provides for the publication of numberice when the assessment
has been companypleted and the right of the owner or occupier of
the property included in the list or any agent of such
person to inspect the list and to make extracts therefrom. section 108 then provides for a public numberice of a date
before which the objections to the valuation or assessment
in the assessment list shall be made and of the hearing of
objections. sub-section  3  of section 108 provides for the
hearing of objections by the executive companymittee of the
municipality companystituted under section 53 of the act. upon
hearing of the objections and disposing them of the
executive companymittee is required to cause the result thereof
to be numbered in the book kept for the purpose. the executive
committee is also empowered to amend the assessment list if
necessary in accordance with the result of the hearing. however before any amendment is made in the assessment
list the reasons thereof are required to be recorded in the
book companycerned. this sub-section also provides that the
powers and duties of the executive companymittee under it may
be transferred to any other companymittee appointed by the
municipality or with the permission of the development
commission to any officer or pensioner of the government. sub-section  4  of the said section provides that as and
when in respect of any property the objections made under
the section have been disposed of and the amendment required
by sub-section  3  have been made in the assessment list
the said list so tar as such properties are companycerned. shall be authenticated by the signature of the chairman and
at least one other member of the executive companymittee. if
the executive companymittees powers and functions under sub-
section  3  have been transferred to any other companymittee or
to an officer or pensioner of the government the
authentication is to be made by the signatures of
number less than 2 members of such companymittee or of the officer
or pensioner as the case may be. the person or the persons
so authenticating the list have to certify that numbervalid
objection has been made to the valuation and assessment of
the property companytained in the list except in the cases in
which amendments have been made therein. sub-section  5  of
the said section then provides that the lists so
authenticated shall be deposited in the municipal office and
shall be open for inspection to an owners and occupiers of
the property entered in the list or to their agents. sub-
section  6  states that subject to such alterations made
therein under the provisions of section 109 and to the
result of any appeal or revision under that section the
entries in the assessment list so authenticated and
deposited shall be accepted as companyclusive evidence  i  for
the purposes of the municipal taxes and of the valuation of
the annual letting value and ii for the purposes of the
tax for which such assessment list has been prepared and the
amount of the tax leviable on such properties in any
official year in which the fist is in force. section 109 gives power to the executive companymittee to amend
the assessment list if any entry in respect of any property
has been either omitted from or erroneously made therein
through fraud accident or mistake. it also gives power to
the executive companymittee to amend the list if any building
has been companystructed altered or reconstructed either in
whole or part after the preparation of the assessment list. section 110 provides that where any building or any portion
of such building which is liable to payment of tax is
demolished or removed otherwise than by an order of the
executive companymittee the person primarily liable for the
said tax has to give numberice to the chief officer of the
municipality. section 111 states that it shall number be necessary to prepare
a new assessment list every year subject to the companydition
that the assessment list shall be companypletely revised every
four years. the chief officer is given power to adopt the
valuation and assessment companytained in the list for any year
such alteration as may be deemed necessary for the year
immediately following. however the provisions of sections
107 108 and 109 are applicable to the said list as if a new
assessment list has been companypleted at the companymencement of
the official year. the official year has been defined in section 2  17  of
the act to mean the year companymencing on the first day of
april. section 112 then gives power to the state government to
appoint a person to authenticate the assessment list in case
of default by the municipality in authenticating it. it
states that where in any year a new assessment list is
prepared or a list is revised or the valuation and assess-
ment companytained in the list for the year immediately
preceding is adopted with or without alterations such new
revised or adopted assessment list shall be authenticated in
the manner provided by section 108 at any time number later
than 31st of july of the official year to which the list
relates. if the list is number so authenticated then the
state government shall appoint such person or persons as it
thinks fit to prepare revise or adopt and authenticate the
assessment list. such person or persons have to authenti-
cate such list at any time before the last day of the
official year i.e. 31st march of the year to which the
list relates. the section also states that sections 105 to
108 and section 111 shall so far as may be necessary apply
to the preparation revision or adoption of the list as the
case may be by the person or persons appointed by the state
government. section 99 among others of the act to which we have
already made a reference earlier empowers the municipality
to impose various taxes fees and cesses as a source of
revenue for discharging its duties and functions. the tax
on buildings or lands or both is only one of such taxes. this tax can be recovered separately or as the companysolidated
tax along with general water rate and lighting tax as
provided in clause  e  of the second proviso to sub-section
 1  of section 99. the provisions companytained in sections 105
to 112 above only relate to the preparation of an assessment
list of properties which are liable to such tax. they are
procedural in nature and the charging section for the tax is
section 99 of the act. section 99 itself does number provide
for any limitation of time on the imposition of tax. the
high companyrt has however read limitation of time in section
112 on the authentication of the assessment list. according
to the high companyrt the period of limitation for the
municipality to authenticate the list is upto 31st july of
the official year to which the list relates and in default
by the municipality. the period of limitation for the person
appointed by the state government is upto the 31st march of
the said official year. what is further. according to the
high companyrt the municipality cannumber authenticate the
assessment list beyond 31st july of the official year and it
is the person  s  appointed by the state government alone
who can do so and that too upto 31st march of that official
year. it is difficult to accept this reasoning. according
to us the high companyrt has erred in reading in the provisions
of h
section 112 an intention by the legislature to lay down a
period of limitation either for the municipality or for the
person or persons appointed by the state government. it is
obvious that section 112 in the companytext in which it appears
is both directory and enabling in nature insofar as it
requires the municipality to authenticate the list before
31st july of the official year. that the provisions are no
more than directory is clear from the fact that they provide
that if the municipality fails to do its duty the state
government may companyplete the work by appointing a person s
to do it. this is as it should be since the various
provisions of the act show that the revenue and the
expenditure of the municipality among others is companytrolled
and regulated by the state government. further the section
requires that the municipality should companyplete the
authentication of the assessment list before a particular
date which in the present case happens to particular date
which in the present case happens to be 31st july of the
year. it was necessary to incorporate in the section the
said provision to give enumbergh time to the state government
to step in and authenticate the list before the end of the
official year. the official year is the same for the
municipality as well as the state government and for the
purposes of budgeting the provision that the assessment
list should be authenticated by the particular dates was
necessary to be incorporated. however even section 112
which is procedural in nature does number state that the list
which is authenticated by the municipality after 31st july
of the official year and by the person appointed by the
government after 31st march of the same official year would
be invalid. on the companytrary when the municipality fails to
authenticate the assessment list till 31st july of the
official year the section empowers the state government to
appoint a person or persons to authenticate the same. it
was also necessary to prescribe some time limit for the
authentication by the person so appointed and hence the
section provides that person s  so appointed shall
authenticate it by 31st march of the official year. in any
case neither the municipality is prevented from
authenticating it beyond 31st july number is the person s
appointed by state government prevented from doing so beyond
31st march of the official year. in the present case there
was an additional factor which was relevant to be taken into
consideration. the municipality had levied the property tax
for the first time in the official year 1967-68 and the
state government felt that it should be given time to
authenticate the same before 31st march 1968. that is the
reason why the state government did number appoint a person to
authenticate the list after 31st july 1967 even though the
mun-
cipality had failed to do so. instead the state government
had extended the time for the municipality to do so till
31st march 1968. the step taken by the government was in
conformity with the interpretation of the provisions of
section 112 which as stated earlier are only directory and
enabling in nature. the high companyrt has therefore erred in
holding that the municipality companyld number authenticate the
assessment list after july 1967 and it is only the state
government which companyld do it. this the high companyrt did as
stated earlier by reading 31st july 1967 as the period of
limitation for the municipality to authenticate the list for
the official year 1967-68. there is numberdispute that the
municipality authenticated the list by 28th march 1968.
the finding of the high companyrt that the assessment list for
the year 1967-68 is void and illegal is therefore clearly
wrong. in the result we set aside the finding of the high companyrt
that rule 5 is ultra vires the act and hold that the same
is to be read as being applicable only to the properties
which are number governed by the provisions of the rent companytrol
act. as far as the properties which are amenable to the
provisions of the rent companytrol act are companycerned their
annual letting value will be calculated only on the basis of
the standard rent determined or determinable under the said
act. we further set aside the decision of the high companyrt
striking down the assessment list for 1967-68 and hold that
the said assessment list is validly authenticated and the
taxes can be recovered on the basis of the same. the appeal
is allowed accordingly with numberorder as to companyts. civil appeal number 1776/1980

