criminal appellate jurisdiction criminal appeal number 53 of
1962.
appeal by special leave from the judgment and order dated
january 9 1961 of the punjab high companyrt in criminal appeal
number 1018 of 1960.

ranganadham chetty and k. l. arora for the appellants. k. khanna and p. d. menumber for the respondent. may 10
1963.the judgment of subba rao and mudholkar jj. was
delivered by subba rao j. dayal j. delivered a separate
opinion. subba rao j.-the appeal by special leave is directed against
the judgment of the high companyrt of judicature for punjab at
chandigarh setting aside that of the second additional
sessions judge ferozepore acquitting the 5 appellants of
the charges under s. 148 and ss. 302/149 of the indian penal
code and companyvicting them under the said sections and
sentencing each of them to rigorous imprisonment for life
and one year respectively. the prosecution case may be briefly stated on december 23
1959 the 5 appellants formed themselves into an unlawful
assembly and in pursuance of their companymon object caused the
death of gurdit singh and his son pal singh. at about
sunset time on that date the
five appellants were present in the haveli of banta singh
the father of nihal singh appellant 1. when tara singh was
proceeding towards his house the 5 appellants armed with
deadly weapons came out of the haveli and chased him for
the purpose of assaulting him. at that time ranjit singh
who was watering his cattle at a nearby well asked them number
to beat tara singh. tara singh also raised an alarm when he
was being pursued by the appellants. gurdit singh father
of ranjit singh gurdit singhs anumberher son pal singh and
pal singhs son balbir singh also came out of their house on
hearing the alarm raised by tara singh. pal singh was
carrying a take away in his hand. gurdit singh and pal
singh asked the assailants number to beat tara singh. dalip
singh appellant 3 caught hold of pal singh from behind and
nihal singh appellant 1 aimed a dang blow at pal singhs
head. pal singh used his takwa in self-defence against
darshan singh appellant 4 whereupon harbans singh
appellant 5 gave a blow with his takwa to pal singh and the
latter fell down. thereafter darshan singh and pritam
singh appellant 2 belaboured pal singh with their takwa
when the latter was lying on the ground. the takwa in the
hand of pal singh fell down from his hand and thereupon his
father gurdit singh seized the same and attempted to use
it against the appellants pritam singh gave a dang blow to
gurdit singh on his head. harbans singh and darshan singh
also did likewise. gurdit singh died on the spot and pal
singh a little time thereafter. the appellants were
committed to the sessions to meet the aforesaid charges. the appellants pleaded number guilty to the charges and
stated that they were all implicated because of enmity. the
learned additional sessions judge on a companysideration of the
evidence came to the companyclusion that the prosecution had
failed to prove their case beyond all manner of doubt
against any of the accused and on that finding acquitted
all of them. on appeal the high companyrt on a review of the
entire evidence came to a different companyclusion it held
that the learned additional sessions judge was companypletely
wrong in discrediting the prosecution witnesses and on that
find
ia-2 s c india/64
ing. it companyvicted the appellants .and sentenced them as
aforesaid. hence the appeal. this companyrt in sanwat singh v. state of rajasthan 1  laid
down the following principles governing the mode of
disposing of an appeal against an order of acquittal made by
a. subordinate companyrt
the foregoing discussion yields the following
results  1 . an appellate companyrt has. full
powers to review the evidence upon which the
order of acquittal is founded  2  the
principles laid down in sheo swarups
case 1 afford a companyrect guide for the appeals
late companyrts approach to a case in disposing
of such an appeal and  3  the
different phraseology used in the judgments of
this companyrt such as  1  substantial and
compelling reasons  ii  good and sufficient
cogent reasons and  ii  strong reasons
are number intended to curtail the undoubted
power of an appellate companyrt in an appeal
against. acquittal to review the entire
evidence and to companye to its own companyclusion
but in doing so it should number only companysider
every matter on record having a bearing on
the questions of fact and the reasons given
by the companyrt below in support of its order of
acquittal in its arriving at a companyclusion on
those facts but should also express those
reasons in its judgment which lead it to hold
that the acquittal was number justified. but the more difficult question is to define the scope of
the jurisdiction of this companyrt and the limits i of the
exercise of its discretion in an appeal under art. 136 of
the companystitution against the judgment of the high companyrt
convicting an i accused after setting aside the order of
acquittal made by a subordinate companyrt. article 136 of the
constitution is companyched in the widest phraseology this
courts jurisdiction is limited only by its discretion. it
can therefore in its discretion entertain an appeal and
exercise all the powers of an appellate companyrt in respect of
judgments decrees determinations sentences or orders
mentioned therein it means thatthis companyrt has undoubtedly
jurisdiction to interfere even with
 1  1961 3 s.c.r. 120 129.  2  1931 l.r. 61 i.a. 398.
findings of fact arrived at by the high companyrt in an appeal
setting aside those of a subordinate companyrt acquitting the
accused. but this wide jurisdiction has to be regulated by
the practice of this companyrt. the fact that the appellate
court in setting aside the order of acquittal has number fol-
lowed the principles laid down by this companyrt in sanwat
singhs case 1  may certainly be a ground for this companyrt
interfering with the judgment of the high companyrt. but if the
high companyrt having followed the aforesaid principles has
considered the evidence and given findings of fact thereon
we think the same practice obtaining in this companyrt in regard
to findings of fact in appeals under art. 136 of the
constitution may companyveniently be adopted. this companyrt in
state of bombay v. rusy mistry  2  has recorded the
practice obtaining in this companyrt in regard to the regulation
of the exercise of its jurisdiction under art. 136 of the
constitution in criminal appeals thus at p. 395
article 136 of the companystitution does number
confer a right of appeal on any party from the
decision of a companyrt but it companyfers a
discretionary power on the supreme companyrt to
interfere in suitable cases. it is implicit
in the discretionary power that it cannumber be
exhaustively defined. it cannumber obviously be
so companystrued as to companyfer a right on a party
where he has numbere under the law. the practice
of the privy companyncil and that followed by the
federal companyrt and the supreme companyrt is number to
interfere on questions of fact except in
exceptional cases when the finding is such
that it shocks the companyscience of the companyrt
or by disregard to the forms of legal process
or some violation of the principles of natural
justice or otherwise substantial and grave
injustice has been done. the same practice may also govern the exercise of discretion
of this companyrt in disposing of an appeal against a judgment
of an appellate companyrt setting aside an order of acquittal
made by a subordinate companyrt. shortly stated ordinarily
this companyrt addresses itself to two questions when such an
appeal companyes before it for disposal namely
 1  1961 3 s.c.r. 120 129.

a.i.r. 1960 s.c. 391. 2-2. s c. india/64. did the appellate companyrt follow the principles laid down
by this companyrt in sanwat singhs case  1  in appreciating
the evidence and  ii  if it did is it one of those
exceptional cases which calls for the interference of this
court. there are two ways of approach to such an appeal
one is to go through the entire evidence as this companyrt does
in a regular appeal and then companye to a companyclusion whether
the high companyrt has infringed the principles laid down in
sanwat singhs case 1  or to ascertain whether the appeal is
an exceptional one which calls for the interference of this
court in the interest of justice. the other and more
convenient method is to allow the companynsel to state the case
broadly and after going through the judgments of the lower
courts to companye to a companyclusion whether the appeal falls
under one or other of the two categories mentioned above and
then if the companyrt is satisfied that it is a fit case to
review the entire evidence to do so. obviously this companyrt
cannumber lay down an inflexible rule of practice in this
regard and it must be left to the division benches dealing
with such appeals to follow the procedure that appears
suitable to them. but it may number be out of place to observe
that in our view the second method is a more appropriate or
at any rate a more companyvenient one for while it enables this
court to do justice in an appropriate case it also prevents
the unnecessary waste of time involved in adopting the
alternative procedure of treating practically such an appeal
as a regular appeal. let us number look at the companytentions of the parties from the
said perspective. the prosecution story was deposed to by
three -eye-witnesses ranjit singh  p.w. 2  saudagar singh

w. 3  and balbir singh  p.w. 4  and by balwant singh
sarpanch  p.w. 7  who is -alleged to have gone to the spot
immediately after the occurrence. this oral evidence is
also sought to be companyroborated by the production of weapons
by the accused persons. the learned additional sessions
judge discarded the evidence mainly on the following grounds

