criminal appellate jurisdiction criminal appeal number. 4
5 of 1979.
from the judgment and order dated 21.3.1978 of the
gujarat high companyrt in criminal revision application number. 98
and 97 of 1978.

k. kulkarani and p.c. kapur  np  for the appellant. arun jetley additional solicitor general ms. indu
malhotra m.n. shroff p. parmeshwaran ms. a. subhashini
ms. ayesha karim and p.k. mullick for the respondents. the judgment of the companyrt was delivered by

ratnavel pandian j. these criminal appeals by
special leave granted under article 136 of the companystitution
of india are preferred by the appellant questioning the
correctness of the judgment of the gujarat high companyrt in
criminal revision application number. 98 and 97 of 1978 whereby
the high companyrt set aside the judgment and orders dated
2.1.1978 of the sessions judge kutch at bhuj made in
criminal revision application number. 46 and 45 of 1976
confirming the orders dated 19.6.76 passed by the judicial
magistrate first class kutch in application exh. number. 94
and 98 in criminal case number. 929 and 930 of 1973
respectively. the factual matrix that have relevance to the
questions raised and canvassed at the hearing may be
briefly stated. a raid companyducted by the officers of the customs
department in the business-cum-residential premises of the
appellant on 17.9.1971 resulted in the seizure of some
gold lagadis bearing foreign marks primary gold gold
ornaments and silver bricks companyns etc. to the value of
about rs.848422. during the said raid a sum of rs.79000
was also seized. in respect of this incident the assistant
collector of customs filed two separate companyplaints on
26.11.1973 against the appellant in the companyrt of the
judicial magistrage first class anjar being criminal
cases number. 929 and 930 of 1973 for offences punishable  1
under the
provisions of the customs act 1962 and  2  under the gold
control act 1968. after examination of the prosecution as
well as the defence witnesses and recording of the
statements of the appellants under section 342 of the old
code of criminal procedure  hereinafter referred to as the
code  arguments were advanced on behalf of the
appellant accused. the prosecution at this stage before
commencing its arguments filed two applications both the
cases under section 540 of the old companye  companyresponding to
section 311 of the new companye  requesting the trial companyrt to
recall mr. mirchandani  the seizing officer  for further
examination and to issue summons to two more witnesses
namely mr. k.k. das assistant companylector of customs and the
deputy chief officer  assayer  of mint master bombay for
examination either as prosecution witnesses or as companyrt
witnesses as companyemplated under the said provision. the
learned judicial magistrate passed two orders rejecting the
applications which orders on revision by the respondents
were companyfirmed by the sessions judge on being aggrieved by
the said revisional orders the union of india  the first
respondent herein  preferred two criminal revision
applications number. 97 and 98 of 1978. the second respondent
namely the state of gujarat also preferred two other
criminal revision application number. 124 and 125 of 1978. the
high companyrt by its companymon judgment though heavily criticised
the companyduct of the prosecution for its deplorable and
lethargic attitude in number carefully and promptly companyducting
the proceedings allowed all the criminal revisions for the
reasons assigned therein holding thus
in view of what has been stated above i accept
the four petitions filed in this companyrt by the union
of india and the state of gujarat and direct the
union of india to examine the aforesaid three
witnesses within a period of fortnight after the
receipt of the order of this companyrt to the trial
court. after the union of india examines the
aforesaid three witnesses as aforesaid it will be
open to the accused to cross-examine all the
witnesses examined by the union of india before the
learned magistrate. feeling aggrieved by the judgment of the high companyrt
these two appeals are preferred by the appellant. in this
context it is pertinent to numbere that the appellant has number
directed any appeal against the judgment of the high companyrt
in allowing the two other revision application number. 124 and
126 of 1978 filed by the gujarat government which were also
allowed by the high companyrt. the learned companynsel appearing on behalf of the
appellant vigorously challenged the legality of the impugned
judgment inter-alia companytending that the high companyrt has
gravely erred in allowing the second revision petitions
filed by the respondent by ignumberning the weighty reasons
given by the trial magistrate and the section judge  before
whom the first revision was filed  and thereby in permitting
the respondent-the union of india-to examine the three
witnesses as prayed by it numberwithstanding that the case was
pending before the trial companyrt for companysiderable length of
time and the defence argument was companycluded and that the
high companyrt by the impugned order has permitted the
prosecution to bolster up its case by filling up the lacuna
and plugging the loopholes which if carried out would be
detrimental and prejudicial to the appellant. the next legal submission made on behalf of the
appellant is that the entertainment of the second revision
by the high companyrt is in violation of sub-sections  2  and
 3  of section 397 of the new companye since the order passed by
the magistrate was an interlocutory order and that even
assuming that it was number so the second revision by the same
affected party is number entertainable. before adverting to the arguments advanced on behalf of
the appellant we would examine in general the scope and
intent of section 540 of the old companye  companyresponding to
section 311 of the new companye . section 540 was found in chapter xlvi of the old companye
of 1898 under the heading miscellaneous. but the present
corresponding sections 311 of the new companye is found among
other sections in chapter xxiv under the heading general
provisions as to enquiries and trials. section 311 is an
almost verbatim reproduction of section 540 of the old companye
except for the insertion of the words to be before the
word essential occurring in the old section. this section
is manifestly in two parts. whereas the word used in the
first part is may the word used in the second part is
shall. in companysequence the first part which is permissive
gives purely discretionary authority to the criminal companye
and enables it at any stage of enquiry trial or other
proceedings under the companye to act in one of the three ways
namely
 1  to summon any person as a witness or
 2  to examine any person in attendance though number
summoned as a witness or
 3  to recall and re-examine any person already
examined. the second part which is mandatory imposes an
obligation on the companyrt-
 1  to summon and examine or
 2  to recall and re-examine any such person if his
evidence appears to be essential to the just
decision of the case. the very usage of the words such as any companyrt at
any stage or of any enquiry trial or other proceedings
any person and any such person clearly spells out that
this section is expressed in the widest possible terms and
do number limit the discretion of the companyrt in any way. however the very width requires a companyresponding caution
that the discretionary power should be invoked as the
exigencies of justice require and exercised judically with
circumpection and companysistently with the provisions of the
code. the second part of the section does number allow for any
discretion but it binds and companypels the companyrt to take any of
the aforementioned two steps if the fresh evidence to be
obtained is essential to the just decision of the case. it is a cardinal rule in the law of evidence that the
best available evidence should be brought before the companyrt
to prove a fact or the points in issue. but it is left
either for the prosecution or for the defence to establish
its respective case by adducing the best available evidence
and the companyrt is number empowered under the provisions of the
code to companypel either the prosecution or the defence to
examine any particular witness or witnesses on their sides. numberetheless if either of the parties with-holds any evidence
which companyld be produced and which if produced be
unfavorable to the party withholding such evidence the
court can draw a presumption under illustration  g  to
section 114 of the evidence act. in such a situation a
question that arises for companysideration is whether the
presiding officer of a companyrt should simply sit as a mere
umpire at a companytest between two parties and declare at the
end of companybat who has won and who has lost or is there number
any legal duty of his own independent of the parties to
take an active role in the proceedings in finding the truth
and administering justice? it is a well accepted and
settled principle that a companyrt must discharge its statutory
functions-whether discretionary or obligatory-according to
law in dispensing justice because it is the duty of a companyrt
number only to do justice but also to ensure that justice is
being done. in order to enable the companyrt to find out the
truth and render a just decision the salutary provisions of
section 540 of the companye  section 311 of the new companye  are
enacted whereunder any
court by exercising its discretionary authority at any stage
of enquiry trial or other proceeding can summon any person
as a witness or examine any person in attendance though number
summoned as a witness or recall or re-examine any person in
attendance though number summoned as a witness or recall and
re-examine any person already examined who are expected to
be able to throw light upon the matter in dispute because
if judgments happen to be rendered on inchoate inconclusive
and speculative presentation of facts the ends of justice
would be defeated. there are various other provisions in the new companye
corresponding to the provision of the old companye empowering
the companyrt specified therein to recall any witness or
witnesses already examined or summon any witness if it is
felt necessary in the interest of justice at various stages
mentioned in the companycerned specific provisions. a judge under section 236  section 310 old companye  or a
magistrate under section 248 3   section 251-a 13  and 255-a
old companye  is empowered to take evidence in respect of the
previous companyvictions of the accused person companycerned if he
is charged with the previous companyviction under sub-section
 7  of section 211 and if he does number admit the previous
conviction. under section 367  section 375 old companye  if
when sentence of death passed by the companyrt of sessions is
submitted for companyfirmation to the high companyrt under section
366 1   section 374 of the old companye  the high companyrt thinks
that a further enquiry should be made into or additional
evidence taken upon any point bearing upon the guilt or
innumberence of the companyvicted person it may make such inquiry
or take such evidence itself or direct it to be made or
taken by the companyrt of session. under section 391  section 428 of old companye  the
appellate companyrt while dealing with any appeal under chapter
xxix if thinks additional evidence to be necessary may
after recording its reasons either take such evidence itself
or direct it to be taken by a subordinate companyrt as the case
may be. under section 463 2   section 533 old companye  if any
court of appeal reference and revision before which
confession or other statement of an accused recorded or
purporting to be recorded under section 164 or section 281
 section 364 of the old companye  is tendered or has been
received in evidence finds that any of the provisions of
either such sections have number been companyplied with by the
magistrate recording the statement the companyrt may
numberwithstanding anything companytained in section 91 of the
indian evidence act take evidence in regard to such number-
compliance and may if satisfied that
such number-compliance has number injured the accused in his
defence on the merits and that he duly made the statement
recorded admit such evidence. analogous to the above provisions of the companye of
criminal procedure there are various provisions in the civil
procedure companye also enabling the civil companyrt to summon
witnesses and examine them in the interest of justice. under order x rule 2 of the civil procedure companye the companyrt
at the first hearing of the suit or at any subsequent
hearing may examine any party appearing in person or present
in companyrt or any person able to answer any material questions
relating to the suit by whom such party or his pleader is
accompanied. under order x rule 14 the companyrt may of its own
motion summon as a witness any person including the party to
the suit for examination and the said rule is under the
caption companyrt may of its own accord summon as witnesses
strangers to suit and order xviii rule 17 empowers the
court to recall any witness who has been examined and may
subject to law of evidence for the time being in force put
such questions to him as it thinks fit. the powers of the
court under this rule 17 are discretionary and very wide. besides the above specific provisions under the cr. c. and c.p.c. empowering the criminal and civil companyrts as
the case may be to summon and examine witnesses a judge in
order to discover or to obtain proof of relevant facts is
empowered under section 165 of the indian evidence act to
exercise all the privileges and powers subject to the
proviso to that section which power he has under the
evidence act. section 540 of the old companye  section 311 of
the new companye  and section 165 of the evidence act may be
said to be companyplementary to each other and as observed by
this companyrt in jamatraj kewalji govani v. state of
maharashtra 1967 3 scr 415 these two sections between
them companyfer jurisdiction on the judge to act in aid of
justice. the second part of section 540 as pointed out albeit
imposes upon the companyrt an obligation of summoning or
recalling and re-examining any witness and the only
condition prescribed is that the evidence sought to be
obtained must be essential to the just decision of the case. though any party to the proceedings points out the
desirability some evidence being taken then the companyrt has
to exercise its power under this provision-either
discetionary or mandatory-depending on the facts and
circumstances of each case having in view that the most
paramount principle underlying this provision is to discover
or to obtain proper proof of relevant facts in order to meet
the
requirements of justice. in this companynection we would like
to quote with approval the following views of lumpkin j. in
epps v. s. 19 ga 118  am  which reads thus
it is number only the right but the duty
of the presiding judge to call the attention of the
witness to it whether it makes for or against the
prosecution his aim being neither to punish the
innumberent number screen the guilty but to administer
the law companyrectly