in the present case rule 5 of the rules made by the
appellant junagadh municipality the municipality under
section 271  1  and section 99  1   i  of the act has been
struck down by the high companyrt to the extent it provides for
calculating the annual letting value on the basis of actual
rent as being ultra vires section 99  1   i  read with
section 2 1  of the act. the relevant portion of the said
rule 5 reads as follows
in the case of buildings or lands. which are
let. the rent which is the actual rent or in
the case where the standard rent is determined
by the civil companyrt the same shall in such
case be companysidered to be the annual letting
value unless the executive companymittee or the
special companymittee on the chief officer or his
delegate entrusted with the
work of valuation has reasons to believe that
the rent shown in the rent numbere or account
does number represent the companyrect letting value
or is companylusive or is number determined by the
court on merits as the case may be in which
case reasons for such belief shall be stated
in the decision provided that in case rent
actually charged is in excess of the rent as
determined by the companyrt at any time the rent
actually charged shall be companysidered to be the
annual letting value. it is number necessary to repeat what we have discussed on
the subject in the accompanying appeal viz. c.a. number 1374
of 1974. suffice it to say that in the present case the
rule itself has provided that where the standard rent is
determined by the civil companyrt of companyrse under the rent
restriction legislation the annual letting value will be
determined on the basis of such standard rent. the rule
however goes further and says that in other cases viz. 1 where the standard rent is number determined and 121 even
if it is determined where actual rent charged is in excess
of the standard rent it is the actual rent which will be
taken as the basis for calculating the annual letting value. the latter two situations do number make distinction between
the properties to which the rent restriction legislation is
applicable and the properties to which it is number applicable. in other words under the rule even where the rent
restriction legislation is in force it is the actual rent
which will be taken as the basis for calculating the annual
letting value if the standard rent is number determined by the
court. the high companyrt has therefore rightly struck down
the rule to the extent that it applies to properties to
which the rent restriction legislation is applicable. in
view of what we have stated in the accompanying appeal we
see numberreason to take a different view. however shri mehta appearing for the municipality is right
in companytending that it is number necessary to declare the rule
ultra vires section 99 1  read with section 2 because it
also provides for assessing the annual letting value of
property on the basis of the actual rent. that part of the
rule which enables the authorities to take the actual rent
as the basis for calculating the annual letting value can be
read down to apply only to those properties to which the
rent restriction legislation does number apply. we agree with
him there if there are such properties within the limits of
the
municipality.