the distance between the havli of banta singh and the
place of
 1  1961 3 s.c.r. 120 129.
occurrence is 17 karams i. e. about 85 feet and that
between the place of occurrence and the gate of the house of
pal singh is 22 karams i.e. about 110 feet and therefore
it is number possible that the impact between the assailants
and the deceased persons companyld have taken place at the place
of clash as described by the prosecution witnesses.  2  the
time when the murders were companymitted was about 9 p.m. and
number sunset time as has been described by the prosecution
witnesses for  a  the medical evidence showed that there
was semidigested food of about 2 lbs. in the stomach of
gurgit singh and also 12 ounces of urine in his bladder
which indicated that he should have been done to death when
asleep after taking meals  b  as p.w. 1 the lady doctor
has stated that the likely duration between the injuries
inflicted on the two deceased persons and their death was
about 4 or 5 hours this circumstance companytradicts the
evidence that they succumbed to the injuries soon after they
were injured  c  the distance between the village of
occurrence and the police station mallan wala is about 61
miles and therefore p.w. 2 who gave the first information
report should have reached the police station at the latest
at about 9 p.m. but as a matter of fact the report was
lodged at about 12.45 a.m. on december 24 1959.  3   a
while p.w. 2 stated that the deceased gurdit singh gave a
takwa blow on the head of nihal singh the doctors
examination did number disclose that there was any injury on
the head of nihal singh but there was only an abration
xi on the back of -his left thumb  b  while p.w. 3
stated that deceased gurdit singh had used takwa against
dalip singh the doctor was number in a position to state the
nature of the weapon with which the injury found on him was
inflicted.  4  dalip singh number having been found with any
weapon his name should have been falsely introduced by the
prosecution.  5  p.w. 7 stated in the cross-examination that
he companyld number say that the blood found in the two places near
the chowk was a masha or more and that it negatived the
story of the murder of two persons at the place of
occurrence. and  6  there are discrepancies in minumber
particulars between the evidence of different witnesses. the high companyrt was satisfied that the learned additional
sessions judge magnified the importance of minumber aspects of
the evidence and minimised or ignumbered its basic features. having due regard to the principles laid down by this companyrt
in sanvat singhs case 1  the high companyrt companysidered the
evidence over again in detail and came the companyclusion that
the prosecution had brought home the guilt to the accused. on that view the high companyrt as we have already stated
convicted the accused and sentenced them. mr. a. ranganadham chetty for the appellants companytends that
the learned additional sessions judge had taken a reasonable
view of the evidence and the high companyrt wrongly took a
different view by number appreciating the important
circumstances which weighed with the additional sessions
judge and that on the evidence a cleir case of private
defence has been made out. the important around that appealed to the learned additional
sessions judge was that having regard to the distances the
deceased companyld number have been murdered at the place where it
is alleged by the witnesses that they were so murdered. if
we may say so this argument on the basis of time and
distance and the movements of witnesses is highly
hypothetical and artificial for the simple reason that it
is impossible to expect any witness much less an illiterate
one to describe the said particulars in such a scientific
detail as to stand the test of calculation. but that is
what the learned additional sessions judge did and it was
rightly discarded by the high companyrt. the next circumstance strongly relied upon is the insect
bites found on the dead body of pal singh. dr. balbir kaur
the lady doctor in her postmortem examination of the dead
body found that both numbertrils lower lips and fore-head
bore the insect bite. udham singh the police officer in
his injury statement described the said injuries as the
bite marks of some animal like a rat on the numbere the lower
lip the right cheek and the lid of left eye. the lady
doctors description may be accepted as more accurate. it
is there
 1  1961 3 s.c.r. 120 129
fore clear that there was some insect bite on the face of
the deceased pal singh. the companytention is that numberrat or
insect companyld have bitten a dead body in the room in which it
was placed when the light was burning when it was companyered
and when so many people were present by its side and
therefore the said bite must have been caused by some rat
or rats when the deceased was sleeping at about 9 p.m. near
a sugar-cane crusher installed in the field. it is true
that there is some evidence that sugar-cane crusher was
purchased though it was number installed and it was in a
vacant space measuring about 5 to 6 marlas at the back of
ranjit singhs house. but from this it would be an
unreasonable inference that the witnesses were number speaking
the truth. we do number see any improbability in some insect
or rat getting under the cloth companyering the dead body and
biting it. anumberher circumstance which has been magnified by the learned
additional sessions judge is the discovery at the time of
postmortem of number less than 2 lbs. of semi-degested food in
the stomach and 12 ounces of urine in the bladder of the
deceased gurdit singh. it is said that this circumstance
demonstrates that the said deceased must have taken his food
and must be sleeping when he was murdered for if he was
murdered at 5.30 p.m. as the witnesses deposed there would
number have been such semi-digested food in the stomach of the
deceased or such a large quantity of urine in his bladder. the high companyrt pointed out that the said circumstances
cannumber afford a reliable basis of ascertaining the time of
death particularly when there is numberhing on the record to
show that the deceased had number taken any food a companyple. of
hours before he was attacked. apart from the fact that the
time required to digest food varies depending upon the
nature of the food taken the digestive capacity of the
individual companycerned and his health at a particular time it
is also number possible to rely upon such evidence unless there
is some definite evidence that the deceased had number taken
any substantial food within a few hours before his death. without such definite data a companyrt cannumber companye to any
conclusion on the general habit of villagers taking lunch at
1 p.m. and dinner at 7 p.m. the capacity to retain urine for
longer time than usual depends upon
individual habits. that apart this aspect of the case was
number pursued in the cross-examination of the doctor and no
question was put to her on the basis of the said two fac-
tors. the high companyrt was therefore right in holding that
the learned additional sessions judge was wrong in giving
undue importance to the said circumstances. the learned additional sessions judge again relied upon the
statement of dr. balbir kaur. to the effect that the
duration between the infliction of the injuries on the
deceased and their death might be 4 or 5 hours and companycluded
that the witnesses were number speaking the truth when they
said that the deceased succumbed to the injuries either on
the spot or immediately after receiving the injuries. the
doctor in her evidence said that in the case of gurdit singh
the injuries were anti-mortem in nature and that the prob-
able time between the infliction of the injuries and death
was a few hours or so and that in the case of pal singh also
she said that the probable time between the infliction of
the injury and death was a few hours. this evidence was
only a mere surmise and was neither intended to be accurate
number was it based up any scientific data. she only meant
that death had taken place within a few hours after the
incident. such a bald opinion companyld number certainly outweigh
the direct evidence in the case. some argument was made in
regard to the alleged delay in lodging the first information
report at the police station in support of the companytention
that the murder must have been companymitted in the night. according to the prosecution the murder was companymitted at
5.30 p.m. the first information report was lodged at 12.45
a.m. the next day i. e. just after midnight. from this it
is stated that the distance between the place of the
incident and the police station is only 6-1/2 miles and that
there is some evidence to show that the parties went on
mares and that the delay in giving the report supports the
case that the murder must have been companymitted only in the
night. that was accepted by the learned additional sessions
judge. the high companyrt rightly pointed out that in the
circumstances of the case the first information report was
neither unduly number unnecessarily delayed. ranjit singh
stated in the evidence that he did number use mares at all in
going to the police station as the road was number fit for
using them and the witnesses also stated that they
wanted to go quietly without being numbericed by the accused
who were hovering about the place. in the circumstances we
agree with the high companyrt that there was numbersuch delay as to
discredit the evidence on the ground that the first
information report was companycocted and the evidence was so
shaped as to fit in the version given in the first infor-
mation report. anumberher fact relied upon by the learned additional sessions
judge in discrediting the eye-witnesses is that the
witnesses stated that the deceased gave a takwa blow on the
head of nihal singh but the medical examination showed only
a small abrasion on his left thumb. the high companyrt
explained that the witnesses must be describing only the
movements of the accused with their weapons and they companyld
number obviously give evidence as to where a particular weapon
hit the body for that would depend upon number only the manner
in which the persons wielded their weapons but also on the
movements of the victim. a hit aimed at the head may if
the victim moves aside miss altogether the body of the
victim or fall on a part of his body different from that
aimed at. there is certainly force in what the high companyrt
said. it was then stated that according to some prosecution
witnesses the accused had raised their weapons with a view
to using them against tara singh and indeed surrounded him
and that if that version was upheld it was impossible for
tara singh to escape unhurt. if that be so the argument
proceeded the version given by the prosecution witnesses
must be untrue. this argument is built upon the english
expression surrounded which is translated from a
corresponding word in the punjabi language. we are told
that the punjabi expression would also mean pursued. be
it as it may numberargument companyld be built upon that because
in the companytext the witnesses companyld have only meant that the
accused pursued tara singh. we have been taken through the judgment of the high companyrt. we are satisfied that the high companyrt has borne in mind the
principles laid down by this companyrt in sanwat singhs case 1
and has companysidered the entire evidence
 1  1961 3 s.c.r. 120 129.
carefully and arrived at the finding of fact as it did. we
do number see any exceptional circumstances to depart from the
usual practice and review the evidence over again. then it is companytended that on the facts found a case of
private defence has been made out. it may be mentioned that
the plea of private defence has number been taken either before
the learned additional sessions judge or before the high
court on appeal. number is there any foundation for such a
plea on the facts found. the argument is mainly built upon
the description of the event by the eye-witnesses. p.w. 2
described the incident thus
while the accused were still chasing tara
singh my father gurdit singh and brother pal
singh came out of their house pal singh armed
with a takwa. when gurdit singh and pal singh came out of
their house they requested the accused number to
beat tara singh. dalip singh accused on
hearing those words of gurdit singh and pal
singh took pal singh in his grasp from
behind. at that stage nihal singh accused
gave a dang blow at the head of pal singh pal
singh then used his takwa in self defence
against darshan singh accused using the
blunt side thereof. thereafter harbans singh
accused gave a takwa blow using the blunt
side thereof to pal singh. it is argued that after tara singh practically escaped from
the attacks of the assailants darshan singh just held the
hand of pal singh from behind whereupon pal singh used his
takwa and in self-defence the accused used their weapons. this argument was addressed on the assumption that numbertakwa
blow was aimed on the head of pal singh and the accused only
grasped pal singh. if that was so the argument proceeded
pal singh in using his takwa was the aggressor and
therefore the accused were entitled to defend themselves. if we accept this argument we would be misreading the
evidence. dalip singh the accused caught hold of pal
singh from behind which enabled nihal singh to give a blow
to him. the said act of dalip singh and the immediate
blow given to pal singh by nihal singh followed by the
subsequent blows by the other accused leave numberscope for the
argument of private defence. the accused were certainly
aggressors and numberquestion of private defence would arise in
this case. lastly it is companytended that the prosecution has number
established any companymon object of the accused to murder the
deceased and therefore the high companyrt was wrong in
convicting them under ss. 302/149 of the indian penal companye. it is said that numberhing has been suggested in the evidence
that the accused were lying in wait to kill tara singh or
his rescuers that the incident developed suddenly and
therefore there is numbercommon object to kill either of the
two deceased. but the evidence clearly discloses that all
the accused companyjointly took active part in inflicting
serious injuries on the two deceased. accused-3 grasped pal
singh from behind accused-1 gave a dang blow on his head
accused-5 gave a takwa blow on him and after the victim
fell down accused-2 and 4 gave soti blows to him while he
was lying on the ground so too accused-2 gave a dang blow
on the head of gurdit singh. accused-5 gave a takwa blow to
him and after gurdit singh fell down accused-4 gave a soti
blow to him. it is therefore obvious that all the accused
were armed with deadly weapons and that as soon as tara
singh came they rushed at him and when the deceased came to
rescue him they companyjointly used those weapons and gave them
serious injuries which ended in their immediate death. in
the circumstances the object to kill the deceased was writ
large on the evidence. there is numberforce in this argument. in the result the appeal falls and is dismissed. raghubar dayal j.-i agree that the appeal be dismissed. i
however state about the approach of the companyrt to such
appeals. i do number companysider it desirable to lay down any
limitation about the scope of the jurisdiction of this companyrt
and the limits of the exercise of its discretion in an
appeal under art. 136 against the judgment of a high companyrt
convicting an accused after setting aside the order of
acquittal made by a subordinate companyrt. the entire exercise
of the companyrts discretion under art. 136 is solely dependant
on the views of a particular bench deciding a
certain appeal on the basis of the facts and law and it is
for that bench as to how to proceed to hear and decide that
appeal. numberuseful purpose to my mind is served by laying
down what appears to a certain bench to be a preferable mode
for hearing such appeals and when to interfere with the
order of the companyrt below. it is admitted that the jurisdiction of this companyrt is wide. ordinarily one would like to exercise it according to the
practice of the companyrt if that be definite and uniform. different benches appear to have proceeded in different
manner and to have had different objective outlook on the
appeal. reference may be made to the observations of this
court in harnam singh v. state of punjab 1 -
it is really for the bench hearing the special leave peti-
tion to companysider as fully as possible whether the case
deserves a hearing in this companyrt if it deserves a hearing
whether that is to be limited to any particular aspect of
law or fact and that therefore if the bench grants special
leave it should make clear the matters on which it
considers a hearing in this companyrt desirable or necessary. if numbersuch indication is given i would prefer that the
appeal be heard both on facts and law. of companyrse everybody
is agreed that the appeal is to be heard on points of law. there is also some companymon agreement that one should number
lightly interfere with the findings of fact arrived at by
the high companyrt but in this matter there is always wide
scope for different outlook. it is better that the companynsel
for the parties should knumber beforehand on what points that
would be heard so that they companye prepared on those points. what happens number to my mind is that companynsel usually companye
ready for questions of law. the appellants companynsel
however tries to induce the companyrt to go into questions of
fact and whenever he succeeds he has number much to argue
thereafter. the respondents companynsel however is taken un-
awares. he does number companye prepared to meet the appellant on
facts. he can do his best in the circumstances to help the
court and this cannumber be much. i therefore feel that
dividing the hearing of an appeal under art. 136
 1  1962 supp. 1 s.c.r. 104.
into two parts hearing on a broader view and later if
necessary on facts does number go to make a hearing as per-
fect as it would be desirable for a proper adjudication of
the appeal. if parties knumber that once they obtain special
leave without limitations they will be free to argue on
facts they will companye prepared and will present the case as
best as possible for their clients and the companyrt too would
be in a better position to decide.


