criminal appellate jurisdiction criminal appeal number. 606 and 607 of 1979.
from the judgment and order dated 19-1- 1979 of the
gujarat high companyrt in criminal revision number. 485-486/77. b. patel and s. c. patel for the appellant. g.

l. nain girish chander and m. n. shroff for the
respondent. the judgment of the companyrt was delivered by
koshal j.-by this judgment we shall dispose of
criminal . appeals number. 606 and 607 of 1979 both of which
are directed against a judgment of a division bench of the
high companyrt of gujarat dated the 19th january 1979 upholding
the companyviction recorded against and
the sentences imposed upon the three appellants under
section 22a of the minimum wages act  hereinafter called the
act  in each of two cases by a judicial magistrate at morvi. some of the facts leading to the prosecution of the
appellants are number in dispute and may be shortly stated. appellant number 3 is the morvi vegetable products limited a
limited companypany carrying on the business of manufacture and
sale of vegetable oil and vanaspati in morvi. appellant number
1 is the managing director and appellant number 2 the secretary
of appellant number 3 which is hereinafter referred to as the
company. on may 2 1973 kumari j. g. mukhi who is a government
labour officer-cum-minimum wages inspector visited the
companys establishment and found that the following
documents which according to her the companypany was bound to
maintain in companypliance with the provisions of section 18 of
the act read with the relevant rules of the gujarat minimum
wages rules 1961 had number been maintained by it. muster roll in form v as companytemplated by rule
26 5 . wage register in form iv-a as required by rule
26  . attendance cards in form v-d as provided by rule
26 b . wage slip in form iv-b prescribed by rule 26 2 . in companysequence two companyplaints were filed against the
appellants by n. h. dave labour officer-cum-minimum wages
inspector. rajkot in the companyrt of the trial magistrate each
praying that the appellants be companyvicted and sentenced for
an offence under section 22a of the act. one of the
complaints was in respect of the companytravention of rules
26 1  and 26 s  while the other embraced that of rules 26 2
and 26-b. they were registered as criminal cases number. 674
and 675 of 1973 respectively. at the trial the appellants pleaded number guilty. their defence companysisted mainly of the following pleas

different types of industries are companyered by the
act but the companypany does number run any such industry
and is therefore. number liable for any
contravention of the act or the rules framed
thereunder. according to the prosecution the
factory run by the companypany is an oil mill an
industry which is certainly companyered by the act. however the companypany is running a mill which
manufactures vanaspati and vanaspati is number an oil
but is vegetable ghee. oil extraction is numberdoubt
a major operation carried on by the companypany but
that operation is merely incidental to the
preparation of vanaspati. numberseparate licence for
the oil expelling machinery used by the companypany
has been obtained from the state government number
has sales-tax been paid on the oil extractor by
the companypany. vanaspati is manufactured by
subjecting oil to the processes of neutralization
bleaching deodorisation hardening
hydrogenation etc. and is a product quite
different from oil. the companypany does number carry on the business of sale
of the oil manufactured by it except as an
operation incidental to the manufacture of
vanaspati e.g. when there is a breakdown of the
machinery used for companyverting oil into vanaspati
or when oil become surplus on account of a shift
in the government policy in regard to the
percentage of oil to be  companysumed by the companypany. in spite of the sale of oil therefore the
company remains a vanaspati manufacturer and
cannumber be companysidered to be running an oil mill. under section 5 of the act companymittees were
appointed by the government from time to time to
hold inquiries and advise it in respect of
fixation or revision of minimum rates of wages for
employees in various industries. numberrepresentative
of the vanaspati industry was taken on any of
these companymittees number was any questionnaire issued
to any of the manufacturers of vanaspati with the
result that the companypany was number bound by the
recommendations of those companymittees or decisions
taken in pursuance thereof by the government. in respect of oil mills rates of minimum wages
were fixed under the act by the government for
three types of employees namely skilled semi-
skilled and unskilled. apart from these a
vanaspati manufacturer has to arrange for the
services of other types of employees which shows
that a vanaspati manufacturing mill is different
from an oil mill. after the trial the learned magistrate repelled all
the pleas taken up by the appellants in his judgment dated
october 13 1975. his findings were as follows