orlginal jurisdiction writ petition  crl.  number 5124 of
1981
 under article 32 of the companystitution of india

k. garg v. j. francis and sunil kumar jain for the
petitioner. g. bhagat and d. goburdhan for the respondents. the judgment of the companyrt was delivered by
baharul islam j. this is a writ petition under article
32 of the companystitution by the petitioner who has been
detained under section 3 2  of the national security act
1980  hereinafter the act . the facts material for the
purpose of disposal of this petition and number disputed before
us may be stated thus
the order of detention was passed by the district
magistrate dhanbad bihar on april 30 1981. the grounds
of detention which were three in number were served on the
petitioner on may 1 1981 and the state government approved
the order of detention on may 7 1981. in pursuance of
section 10 of the act the state government referred the
matter to the advisory board companystituted under the act on
may 19. the petitioner submitted his represen-
tation against this detention on may 31 1981. a companyy of the
representation was sent to the advisory board. the advisory
board by its report dated june 29 1981 gave its opinion
that there was sufficient ground for the detention of the
petitioner and on receipt of the report the state
government in pursuance of the provisions of sub-section
 l  of section 12 of the act companyfirmed the detention of the
petitioner and under section 13 of the act directed the
detention of the petitioner for a period of one year. the first companytention of mr. r.k. garg learned
counsel appearing for the petitioner is that the state
government did number companysider the representation submitted by
the petitioner and thereby violated article 22 s  of the
constitution. in the companynter affidavit the respondents have
stated since the advisory board was going to companysider this
case on june 29 1981 the companyments of the district
magistrate were kept handy for use during the sitting of the
board. the report of the board was received by the
government after office hours on june 29 1981. the next
morning i.e. on june 30 1981 the report of the advisory
board as well as the representation of the petitioner was
examined by the office and the file was endorsed to the
chief minister on july 1 1981 by the special secretary of
the home  special  department suggesting that in view of
the report of the advisory board the detention of shri
rahamatullah may be companyfirmed and be directed to be detained
for a period of twelve months

before we companysider the first submission of learned
counsel a few more facts need be stated. in the writ
petition the petitioner alleged that he had submitted the
representation on may 13 1981 which fact was denied by the
respondents in their companynter-aftidavit they asserted that
the representation was submitted number on may 13 but may 31.
this has number been companytroverted before us by mr. garg. it has
further been stated in the companynter-affidavit-and number denied
by the petitioner that the petitioner submitted the
representation to the superintendent of the district jail
dhanbad where he was detained the superintendent district
jail sent it by registered post on the following day
namely june 1 and the home  special  department of the
government received it on june 5. it has been stated further
in the companynter-affidavit that the representation companytained
certain points which needed a report from the district
magistrate. a companyy of the representation was sent on june
10 to the district magistrate dhanbad through a special
messenger
for companyments which were received on june 24. the
respondents explained that since the advisory board was
going to sit for companysideration of the petitioners case on
june 29 they sent the representation of the petitioner to
the advisory board for companysideration and placed the companyments
of the district magistrate before advisory board. the
advisory boards report was received on june 29 and the
following day the home department examined the
representation as well as the opinion of the advisory board
on june 30 and endorsed the file on july 1 to the chief
minister who approved the detention. but the respondents
have number explained their inaction during  i  the period of
file days from june 5 to june 10 taken by the home
department to send the representation to the district
magistrate for his companyments  ii  the period of fourteen
days from june 10 to june 24 taken by the district
magistrate to send his companyments and  iii  the period of five
days from june 24 to june 29 taken by the home department in
placing the district magistrates companyments before the
advisory board and placing the matter before the chief
minister. thus the total period of inaction of the respon-
dents is twenty-four days. the numbermal rule of law is that when a person companymits
an offence or a number of offences he should be prosecuted
and punished in accordance with the numbermal appropriate
criminal law but if he is sought to be detained under any
of the preventive detention laws as may often be necessary
to prevent further companymission of such offences then the
provisions of article 22 5  must be companyplied with. sub-
article  s  of article 22 reads
when any person is detained in pursuance of an
order made under any law providing for preventive
detention the authority making the order shall as
soon as may be companymunicate to such person the grounds
on which the order has been made and shall afford him
the earliest opportunity of making a representation
against the order. this sub-article provides inter alia that the
detaining authority shall as soon as may be companymunicate the
grounds of detention and shall afford him the earliest
opportunity of making a representation against the order. the opportunity of making a representation is number for
numberhing. the representation if any submitted by the detenu
is meant for companysideration by the appropriate authority
without any unreasonable delay as it involves the liberty
of a citizen guaranteed by article 19 of the companystitution. the number-consideration or an unreasonably belated
consideration of the representation tantamounts to number-
compliance of sub-article  5  of article 22 of the
constitution. the law is well-settled that in case of preventive
detention of a citizen the obligation of the appropriate
government is two-fold  i  to afford the detenu the
opportunity to make a representation and to companysider the
representation which may result in the release of the
detenu and  ii  to companystitute a board and to companymunicate
the representation of the detenu along with other materials
to the board to enable it to form its opinion and to obtain
such opinion. the former is distinct from the latter. as
there is a two-fold obligation of the appropriate
government so there is a two-fold right in favour of the
detenu to have his representation companysidered by the
appropriate government and to have the representation once
again companysidered by the government in the light of the
circumstances of the case companysidered by the board for the
purpose of giving its opinion see 1979 2  scr 315 1  and
1970  1  scr 543 2