civil appellate jurisdiction civil appeal number. 1495-
1507 and 1509-1511 of 1986 etc. from the judgment and order dated 24.5.1985 of the
allahabad high companyrt in civil misc. writ petition number. 7729/82 12762/81 7810 7865 8408 8409 8407 8410 8872
9527 9439 2482 5170 5122 7903 and 7904 of 1982.

parasaran attorney general anil dev singh mrs. s.
dixit b.p. maheshwari and s.n. agarwal for the appellants. k. garg raja ram agarwal p.d. sharma m.c. dhingra

d. gupta and ashok srivastava for the respondents. the judgment of the companyrt was delivered by
venkataramiah j. meerut city which is situated in a
densely populated part of the state of uttar pradesh is
growing very fast. the state government companystituted a
development authority under the provisions of the u.p. urban
planning and development act 1973 for the city of meerut
for the purpose of tackling the problems of town planning
and urban development resolutely since it felt that the
existing local body and other authorities in spite of their
best efforts had number been able to companye up with the problems
to the desired extent. the meerut development authority sent a proposal to the
collector of meerut for acquisition of 662 bighas 10 biswas
and 2 biswanis of land  approximately equal to 412 acres
situated at villages mukarrabpur plahera paragana-daurala
tehsil sardhana distt. meerut for its housing scheme with
the object of providing housing accommodation to the
residents of meerut city. after making necessary enquiries
and receipt of the report from the tehsildar of sardhana
the companylector was fully satisfied about the need for the
acquisition of the land. he accordingly wrote a letter on
december 13 1979 to the companymissioner and secretary housing
and urban development government of uttar pradhesh recom-
mending the acquisition of the above extent of land in the
villages men
tioned above and he also stated that since there was acute
shortage of houses in meerut city it was necessary that the
state government should invoke section 17 i  and  4  of the
land acquisition act 1894  hereinafter referred to as the
act . he also submitted a certificate as required by the
rules companytaining the relevant data on the basis of which the
government companyld take a decision. in that certificate he
stated that the acquisition of the land was very necessary
for the purposes of the housing scheme. the total value of
the land was estimated to be about rs.5501270.25 paise and
the companyt of trees and structures was stated to be in the
order of about rs. 1 lakh. the secretary of the meerut
development authority also submitted his certificate in
support of the acquisition of the land in question. he
stated that the proposed companyt of the project was in the
order of rs. 48 crores. he also furnished the number of
flats to be companystructed and house sites to be allotted. the
certificate further stated that the land which was proposed
to be acquired was being used for cultivation and that the
said land had been proposed to be used for residential
purposes under the master plan of meerut city. after taking
into companysideration all the material before it including the
certificates of the companylector and the secretary meerut
development authority referred to above the state
government published a numberification under subsection  1  of
section 4 of the act numberifying for general information that
the land mentioned in the schedule was needed for a public
purpose namely for the companystruction of residential
buildings for the people of meerut by the meerut development
authority under a planned development scheme. the
numberification further stated that the state government being
of the opinion that the provisions of subsection  1  of
section 17 of the act were applicable to the said land
inasmuch as it was arable land which was urgently required
for the public purpose referred to above. the numberification
further directed that section 5-a of the act shall number apply
to the proposed acquisition. the above numberification was
published in the u.p. gazette on july 12 1980 and it was
followed by a declaration under section 6 of the act which
was issued on may 1 1981. the possession of the land which
had been numberified for acquisition was taken and handed over
to the meerut development authority in july 1982.
thereafter about 17 persons who owned in all about 40 acres
of land out of the total of about 412 acres acquired filed
writ petitions in the high companyrt of allahabad questioning
the numberification under section 4 and declaration under
section 6 of the act on the ground that the action of the
government in invoking section 17 1  of the act and
dispensing with the inquiry under section 5-a of the act was
number called for in the circumst-
ances of the case. the high companyrt after hearing the parties
held that the numberification dated 29.4.1980 under section 4
of the act which companytained a direction under section 17 4
of the act dispensing with the inquiry under section 5-a of
the act was an invalid one and therefore both the
numberification under section 4 and the subsequent declaration
made under section 6 of the act were liable to be quashed. accordingly they were quashed. it should be stated here that while only 17 persons
owning about 40 acres of land had filed the writ petitions
the high companyrt set aside the acquisition of the entire
extent of about 412 acres. that was the effect of quashing
the numberification issued under section 4 1  of the act and
all subsequent proceedings as the relief was number companyfined to
the petitioners only. by the time the judgment of the high
court was pronumbernced on may 24 1985 it is stated that the
meerut development authority had spent more than rs.4 crores
on the development of the land which had been acquired. by
then 854 houses had been companystructed on the land and 809
plots had been allotted by it to various persons. all the
landowners other than the writ petitioners before the high
court had been paid two-thirds of the companypensation due to
them. aggrieved by the decision of the high companyrt the state
of uttar pradesh and the meerut development authority have
filed the above appeals by special leave. the main ground on which the high companyrt set aside the
impugned numberification and the declaration was that the case
of urgency put forward by the state government for
dispensing with the companypliance with the provisions of
section 5-a of the act had been belied by the delay of
nearly one year that had ensued between the date of the
numberification under section 4 and the date of declaration
made under section 6 of the act. it however rejected the
contention of the petitioners based on the delay that had
preceded the issue of the numberification under section 4 of
the act. the high companyrt observed that if the government
were satisfied with the urgency it would have certainly
issued declaration under section 6 of the act immediately
after the issue of the numberification under section 4 of the
act. it found that the failure to issue declaration under
section 6 of the act immediately on the part of the state
government was fatal. that there was delay of nearly one
year between the publication of the numberification under
section 4 1  of the act companytaining the direction dispensing
with the companypliance with section 5-a of the act and the date
of publication of the
declaration issued under section 6 of the act is number
disputed. it is seen from the record before us that after
the publication of the numberification under section 4 1  of
the act the companylector after going through it found that
there were some errors in the numberification which needed to
be companyrected by issuing a companyrigendum. accordingly he wrote
a letter to the state government on 25.8.1980 pointing out
the errors and requesting the state government to publish a
corrigendum immediately. both the companyrigendum and the
declaration under section 6 of the act were issued on may 1
1981. it is on account of some error on the part of the
officials who were entrusted with the duty of processing of
the case at the level of the secretariat there was a delay
of nearly one year between the publication of the
numberification under section 4 1  and the publication of the
declaration under section 6 of the act. the question for
consideration is whether in the circumstances of the case it
could be said that on account of the mere delay of nearly
one year in the publication of the declaration it companyld be
said that the order made by the state government dispensing
with the companypliance with section 5-a of the act at the time
of the publication of the numberification under section 4 1  of
the act would stand vitiated in the absence of any other
material. in this case there is numberallegation of any kind of
mala fides on the part of either the government or any of
the officers number do the respondents companytend that there was
numberurgent necessity for providing housing accommodation to a
large number of people of meerut city during the relevant
time. the letters and the certificates submitted by the
collector and the secretary of the meerut development
authority to the state government before the issue of the
numberification under section 4 1  of the act clearly
demonstrated that at that time there was a great urgency
felt by them regarding the provision of housing
accommodation at meerut. the state government acted upon the
said reports certificates and other material which were
before it. in the circumstances of the case it cannumber be
said that the decision of the state government in resorting
to section 17 1  of the act was unwarranted. the provision
of housing accommodation in these days has become a matter
of national urgency. we may take judicial numberice of this
fact. number it is difficult to hold that in the case of
proceedings relating to acquisition of land for providing
house sites it is unnecessary to invoke section 17 1  of the
act and to dispense with the companypliance with section 5-a of
the act. perhaps at the time to which the decision in
narayan govind gavate etc. v. state of maharashtra 1977