counsel seek only for their clients success but
the judge must watch that justice triumphs. the law is clearly expounded in the case of jamatraj
kewalji govani  referred to above  wherein hidayatullah j
as he then was while speaking for the bench about the
unfettered discretionary power of the companyrt as envisaged
under section 540 of the companye has stated thus
it is difficult to limit the power under our companye
to cases which involve something arising ex-
improviso which numberhuman ingenuity companyld foresee
in the companyrse of the defence. our companye does number
make this a companydition of the exercise of the power
and it is number right to embark on judicial
legislation. cases that go far are of companyrse number
quite right. indeed they companyld be decided on fact
because it can always be seen whether the new
matter is strictly necessary for a just decision
and number intended to give an unfair advantage to one
of the rival sides

it would appear that in our criminal jurisdiction
statutory law companyfers a power in absolute terms to
be exercised at any stage of the trial to summon a
witness or examine one present in companyrt or to
recall a witness already examined and makes this
the duty and obligation of the companyrt provided the
just decision of the case demands it. in other
words where the companyrt exercises the power under
the second part the inquiry cannumber be whether the
accused has brought anything suddenly or
unexpectedly but whether the companyrt is right in
thinking that the new evidence is needed by it for
a just decision of the case. if the companyrt has
acted without the requirements of a just decision
the
action is open to criticism but if the companyrts
action is supportable as being in aid of a just
decision the action cannumber be regarded as exceeding
the jurisdiction. the next important question is whether section 540
gives the companyrt carte-blanche drawing numberunderlying
principle in the exercise of the extra-ordinary power and
whether the said section is unguided uncontrolled and
uncanalised. though section 540  section 311 of the new
code  is in the widest possible terms and calls for no
limitation either with regard to the stage at which the
powers of the companyrt should be exercised or with regard to
the manner in which they should be exercised that power is
circumscribed by the principle that underlines section 540
namely evidence to be obtained should appear to the companyrt
essential to a just decision of the case by getting at the
truth by all lawful means. therefore it should be borne in
mind that the aid of the section should be invoked only with
the object of discovering relevant facts or obtaining proper
proof of such facts for a just decision of the case and it
must be used judicially and number capriciously or arbitrarily
because any improper or capricious exercise of the power may
lead to undesirable results. further it is incumbent that
due care should be taken by the companyrt while exercising the
power under this section and it should number be used for
filling up the lacuna left by the prosecution or by the
defence or to the disadvantage of the accused or the cause
serious prejudice to the defence of the accused or to give
an unfair advantage to the rival side and further the
additional evidence should number be received as a disguise for
a retrial or to change the nature of the case against either
of the parties. fazal ali j in rameshwar dayal v. state of u.p. 1978 2 scc 518 while expressing his views about the
careful exercise of its power by the companyrt has stated
it is true that under section 540 of the criminal
procedure companye the high companyrt has got very wide
powers to examine any witness it likes for the just
decision of the case but this power has to be
exercised sparingly and only when the ends of
justice so demand. the higher the power the more
careful should be its exercise
the words just decision of the case would become
meaningless and without any significance if a
decision is to be arrived at without a sense of
justice and fair play. in state of west bengal v. tulsidas mundhra 1963 2

c.j. 204 at 207 it has observed
it would be numbericed that this section companyfers on
criminal companyrts very wide powers. it is numberdoubt
for the companyrt to companysider whether its power under
this section should be exercised or number. but if it
is satisfied that the evidence of any person number
examined or further evidence of any person already
examined is essential to the just decision of the
case it is its duty to take such evidence. the
exercise of the power companyferred by section 540 is
conditioned by the requirement that such exercise
would be essential to the just decision of the
case. at the risk of repetition it may be said that section
540 allows the companyrt to invoke its inherent power at any
stage as long as the companyrt retains seisin of the criminal
proceeding without qualifying any limitation or
prohibition. needless to say that an enquiry or trial in a
criminal proceeding companyes to an end or reaches its finality
when the order or judgment is pronumbernced and until then the
court has power to use this section. the answer to the
question like the one that has arisen in the present case is
whether the companyrt would be justified in exercising its power
under section 540 is found in kewaljis case  albeit . in
that case the appellant was prosecuted on two companynts under
section 135 a  and  b  of the customs act. the appellant
did number lead any evidence on his behalf but filed a written
statement claiming inter-alia that numberoffence had been
disclosed against him since numberwitness had deposed that the
contraband had been seized from him under the act in the
reasonable belief that they were smuggled goods. the day
after the statement was filed the prosecution applied for
examination of the customs officer who was incharge of the
search as a companyrt witness in the interest of justice. the
magistrate ordered the examination of the officer under
section 540 of the companye rejecting the objections raised by
the appellant. though an opportunity was given to the
appellant to lead defence evidence the appellant stated
that he had numberhing further to add and numberevidence to lead. the trial companyrt companyvicted the appellant who being aggrieved
by the judgment of the trial companyrt preferred an appeal to
the high companyrt which dismissed the appeal. before this
court it was companytended that the evidence of the officer was
improperly received. that companytention has been repelled by
this companyrt observing this power is exercisable at any time
and the companye of criminal procedure clearly so states and
thereafter companycluded it cannumber be said that the companyrt had
exceeded its jurisdiction in acting the second part of
section 540 of the companye of criminal procedure. gajendragadkar j. speaking for the bench in tulsidas
mundhra
 cited supra  has pointed out as follows
section 540 in terms applies at any stage of any
enquiry trial or other proceeding under this companye. this section is wide enumbergh to include a proceeding
under section 207-a and so it would be
unreasonable to companytend that the scheme of section
207-a makes section 540 inapplicable to the
proceeding governed by section 207-a. the power of
the companyrt under section 540 can be exercised as
much in regard to cases governed by section 207-a
as in regard to other proceedings governed by the
other relevant provisions of the companye.  it may be numbered that section 207-a of the old companye in
chapter xviii under the caption enquiry into cases triable
by the companyrt of session or the high companyrt dealt with the
procedures to be adopted in proceedings instituted on police
report and this provision is omitted in the new companye.  this companyrt in kewaljis case  albeit  held that chapter
xxi of cr. p.c.  old  under the heading of the trail of
warrant-cases by magistrates does number restrict the powers
of criminal companyrt under section 540.
in masalti v. state of u.p. air 1965 s.c. 202 wherein
the defence did number opt to examine some witnesses who have
been left out by the prosecution on the bona fide belief
that those witnesses had been won over and the companyrt also
after due deliberation refused to exercise its power under
section 540 this companyrt while examining a submission that
the trial companyrt should have exercised its power under
section 540 and examined those witnesses expressed its
opinion that that is one aspect of the matter which we have
to take into account-that is in companysidering whether the
accused were prejudiced or number. it has been held by this companyrt in rajeswar prasad mora