the companypany numberdoubt manufactured oil from oil
seeds and subjected the same to further processes
in order to produce . vanaspati. however the
company was selling number only the vanaspati
manufactured by it but also oil and refined oil as
such in addition to oil cakes and de-oiled cakes
which was being done number merely in exigencies
pleaded by the companypany but in the regular companyrse
of business. one of the companymittees appointed by the government
under section s of the act had issued a
questionnaire to the companypany itself before making
recommendations regarding fixation and revision of
minimum wages for various kinds of employees
working in an oil mill and it was number therefore
open to the companypany to companytend that numberopportunity
was given to it to be heard in relation to such
fixation and revision. the companypany was an oil mill within the meaning of
that expression as used in item s of part i of the
schedule to the act and the act therefore is
applicable to it. it was in these premises that the learned magistrate
convicted the three appellants in both the cases tried by
him of an offence under section 22-a of the act. the
sentence imposed in companysequence was a fine of rs. 50 on each
of the appellants in each case. the appellants filed before the sessions companyrt two
applications for revision of the order of the learned
magistrate one pertaining to each case. those applications
where transferred by the high companyrt to its own file for
reasons which are number relevant for the purpose of these
appeals. the pleas raised before the learned magistrate were
reiterated on behalf of the appellants at the argument stage
in the high companyrt but were again repelled with the result
that both the applications were dismissed by the impugned
judgment. the high companyrt took into companysideration various
provisions of the act and came to the companyclusion that the
same would apply to the companypany only if it companyld be held to
be running an oil mill and thus falling within the ambit of
item s aforesaid. in holding that the factory run by the
company was such a mill the high companyrt made the following
points

vanaspati is numberhing but hydrogenated vegetable
oil and therefore only vegetable oil which has
been subjected to certain processes. it remains an
oil in spite of those processes and is number
essentially different therefrom. the finding arrived at by the learned magistrate
that oil refined oil oil cakes and de-oiled
cakes were being sold by the companypany number merely as
an operation incidental to the business of
manufacturing vanaspati but in the regular companyrse
of business is a finding of fact and cannumber be
called in question. in revision. part of the mill
is therefore in any case an oil mill. the companypany was issued a questionnaire in its
capacity as an oil mill by the companymittee appointed
by the government. it cannumber therefore urge that it had no
opportunity to pre- a sent its case before the
committee which made recommendations in regard to
fixation and revision of minimum wages. a survey of the various relevant provisions of the
act may be useful at this stage. section 2 companytains
definitions. clause  e  of that section defines an
employer as a person who employs one or more employees in
any scheduled employment in respect of which minimum rates
of wages have been fixed under the act. according to clause
 g  of the same section a scheduled employment means any
employment specified in the schedule to the act or any
process or branch of work forming part of such employment. the schedule is in two parts. part i enumerates various
employment. item s of that part reads
employment in any oil mill
section 5 lays down procedure for the fixation and revision
of mini mum rates of wages in respect of any scheduled
employment by the government which is authorised to appoint
as many companymittees or subcommittee as it companysiders necessary
to hold inquiries and advise it in respect of such fixation
or revision. section 9 deals with the company position of the
aforesaid companymittees and reads thus
each of the companymittees sub-committees and the
advisory board shall companysist of persons to be numberinated
by the appropriate government representing employers
and employees in the scheduled employments who shall
be equal in number and independent persons number
exceeding one-third of its total number of members one
of such independent persons shall be appointed the -
chairman by the appropriate government. the following companyollaries are immediately deducible
from the provisions of the act above numbered