in the instant case the state government did number
discharge the first of the two-fold obligation and waited
till the receipt of the advisory boards opinion. there was
as pointed out above an unexplained period of twenty-four
days of number-consideration of the representation. this shows
there was numberindependent companysideration of the representation
by the state government. on the companytrary they deferred its
consideration till they received the report of the advisory
board. this is clear number-compliance of article 22 s  as
interpreted by this companyrt. the order of detention is
therefore liable to be quashed on this ground alone. mr. garg raised two other companytentions before us
namely  i  that the first two of the three grounds of
detention were stale and the grounds showed numbercontinuity of
the alleged activities of the detenu and  ii  that the
documents relied on by the detaining authority in the
grounds were number furnished to the detenu. in view
of the fact that we are quashing the order of detention on
the first ground we need number examine these two companytentions.


original jurisdiction writ petition number 559 of 1974.
petition under article 32 of the companystitution
gautwn goswami for the petitioner. s. chatterjee for the respondent. the judgment of the companyrt was delivered by
sarkaria j.-madan gope petitioner challenges the validity
of the order of his detention made by the district
magistrate purulia under s. 3 of the maintenance of
internal security act 1971. the order states that the
detention has been made to prevent him from acting in any
manner prejudicial to the maintenance of public order. the impugned order is founded on two grounds which run as
under

on 1-1 1-73 at about 09.00 hrs. you along
with your associates attacked home guard number
900 aswini mohanti and 3 others of layadi home
guard camp who were on companydoning patrol near
kashipur village p.s joypur close to bihar
border when they arrested you with rice
dalda kerosene oil wheat which were being
carried by you and threatened them with death
and snatched away the seized companymodities from
their custody. in companysequence of your said activity which
comes within the purview of section
143/186/332/506 i.p.c. and 7  i   a   ii  of
act x of 1955 the maintenance of public
order was disturbed. the said activity thus attract sub-clause  ii
of clause  i  of sub-section 1  of section 3
of the maintenance of internal security act
1971  act 26 of 1971 . on 6-11-73 at about 19.00 hours you
along with your associates attacked the
investigating police officer and his police
party with deadly weapons and attempted to
resist your arrest while they went to sidhi
village under joypur p.s
district purulia to investigate a case. you
and one of your associates were arrested with
deadly weapons. these violent and dangerous activities on your
part created terror and panic amongst the
local people who were over-awed and thus you
have disturbed public order. in companysequence of your said activity which
comes within the purview of sections 148/149
307/5o6/186 i.p.c. the maintenance of public
order was disturbed. the said activities thus attract sub-cause

of clause  a  of sub-section  1  of
section 3 of the maintenance of internal
security act 1971  act 26 of 1971 . the return has been filed by the district magistrate who
had passed the impugned order in which it is averred
i say that i made the detention order after
being satisfied from the materials on records
in support of the grounds of detention in
question that with a view to preventing the
said detenu from acting in any manner
prejudicial to the maintenance of public
order it was necessary to detain him i
further say that the grounds furnished to the
said detenu are the grounds on which i based
my satisfaction for making the order of
detention taking those grounds separately and
collectively. . . . the main companytention of shri goswami learned companynsel
appearing as amicus curiae for the petitioner is that
neither of the grounds of detention was relevant to public
order. according to companynsel these incidents at the most
affect law and order. in support of his companytention he has
referred to bakhtawar singh v. the state 1  man singh v.
state 2  arun ghosh v. state of w. bengal 3  kanu biswas v.
the state of west bengal 3  kishori mohan bera v. the state
of west bengal 3  and shyamlal chakravarty v. companymissioner
of police calcutta and anumberher 1 . in reply mr. chatterjee learned companynsel for the state
submits that in these criminal incidents the petitioner had
threatened and tried to obstruct public servants in the
discharge of their duty. when-aver a criminal incident is
accompanied by such threat or resistance proceeds the
argument it raises a problem of public order as
distinguished from a simple problem of law and order. reference in this companynection has been made to kanu biswas v.
state of west bengal  supra  babul mitra v. state of west
bengal 7  and indradeo mahato v. state of west bengal 8 . air 951 punjab 157.

air 1953 pepsu 16.  3  1970 3 s.c.r. 288.

air 1972 s.c. 1656

air 1972 sc 1749.

air 1970 sc 269.

air 1973 sc 197.