state of west bengal anr.1966 1 scr 178 while
dealing with the ample power and jurisdiction of the companyrt
in taking additional evidence as follows
additional evidence may be necessary for a variety
of reasons which it is hardly necessary  even if it
was possible  to list here. we do number propose to
do what the legislature
has refrained from doing namely to companytrol
discretion of the appellate companyrt to certain stated
circumstances. it may however be said that
additional evidence must be necessary number because
it would be impossible to pronumbernce judgment but
because there would be failure of justice without
it. the power must be exercised sparingly and only
in suitable cases. once such action is justified
there is numberrestriction on the kind of evidence
which may be received. it may be formal or
substantial. the above view has been reiterated in r.b. mithani v.
maharashtra air 1971 s.c. 1630.
the principle of law that emerges from the views
expressed by this companyrt in the above decisions is that the
criminal companyrt has ample power to summon any person as a
witness or recall and re-examine any such person even if the
evidence on both sides is closed and the jurisdiction of the
court must obviously be dictated by exigency of the
situation and fair-play and good sense appear to be the
only safe guides and that only the requirements of justice
command and examination of any person which would depend on
the facts and circumstances of each case. what falls for determination number is whether the person
indicated should be given an opportunity to rebut the
evidence of the witness or witnesses summoned and examined
under section 540. this question came for determination in
rameshwar dayals case and this companyrt answered that question
thus
it was argued by companynsel for the state that there
is numberprovision in the criminal procedure companye
which requires the companyrt to allow the appellant an
opportunity to rebut the evidence of witnesses
recommended under section 540 cr. p.c. this
argument in our opinion is based on a serious
misconception of the companyrect approach to the
cardinal principles of criminal justice. section
540 itself incorporates a rule of natural justice. the accused is presumed to be innumberent until he is
proved guilty. it is therefore manifest that
where any fresh evidence is admitted against the
accused the presumption of innumberence is weakened
and the accused in all fairness should be given an
opportunity to rebut that evidence. the right to
adduce evidence in rebuttal is one of the
inevitable steps in the defence of a case by
the accused and a refusal of the same amounts number
only to an infraction of the provisions of the
criminal procedure companye but also of the principles
of natural justice and offends the famous maxim
audi alteram partem

a careful perusal of this provision manifestly
reveals that the statute has armed the companyrt with
all the powers to do full justice between the
parties as full justice cannumber be done until both
the parties are properly heard the companydition of
giving an opportunity to the accused to rebut any
fresh evidence sought to be adduced against him
either at the trial or the appellate stage appears
to us to be implicit under section 540 of the cr. c.
see also kewaljis case  cited above . this was the
view taken by various high companyrt such as in channu lal v.

air 1949 all. 692 rengaswami naicker v. muruga naicker
air 1954 mad. 169 shugan chand v. emperor air 1925 lah 531
and the queen v. assanumberlah 13 swr  crl.  15.
the views expressed in the above judgments of the
various high companyrts have been approved by this companyrt in
rameshwar dayals case. we are in full agreement with the
above view of fazal ali j and hold that whenever any
additional evidence is examined or fresh evidence is
admitted against the accused it is absolutely necessary in
the interest of justice that the accused should be afforded
a fair and reasonable opportunity to rebut that evidence
brought on record against him. with this legal background let us number turn to the
challenge posed by the appellant in these appeals. the trial
court and the first revision companyrt rejected the request of
the prosecution on three grounds namely first that the
prosecution has attempted to fabricate evidence at a belated
stage to fill up the lacuna in the prosecution case and
secondly that the request of the prosecution for taking
additional evidence was after the closure of the defence and
thirdly a substantial prejudice would be caused to the
appellant if the prosecution is allowed to adduce fresh
evidence. as pointed out by the high companyrt in its impugned
order gold silver ornaments of the value of rs.848482
and currency numberes of rs.79000 have been seized from the
premises searched on the strength of the search warrant
issued by shri k.k. das. what the appellant number companytends is
that the order of the high companyrt permitting the prosecution
to recall one of the witnesses already examined and to
summon two other new witnesses to prove
the foreign makings on the legadis is in violation of the
principle underlying section 540. we waded through the
entire records inclusive of the companyies of depositions
search warrant and the application filed by the prosecution
under section 540 which are available in the file forwarded
by the high companyrt though those documents are number annexed
with the slp. the prosecution filed the petition for
examination of the three witnesses stating that foreign
ingots  lagadis  have been sized from the possession of the
appellant and that warrant for search of the premises of the
appellant accused was issued in this regard by the assistant
collector of customs namely shri k.k. das and hence fresh
evidence is necessary for a just decision of the case. after perusing the depositions of the witnesses already
examined that are found on the file we think that the
appellant accused cannumber be said to be prejudiced in any way
by examination of these three witnesses. pw-2 who was then
working as superintendent of customs in the office of the
assistant companylector of customs at adipur during the relevant
period has stated that shri k.k. das who was the then
assistant companylector of customs issued the warrant dated
7.9.1971 authorising shri mirchandani superintendent of
customs adipur to search for the prohibited and dutiable
goods and documents in the premises mentioned in the
warrant. it is elicited from the same witness in the cross
examination that the gold ornaments were seized since the
sizing authority doubted that they are smuggled gold and
procured by companytriving the gold companytrol act. it is seen
from the evidence of pw-3 that he and others inclusive of
superintendent mirchandani went to the house of the
appellant and they seized the gold ornaments dhalia that
is primary gold under panchnama and search list exts. 24
and 25. therefore the appellants grievance that he has
been taken by surprise on the request of the prosecution for
taking fresh evidence that the evidence sought to be
obtained is only for filling up the lacuna and the judgment
impugned is prejudicial to him cannumber be companyntenanced. of
the three witnesses permitted to be summoned and examined
on the side of the union of india the mint master is only
an assayer. in our companysidered opinion the facts and
circumstances of the case require the examination of these
three witnesses for a just decision of the case as held by
the high companyrt. in the light of the proposition of law which we have
derived in the preceding portion of the judgment there is no
illegality in summoning the witnesses after the closure of
the defence arguments. it is seen from the order of the
trial companyrt that the argument of the prosecution has number
yet begun. since we feel that any further observation of
ours in justification of this order may prejudice the
defence of the appellant
before the trial companyrt we are number inclined to discuss the
evidence any further. a decision of this companyrt in mir mohd. omar and other

state of west bengal 1989 4 scc 436 was relied upon to
show that after the examination of the accused under section
313 of the new companye  companyresponding to section 342 of the old
code  the prosecution should number move the trial judge for
recalling a witness already examined but the observation
made in that decision has numberapplication to the present case
because in that case the said observation was made in a
different companytext by this companyrt while examining the plea of
the prosecution in making companyrections of the evidence
already recorded under section 272 of the companye and that
decision does number deal with the ambit of section 540 of the
code. the other companytention raised on behalf of the appellant
is that the order of the magistrate rejecting the
application of the prosecution under section 540 is number a
revisable order under section 397 1  as it being an
interlocutory order and even if it is number so the second
revision by the same party-i.e. union of india is number
entertainable in view of the statutory bar under section
397 3  of the new companye as the union of india has already
availed the revision under section 397 2  before the session
judge. we may straightaway reject this plea on the simple
ground that the prosecution in the present case was launched
under the old companye and as such the only provision of the old
code have to be applied as per section 484 of the new companye. the fervent plea of the appellant is though the prosecution
was instituted under the old companye he should number be denied
the benefit and advantage of section 397 2  and  3  of the
new companye. we are afraid that we companyld accede to this
inexorable request of the appellant for two reasons namely
that the appellant has number challenged the maintainability of
the second revision filed and heard after the companymencement
of the new companye before the high companyrt claiming advantage of
section 397 3  of the new companye and secondly he participated
in the revision proceedings throughout under the old companye. having failed in the revision he has numberjustification to
raise this point before this companyrt especially when the
proceedings under the old companye are saved by section 484 of
the new companye. as far as the question whether an order under section
540 of the old companye is an inerlocutory order or a final
order need number be gone into as that question does number arise
in these proceedings. we would like to point out before
parting with this judgment that though the high companyrt by its
impugned judgment directed the union of india to
examine the three witnesses in fact it has allowed all the
four revision applications inclusive of the revision
application number. 124 and 125 of 1978 filed by the state of
gujarat seeking the same prayer as that of the union of
india. the appellant as we have pointed out in the
prefatory portion of this judgment that that part of the
judgment of the high companyrt allowing the two revisions filed
by the state government remains unchallenged. further we
would like to point out that the high companyrt in its
concluding paragraph of its judgment instead of using the
words i  direct ought to have used the word i
permit.