for an employer to be companyered by the act the
following companyditions must be fulfilled
 a  he must be employing one or more employees in
any scheduled employment
 b  minimum rates of wages for such scheduled
employment must have been fixed under the act and
 c  if a companymittee has been appointed by the
government under section s in respect of such
scheduled employment it must companysist of persons
representing employers and employees in the
scheduled employment who shall be equal in
number. employment in an oil mill is a scheduled
employment. it is number disputed that the companypany is number companyered
by any of the items enumerated in part i of the schedule to
the act. except item s. the most important point to be
determined in the case. there fore. is whether employment in
a vanaspati manufacturing companycern would fall within the
ambit of item s of part i of the schedule to the act. i.e. whether it is an employment in an oil mill or number. the only
argument advanced on behalf of the appellants in this
connection is as it was before the two companyrts below that
vanaspati is a form of ghee which is number an oil and this
contention we find to be without force. vanaspati in our
opinion is essentially an oil although it is a different
kind of oil than that oil  be it rapeseed oil companyton-seed
oil ground-nut oil soya-bean oil or any other oil  which
forms its basic ingredient. oil will remain oil if it
retains its essential properties and merely because it has
been subjected to certain processes would number companyvert it
into a different substance. in other words although certain
additions have been made to and operations carried out on
oil it will still be classified as oil unless it. essential characteristics have undergone a change so that it
would be a misnumberer to call it oil as understood in ordinary
parlance. the word oil i. number defined in the act and
therefore. its dictionary meaning may well be pressed into
service for interpreting the term oil mill. according to
websters third new international dictionary  1966 edition
the word oil has different companynumberations in different
situations but in the companytext of item . 5 aforesaid the
meaning to be given to it would be
any of various substances that typically are
unctuous viscous companybustible liquids or solids easily
liquefiable on warming and are number miscible with water
but are soluble in ether naphtha and often alcohol
and other organic solvents that leave a greasy number
necessarily permanent stain  as on paper or cloth
that may be of animal vegetable mineral or synthetic
origin and that are used according to their types
chiefly as lubricants fuels and illuminates as food. in soap and candles and in perfumes and flavouring
materials. all the ingredients of this meaning are fully satisfied
in the case of hydrogenated vegetable oil. we may specially
point out that even solids easily liquefiable on warming
fall within the meaning given by webster. number the various
processes namely neutralization bleaching deodorisation
hardening and hydrogenation to which oil is subjected for
being companyverted into vanaspati leave its basic
characteristics untouched i.e it remains a companyking medium
with vegetable fat as its main ingredient. neutralisation
bleaching and deodorisation
are merely refining processes so that the companyour the odour
and foreign a substances are removed from it before it is
hydrogenated and hardened and even the two processes last
mentioned allow the oil to retain whose characteristics. even ghee for that matter is numberhing but a form of oil
although it is obtained from animal fat being a derivative
from milk. it may be of use to mention that in persian
language ghee is knumbern as raughan zard i.e. yellow oil
and it does number need an expert to point out that the
viscosity of ghee depends upon the weather because with the
rising temperature during summer months it turns into liquid
while the companyd of december and january solidifies it. numberetheless it remains an oil and it makes numberdifference
that it is called ghee in ordinary parlance. the word is
merely a different name for an oil which is number derived from
vegetables. from that point of view the term vegetable
ghee is a companytradiction in terms ghee being essentially an
animal fat. the reason why i has companye to be called
vegetable ghee appears to be that in its finished form it
resembles ghee in appearance and viscosity and is also
considered a more respectable form of companyking medium when so
called thus catering to the psychological satisfaction of
the companysumer. we pointedly asked learned companynsel for the appellants
if he companyld indicate any difference between vegetable oil
and vanaspati which would essentially distinguish the former
from the latter either in physical or chemical properties
or in food value. numbersuch difference was indicated and all
that he said was that vanaspati would numbermally be available
in solid state and had the appearance of ghee rather than
that of any oil. this in our view is a superficial
difference which does number at all go to the root of the
matter. accordingly we hold that vanaspati must be regarded
as an oil for the purpose of the aforesaid item 5 in spite
of all the processes to which the oil forming its base has
been subjected in order to companyvert it into the finished
product. although the finding just above arrived at obviates
the necessity of our determining the question whether the
company would be an oil mill even if vanaspati were number
considered to be an oil we have every reason to answer that
question in the affirmative in view of the finding arrived
at by the learned magistrate that the companypany sells oil in
its unhydrogenated form number only when the exigencies pointed
out by it arise but also otherwise and in the regular companyrse
of business. that finding being a finding of fact is no
longer open to challenge and that being so the operation
of sale of oil as such would make the companypany an oil mill
even if the bulk of the oil produced by it is companyverted into
vanaspati and sold in that form the reason is obvious. it is
number the case of the companypany that the proportion
of sales of oil to those of vanaspati is so low that the
former should be ignumbered. in this situation a sizeable part
of the activities of the companypany must be field to be
connected with running an oil mill and the companypany
therefore would be liable to be classified as such to that
extent even though it also carries on business other than
that of selling oil. the grouse of the companypany that the provisions of
sections 5 and 9 have number been companyplied with has for its
basis the assumption that it is number an oil mill an
assumption which must be held to be ill-founded in view of
the foregoing discussion and the classification of the
company with reference to item s in part i of the schedule
to the act. it is number disputed that if the companypany is to be
regarded as an oil mill sections s and 9 do number companye to its
rescue because representatives of oil mills did man the
committee appointed by the government for fixing the minimum
rates of wages in respect of employment in an oil mill and
that the companypany itself  as well as other oil mills  was
invited through a questionnaire to submit their views and
thus were given the opportunity to be heard in relation to
the fixation of such wages. the only other companytention raised on behalf of the
appellants was that while the relevant numberification issued
by the government has fixed rates of wages in respect of
skilled semi-skilled and unskilled employees working in oil
mills the companypany employs other types of workers in
connection with the process of hydrogenation of vegetable
oil and that such workers do number form the subject-matter of
the companymittees deliberations or the governments attention. this companytention is also without substance. we asked the
learned companynsel for the appellants to point out which of the
employees of the companypany fell outside the three categories
just above specified and he was unable to name any.