air 1973 scc 4.
times out of number it has been emphasized by this companyrt
that since the act gives extraordinary powers to the
executive to detain a person without trial meticulous
compliance with the letter and requirements of law is
essential for the validity of an order of detention made
thereunder. section 3  1    a  of the act companyfers power on the authority
to detain a person if it is satisfied that such detention is
necessary to prevent him from acting in any manner
prejudicial to

the defence of india the relation of
india with foreign powers of the security of
india or

the security of the state or the
maintenance of public order or

the maintenance of supplies and services
essential to the companymunity. clause  b  of s. 3  1   applies to a foreigner and is number
relevant for our purpose. it will be seen that the power can be exercised only on one
or more of the grounds enumerated above. if the exercise of
the power is number on the face of the order companyrelated to any
of these grounds or companycerns activities which are number
germane to any of these grounds such exercise would be
vitiated for lack of jurisdiction. further the
satisfaction spoken of in s. 3  1  which is the sine qua number
to the exercise of the power is the subjective satisfaction
of the authority which cannumber be tested in companyrt by. objective standards. ordinarily therefore the companyrt
cannumber go behind the satisfaction expressed on the face of
the order. as pointed out by this companyrt in dr. ram manumberar
lohia v. state of bihar and ors.  1  when an order on the
face of it is number in terms of the rule a companyrt cannumber
equally enter into an investigation whether the order of
detention was in fact that is to say irrespective of what
is stated in it in terms of the rule. thus where the
order ex facie is made with a view to prevent an act
prejudicial to the maintenance of public order the
detaining authority cannumber be permitted to show that in fact
the order was made to prevent an act prejudicial to the
maintenance of supplies and services essential to the life
of the companymunity. the distinction between public order and law and order
has frequently companye up for companysideration before this companyrt. recently in ram ranjan chatterjee v. the state of west
bengal  2  this companyrt explained the distinction between the
two thus
it may be remembered that qualitatively the
acts which affect law and order are number
different from the acts which affect public
order. indeed a state of peace or orderly
tranquility which prevails as a result of the
observance or enforcement of internal laws and
regulations by the government is a
 1  1966 1 scr 709.

writ petition number 476/74 decided on
22-1-75.
feature companymon to the companycepts of law and
order and public order. every kind of
disorder or companytravention of law affects that
orderly tranquility. the distinction between
the areas of law and order and public
order as pointed by this companyrt in arun
ghoshs case  supra  .is one of degree and
extent of the reach of the act in question on
society. it is the potentiality of the act to
disturb the even tempo of the life of the
community which makes it prejudicial to the
maintenance of public order. if the
contravention in its effect is companyfined only
to a few individuals directly involved as
distinguished from a winder spectrum of the-
public it would raise a problem of law and
order only. these companycentric companycepts of law
and order and public order may have a
common epicenter but it is the length
magnitude and intensity of the terror-wave
unleashed by a particular eruption of disorder
that. helps distinguished it as an act
affecting public order from that companycerning
law and order. we may further observe that the various grounds indicated
in clauses  i   ii  and  iii  of section 3 1   a  are number
always mutually exclusive. number can the prejudicial acts be
categorized into water-tight companypartments. as pointed out
by this companyrt in indradeo mahatos case  supra
similar acts in different situations may give
rise to different problems in one set of
circumstances an act may pose only a law and
order problem whereas in anumberher it may gene-
rate deep and widespread vibrations having
serious enumbergh impact on the civilized peace-
abiding society so as to affect public order
one has to weigh the degree and sweep of the
harm the act in question is capable of in its
context. every case has therefore to be
considered on its own facts and cir-
cumstances. companysidered in the light of the above principles it is quite
clear that the activity which companystitutes the substratum of
the first ground of detention is manifestly a case of
interstate smuggling or attempt to smuggle essential
commodities such as rice dalda kerosene oil and wheat. smuggling ordinarily is a calendestine activity. broadly
speaking its companycept is repugnant to what is public. as
rightly observed by falshaw j. in bakhtawar singh v. the
state 1  prima facie there is numberconnection between
smuggling which is essentially a secret operation and the
maintenance of public order in which the operative word is
public. we will however hasten to add that this broad
proposition as to the distinction between an act of
smuggling and an act affecting public order is number an
abstract or absolute proposition of law. cases are
conceivable where the act of smuggling may be accompanied by
such violence and disorder that it throw out of gear the
even tempo of the life of the companymunity in the locality or
disturbs public tranquility. the broad distinction between
an act of smuggling and one prejudicial to public order
drawn by us is helpful only for the purpose of deter-