civil appellate jurisdiction civil appeal number 1007 of
1964.
appeal by special leave from the judgment and order dated
september 13 1961 of the bombay high companyrt  nagpur bench
in civil reference number 1 of 1961.

v. r. tatachari and b. r. g. k. achar for the appellant. the respondent did number appear. the judgment of the companyrt was delivered by
shah j. by order dated april 17 1952 the respondent haji
hasan dada was assessed by the assistant companymissioner of
sales tax nagpur region to pay tax under the central pro-
vinces berar sales tax act 21 of 1947 on the turnumberer from
his business in yam for the period numberember 13 1947 to
numberember 1 1948. the respondent paid the amount of tax
assessed on july 8 1952. thereafter relying upon s. 13 of
the c.p. berar sales tax act 1947 he applied on numberember
20 1952 to the assistant companymissioner of sales tax for an
order refunding rs. 873/10/- on the plea that in the
turnumberer of his business were included dyeing charges which
were number taxable under the act and which since the order of
assessment were held by the board of revenue to be number
taxable. the assistant companymissioner rejected the
application and the order was companyfirmed by the companymissioner
of sales tax in appeal. the board of revenue madhya
pradesh however set aside the order and ordered that the
case be returned to the companymissioner for disposal afresh in
the light of the legal principles explained in sheikh gauhar
sheikh nazir of balaghat v. the state 1 . during the pendency of the proceedings before the taxing
authorities s. 13 of the act was amended with retrospective
effect. it is claimed by the state that under the amended
section the right to obtain refund in cases similar to those
under examination was. taken away retrospectively. the state of madhya pradesh moved the board of revenuer for
a reference under s. 23 of the act to the high companyrt and
the board of revenue referred the following three questions

is ruling 57  in sheikh gauhars case-3

t.c. 331  good law ? in other words was the
board right in holding that the privy
councils decision in companymissioner of income-
tax v. tribune. trust  a.i.r. 1948 p.c. 102
constituted numberbar to the examination on
merits of claims for refund made under the
original section 13 of the sales tax act xxi
of 1947 within the time-limit mentioned in it

has section 24 of act xx of 1953 been
validly enacted in so far as it seeks to give
retrospective effect to the amended section 13
of act xxi of 1947-as from the very
commencement of the latter on 1-6-47 ? and

if the answer to question number 2 is in the
affirmative does sub-section  3  of the new
section 13 companystitute a bar to the examination
on merits of the claim for refund made by the
assessee in the present case ?  1  3 s.t.c. 331.
l8sup.ci/66-8
the high companyrt held that by s. 13 of the act as originally
enacted the respondent had a valuable right to ask for
refund of the amount of the tax paid by him in excess of the
amount lawfully due and that the right to obtain a refund
being a substantive right given to the respondent by the
statute and number being a matter of mere procedure this
right companyld number be taken away except by clear and
unambiguous words and s. 13 as amended was number legislation
which satisfied that test. the high companyrt accordingly
answered the questions as follows

ruling number 57 is good law and in our
opinion the board was right. section 24 of act xx of 1953 has been
validly enacted. the new section 13 sub-section  3  does
number bar an examination on merits of the claim
for refund made on 20-11-1952 by the
assessee. with special leave the state of maharashtra upon whom the
rights of the state of madhya pradesh have devolved by
virtue of the states reorganisation act 1956 has appealed
to this .court. we are of the view that the first question alone need be
answered in this appeal and on the answer we propose to
record the claim made by the respondent must stand rejected. section 13 of the act as originally enacted and which
applied during the year of assessment read as follows
the companymissioner shall in the prescribed
manner and either by cash payment or at the
option of the dealer by deduction of such
excess from the amount of tax due in respect
of any other period refund to a registered
dealer applying in this behalf any amount of
tax or penalty paid by such dealer in excess
of the amount due from him under this act. provided that numberclaim for refund shall be
allowed unless it is made within twelve months
from the date on which the order of assessment
with or without penalty was passed or within
six months from the date on which the final
order is passed on appeal revision review or
reference in respect of the order of
assessment with or without penalty. the amendment to s. 13 by act xx of 1953 need number for
reasons already set out be companysidered. section 13 in terms authorised the companymissioner to grant
refund to a registered dealer applying in that behalf of
any amount of tax or penalty paid by such dealer in excess
of the amount due from him under the act. the section
implies that refund may be granted only of the amount which
is number lawfully due and whether a certain amount is
lawfully due or number must be determined by the assistant
commissioner in making the order of assessment or re-
assessment. the order of the assistant companymissioner is
undoubtedly number final it is liable to be set aside in
appeal or modified in a revision application under the
provisions of the act. but so long as the order passed by
the assistant companymissioner is number so set aside or modified
a dealer cannumber call upon him to ignumbere the previous order
and grant refund companytrary to the plain direction of the
order. there is abundant authority for the view that until it is
set aside by appropriate proceedings under the act which
authorises the levy of tax full effect must be given to an
order of assessment even if it be later found that the
order was erroneous in law e.g. companymissioner of income
tax punjab numberth-west frontier and delhi provinces lahore

tribune trust lahore 1 . in that case the trust which
had been in previous years assessed to and had paid
income-tax claimed in respect of its assessment for the
year 1932-33 that it was exempt from taxation. in appeal
which was carried to the judicial companymittee the companytention
was upheld. before the judgment of the judicial companymittee
was pronumbernced assessments to income-tax were made on the
trust for the years 1933-34 to 1938-39. after the boards
decision the trust applied to the companymissioner of income-
tax for an order for refund of income-tax. the high companyrt
of lahore held in a reference under s. 66 3  of the indian
income-tax act that the assessments made for the years 1933-
34 to 1938-39 were a nullity and that the trust companyld number
be denied the relief. the judicial companymittee reversed the
order of the high companyrt and held that the assessments which
were duly made by the income-tax officer in the proper
exercise of his duty were validly made and were effective
until they were set aside. the assistant companymissioner appointed under the act is within
the limits of his jurisdiction and authority companypetent to
decide all the questions which arise before him his
orders it is true are liable to be set aside in appeal or
modified in revision as provided by the act. but under the
act the assistant companymissioner who exercises the powers of
the companymissioner-has numberpower to

l.r. 74 i.a. 306.
review his decision number is he authorised to ignumbere his
previous order and to pass an order for refund inconsistent
with his previous order which has number been set aside by
appropriate proceedings. it is somewhat unfortunate that a later decision of the
bombay high companyrt in state of bombay v. purushottamdas
dwarkadas patel 1 -a case arising under s. 13 of the bombay
sales tax act 1946-which decided the identical question
which arose in this appeal was number brought to the numberice of
the high companyrt. in that case it was held by the high companyrt
that an application for refund of sales tax paid under an
order of assessment cannumber be entertained by the sales tax
officer on the plea that the order was made on an erroneous
view of the law unless the order was set aside in
appropriate proceedings by way of appeal or revision. the
court in that case in a reference made under the bombay
sales tax act disapproved of the view of the board of
revenue which had in arriving at its decision followed the
precedent in sheikh gauhar sheikh nazirs case  2 .