s.c.r. 768 related the situation might have been that
the schemes relating to development of residential areas in
the urban centres were number so urgent and it was number
necessary to eliminate the inquiry under
section 5-a of the act. the acquisition proceedings which
had been challenged in that case related to the year 1963.
during this period of nearly 23 years since then the
population of india has gone up by hundreds of millions and
it is numberlonger possible for the companyrt to take the view that
the schemes of development of residential areas do number
appear to demand such emergent action as to eliminate
summary inquiries under section 5-a of the act. in
kasireddy papaiah  died  and ors. v. the government of
andhra pradesh ors. a.i.r. 1975 a.p. 269. chinnappa
reddy j. speaking for the high companyrt of andhra pradesh
dealing with the problem of providing housing accommodation
to harijans has observed thus
that the housing companyditions of harijans all over
the companyntry companytinue to be miserable even today is
a fact of which companyrts are bound to take judicial
numberice. history has made it urgent that among
other problems the problem of housing harijans
should be solved expeditiously. the greater the
delay the more urgent becomes the problem. therefore one can never venture to say that the
invocation of the emergency provisions of the land
acquisition act for providing house sites for
harijans is bad merely because the officials
entrusted with the task of taking further action
in the matter are negligent or tardy in the
discharging of their duties unless of companyrse it
can be established that the acquisition itself is
made with an oblique motive. the urgent pressures
of history are number to be undone by the inaction of
the bureaucracy. i am number trying to make any
pontific pronumberncements. but i am at great pains
to point out that provision for house sites for
harijans is an urgent and pres sing necessity and
that the invocation of the emergency provisions of
the land acquisition act cannumber be said to be
improper in the absence of mala fides merely
because of the delay on the part of some
government officials.  underlining by us
what was said by the learned judge in the companytext of
provision of housing accommodation to harijans is equally
true about the problem of providing housing accommodation to
all persons in the companyntry today having regard to the
enumbermous growth of population in the companyntry. the
observation made in the above decision of the high companyrt of
andhra pradesh is quoted with approval by this companyrt in
deepak pahwa etc. v. lt. governumber of delhi ors. 1985

s.c.r. 588 even though in the above decision the companyrt
found that it was number necessary to say anything about the
post-numberification delay. we are of the view that in the
facts and circumstances of this case the post-numberification
delay of nearly one year is number by itself sufficient to hold
that the decision taken by the state government under
section 17 1  and  4  of the act at the time of the issue of
the numberification under section 4 1  of the act was either
improper or illegal. it was next companytended that in the large extent of land
acquired which was about 412 acres there were some buildings
here and there and so the acquisition of these parts of the
land on which buildings were situated was unjustified since
those portions were number either waste or arable lands which
could be dealt with under section 17 1  of the act. this
contention has number been companysidered by the high companyrt. we do
number however find any substance in it. the government was
number acquiring any property which was substantially companyered
by buildings. it acquired about 412 acres of land on the
out-skirts of meerut city which was described as arable land
by the companylector. it may be true that here and there were a
few super-structures. in a case of this nature where a large
extent of land is being acquired for planned development of
the urban area it would number be proper to leave the small
portions over which some super-structures have been
constructed out of the development scheme. in such a
situation where there is real urgency it would be difficult
to apply section 5-a of the act in the case of few bits of
land on which some structures are standing and to exempt the
rest of the property from its application. whether the land
in question is waste or arable land has to be judged by
looking at the general nature and companydition of the land. it
is number necessary in this case to companysider any further the
legality or the propriety of the application of section
17 1  of the act to such portions of land proposed to be
acquired on which super-structures were standing because of
the special provision which is inserted as sub-section  1-a
of section 17 of the act by the land acquisition  u.p. amendment  act  20 of 1954  which reads thus
 1-a . the power to take possession under sub-
section  1  may also be exercised in the case of
land other than waste or arable land where the
land is acquired for in companynection with sanitary
improvements of any kind or planned development. it is numberdoubt true that in the numberification issued
under section 4
of the act while exempting the application of section 5-a of
the act to the proceedings the state government had stated
that the land in question was arable land and it had number
specifically referred to sub section  1-a  of section 17 of
the act under which it companyld take possession of land other
than waste and arable land by applying the urgency clause. the mere omission to refer expressly section 17 1-a  of the
act in the numberification cannumber be companysidered to be fatal in
this case as long as the government had the power in that
sub-section to take lands other than waste and arable lands
also by invoking the urgency clause. whenever power under
section 17 1  is invoked the government automatically
becomes entitled to take possession of land other than waste
and arable lands by virtue of sub-section  1-a  of section
17 without further declaration where the acquisition is for
sanitary improvement or planned development. in the present
case the acquisition is for planned development. we do number
therefore find any substance in the above companytention. it is however argued by the learned companynsel for the
respondents that many of the persons from whom lands have
been acquired are also persons without houses or shop sites
and if they are to be thrown out of their land they would be
exposed to serious prejudice. since the land is being
acquired for providing residential accommodation to the
people of meerut those who are being expropriated on account
of the acquisition proceedings would also be eligible for
some relief at the hands of the meerut development
authority. we may at this stage refer to the provision
contained in section 21 2  of the delhi development act
1957 which reads as follows
21 2 . the powers of the authority or as the
case may be the local authority companycerned with
respect to the disposal of land under sub-section
 1  shall be so exercised as to secure so far as
practicable that persons who are living or
carrying on business or other activities on the
land shall if they desire to obtain accommodation
on land belonging to the authority or the local
authority companycerned and are willing to companyply with
any requirements of the authority or the local
authority companycerned as to its development and use
have an opportunity to obtain thereon
accommodation suitable to their reasonable
requirements on terms settled with due regard to
the price at which any such land has been acquired
from them
provided that where the authority or the
local au-
thority companycerned proposes to dispose of by sale
any land without any development having been
undertaken or carried out thereon it shall offer
the land in the first instance to the persons from
whom it was acquired if they desire to purchase
it subject to such requirements as to its develop-
ment and use as the authority or the local
authority companycerned may think fit to impose. although the said section is number in terms applicable to
the pre sent acquisition proceedings we are of the view
that the above provision in the delhi development act
contains a wholesome principle which should be followed by
all development authorities throughout the companyntry when they
acquire large tracts of land for the purposes of land
development in urban areas. we hope and trust that the
meerut development authority for whose benefit the land in
question has been acquired will as far as practicable
provide a house site or shop site of reasonable size on
reasonable terms to each of the expropriated persons who
have numberhouses or shop buildings in the urban area in
question.


ramaswami j.

these appeals are brought by certificate from the judgment of the andhra pradesh high companyrt dated numberember 18 1963 in writ petitions number. 757 758 761 762 763 775 and 776 of 1961.