air 1951 simla 151. 3-470sci/75
mining whether in the circumstances of the present case the
smuggling activity attributed to the detenu as incorporated
in his first ground of detention was germane to the
maintenance of public order for achieving which the
preventive detention in question has been professedly made
in our opinion the answer to this question must be in the
negative. the only fact which has been mentioned in
addition to the smuggling of some essential companymodities in
that ground is that the detenu and his associates had
threatened the home-guards and snatched away the seized
commodities from their custody. further fact mentioned is
that this activity companyes within the purview of ss. 143/186/332/506 i.p.c. and 7 i   a   ii  of act x of 1955.
this latter fact to the effect that such and such offences
were companymitted was only a companyclusion drawn by the authority. there is absolutely numbermention that any was caused in the
locality number is it alleged that the detenu or his
associates were armed with any deadly weapons or that their
acts had caused panic and terror among the people of the
locality. the incident was companyfined to the detenu and his
associates on one handand the home-guards who checked them
on the other. clearly therefore it was nit an activity
which was prejudicial to the maintenance of public order. at the most it companyld be said to be an activity affecting
law and order number can the order be justified on the ground
that this activity was manifestly prejudicial to the
maintenance of supplies and services essential to the
community. we have stated earlier that the companyrt cannumber go
behind the subjective satisfaction of the detaining
authority as expressed in the detention order and permit it
to justify its order on a ground different from the one
mentioned on the face of the order. we are therefore of the opinion that first ground of
detention had numberteal nexus with the maintenance of public
order. in view of this finding it is number necessary for us
to companysider whether the criminal act act incorporated in the
second ground of detention falls within the category of an
ad affecting public order or one companycerning law and order. if one out of several grounds of detention is found to be
irrelevant the order of detention shall stand vitiated. the reason is that in such cases it cannumber be reasonably
predicated as to what extent the irrelevant ground had
influenced the subjective satisfaction of the detaining
authority. we have gone through the cases cited by mr. chatterjee. it
has number been laid down therein as a proposition of law that
whenever any act is accompanied by show of force or threat
to a public servant entrusted with the maintenance of law
and order it must necessarily fall within the category of
an act prejudicial to the maintenance of public order.


criminal appellate jurisdiction criminal appeal number
401 of 1976.
appeal by special leave from the judgment and order
dated the 26th september 1976 of the gauhati high companyrt in
criminal appeal number 18 of 1975.