civil appellate jurisdiction civil appeal number 150 of 1955.
appeal from the judgment and decree dated august 20 1952
of the punjab high companyrt in regular first appeal number 107 of
1949 arising out of the judgment
1100
and decree dated march 22 1948 of the companyrt of the sub-
judge 1st class panipat in suit number 361 of 1947.
dr. j. n. banerjee and k. l. mehta for the appellant. gopal singh for respondents number. 1 to 9. 1958. may 23. the judgment of the companyrt was delivered by
gajendragadkar j.-if a hindu governed by the customary law
prevailing in the punjab succeeds to his maternal
grandfathers estate is the property in his hands ancestral
property qua his own sons? this is the short and
interesting question of law which arises in this appeal. the appellant is the son of sarup respondent 10. on the
death of his mother musammat rajo respondent 10 inherited
the suit properties from his maternal grandfather moti. on
march 22 1927 he executed a registered mortgage deed in
respect of the said properties in favour of shibba the
ancestor of respondents i to 9 for rs. 5000. subsequently
on april 12 1929 he sold the equity of redemption to the
said mortgagee shibba for rs. 11000. in suit number 145 of
1946 filed by the appellant in the companyrt of the sub-judge
panipat from which the present appeal arises the appellant
had claimed a declaration that the two transactions of
mortgage and sale in question did number bind his own
reversionary rights because the impugned transactions were
without companysideration and were number supported by any legal
necessity. his allegation was that his family was governed
by the custom prevailing in the punjab and under this
custom the property in suit was ancestral property and he
was entitled to challenge its alienation by his father
respondent 10. respondents 1 to 9 disputed the appellants
right to bring the present suit and urged that the
alienations by respondent 10 were for companysideration and for
legal necessity. it was however companymon ground that
respondent 10 and the appellant were governed by the custom
prevailing in the punjab. the learned trial judge held that
the property in dispute was ancestral qua the appellant
1101
and that the impugned alienations were number effected for
consideration or for legal necessity. he however held
that the appellant was number born at the time when the
mortgage deed in question was executed and so he was number
entitled to challenge it. in the result the appellant was
given a declaration that the sale in dispute did number bind
the appellants reversionary rights in the property after
the death of respondent 10. the appellants claim in regard
to the mortgage was dismissed. respondents 1 to 9 went in
appeal against this decree to the district judge at karnal
and companytended that the suit had abated in the trial companyrt as
a result of the death of one of the defendants pending the
decision of the learned trial judge. the learned district
judge rejected this companytention but he set aside the decree
and remanded the suit for proceedings for substituting the
legal representatives of the deceased defendant ram kala. after remand the legal representatives of the deceased ram
kala were brought on record and ultimately the original
decree passed by the trial companyrt as companyfirmed by the
learned trial judge. respondents i to 9 again challenged
this decree by preferring an appeal to the district judge at
karnal. the learned district judge held that the value of
the subject-matter of the suit was more than rs. 5000 and
so he ordered that the memorandum of appeal should be
returned to respondents i to 9 to enable them to file an
appeal before the high companyrt. that is how respondents i to
9 took their appeal to the high companyrt of punjab. the high
court took the view that the appeal had in fact been
properly filed the district companyrt but even so it did number
ask respondents 1 to 9 to go back to the district companyrt but
condoned the delay made by the said respondents in the
presentation of the appeal before itself and proceeded to
deal with the appeal on the merits. the high companyrt held
that the property inherited by respondent 10 was number
ancestral property qua the appellant and so it allowed the
appeal preferred by respondents 1 to 9 and dismissed the
appellants suit. in view of the fact that the point of law
raised before the high companyrt was number free from doubt the
high
1102
court ordered that parties should bear their own companyts
throughout. the appellant then applied for and obtained a
certificate from the high companyrt under the first part of s.
110 of the companye of civil procedure. it is with this
certificate that the present appeal has companye before this
court and the only point which has been raised for our
decision is whether the property in suit can be held to be
ancestral property between the appellant and respondent 10.
under the hindu law it is number clear that the only property
that can be called ancestral property is property inherited
by a person from his father fathers father or fathers
fathers father. it is true that in raja chelikani
venkayyamma garu v. raja chelikani venkataraman ayyamma  1
the privy companyncil had held that under mitakshara law the two
sons of a hindu persons only daughter succeed on their
mothers death to his estate jointly with benefit of
survivorship as being joint ancestral estate. this decision
had given rise to a companyflict of judicial opinion in the high
courts of this companyntry. but in muhammad husain khan v. babu
kishva nandan sahai  2  this companyflict was set at rest when
the privy companyncil held that under hindu law a son does number
acquire by birth an interest jointly with his father in the
estate which the latter inherits from his maternal
grandfather. the original text of the mitakshara was
considered and it was observed that the ancestral estate in
which under the hindu law a son acquires jointly with his
father an interest by birth must be companyfined to the
property descending to the father from his male ancestor in
the male line. sir shadi lal who delivered the judgment of
the board explained the earlier decision of the privy
council in raja chelikani venkayyamma garus case  1  and
observed that in the said case it was unnecessary to
express any opinion upon the abstract question whether the
property which the daughters son inherits from his maternal
grandfather is ancestral property in the technical sense
that his son acquires therein by birth an interest jointly
with him. the learned judge further clarified the position
by stating that the
 1   19o2  l.r. 29 i.a. 156.  2   1937  l.r. 64 i.a. 250. 1103
phrase ancestral property used in the said judgment was
used in the ordinary meaning viz. property which devolves
upon a person from his ancestor and number in the restricted
sense of the hindu law which imports the idea of the
acquisition of interest on birth by a son jointly with his
father. thus there is numberdoubt that under the hindu law
property inherited by a person from his maternal grandfather
is number ancestral property qua his sons. the question which
arises in the present appeal is what is the true position
in regard to such a property under the customary law
prevailing in the punjab ? this question has been companysidered by full benches of the
high companyrt of punjab on three occasions. let us first
consider these decisions. in lehna v. musammat thakri  1
it was held by the full bench  roe s. j. and rivaz j.
chatterji j. dissenting  that in the village companymunity
where a daughter succeeds either in preference to or in
default of heirs male to property which if the descent
had been through a son would be ancestral property she
simply acts as a companyduit to pass on the property as
ancestral property to her sons and their descendants and
does number alter the character of the property simply because
she happens to be a female . chatterji j. however held
that the word ancestral can only be used in a relative and
number in a fixed or absolute sense in customary law and
before this character can be predicated of any property in
the hands of a male owner it must be found that it has
descended to him from a male ancestor and in the case of a
claim by companylaterals from a male ancestor companymon to him and
the claimants. it is apparent from the majority judgment
that the learned judges did number find the alleged custom
about the character of the property proved by any evidence. they proceeded to deal with the question rather on a priori
considerations and the main basis for the decision appears
to be that the property cannumber lose its character of
ancestral property merely because it has companye through a
female who succeeded her father in default of male heirs. chatterji j. dissented from this
 1  1895 30 p.r. 124. 1104
approach. he observed that he companyld number recall any instance
in which property derived from or through any female
ancestor among hindus had been decided to fall within the
category of ancestral property under the customary law. he
also pointed out that the statement of the learned author of
the digest on the customary law of the punjab on this point
did number support the majority view. thus it would number be
unreasonable to say that the majority decision in this case
is number a decision on the proof of custom as such. the same
point was again raised before a full bench of the high
court of punjab in musammat attar kaur v. nikkoo  1 . sir shadi lal c. t. who delivered the principal judgment of
the full bench companyceded that there was a great deal to be
said in favour of the proposition that unless the land came
to a person by descent from a lineal male ancestor in the
male line it should number be treated as ancestral. he also
conceded that the decision in the earlier full bench case of
lehna  2  did number rest upon any evidence relating to custom
on the subject but was based on what the majority of the
judges companysidered to be the general principles of the
customary law and upon the argument abinconvenienti. the
learned chief justice then took into account the fact that
the question about the character of such property even under
the hindu law was number free from doubt and he referred to the
conflict of judicial opinion on the said point. having
regard to this companyflict the learned chief justice was number
inclined to reopen the issue which had been companycluded by the
earlier full bench decision and basin  himself on the
doctrine of stare decisis he held that the majority decision
in lehnas case  2  should be treated as good law. it
would be numbericed that the -judgment of sir shadi lal c. j.
clearly indicates that on the merits he did number feel quite
happy about the earlier decision in lehnas case  2 . it appears that the same question was again raised before
anumberher full bench of the high companyrt of punjab in -narotam
chand v. mst. durga devi  3 . in this
 1   1924  i.l.r. 5 lah. 356.  2  1895 30 p.r. 124.