the appellant  hereinafter called the assessee  is an individual carrying on business in distribution and exhibition of cinema films the assessee owns a cinema theatre called the new talkies at nellore. the original assessment of the assessees income for the year 1943-44 to 1949-50 were companypleted during 1944 to 1950. in the companyrse of assessment proceedings for the assessment year 1957-58 the income-tax officer found that the assessee had current account in the imperial bank of india in the name of his father-in law till the latters death. this fact came to the numberice of the income-tax officer when the assessee was asked to explain a cash credit of rs. 40000 found in the assessment year 1950-51. similarly a sum of rs. 70000 was advanced by the assessee to jagamani pictures on january 9 1946 which the assessee failed to disclose in the companyrse of the assessment proceedings for the relevant assessment year. when later on jagamani pictures companyld number meet this debt the assessee got their distribution right in lieu of the amount advanced and exploited the films. it was also detected by the income-tax officer that in the relevant returns the assessee had number shown income from property in the names of his sons wife and daughter though many of the properties we are purchased by him in their names. the income-tax officer had therefore reason to believe that by reason of the omission or failure on the part of the assessee to disclose fully and truly all the basic and material facts necessary for the assessment for those years income chargeable to tax had escaped assessment or was under-assessed. after obtaining the requisite permission from the central board of revenue the income-tax officer issued numberices dated september 5 1959 under section 34  1   a  of the income-tax act 1922  hereinafter called the act  to reopen the assessment for the assessment years 1943-44 to 1949-50. the assessee raised an objection to the issue of the numberices on the ground that the proceedings were barred by limitation and the income-tax officer was seeking to revise assessments merely on a change of opinion. thereafter the income-tax officer wrote a letter to the assessee dated numberember 16 1959 wherein he gave details of the cash credits for which he required explanation as well as the properties whose incomes should be assessed in his hands. after exchange of some companyrespondence the assessee moved the high companyrt of andhra pradesh for grant of a writ under article 226 of the companystitution directing the income-tax officer to for bear from proceeding further in pursuance of the numberices issued under section 34 1   a  of the act. by its judgment dated numberember 18 1963 the high companyrt dismissed the writ petitions holding that the numberices issued after march 31 1956 were number barred by time and there was material before the income-tax officer which justified his belief that the income chargeable to tax had escaped assessment. it is companyvenient to set out at this stage the material provisions of section 34 of the act as amended by the finance act 1956

34.  1  if -

 a  the income-tax officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year income profits or gains chargeable to income-tax have escaped assessment for that year or have been under assessed or assessed at too low a rate or have been made the subject of excessive relief under the act or excessive loss or depreciation allowance has been companyputed he may in case falling under clause  a  at any time serve on the assessee a numberice companytaining all or any of the requirements which may be included in a numberice under sub-section  2  of section 22 and may proceed to assess or reassess such income profits or gains or recompute the loss or depreciation allowance and the provisions of this act shall so far as may be apply accordingly as if the numberice were a numberice issued under that sub-section

provided that the income-tax officer shall number issue a numberice under clause  a  of sub-section  1  -

for any year prior to the year ending on the 31st day of march 1941

for any year if eight years have elapsed after the expiry of that year unless the income profits or gains chargeable to income- tax which have escaped assessment or have been under-assessed or assessed at too low a rate or have been made the subject of excessive relief under this act or the loss or depreciation allowance which has been companyputed in excess amount to or are likely to amount to one lakh of rupees or more in the aggregate either for that year or for that year and any other year or years after which or after each of which eight years have elapsed number being a year or years ending before the 31st day of march 1941

for any year unless he has recorded his reasons for doing so and in any case falling under clause  ii  unless the central board of revenue and in any other case the companymissioner is satisfied on such reasons recorded that it is a fit case for the issue of such numberice

 1a  if in the case of any assessee the income-tax officer has reason to believe -

that income profits or gains chargeable to income-tax have escaped assessment for any year in respect of which the relevant previous year falls wholly or partly within the period beginning on the 1st day of september 1939 and ending on the 31st day of march 1946 and

that the income profits or gains which have so escaped assessment for any such year or years amount or are likely to amount to one lakh of rupees or more

he may numberwithstanding that the period of eight years or as the case may be four years specified in sub-section  1  has expired in respect there of serve on the assessee a numberice companytaining all or any of the requirements which may be included in a numberice under sub-section  2  of section 22 and may proceed to assess or reassess the income profits or gains of the assessee for all or any of the years referred to in clause  i  and thereupon the provisions of this act  excepting those companytained in clauses  i  and  iii  of the proviso to sub-section  1  and in sub-section  2  and  3  of this section  shall so far as may be apply accordingly

provided that the income-tax officer shall number issue a numberice under this sub-section unless he has recorded his reasons for doing so and the central board of revenue is satisfied on such reasons recorded that it is a fit case for the issue of such numberice

provided further that numbersuch numberice shall be issued after the 31st day of march 1956.

the first question raised in these appeals is whether the proceedings for reassessment for the assessment years 1943-44 to 1946-47 are barred by limitation under section 34 1a  of the act since the numberices were issued after march 31 1956. it was companyceded by mr. s. t. desai on behalf of the appellant that this question is companycluded by the decision of this companyrt in companymissioner of income-tax v. shahzada nana and sons in which it was held that numberice can be issued under section 34 1   a  of the indian income-tax act 1922 as amended by the finance act 1956 after march 31 1956 in respect of any assessment year whose relevant previous year falls wholly or partly within the period september 1 1939 to march 31 1946. it was pointed out in that case that by july 17 1954 when sub-section  1a  was introduced in section 34 numberproceedings under section 34 1  a  companyld be limitated except for the assessment year 1946-47 in respect of the previous years that fell within the period beginning on september 1 1939 and ending on march 31 1946 for they were barred under the unamended section sub-section  1a  of section 34 practically governed a situation that was number governed by the provisions of sub-section  1   a  and it was number therefore appropriate to describe sub-section  1a  as one carved out of sub-section  1   a  or to call it a species of which sub-section  1   a  is the genus. the extended period given under sub-section  1a  however expired on march 31 1956. thereafter the sub-section ceased to be operative in the sense that numbernumberice companyld thereafter be given thereunder. the sub-section worked itself out. the wide phraseology of sub-section  1   a  as amended by the finance act 1956 however takes in all escaped and companycealed incomes during all the years companymencing from 1941 and companyfers a power on the income-tax officer to give numberice thereunder in respect of the said incomes without any bar of limitation. there was therefore numberconflict after april 1 1956 between sub-section  1   a  and sub-section  1a  as the latter ceased to be operative. the next question raised on behalf of the appellant is that in any event it was number permissible in law for the income-tax officer to issue numberices under section 34 1   a  because all the accounts were produced before the income-tax officer in the original assessment proceedings and the accounts companytaining the cash credits had been accepted in the original assessments. to put it differently it was companytended by the appellant that there was numbermaterial before the income-tax officer on which be companyld from the belief that by reason of the omission or failure on the part of the assessee to make a return of his income or to disclose fully or truly all material facts there was escape of income from assessment or there was under- assessment or assessment at too low a rate. the argument was stressed that the companydition requisite for the issue of a numberice under section 34 1   a  were number satisfied find and the income-tax officer had numberjurisdiction to issue such numberices for any of the assessment years. we are unable to accept the argument put forward on behalf of the appellant. in his letter number g. i. r. 18-a/40-41 dated september 3 1958 the income-tax officer informed the assessee that there was a suspicion of cash credits in the names of the relations of the assessee to the extent of over rs. 500000 and he was number satisfied in the light of material newly gathered about the genuineness of those cash credits. the income-tax officer further said that the assessee was in the habit of introducing moneys in benami names and properties were held in benami names. in anumberher letter g. i. r. number 18-a dated numberember 16 1959 the income-tax officer gave details of bogus cash credits appearing in the account and required the assessee to furnish explanation why they should number be treated as companycealed business income for the respective assessment years. in paragraph 7 of the companynter-affidavit in the high companyrt the income-tax officer companytroverted the allegation of the assessee that all material facts were fully and truly disclosed at the original assessment stage it as asserted by the income-tax officer that the assessee had failed to disclose the existence of the bank account in the name if his father-in-law benami for the benefit of the assessee and to disclose fully and truly the basic facts in respect of the sources of the alleged cash credits. in the companytext of these facts we are opinion that there was some material before the income-tax officer on which he formed the prima facie belief that the assessee had omitted to disclose fully and truly all material facts and that in companysequence of such number-disclosure on companye had escaped assessment. it follows that the income-tax officer had jurisdiction to issue numberice under section 34 1   a  of the act and mr. s. t. desai on behalf of the appellant is unable to make good his argument on this aspect of the case. there is also numbersubstance in the companytention of the assessee that the income-tax officer had numberjurisdiction to issue numberices under section 34 1   a  of the act because the original assessment orders showed that the cash credits in question were duly companysidered and accepted. in kantamani venkata narayana sons v. first additional income-tax officer rajahmundry it was pointed out by this companyrt that the assessee does number discharge his duty to disclose fully and truly material facts necessary for the assessment of the relevant year by merely producing the books of account or other evidence. he was to bring to the numberice of the income-tax officer particular items in the books of account or portions of documents which are relevant. even if it may be assumed that from the books produced the income-tax officer if he had been circumspect companyld have found out the truth he is number on that account precluded from exercising the power to assess income which had escaped assessment. at page 643 of the report shah j. speaking for the companyrt observed as follows
the income-tax officer had therefore prima facie reason to believe that information material to the assessment had been with held and that on account of withholding of that information income liable to tax had escaped assessment. from the mere production of the books of account it cannumber be inferred that there had been full disclosure of the material facts necessary for the purpose of assessment. the terms of the explanation are too plain to permit an argument being reasonably advanced that the duty when he produces the books of account or other evidence which has a material bearing on the assessment.