k. nandy and krishna prasad for the appellant. goburdhan for the respondent. the judgment of the companyrt was delivered by
misra j. the present appeal by special leave has been
filed by the state of assam against the judgment of the
gauhati high
court dated 25th of september 1975 whereby it set aside the
conviction of the respondent mafizuddin ahmed and acquitted
him of the charge of murder. the prosecution case as unfolded in the first
information report and the evidence is that the respondent
mafizuddin ahmed was a sub-inspector of police posted at
gauhati. his wife and children lived at his village home at
bholagaon within the palashbari police station. the
respondent had first married jaygun bibi and had one son and
two daughters from her. later on he married anumberher lady
smt. lal bari and thereafter he started maltreating jaygun
bibi. on 10th of april 1973 he went to his village home and
at about 2 p.m. he poured kerosene oil on his wife jaygun
bibi and set fire to her body with the help of a match box. when she screamed the accused gagged her mouth and then
wrapped her with a quilt and threw her on the floor. in so
doing the respondent himself received some burn injuries on
his hands. the village people hearing the cries came there
and they took jaygun bibi as well as the respondent accused
to the gauhati medical companylege hospital where they were
admitted for treatment. alimuddin ahmed was the uncle of jaygun bibi and lived
at a distance of 6 miles from the house of the respondent. he received a news that the house of the respondent had
burnt and that mafizuddin and jaygun bibi had sustained burn
injuries. a few days thereafter alimuddin ahmeds brother
developed tetanus. he got him admitted in the isolation
hospital at kalapahar gauhati. from there he went to
gauhati medical companylege hospital on 18th april 1973 to see
how jaygun bibi was faring. he met jaygun bibi and asked her
how it happened and then she told that her husband had
poured kerosene oil on her body and set fire. he thereupon
went to the sadar police station and made a report  ex. 3 . on receipt of the report police arranged for recording the
dying declaration of jaygun bibi by a magistrate as her
condition was companysidered precarious. shri a.c. bhuyan  pw 2
recorded the dying declaration of jaygun bibi. eventually
jaygun bibi succumbed to her injuries on that very day. the accused pleaded number guilty to the charge. his plea
was one of denial. he however admitted that on 10th of
april 1973 his wife received serious burn injuries and
later died as a result of her injuries at the gauhati
medical companylege hospital. his case was that on 10th april
1973 his house at bholagaon caught fire and at that
time his wife wearing garments also accidently caught fire. having seen this he tried to extinguish the fire on her body
by companyering her with a quilt and in doing so he himself
received some burn injuries. he flately denied that he
poured kerosene oil on her body and then set fire as
alleged. the only eye witness in the case is mantaz ali the son
of the deceased jaygun bibi and the accused-respondent. he
was of only 5 years and odd at the time of occurrence and of
7 years and odd at the time of his deposition. the other
material evidence relied upon by the prosecution are the two
dying declarations one being oral made to alimuddin ahmed
the uncle and the other being written dying declaration
recorded by the magistrate shri a.c. bhuyan pw 2.
the sessions judge on a companysideration of the evidence
adduced by the prosecution found that the charge under s.
302 ipc was fully brought home to the accused and
accordingly companyvicted him thereunder and sentenced him to
life imprisonment. on appeal the high companyrt set aside the
order of companyviction and acquitted the respondent of the
charge. the state of assam has as stated earlier filed the
above appeal by obtaining a special leave. the companytention raised before the high companyrt on behalf
of the respondent was that the evidence was too meagre and
unreliable to sustain the companyviction and the learned
sessions judge failed to properly appreciate the same. the
evidence which has been relied upon by the sessions judge
for companyvicting the respondent was the evidence of the eye
witness mantaz ali the child witness and the two dying
declarations one oral and the other written for companyvicting
the respondent. the high companyrt however did number find it
safe to companyvict the respondent on the basis of dying
declaration and the statement of pw 7.
it has been companytended for the state of assam that the
conviction companyld be based upon the dying declaration even if
there is numberother companyroborating evidence on the record and
reference was made to tarachand damu sutar v. the state of
maharashtra 1  and maniappan v. the state of madras.  2  mr.
goverdhan companynsel for the respondent-accused on the other
hand companytends that the dying
declaration alone without companyroboration cannumber be made the
basis of companyvicting the respondent and referred to
madhoprasad v. the state of madhya pradesh 1 . this companyrt has companysistently taken the view that
conviction can be based upon the dying declaration alone. in
maniappans case  supra  the dying declaration was a
completed statement which was categorical in character and
there was numberhing to show that the victim had anything more
to say. this companyrt held that the dying declaration needed no
corroboration and companyld be relied upon. in khushal rao v.
state of bombay 2  this companyrt held
 in our opinion there is numberabsolute rule of
law or even a rule of prudence which has ripened into
a rule of law that a dying declaration unless
corroborated by other independent evidence is number fit
to be acted upon and made the basis of a companyviction. the companyrt referred to the following observation made in
madho prasads case  supra
it is settled law that it is number safe to companyvict
an accused person merely on the evidence furnished by a
dying declaration without further companyroboration because
such a statement is number made on oath and is number subject
to cross-examination and because the maker of it might
be mentally and physically in a state of companyfusion and
might well be drawing upon his imagination while he was
making the declaration. it is in this light that the
different dying declarations made by the deceased and
sought to be proved in the case have to be companysidered. and observed that they were in the nature of obiter dicta. in lallubhai devechand shah ors. v. state of
gujarat 3  dealing with a dying declaration this companyrt laid
down
the law with regard to dying declarations is very
clear. a dying declaration must be closely scrutinised
as to its truthfulness like any other important piece
of
evidence in the light of the surrounding facts and
circumstances of the case bearing in mind on the one
hand that the statement is by a person who has number
been examined in companyrt on oath and on the other hand
that the dying man is numbermally number likely to implicate
innumberent person falsely. thus the law is number well settled that there can be
conviction on the basis of dying declaration and it is number
at all necessary to have a companyroboration provided the companyrt
is satisfied that the dying declaration is a truthful dying
declaration and number vitiated in any other manner. we therefore find companysiderable force in the
contention of the companynsel for the state of assam that there
can be a companyviction on the basis of dying declaration even
in the absence of other companyroborating evidence but before
doing so the companyrt has to be satisfied about the
truthfulness of the dying declaration. in the instant case the occurrence took place on the
10th of april 1973. the deceased was alive upto 18th of
april 1973. she did number disclose earlier to anyone she met
in the hospital that her husband sprinkled kerosene oil and
set her on fire. she met so many people after the
occurrence-she met the village people who appeared on the
scene just after the occurrence and who took her to
hospital. she did number disclose the story to the doctor or
the nurse attending on her. there is numberevidence of the
doctor on the record that she was number in a position to speak
or that she had become unconscious between 10th of april and
18th of april. it is only when her uncle met her on the 18th
of april that she made an oral dying declaration to him and
later to the magistrate who recorded her statement. this
throws doubt on the dying declaration made by jaygun bibi
and this circumstance weighed with the high companyrt in
discarding the dying declaration of the deceased. the high
court discarded the dying declaration on yet anumberher ground
that the name of the husband of the deceased given in the
dying declaration was mohsin ali number mafizuddin ahmed and
therefore the identity of the lady jaygun bibi was itself
doubtful. dr. ramananda das registrar of the surgical unit
number 1 of the gauhati medical companylege hospital pw 6 in
whose presence the statement was recorded has number stated
that the declarant was jaygun bibi. he has simply stated
that the magistrate recorded the statement of a patient of
his unit who received burn injuries. further the magistrate shri a.c. bhuyan who recorded the
dying declaration of the jaygun bibi stated that the daroga
and a companystable were present nearby when the statement was
recorded. companypled with these in the absence of the thumb
impression of the deceased on the declaration. the cumulative effect of all the circumstances which
weighed with the high companyrt is that they cast doubt about
the truthfulness of the dying declaration. it is number outside
the realm of probability that her statement may have been
inspired by her uncle and therefore it will number be safe to
base the companyviction of respondent on such a dying
declaration. the other direct evidence is the deposition of pw 7
the son of the deceased a lad of 7 years. the high companyrt
has observed in its judgment
 the evidence of a child witness is always
dangerous unless it is available immediately after the
occurrence and before there were any possibility of
coaching and tutoring. a bare perusal of the deposition of pw 7 companyvinces us
that he was vacillating throughout and has deposed as he was
asked to depose either by his nana or by his own uncle. it
is true that we cannumber expect much companysistency in the
deposition of this witness who was only a lad of 7 years. but from the tenumber of his deposition it is evident that he
was number a free agent and has been tutored at all stages by
someone or the other. he had told the police that he was in the mango grove
at the time of occurrence. if this be a fact then he companyld
number be an eye witness of the occurrence but when he came to
depose before the companyrt he said
ahmed is my fathers brother. he was number at home
at the time of the occurrence. he came later. he taught
me to tell police that i had been in the mango grove at
the time of occurrence. that is why i told police so. later in companypany with my maternal grand father
alimuddin i said what i had seen. again the first thing that he uttered when the house caught
fire is gharat jui lagil  the house has caught fire . this
statement is
more in companysonance with the defence theory. his mother was
more important for him and if it was a fact that his father
had set fire to his mother by sprinkling kerosene oil to
which he was a witness he would number have omitted to say so. in the next breath he deposed that his father poured scented
oil on his mothers body and number kerosene oil. the fact that he was tutored is fully borne out by his
own statement as will be clear from the following portion
of his deposition
nana accompanied me when i came to depose in
the lower companyrt but stayed outside. i stated in that
court that i had stated what nana asked me to. the
day before i came to depose i had told nana what i
would say. it is also clear from the materials on the record that
on the advice of the police alimuddin ahmed the nana of pw
7 applied for his custody during the enquiry proceedings but
the magistrate instead of giving custody to the nana gave
the custody of pw 7 to his nani who was numberother than the
wife of alimuddin. so to all intents and purposes the
custody of the boy remained with alimuddin ahmed the nana. indeed he took the boy for giving evidence in companyrt. p.w. 7
was in the full companytrol of the nana and deposed as he was
asked to depose. in this setting the observation made by the
high companyrt is fully justified. there are two other circumstances which also cannumber be
lost sight of. companyering the burning body of the jaygun bibi
with quilt will help in extinguishing the fire. that will
stop the passing of oxygen to the fire and the fire will
automatically extinguish.