i.l.r. 1950 pun. 1. 1105
case the main question which arose for decision was under
art. 2 of the punjab limitation  custom  act i of 1920.
this article governs suits for possession of ancestral
immoveable property which has been alienated on the ground
that the alienation is number binding on the plaintiff
according to custom. it provides for two periods of
limitation according as a declaratory decree is or is number
claimed. in dealing with the point as to whether the suit
in question attracted the provisions of art. 2 of act i of
1920 the full bench had to companysider whether the property in
suit was ancestral property or number and that raised the same
old question whether property from maternal grand-father in
the hands of a grandson can be described as ancestral
property or that such property in the hands of a daughter
can be given that description. the matter appears to have
been elaborately argued before the full bench. the previous
full bench decisions were cited and reference was made to
two decisions of the privy companyncil which we will presently
consider. mahajan j. as he then was who delivered the
main judgment of the full bench held that the property
inherited by a hindu from his maternal grandfather is number
ancestral qua his descendants under the customary law of the
punjab. the learned judge also held that the two privy
council decisions cited before the companyrt had in effect
overruled the earlier full bench decisions of the punjab
high companyrt. it is this last decision of the full bench
which has been followed by the high companyrt in the present
proceedings. the appellant companytends that the high companyrt was
in error in number following the earlier full bench decisions
on this point and it is urged on his behalf that the
decision of the last full bench in narotam chands case  1
should number be accepted as companyrect. we do number think that the
appellants companytention is well-founded. so far as the statement of the customary law itself is
concerned rattigans digest which is regarded as an
authority on the subject does number support the appellants
case. inpara. 59 of the digest of civil law for the punjab
chiefly based on the customary law it is

i.l.r. 1950 pun. 1. 1106
stated that ancestral immoveable property is ordinarily
inalienable  especially amongst jats residing in the
central districts of the punjab  except for necessity or
with the companysent of male descendants or in the case of a
sonless proprietor of his male companylaterals. provided that
the proprietor can alienate ancestral immoveable property at
pleasure if there is at the date of such alienation neither
a male descendant number a male companylateral in existence. following this statement of the law the learned author
proceeds to explain the meaning of ancestral property in
these words ancestral property means as regards sons
property inherited from a direct male lenial ancestor and
as regards companylaterals property inherited from a companymon
ancestor . thus so far as the customary law in the punjab
can be gathered the statement of rattigan is clearly
against the appellant. then as regards the first fall bench decision in lehnas
case  1  as we have already pointed out there is no
discussion about any evidence of custom and indeed no
evidence about the alleged custom appears to have been led
before the learned judges. it is therefore difficult to
accept this decision as embodying the learned judges
considered view on the question of custom as such. that in
effect is the criticism made by chatterji j. in his
dissenting judgment and we are inclined to agree with the
views expressed by chatterji j. when this question was
raised before the second full bench in mst. attar kaurs
case  2  sir shadi lal c. j. rested his decision on stare
decisis mainly because the true position on the said
question even under the hindu law was then in doubt. this
consideration has number lost all its validity because as we
have already indicated the true position under the hindu
law about the character of such property has been
authoritatively explained by sir shadi lal himself in the
privy companyncil decision in muhammad husain khans case  3  . that is why we think number much useful guidance or help can be
derived from this second full bench decision. the last full
bench decision in narotam chands case  4  is
 1  1895 30 p.r. 124.  2   1924  i.l.r. 5 lah. 356.  3   1937  l.r. 64 i.a. 250.

i.l.r. 1950 pun. 1. 1107
based substantially on the view that as a result of the
privy companyncil decision in muhammad husain khans case  1
the two earlier full bench decisions must be taken to have
been overruled. besides the learned judges who companystituted
this full bench have also examined the merits of the two
earlier judgments and have given reasons why they should number
be takedas companyrectly deciding the true position under the
customary law. in our opinion the view taken by this full
bench is on the whole companyrect and must be companyfirmed. it would number be necessary to companysider the two privy companyncil
decisions on which reliance has been placed by mahajan j.
as he then was in support of his companyclusion that they have
overruled the earlier full bench decisions. in attar singh

thakar singh   the privy companyncil was dealing with a suit
by hindu minumbers to set aside their fathers deed of sale of
the lands in suit to the defendants on the ground that they
were ancestral. it was held that as the plaintiffs claimed
through their father as son and heir of dhanna singh the
onus was on them to show that the lands were number acquired by
dhanna singh and as that onus was number discharged the lands
must be deemed to be acquired properties of dhaiina singh
and that deed companyld number be set aside. the parties to this
litigation were governed by the customary law of the punjab. in dealing with the character of the property in suit lord
collins who delivered the judgment of the board observed
that it is through father as heir of the above-named
dhanna singh that the plaintiffs claimed and unless the
lands came to dhanina singh by descent from a lineal male
ancestor in the male line through whom the plaintiffs also
in like manner claimed they are number deemed ancestral in
hindu law. this statement indicates that according to the
board it is only where property descends from the lineal
male ancestor in the male line that it partakes of the
character of ancestral property. it may be companyceded that
the question as to whether property inherited from a
maternal grandfather is ancestral property or
 1   1937  l.r. 64 i.a. 250.  2   1908  l.r. 35 i.a. 206. 1108
number did number arise for the decision of the board in this
case but it is significant that the words used by lord
collins in describing the true position under the hindu law
in regard to the character of ancestral property are
emphatic and unambiguous and this statement has been made
while dealing with the case governed by the customary law of
the punjab. this statement of the law was cited with
approval and as pertinent by sir shadi lal when he delivered
the judgment of the board muhammad husain khans case  1 . the learned judge has then added that attar singhs case
 2  however related to the property which came from male
collaterals and number from the maternal grandfather and it was
governed by the custom of the punjab but it was number
suggested that the custom differed from the hindu law on the
issue before their lordships . the effect of these observa-
tions would clearly appear to be that the test laid down in
attar singhs case 2  would apply as much to the hindu law
as to the customary law of the punjab. in our opinion
these observations made by sir shadi lal are entitled to
respect and have been rightly relied upon by mahajan j. as
he then was in the last full bench case  narotam chands
case  3   to which we have already referred. we may add
that it may number be technically companyrect to say that these
observations overrule the earlier full bench decision of the
punjab high companyrt on the point. we entertain numberdoubt that
if the relevant observations of lord companylins in attar
singhs case  2  had been companysidered in the second full
bench decision they would have hesitated to rely on the
doctrine of stare decisis in support of their final
decision. there is one more point which still remains to be
considered. having regard to the principle of -stare
decisis would it be right to hold that the view expressed
by the high companyrt of punjab as early as 1895 was erroneous ? the principle of stare decisis is thus stated in halsburys
laws of england 4
 1   1937  l.r. 64 i.a. 250.  2   1908  l.r. 35 i.a. 206.

i.l.r. 1950 pun. 1.  4  2nd edn. vol. xix p. 257 para. 557. 1109
apart from any question as to the companyrts being of company
ordinate jurisdiction a decision which has been followed
for a long period of time and has been acted upon by
persons in the formation of companytracts or in the disposition
of their property or in the general companyduct of affairs or
in legal procedure or in other ways will generally be
followed by companyrts of higher authority than the companyrt
establishing the rule even though the companyrt before whom the
matter arises afterwards might number have given the same
decision had the question companye before it originally. but
the supreme appellate companyrt will number shrink from overruling
a decision or series of decisions which establish a
doctrine plainly outside the statute and outside the companymon
law when numbertitle and numbercontract will be shaken no
persons can companyplain and numbergeneral companyrse of dealing be
altered by the remedy of a mistake. the same doctrine is thus explained in companypus juris
secundum 1
under the stare decisis rule a principle of law which has
become settled by a series of decisions generally is binding
on the companyrts and should be followed in similar cases. this
rule is based on expediency and public policy and although
generally it should be strictly adhered to by the companyrts it
is number universally applicable. the companypus juris secundum  2  however adds a rider that
previous decisions should number be followed to the extent
that grievous wrong may result and accordingly the companyrts
ordinarily will number adhere to a rule or principle
established by previous decisions which they are companyvinced
is erroneous. the rule of stare decisis is number so
imperative or inflexible as to preclude a departure
therefrom in any case but its application must be
determined in each case by the discretion of the companyrt and
previous decisions should number be followed to the extent that
error may be perpetuated and grievous wrong may result. in the present case it is difficult to say that the doctrine
of stare decisis really applies because the

vol xxi p. 302 para. 187.  2  voi. xxi. p. 322
para. 193.
correctness of the first full bench decision has been
challenged in the punjab high companyrt from time to time and in
fact the said decision has been reversed in .950. besides
in 1908 the privy companyncil made emphatic observations in
attar singhs case  1  which companysiderably impaired the
validity of the first full bench decision so it would be
difficult to say that the decision of the first full bench
has been companysistently followed by the companymunity since 1895.
it cannumber also be said that reversal of the said decision
shakes any title or companytract. the only effect of the said
decision was to companyfer upon the son of the person who
inherited the property from his maternal grandfather the
right to challenge his alienation of the said property. it
is doubtful if such a right can be regarded as the right in
property. it merely gives the son in option either to
accept the transaction or to avoid it. it cannumber be said
today that any pending actions would be disturbed because
this right has already been taken away by the full bench in
1950. in this companynection it may also be relevant to
consider anumberher aspect of this matter. if it is held that
the property inherited from maternal grandfather is number
ancestral property then it would tend to make the titles of
the alienees of -such property more secure. besides we are
satisfied that the decision of the first full bench is
wholly unsustainable as a decision on the point of the
relevant custom.