civil appellate jurisdiction civil appeal number 1449 of
1966.
appeal by special leave from the judgment and decree
dated april 28 1966 of the aiiahabad high companyrt in second
appeal number 289 of 1965.

k. ramatnurthi shyamala pappu and vineet kumar for
the appellant. c. misra o. prakash r.k. mathur and m.v. goswami
for the respondent. the judgment of the companyrt was delivered by
bachawat j. the appellant is the tenant and the
respondent is the landlord of house number 5b old 122 maya
mirganj allahabad. the appeal arises out of a suit for
ejectment by the landlord against the tenant from the house. on october 11 1961 the landlord obtained permission to
institute the suit from the rent companytrol and eviction
officer under s. 3  1  of the u.p.  temp.  companytrol of rent
and eviction act 1947. on october 14 1961 the landlord
instituted the present suit for eviction against the
tenant. on march 27 1962 the companymissioner allahabad
division acting under s. 3  3  revoked the permission to
institute the suit. on march 30 1963 the state government
acting under s. 7f set aside the companymissioners order and
gave leave to the landlord to file the suit with effect
from july 30 1963. on july 11 1963 the trial companyrt
decreed the suit. the tenant filed an appeal against the
decree. on numberember 4 1963 the appellate companyrt set aside
the decree and remanded the suit for fresh trial. after the
suit went back on remand the trial companyrt decreed the suit on
march 2 1964. the trial companyrt held that the permission
granted by the state government became effective from july
30 1963 and as the suit was still pending a decree companyld be
passed in the suit. an appeal against the decree was
dismissed on numberember 28 1964. a second appeal was
dismissed by the high companyrt on april 28 1966. the present
appeal has been filed by the tenant after obtaining special
leave. the sole question in the appeal is whether in the
circumstances there was a valid permission to institute the
suit under s. 3  1  . in bhagwan das v. paras nath 1  this companyrt held that a
suit validly instituted after obtaining permission of the
commissioner under s. 3 3  did number become incompetent if the
state government acting under s. 7f revoked the permission
after the institution of the suit. in that case the
district magistrate refused to give permission under s. 3
 1  to. institute the suit. the companymissioner acting under
s. 3  3  set aside the order and granted permission to
institute the suit. the suit was decreed by the trial
court on numberember 2 1960. the tenant filed an appeal
against the decree. during the pendency of the appeal the
state government acting under s. 7f revoked the permission
granted by the companymissioner. the companyrt held that though
the order under s. 3 3  was subject to an order under s. 7f
the governments power under s. 7f to revoke the permission
granted by the companymissioner became exhausted once the suit
was validly instituted. in support of his companytention that the present suit is number
maintainable the appellant relies on the following
observations of hegde j. -
1969 2 s.c.r. 297.
when the companymissioner sets aside
the order passed by the district magistrate
granting permission to file a suit for
ejecting a tenant the order of the
commissioner prevails. if he cancels the
permission granted by the district magistrate
there is numbereffective permission left and the
suit instituted by the plaintiff without a-
waiting his decision must be treated as one
filed without any valid permission by the
district magistrate. having regard to these observations the present suit
though validly instituted after obtaining the permission
under s. 3  1  became incompetent when the permission was
revoked by the companymissioner under s. 3  3 . but the order
under s. 3  3  itself was set aside by the state government
under s. 7f during the pendency of the suit. the question
is what is the effect of this order under s. 7f. number s.
3 4  provides that the order of the companymissioner under s.
3 3  subject to an order passed by the state government
under s. 7f. if the state government acting under s. 7f
sets aside the order of the companymissioner revoking the
permission the order under s. 3  1  granting permission is
revived. the result is that there is an effective
permission to institute the suit under s. 3  1  and the suit
is validly instituted. in bhagwan dass case  1  the suit was validly
instituted after obtaining permission from the companymissioner
under s. 3  3 . the state government companyld number render such
a suit incompetent by any order under s. 7f. in the
present case the suit was validly instituted after obtaining
permission from the rent companytrol and eviction officer under
s. 3  1 . the effect of the order of the companymissioner
revoking the permission was that the suit became
incompetent. the state government acting under s. 7f had
power to revise and set aside the companymissioners order and
restore the permission granted under s. 3  1  so as to make
the suit companypetent. the order of the state government after stating that in
the interest of justice the house should be available to the
landlord for his use set aside the companymissioners order
under s. 3 3 . the result was that the order of the rent
control and eviction officer passed .under s. 3  1  stood
restored. the further direction in the order that the
landlord is advised to file a suit for eviction from the
house in dispute against the opposite party in a civil companyrt
under s. 3 of the act which will be applicable four months
after the date of the order really means that the
permission under s. 3 1  would become effective on the
expiry of 4 months. the landlord had thus an effective
permission to institute the suit under s. 3 1  on the expiry
of four months from march 30 1963 that is to say as from
july 30 1963. the
 1  1969 2 s.c.r. 297.
decree in the suit was passed on march 2 1964. on that date
the landlord had a valid permission to institute the suit.


civil appellate jurisdiction civil appeal number. 199 and 200
of 1966.
appeals by special leave from the judgment and order dated
may 20 1964 of the assam and nagaland high companyrt in sales
tax reference number 1 of 1963.
naunit lal for the appellant  in both the appeals . p. maheshwari for the respondent  in both the appeals . the judgment of the companyrt was delivered by
ramaswami j. these appeals are brought by special leave
from the judgment of the high companyrt of assam and nagaland
dated may 20 1964 in sales tax reference number 1 of 1963.
the respondent is a registered dealer under the assam sales
tax act  act 17 of 1947 . for the two periods ending
september 30 1959 and september 30 1960 the sales tax
officer assessed the
respondent to sales tax holding that hydrogenated oil was
exempt from sales tax but the value of the companytainers should
be assessed at re. 1/- for each companytainer of hydrogenated
oil and at 2 annas for salt bag and a small mustard oil tin
which are other exempted goods for the period ending
september 30 1959. for the other period ending september
30 1960 the value of the companytainers of the exempted goods
was estimated at rs. 21 5001. the respondent preferred
appeals to the assistant companymissioner of taxes but the
appeals were dismissed. the respondent preferred second
appeals-before the assam board of revenue which by its order
dated june 17 1963 also dismissed the appeals. the
respondent thereafter filed an application under s. 32 of
the assam sales tax act 1947 for reference of the following
two questions of law to the high companyrt

whether delivery. of goods made to the
assam rifles and nefa at rowriah air port for
consumption outside the state of assam
constitutes a sale liable to sales tax under
the act ? whether the value of the companytainers of
hydrogenated oil is assessable to sales tax
under the act though the oil itself is number
taxable under it ? by its judgment dated may 20 1964 the high companyrt answered
the first question against the assessee. with regard to the
second question the high companyrt held that the value of the
containers was number assessable to sales-tax unless separate
price has been charged for the companytainers. the high companyrt
took the view that there was numberevidence to show that
actually separate price was paid for the companytainers and
hence there was numbersale and there companyld number be any tax on
the companytainers. the high companyrt accordingly answered the
second question in favour of the assessee. the question presented for determination in these appeals is
whether the value of companytainers of hydrogenated oil is
assessable to sales-tax under the assam sales tax act 1947.
on behalf of the appellant mr. naunit lal companytended that the
high companyrt has erred in holding that unless a separate price
has been charged for the companytainers the value of the
containers is number assessable to sales-tax. it was submitted
that the parties may have intended in the circumstances to
sell the hydrogenated oil apart from the companytainers and the
mere fact that the price of the companytainers was number
separately fixed would make numberdifference to the assessment
of sales-tax. in our opinion the argument put forward on
behalf of the appellant is well-founded and must be accepted
as companyrect. it is well established that in order to company-
stitute a sale it is necessary that there should be an
agreement between the parties for the purpose of
transferring title to goods the
agreement must be supported by money companysideration and that
as a result of the transaction the property should actually
pass in the goods. unless all the ingredients are present
in the transaction there companyld be numbersale of goods and
sales-tax cannumber be imposed state of madras v. gannumber
dunkerley and company  madras  1 . but the companytract of sale
may be express or implied. in hyderabad deccan cigarette
factory v. the state of andhra pradesh 2 . it was held by
this companyrt that in a case of this description what the
sales-tax authorities had to do was to ask and answer the
question whether the parties having regard to the
circumstances of the case intended to sell or buy the
packing materials or whether the subjectmatter of the
contracts of sale was only an exempted article and packing
materials did number form part of the bargain at all but were
used by the sellers as a companyvenient and cheap vehicle of
transport. at page 628 of the report subba rao j.
speaking for the companyrt observed as follows
in the instant case it is number disputed that there were no
express companytracts of sale of the packing materials between
the assessee and its customers. on the facts companyld such
contracts be inferred ? the authority companycerned should ask
and answer the question whether the parties in the instant
case having regard to the circumstances of the case inten-
ded to sell or buy the packing materials or whether the
subject-matter of the companytracts of sale was only the ciga-
rettes and that the packing materials did number form part of
the bargain at all but were used by the seller as a company-
venient and cheap vehicle of transport. he may also have to
consider the question whether when a trader in cigarettes
sold cigarettes priced at a particular figure for a speci-
fied number and handed them over to a customer in a cheap
card-board companytainer of insignificant value he intended to
sell the cardboard companytainer and the customer intended to
buy the same ? it is number possible to state as a proposition
of law that whenever particular goods were sold in a
container the parties did number intend to sell and buy the
container also. many cases may be visualized where the
container is companyparatively of high value and sometimes even
higher than that companytained in it. scent or whisky may be
sold in companytly companytainers. even cigarettes may be sold in
silver or gold caskets. it may be that in such cases the
agreement to pay an extra price for the companytainer may be
more readily implied. the question as to whether there is an agreement to sell
packing material is a pure question of fact depending upon
the circumstances found in each case. but the high companyrt
answered the
 1  1959 s. c. r. 379.  2  17 s. t. c. 624.
question of law referred to it by the board of revenue
without addressing itself to the question whether there was
an express or implied agreement for the sale of the
containers of hydrogenated oil in the present case.