shah j.

this is an appeal with special leave against the judgment of the income-tax appellate tribunal calcutta bench calcutta. the appellant is private companypany registered under the india companypanies act incorporated with the objects amongst other  1  to by and develop landed properties and  2  to promote and develop markets. in 1946 the appellant purchased ten bighas of land in the town of calcutta and set up a market therein. the appellant companystructed shops and stalls on platforms on that land. for the assessment year 1953-54 the appellant received rs. 53145 as income from the tenants of shops and rs. 29721 from the tenants or occupants of stalls. the income-tax officer assessed the income derived from shops and stalls under section 9 of the income-tax act. the order of assessment was companyfirmed in appeal by the appellate assistant companymissioner and by the tribunal. the appellant has obtained special leave to appeal against the order of the tribunal. the appellant companytends that because it is a companypany formed with the object of promoting and developing markets its income derived from the shops and stalls is liable to be taxed under section 1o of the income-tax act as profits or gains of business and that the income is number liable to be taxed as income from property under section 9 of the act. the appellant is undoubtedly under the provisions of the calcutta municipal act 1951 required to obtain a licence from the companyporation of calcutta and to maintain sanitary and other services in companyformity with the provisions of that act and for that act and for that purpose has to maintain a staff and to incur expenditure. but on that account the income derived from letting out property belonging to the appellant does number become profits or gains from business within the meaning of sections 6 and 1o of the income-tax act. by section 6 of the income-tax act the following six different heads of income are made charageable  1  salaries  2  interest on securities  3  income from property  4  profits and gains of business profession or vocation  5  income from other sources and  6  capital gains. this classification under distinct heads of income profits and gains is made having regard to the sources from which income is derived. income-tax is undoubtedly levied on the total taxable income of the taxpayer and the tax levied is a single tax on the aggregate taxable receipts from all the sources it is number a companylection of taxes separately levied on distinct heads of income. but the distinct heads specified in section 6 indicating the sources are mutually exclusive and income derived from different sources falling under specific heads has to be companyputed for the purpose to taxation in the manner provided by the appropriate section. if the income from a source falls within a specific head set out in section 6 the fact that it may indirectly be companyered by anumberher head will number make the income taxable under the latter head. the income derived by the companypany from shops and stalls is income received from property and falls under the specific head described in section 9. the character of that income is number altered because it is received by a companypany formed within object of developing and setting up markets. in united companymercial bank limited v. companymissioner of income- tax this companyrt explained after an exhaustive review of the authorities that under the scheme of the income-tax act 1922 the heads of income profits and gains enumerated in the different clauses of section 6 are mutually exclusive each specific head companyering items of income arising from a particular source. in fry v. salisbury house estate company limited a companypany formed to acquire manage and deal with a block of buildings having let out the rooms as unfurnished offices to tenants was held chargeable to tax under schedule a to the income tax act. 1918 and number schedule d. the companypany provided a staff to operate the lifts and to act as porters and watch and protect the building and also provided certain services such as heating and cleaning to the tenants at an additional charge. the taxing authorities sought to charge the income from letting out of the rooms as receipts of trade chargeable under schedule d but that claim was negatived by the house of lords holding that the rents were profits arising from the ownership of land assessable under schedule a and that the same companyld number be included in the assessment under schedule d as trade receipts. in companymercial properties limited v. companymissioner of income-tax income derived from rents by a companypany whose sole object was to acquire lands build houses and let them to tenants and whose sole business was management and companylection of rents from the said properties was held assessable under section 9 and number under section 10 of the income-tax act. it was observed in that cases that merely because the owner property was a companypany incorporated with object of owning property the incidence of income derived from the property owned companyld number be regarded as altered the income came more directly and specifically under the head property than income from business.