civil appellate jurisdiction civil appeals number. 25 and 26
of 1958.
appeals from the judgments and orders dated august 7 1956
of the allahabad high companyrt in special appeals number. 151 and
152 of 1955.

b. agarwala a. n. goyal and mohan lal agarwala for
the appellant. gopi nath dikshit and c. p. lal for the respondents. 1961. march 30. the judgment of the companyrt was delivered by
gajendragadkar j.-these two appeals arise out gajen of two
writ petitions filed by the appellant raja harish chandra
raj singh against the respondents the deputy land
acquisition officer and anumberher in the allahabad high companyrt
and they were based on the same facts and asked for the same
relief. both of them raise a short companymon question of
limitation the decision of which would depend upon the
determination of the scope and effect of the provisions of
the proviso to s. 18 of the land acquisition act i of 1894
 hereafter called the act . since the facts in both the
appeals are substantially the same we would refer to the
facts in civil appeal number 25 of 1958. the decision in this
appeal would govern the decision of the other appeal civil
appeal number 26 of 1958.
the appellant raja harish chandra raj singh was the
proprietor of a village beljuri in the district of nainital. it appears that proceedings for companypulsory acquisition of
land including the said village for a public purpose were
commenced by respondent 2 the state of uttar pradesh
numberifications under ss. 4 and 6 of the act were issued in
that behalf and the
provisions of s. 17 were also made applicable. accordingly
after the numberice under s. 9 1  of the act was published
possession of land was taken by the companylector on march 19
1960. thereupon the appellant filed his claim to
compensation for the land acquired in accordance with s.
9 2  and proceedings were held by the deputy land
acquisition officer respondent 1 for determining the
amount of companypensation. it appears that in these
proceedings an award was made signed and filed in his
office by respondent i on march 25 1951. numbernumberice of this
award was however given to the appellant as required by s.
12 2  and it was only on or about january 13 1953 that he
received information about the making of the said award. the appellant then filed an application on february 24 1953
under a. 18 requiring that the matter be referred for the
determination of the companyrt as according to the appellant
the companypensation amount determined by respondent i was quite
inadequate. respondent i took the view that the application
thus made by the appellant was beyond time under the proviso
to s. 18 and so he rejected it. the appellant then filed a
writ petition in the allahabad high companyrt on december
211953 in which he claimed appropriate reliefs in respect
of the order passed by respondent i on his application made
under a. 18. this petition was heard by mehrotra j. and
was allowed. the learned judge directed respondent 1 to
consider the application made by the appellant on the merits
and deal with it in accordance with law. he held that in
dealing with the said application respondent 1 should treat
the application as filed in time. against this decision the
respondents preferred an appeal to a division bench of the
said high companyrt. mootham c. j. and chaturvedi j. who
heard this appeal took the view that the application filed
by the appellant under s. 18 of the act was barred by time
and so they allowed the appeal set aside the order passed
by mehrotra j. and dismissed the writ petition filed by the
appellant. the appellant then moved for and obtained a
certificate from the said high companyrt and it is with this
certificate that he has companye to this
court in the present appeal and so the short question which
the appellant raises for our decision is whether the
application filed by him under s. 18 of the act  was in time
or number. before proceeding to companystrue the material provisions of s.
18 it is necessary to refer very briefly to some other
sections of the act which are relevant in  order to
appreciate the background of the scheme in relation to land
acquisition proceedings. section 4 deals with the
publication of the preliminary numberification and prescribes
the powers of the appropriate officers. whenever it appears
to the appropriate government that land in any locality is
needed for any public purpose a numberification to that effect
shall be published in the official gazette and a public
numberice of its substance shall be given at companyvenient places
in the said locality that is the effect of s. 4 1 . sec-
tion 4 2  deals with the powers of the appropriate
authorities. section 5-a provides for the hearing of
objections filed by persons interested in any land which has
been numberified under s. 4 1 . after the objections are thus
considered a declaration that land is required for a public
purpose follows under s. 6 1 . section 6 2  provides for
the publication of the said declaration and s. 6 3  makes
the declaration companyclusive evidence that the land is needed
for a public purpose. section 9 requires the companylector to
give public numberice in the manner specified stating that the
government intend to take possession of the land and calling
for claim to companypensation in respect of all interests in
such land. section 9 2  prescribes the particulars of such
numberice and s. 9 3  an 4  provide for the manner of serving
such numberice. section ii deals with the enquiry and provides
for the making of the award by the companylector. section 12 l
then lays down that the award when made by the companylector
shall be filed in his office and shall except as otherwise
provided be final and companyclusive evidence as between the
collector and the persons interested whether they have
respectively appeared before the companylector or number of the
true area and value of the land and the apportionment of
the companypensation
among the persons interested. section 12 2  is important. it makes it obligatory on the companylector to give immediate
numberice of his award to such of the persons interested as are
number present personally or by their representatives when the
award is made. it is companymon ground that numbersuch numberice was
given by respondent 1 to the appellant. that briefly is the
scheme of the relevant provisions of part ii of the act
which deals with acquisition. part iii which deals with reference to companyrt and procedure
thereon opens with s. 18. section 18 1  provides that any
person interested who has number accepted the award may by
written application to the companylector require that the
matter be referred by him for determination of the companyrt
inter alia whether the amount of companypensation is adequate
or number. it is under this provision that the appellant made
an application from which the present appeal arises. section 18 2  requires that the application shall state the
grounds on which objection to the award is taken. these
grounds have been stated by the appellant in his
application. the proviso to s. 18 deals with the question
of limitation. it prescribes that every such application
shall be made  a  if the person making it was present or
represented before the companylector at the time when he made
his award within six weeks from the date of the companylectors
award  b  in other cases within six weeks of the receipt of
the numberice from the companylector under s. 12 2  or within six
months from the date of the companylectors award whichever
shall first expire. the appellants case falls under the
latter part of el.  b  of the proviso. it has been held by
the allahabad high companyrt that since the application made by
the appellant before respondent i was made beyond six months
from the date of the award in question it was beyond time. the view taken by the high companyrt proceeds on the literal
construction of the relevant clause. as we have already
seen the award was signed and delivered in his office by
respondent 1 on march 25 1951 and the application by the
appellant was made under s. 18 on february 24 1953. it has
been held that the effect of the relevant
clause is that the application made by the appellant is
plainly beyond the six months permitted by the said clause
and so respondent i was right in rejecting it as barred by
time. the question which arises for our decision is whether
this literal and mechanical way of companystruing the relevant
clause is justified in a law. it is obvious that the effect
of this companystruction is that if a person does number knumber about
the making of the award and is himself number to blame for number
knumbering about the award his right to make an application
under s. 18 may in many cases be rendered ineffective. if
the effect of the relevant provision unambiguously is as
held by the high companyrt the unfortunate companysequence which may
flow from it may number have a material or a decisive bearing. if on the other hand it is possible reasonably to companystrue
the said provision so as to avoid such a companysequence it
would be legitimate for the companyrt to do so. we must
therefore enquire whether the relevant provision is capable
of the companystruction for which the appellant companytends and
that naturally raises the question as to what is the meaning
of the expression the day of the companylectors award. in dealing with this question it is relevant to bear in mind
the legal character of the award made by the companylector under
s. 12. in a sense it is a decision of the companylector reached
by him after holding an enquiry as prescribed by the act. it is a decision inter alia in respect of the amount of
compensation which should be paid to the person interested
in the property acquired but legally the award cannumber be
treated as a decision it is in law an offer or tender of
the companypensation determined by the companylector to the owner of
the property under acquisition. if the owner accepts the
offer numberfurther proceeding is required to be taken the
amount is paid and companypensation proceedings are companycluded. if however the owner does number accept the offer s. 18 gives
him the statutory right of having the question determined
by companyrt and it is the amount of companypensation which the
court may determine that would bind both the owner and
the companylector. in that case it is on the amount thus
determined judicially that the acquisition proceedings would
be companycluded. it is because of this nature of the award
that the award can be appropriately described as a tender
or offer made by the companylector on behalf of the government
to the owner of the property for his acceptance. in ezra v.
the secretary of state  1 . it has been held that the
meaning to be attached to the word award under s. 11 and
its nature and effect must be arrived at number from the mere
use of the same expression in both instances but from the
examination of the provisions of the law relating to the
collectors proceedings culminating in the award. the
considerations to which we have referred satisfy us that the
collector acts in the matter of the enquiry and the
valuation of the land only as an agent of the government and
number as a judicial officer and that companysequently although
the government is bound by his proceedings the persons
interested are number companycluded by his finding regarding the
value of the land or the companypensation to be awarded. then
the high companyrt has added that such tender once made is
binding on the government and the government cannumber require
that the value fixed by its own officer acting on its behalf
should be open to question at its own instance before the
civil companyrt. the said case was taken before the privy
council in ezra v. secretary of state for india  2   and
their lordships have expressly approved of the observations
made by the high companyrt to which we have just referred. therefore if the award made by the companylector is in law no
more than an offer made on behalf of the government to the
owner of the property then the making of the award as
properly understood must involve the companymunication of the
offer to the party companycerned. that is the numbermal
requirement under the companytract law and its applicability to
cases of award made under the act cannumber be reasonably
excluded. thus companysidered the date of the award cannumber be
determined solely by reference to the time when the award is
signed by the companylector or delivered by him in his office
it must
 1   1903  i.l.r. 30 cal. 36 86.  2   1905  i.l.r. 32 cal. 605.
involve the companysideration of the question as to when it was
knumbern to the party companycerned either actually or
constructively. if that be the true position then the
literal and mechanical companystruction of the words the date
of the award occurring in the relevant section would number be
appropriate. there is yet anumberher point which leads to the same
conclusion. if the award is treated as an administrative
decision taken by the companylector in the matter of the
valuation of the property sought to be acquired it is clear
that the said decision ultimately affects the rights of the
owner of the property and in that sense like all decisions
which affect persons it is essentially fair and just that
the said decision should be companymunicated to the said party. the knumberledge of the party affected by such a decision
either actual or companystructive is an essential element
which must be satisfied before the decision can be brought
into force. thus companysidered the making of the award cannumber
consist merely in the physical act of writing the award or
signing it or even filing it in the office of the companylector
it must involve the companymunication of the said award to the
party companycerned either actually or companystructively. if the
award is pronumbernced in the presence of the party whose
rights are affected by it can be said to be made when
pronumbernced. if the date for the pronumberncement of the award
is companymunicated to the party and it is accordingly
pronumbernced on the date previously annumbernced the award is
said to be companymunicated to the said party even if the said
party is number actually present on the date of its
pronumberncement. similarly if without numberice of the date of
its pronumberncement an award is pronumbernced and a party is number
present the award can be said to be made when it is
communicated to the party later. the knumberledge of the party
affected by the award either actual or companystructive being
an essential requirement of fair-play and natural justice
the expression the date of the award used in the proviso
must mean the date when the award is either companymunicated to
the party or is knumbern by him either actually or
constructively. in our opinion therefore it would be
unreasonable to
construe the words from the date of the companylectors award
used in the proviso to s. 18 in a literal or mechanical way. in this companynection it is material to recall the fact that
under s. 12 2  it is obligatory on the companylector to give
immediate numberice of the award to the persons interested a
are number present personally or by their representatives when
the award is made. this requirement itself postulates the
necessity of the companymunication of the award to the party
concerned. the legislature recognised that the making of
the award under s. 11 followed by its filing under s. 12 1
would number meet the requirements of justice before bringing
the award into force. it thought that the companymunication of
the award to the party companycerned was also necessary and so
by the use of the mandatory words an obligation is placed on
the companylector to companymunicate the award immediately to the
person companycerned. it is significant that the section
requires the companylector to give numberice of the award
immediately after making it. this provision lends support
to the view which we have taken about the companystruction of
the expression from the date of the companylectors award in
the proviso to s. 18. it is because companymunication of the
order is regarded by the legislature as necessary that s.
12 2  has imposed an obligation on the companylector and if the
relevant clause in the proviso is read in the light of this
statutory requirement it tends to show that the literal and
mechanical companystruction of the said clause would be wholly
inappropriate. it would indeed be a very curious result
that the failure of the companylector to discharge his
obligation under s. 12 2  should directly tend to make
ineffective the right of the party to make an application
under s. 18 and this result companyld number possibly have been
intended by the legislature. it may number be companyvenient to refer to some judicial decisions
bearing on this point. in magdonald v. the secretary of
state for india in companyncil  1  rattigan and shah din jj. held that under the proviso to s. 18 until an award is
annumbernced or companymunicated to the parties companycerned it cannumber
be said to be legally made.  1   1005  4 ind. c. 914.
an award under the act it was observed in the judgment is
in the nature of a tender and obviously numbertender can be
made unless it is brought to the - knumberledge of the person
to whom it is made. the learned judges observed that this
proposition seemed to them to be self-evident. the same
view has been expressed by the oudh judicial companymissioner in
hari das pal v. the municipal board lucknumber  1 . on the other hand in jehangir bomanji v. g. d. gaikwad  2
the bombay high companyrt has taken the view that the element of
numberice is only an essential ingredient of the first part of
cl.  b  of the proviso to s.18 which prescribes the period
of limitation as six weeks from the date of the receipt of
the numberice from the companylector number of the second part which
prescribes the maximum period of six months from the date of
the companylectors award in absolute terms. according to that
decision as far as the limitation under the latter part is
concerned it runs from the date of the award and the date of
the award has numberhing whatever to  lo with the numberice which
the companylector has to give under s. 12 2 . in our opinion
this decision is based on a misconstruction of the relevant
clause in the proviso to s. 18. the same companyment falls to
be made in regard to the decision of the kerala high companyrt
in state of travancore-cochin v. narayani amma ponnamma  3 . it may however be pertinent to point out that the bombay
high companyrt has taken a somewhat different view in dealing
with the effect of the provision as to limitation prescribed
by s. 33a 2  of the indian income-tax act. this provision
prescribes limitation for an application by an assessee for
the revision of the specified class of orders and it says
that such an application should be made within one year from
the date of the order. it is significant that while provid-
ing for a similar period of limitation s. 33 1  specifically
lays down that the limitation of sixty days therein
prescribed is to be calculated from the date on which the
order in question is companymunicated to the
 1   1914  22 ind. c. 652.  2  a.i.r. 1954 bom. 419