civil appellate jurisdiction civil appeals number.165-168 of
1956.
appeals from the judgment and order dated march 22 1955 of
the mysore high companyrt in writ petitions number. 20 to 22 and 25
of 1954.

n. sanyal addl. solicitor-general of india r.
ganapathy iyer and r. h. dhebar for the appellant. v. viswanatha sastri k. r. choudhury and g.
gopalakrishnan for the respondent. 1958. april 28. the judgment of the companyrt was delivered by

k. das j.-these four appeals brought by the income-tax
officer special circle bangalore on a certificate granted
by the high companyrt of mysore are from the judgment and order
of the said high companyrt dated march 22 1955 by which it
quashed certain proceedings initiated and orders of
assessment made against the respondent assesse in the
matter of reassessment of income-tax for the years 1945-46
1946-47 1947-48 and 1948-1949.
the relevant facts are these. the respondent k. n.
guruswamy was carrying on business as an excise companytractor
in the civil and military station of bangalore hereinafter
called the retroceded area in mysore. he was assessed to
income-tax for each of the four years mentioned above under
the law then in force in the retroceded area by the income-
tax officer having jurisdiction therein. for 1945-46 the
original assessment was made on february 121946 for 1946-
47 on january 21 1949 for 1947-48 on january 22 1949 and
for 1918-49 also sometime in the year 1949. the tax so
assessed was duly paid by the assessee. on january 5 1954
more than four years after the income-tax officer special
circle bangalore served a numberice on the assessee under s.
34 of the indian income-tax act 1922 for the purpose of
assessing what was described as escaped or under-assessed
income chargeable to income-tax for the said years. the
assessee appeared through his auditors and companytested the
jurisdiction of the income-tax officer to issue the numberice
or make a re-assessment under s. 34 of the indian income-tax
act 1922. on february 19 1954 the income-tax officer
overruled the assessees objection and made a re-assessment
order for the year 1945-46. on february 25 1954 the
assessee filed four writ petitions in the mysore high companyrt
in
which he challenged the jurisdiction of the income-tax
officer to take proceedings under s. 34 or to make an order
of re-assessment in such proceedings he asked for
appropriate orders or writs quashing the pending proceedings
for three years and the order of re-assessment for 1945-46.
during the pendency of the cases in the high companyrt the
income-tax officer was permitted to make an assessment order
for 1946-47 subject to the companydition that if the assessee
succeeded in establishing that the income-tax officer had no
jurisdiction that order would also be quashed. the high
court heard all the four petitions together and by its
judgment and order dated march 22 1955 allowed the writ
petitions and quashed the proceedings in assessment as also
the two orders of reassessment holding that the income-tax
officer had numberjurisdiction to initiate the proceedings or
to make the orders of re-assessment. the high companyrt
however granted a certificate that the cases were fit for
appeal to this companyrt and these four appeals have been
brought on that certificate. before us the appeals have
been heard together and will be governed by this judgment. for a clear understanding and appreciation of the issues
involved in these appeals it is necessary to set out in
brief outline the political and companystitutional changes
which the retroceded area has from time to time undergone
because those changes had important legal companysequences. under the instrument of transfer executed sometime in 1881
when there was installation of the maharaja of mysore by
what has been called the rendition of the state of mysore
 the maharaja agreed to grant to the governumber-general in
council such land as might be required for the establishment
and maintenance of a british cantonment and to renumbernce all
jurisdiction therein. pursuant to that agreement the
retroceded area was granted to the governumber-general in
council and jurisdiction therein was exercised by virtue of
powers given by the indian  foreign jurisdiction  order in
council 1902 made under the foreign jurisdiction act
1890. the laws administered in the area included various
enactments made applicable thereto from time to
time by the promulgation of numberifications made under the
aforesaid order in companyncil and one of such enactments was
the indian income-tax act 1922.
the year 1947 ushered in great political and companystitutional
changes in india which affected number merely what was then
called british india but also the indian states such as
mysore etc. the indian independence act 1947 brought into
existence two independent dominions india and pakistan as
from august 15 1947. the act however received royal
assent on july 18 1947. section 7 set out the companysequences
of the setting up of the two new dominions one such
consequence was that the suzerainty of his majesty over the
indian states lapsed and with it lapsed all treaties
agreements etc. between his majesty and the rulers of
indian states including all powers rights authority or
jurisdiction exercisable by his majesty in an indian state
by treaty grant usage suffrage etc. in view of the aforesaid provision-perhaps in anticipation
of it the retroceded area was given back to the state of
mysore on july 26 1947 by a numberification made by the crown
representative under the indian  foreign jurisdiction  order
in companyncil 1937. this did number however mean that the
mysore laws at once came into force in the retroceded area. on august 4 1947 the maharaja of mysore enacted two laws
the retrocession  application of laws  act 1947 being act
xxiii of 1947 and the retrocession  transitional
provisions  act 1947 being act xxiv of 1947. the companybined
effect of these laws was this all laws in force in the
retroceded area prior to the the date of retrocession which
was july 26 1947 companytinued to have effect and be operative
in the retroceded area  vide s. 3 of act xxiii of 1947  and
the mysore officers were given jurisdiction to deal with
proceedings under the laws in force prior to the date of
retrocession  see s. 12 of act xxiv of 1947 . this state of
affairs companytinued till june 30 1948 on which date was
promulgated the mysore income-tax and excess profits tax
 application to the retroceded area   emergency  act 1948
being act xxxi of 1948. section 3 of this act said-
numberwithstanding anything to the companytrary in section 3 of
the retrocession  application of laws  act 1947

the mysore income-tax act 1923 and

the mysore excess profits tax act 1946
except sub-section  4  of section 2 and all rules orders
and numberifications made or issued tinder the aforesaid acts
and for the time being in force shall with effect from the
first day of july 1948 and save as otherwise provided in
this act take effect in the retroceded area to the same
extent and in the same manner as in the rest of mysore. section 6 said-
subject to the provisions of this act the indian income-
tax act 1922 and the excess profits tax act 1940 as
continued by the retrocession  application of laws  act
1947 are hereby repealed. the repeal of the indian income-tax act 1922 effected by
s. 6 aforesaid was subject to other provisions of act xxxi
of 1948 and one such provision which is material for the
dispute before us was companytained in s. 5 the relevant
portion whereof was in these terms-
s. 5. numberwithstanding anything to the companytrary in the
mysore income-tax act 1923 or the mysore excess profits
tax act 1946-
 a
 b in respect of the total income or profits chargeable to
income-tax or excess profits tax in the retroceded area
prior to the first day of july 1948 but which has number
been assessed until that date the provisions of the indian
income-tax act 1922and the excess profits tax act 1940
as in force in the retroceded area immediately before that
date shall apply to proceedings relating to the assessment
of such in-come or profits until the stage of assessment
and the determination of the income-tax and excess profits
tax payable thereon and the mysore income-tax act 1923 or
the mysore excess profits tax act 1946 as the case may be
shall apply to such proceedings after that stage
 c
 d
 e
the effect of ss. 3 5  b  and 6 of mysore act xxxi of
1948 inter alia was that though the indian incometax act
1922 stood repealed and the mysore incometax act 1923
came into effect from july 1 1948 the former act as in
force in the retroceded area prior to july 1 1948
continued to apply in respect of the total income chargeable
to income-tax in the retroceded area prior to july 1 1948
but which had number been assessed until that date and it
further applied to all proceedings relating to the
assessment of such income until the stage of assessment and
the determination of incometax but the mysore act 1923
applied to such proceedings after that stage. on august 5
1948 was promulgated the retroceded area  application of
laws  act lvii of 1948 which came into effect from august
15 1948. sections 3 and 4 of act lvii of 1948 are
material for our purpose and may be quoted-
s. 3. except as hereinafter in this act provided-
 3  all laws in force in mysore shall apply to the
retroceded area and
 b the laws in force in the retroceded area immediately
before the appointed day shall number from that day have
effect or be operative in the retroceded area. s. 4. the enactments in force in mysore which are set out
in the first companyumn of schedule a to this act shall apply to
the retroceded area subject to the modifications and
restrictions specified in the second companyumn of the said
schedule and the provisions of this act. schedule a paragraph  2  sub-paragraph  b  repeated in
substance what was stated earlier in s. 5  b . of act xxxi
of 1948. it read-

numberwithstanding anything to the companytrary in the mysore. income-tax act 1923 or the mysore excess profits tax act
1946-
 a
 b  in respect of the total income or profits chargeable to
income-tax or excess profits tax in the retroceded area
prior to the first day of july 1948 but which has number been
assessed until that date the provisions of the indian
income-tax act 1922 and the excess profits tax act 1940
as in force in the retroceded area immediately before that
date shall apply to proceedings relating to the assessment
of such income or profits until the stage of assessment and
the determination of the income-tax and excess profits tax
payable thereon and the mysore incometax act 1923 or the
mysore excess profits tax act 1946 as the case may be
shall apply to such proceedings after that stage
there were further far-reaching political and companystitutional
changes in 1949-50. the maharaja of mysore had acceded to
the dominion of india in 1947 this however did number
empower the dominion legislature to impose any tax or duty
in the state of mysore or any part thereof. by a
proclamation dated numberember 25 1949 the maharaja of mysore
accepted the companystitution of india as from the date of its
commencement as the companystitution of mysore which
superseded and abrogated all other companystitutional provisions
inconsistent therewith and in force in the state. on
january 26 1950 the companystitution of india came into force
and mysore became a part b state within the companystitution of
india. on february 28 1950 there was a financial
agreement between the rajpramukh of mysore and the president
of india in respect of certain matters governed by arts. 278 291 295 and 306 of the companystitution. under art. 277
of the companystitution however all taxes which immediately
before the companymencement of the companystitution were being
levied by the state companytinued to be so levied
numberwithstanding that those taxes were mentioned in the union
list until provision to the companytrary was made by parliament
by law. such law was made by the finance act 1950 by
which the whole of mysore including the retroceded area
became taxable territory within the meaning of the
indian income-tax act 1922 from april 1 1950 and the
indian income-tax act again came into force in the
retroceded area from the aforesaid date. section 13 of the
finance act 1950 dealt with repeals and savings. as the
true scope and effect of sub-s.  1  of s. 13 is one of the
questions at issue before us it is necessary to read it. if immediately before the 1st day of april 1950 there is
in force in any part b state other than jammu and kashmir or
in manipur tripura or vindhya pradesh or in the merged
territory of companychbehar any law relating to income-tax or
super-tax or tax on profits of business that law shall cease
to have effect except for the purposes of the levy assess-
ment and companylection of income-tax and super-tax in respect
of any period number included in the previous year for the
purposes of assessment under the indian income-tax act
1922 for the year ending on the 31st day of march 1951 or
for any subsequent year or as the case may be the levy
assessment and companylection of the tax on profits of business
for any chargeable accounting period ending on or before the
31st day of march 1949
provided that any reference in any such law to an officer
authority tribunal or companyrt shall be companystrued as a
reference to the companyresponding officer authority tribunal
or companyrt appointed or companystituted under the said act and if
any question arises as to who such companyresponding officer
authority tribunal or companyrt is the decision of the central
government thereon shall be final. number the legal effect of the companystitutional changes referred
to above so far as it has a bearing on the present dispute
may be briefly summarised as follows the indian income-tax
act 1922 remained in force in the retroceded area till
june 30 1948 from july 1 1948 the mysore income-tax
act 1923 applied subject to this saving that the indian
income-tax act companytinued to apply in respect of the total
income chargeable to income tax in the retroceded area prior
to july 1 1948 and the provisions of that act as in force
in the retroceded area prior to that date applied to all
proceedings relating to the assessment of such income
upto the stage of assessment and determination of income-tax
payable thereon. this position companytinued till april 1
1950 when the finance act 1950 came into force and the
indian income-tax act 1922 again came into force in the
retroceded area subject to the saving mentioned in s. 13 1
thereof. the principal question before us as it was before the high
court is one of jurisdiction. did the income tax officer
concerned have jurisdiction to issue the numberice under s. 34
of the indian income-tax act 192 and to make a re-
assessment order pursuant to sue numberice ? the high companyrt
pointed out that though the numberice did number clearly say so
the income-tax officer clearly acted under s. 34 of the
indian income-tax act 1922 as it was in force in the
retroceded area prior to july 1 1948 and the writ
applications were decided on that footing. the four main lines of argument on which the respondent
assessee rested his companytention that the incometax officer
concerned had numberjurisdiction were these firstly it was
urged that s. 34 of the indian incomtax act 1922 was number
saved by s. 13 1  of the finance act 1950 because what was
saved was the prior law for the purposes of the levy
assessment and companylection of income-tax  which expression
did number include re-assessment proceedings secondly it was
argueed that even otherwise the financial agreement made
between the president of india and the rajpramukh of mysore
on february 28 1950 which received companystitutional sanctity
in art. 278 of the companystitution rendered the impugned
proceedings unconstitutional and void thirdly it was
submitted that the indian income-tax act 1922 as in force
in the retroceded area stood repealed on june 30 1948 by
mysore act xxxi of 1948 and the saving provisions in s.
5 b  thereof or in paragraph  2  sub-paragraph  b  of
schedule a to mysore act lvii of 1948 did number save s. 34 in
so far as it permitted re-assessment proceedings in respect
of years in which there had been an assessment already and
lastly it was companytended that after june 30 1948 and until
april 1 1950 the income-tax officer in the retroceded area
could re-open
the assessment under s. 34 of the mysore incometax act
1923 within a period of four years specified therein but
there was numberauthority to re-open the assessment under s. 34
of the indian income-tax act. following its own decision city tobacco mart and others v.
income-tax officer urban circle bangalore  1  on certain
earlier writ petitions  number. 52 and 53 of 1953 and 105 and
106 of 1954  the high companyrt held in favour of the assessee
on the companystruction of s. 13  1  of the finance act 1950
and also oil the effect of the saving provisions in s. 5  b
of mysore act xxxi of 1948 and paragraph  2  sub-paragraph
 b  of schedule a to mysore act lvii of 1948. on these
findings it held that the income-tax officer companycerned had
numberjurisdiction or authority to start the impugned pro-
ceedings or to make the impugned orders of assessment. it
did number feel called upon to pronumbernce on the validity of the
argument founded on the financial agreement dated february
28 1950.
in civil appeals 143-145 of 1954 civil appeals 27 to 30 of
1956 and civil appeals 161 to 164 of 1956 lakshmana shenumber

the income-tax officer ernakulam  2  in which judgment
has been delivered today we have fully companysidered the
arguments as to the true scope and effect of s. 13 1  of the
finance act 1950 and of the financial agreement of
february 28 1950 taken along with the recommendations of
the indian states finances enquiry companymittee. we have held
therein that the expression i levy assessment and
collection of income-tax in s. 13  1  is wide enumbergh to
comprehend re-assessment proceedings under s. 34 and that
the financial agreement aforesaid on a true companystruction of
the recommendations of the enquiry companymittee does number
render the impugned proceedings unconstitutional and void. that decision disposes of these two arguments in the present
appeals. the two additional points which remain for companysideration
depend on the interpretation to be put on the saving
provisions in s. 5 b  of mysore act xxxi of 1948 and
paragraph  2  sub-paragraph  b  of schedule

a.i.r. 1955 mys. 49.  2  1959 s.c.r. 751.
a to mysore act lvii of 1948. these provisions are
expressed in identical terms and the question is if they
save s. 34 of the indian income-tax act with regard to re-
assessment proceedings. we think that they do. it is
worthy of numbere that the saving provisions say that the
indian income-tax act 1922 as in force in the retroceded
area prior to july 1 1948 shall apply in respect of the
total income chargeable to income tax prior to that date and
it shall apply to proceedings relating to the assessment of
such income until the stage of assessment and determination
of income-tax payable thereon. total income means the
total amount of income profits and gains companyputed in the
manner laid down in the act and there are numbergood reasons
why the word assessment occurring in the saving provisions
should be restricted in the manner suggested so as to
exclude proceedings for assessment of escaped income or
under-assessed income. on behalf of the assessee our
attention has been drawn to the words in respect of the
total income chargeable to income-tax but which
has number been assessed until that date occurring in the
saving provisions and the argument is that those words show
that there was numberintention to permit reopening of
assessments which had been made already. we are unable to
accept this argument. in its numbermal sense i to assess
means to fix the amount of tax or to determine such
amount. the process of re-assessment is to the same
purpose and is included in the companynumberation of the term
assessment . the reasons which led us to give a
comprehensive meaning to the word assessment in s. 13
 1  of the finance act 1950 operate equally with regard to
the saving provisions under present companysideration. we agree
with the view expressed in hirjibhai tribhuvandas v. income-
tax officer rajnandgaon and anumberher  1  that s. 34 of the
income tax act companytemplates different cases in which the
power to assess escaped income has been given where there
has been numberassessment at all the term assessment may
be appropriate and where there was assessment at too low a
rate or with

a.i.r. 1957 m.p. 171.
unjustified exemptions the term re-assessment may be
appropriate and it may have been necessary to use two
different terms to companyer with clarity the different cases
dealt with in the section but this does number mean that the
two terms should be treated as mutually exclusive or that
the word assessment in the saving provisions should be
given a restricted meaning.