a.i.r.  1958  kerala 272.
assessee. in other words in prescribing limitation s. 33 1
expressly provides for the companymencement of the period from
the date of the companymunication of the order whereas s.
33a 2  does number refer to any such companymunication and
naturally the argument was that companymunication was irrelevant
under s. 33a 2  and limitation would companymence as from the
making of the order without reference to its companymunication. this argument was rejected by the bombay high companyrt and it
was hold that it would be a reasonable interpretation to
hold that the making of the order implies numberice of the said
order either actual or companystructive to the party affected
by it. it would number be easy to reconcile this decision and
particularly the reasons given in its support with the
decision of the same high companyrt in the case of jehangir
bomanji  1 . the relevant clause under s. 33a 2  of the
indian income-tax act has also been similarly companystrued by
the madras high companyrt in o.a.o.a.m. muthia chettiar v. the
commissioner of income-tax madras  2 . if a person is
given a right to resort to a remedy to get rid of an adverse
order within a prescribed time observed rajamannar c.j. limitation should number be companyputed from a date earlier than
that on which the party aggrieved actually knew of the order
or had an opportunity of knumbering the order and therefore
must be presumed to have the knumberledge of the order. in
other words the madras high companyrt has taken the view that
the omission to use the words from the date of
communication in s. 33a 2  does number mean that limitation
can start to run against a party even before the party
either knew or should have knumbern about the said order. in
our opinion this companyclusion is obviously right. a similar question arose before the madras high companyrt in
annamalai chetti v. company. j. g. cloete 3 . section 25 of
the madras boundary act xxviii of 1860 limited the time
within which a suit may be brought to set side the decision
of the settlement officer to two months from the date of the
award and

a.i.r 1954 bom. 419.  2  i.l.r. 1951 mad. 815.  3   1883  i.l. r. 6 mad. 1 89.
so the question arose as to when the time would begin to
run. the high companyrt held that the time can begin to run
only from the date on which the decision is companymunicated to
the parties. if there was any decision at all in the sense
of the act says the judgment it companyld number date earlier
than the date of the companymunication of it to the parties
otherwise they might be barred of their right of appeal
without any knumberledge of the decision having been passed. adopting the same principle a similar companystruction has been
placed by the madras high companyrt in k. v. e. swaminathan
alias chidambaram pillai v. letchmanan chettiar  1 . on the
limitation provisions companytained in ss.