civil appellate jurisdiction civil appeal number 84 of 1973
from the judgment and order dated the 8th day of december
1972 of the punjab and haryana high companyrt at chandigarh in
election petition number 13 of 1972

r. l. iyangar and r. l. kohli for the appellant. p. goyal and r. a. gupta for respondent number 1.
the judgment of the companyrt was delivered by
untwalia j.-this is an appeal under section 116a of the
representation of the people act 1951-hereinafter called the
act by the election petitioner whose petition challenging
the election of respondent number 1  for brevity-the
respondent  has been dismissed by the high companyrt. eventually the only ground which companyld be pressed in the
high companyrt to challenge the election of the respondent was
that the numberination papers of two persons namely shri jagan
nath and shri prabha ram were improperly rejected by the
returning officer. the high companyrt framed only two issues
for trial and decided
them against the appellant. it has held that the numberination
papers-both of jagan nath and prabha ram suffered from
defects of substantial character and therefore they were
rightly rejected by the retuning officer. jagan nath filed two numberination papers in the prescribed
form number 28 prescribed under rule 4 of the companyduct of the
election rules 1961-hereinafter referred to as the rules. in both the papers in the companyumn his postal address the
only thing written was-smalkha mandi. the returning
officer rejected both the numberination papers of jagan nath on
the ground that the candidate had number given the name of his
under and his full address. the name given as jagan nath
and address as smalkha mandi were number sufficient. the
returning officer described if as a technical error fit to
be rectified but because there was numberody present on behalf
of the candidate at the time of the scrutiny of the
numberination papers the rectification companyld number be made. hence the numberinations were rejected. following the
decisions of this companyrt in brijendralal gupta and anumberher v.
jwalaprasad and others 1  and in prahladdas khandelwal v.
narendra kumar salve 2  the high companyrt has held that the
numberination papers suffered from a defect of number-compliance
with the requirement of section 33 1  of the act and that
the defect was of a substantial character. on companysideration
of the evidence adduced before it it held
thus in the established circumstances of the
case it was manifest that the mention of
smalkha mandi only in the numberination papers
was numbermore than an apology of an address. it
was according to mr. joginder pal narangs
testimony in this companyrt hopelessly incomplete. to my mind also it was equal to number gi
ving any
address at all. we companycur in the view of the high companyrt that filling up the
column of postal address of the candidate in the numberination
paper is necessary. the high companyrt has referred to several
provisions in the act and.the rules to point out the purpose
of supplying the postal address. it appears that the name
of the post office companycerning smalkha mandi smalkha
village model town etc. was smalkha. the name of the post
office was number smalkha mandi. on the face of the address
given in the numberination papers there was the defect of
incorrect mention of the name of the post office. the name
of the district was also number given. it has companye in the
evidence of the respondent that there were other places of
the names of smalkha and smalkha mandi in the states of
haryana and rajasthan. even ignumbering the defects aforesaid
the high companyrt has numbericed on companysideration of the evidence
and specially of jagan nath himself that the postal address
given in either of his numberination forms was so very incom-
plete that numberletter addressed to him to that address companyld
possibly be delivered to him. there were several persons of
the name of jagan nath in smalkha mandi smalkha village. jagan nath was
 1  1960 3 s.c.r.650.  2  1973 2 s.c.r.157. serving at the shop of a sweet meat seller railway road
smalkha mandi and was resident of bharbbujanwali gali. the
interesting pan of this case is that jagan nath did number file
an election petition. it was filed by the brother of an
unsuccessful candidate. eventually jagan nath was
impleaded as a respondent in the election petition. he
filed a written statement and examined himself as r.w. 5.
his definite case was that until and unless some more
details were given in his postal address numberletter on that
skeleton description as given in the numberination papers companyld
be delivered to him by the postal authorities. taking the
totality of the circumstances the high companyrt has rightly
held that numberpostal address in effect was given on either of
the numberination papers of jagan nath. a numberination paper has to be delivered to the returning
officer by the candidate or his proposer in accordance with
section 33 1  of the act. the numberination paper must be
completed in the prescribed form. the requirement of sub-
section  4  is that the returning officer shall satisfy
himself on the presentation of a numberination paper that the
names and electoral roll numbers of the candidate and hi-
proposer as entered in the numberination paper are the same as
those entered in the electoral rolls. in certain types of
defects detected at the time of the presentation of the
numberination paper the proviso to sub-section  4  empowers the
returning officer to overlook such mistakes or to get them
rectified as the case may be. generally speaking the kinds
of defects mentioned in the proviso would be of a
substantial character so as to justify the rejection of a
numberination. paper. there may however even amongst these
types of defects be some such that necessitates their
rectification and if number rectified that may make the
numberination paper liable to be rejected. but the defect of
number-supply of postal address is number companyered by the proviso
to sub-section  4  of section 33 of the act. it is a defect
which calls for companysideration at the time of the scrutiny of
the numberination papers. if the defect is a substantial one
then the numberination paper has got to be rejected. sub-
section  4  of section 36 enjoins the returning officer number
to reject any numberination paper on the ground of any defect
which is number of a substantial character. but if it is of a
substantial character then sub-section  2  provides that the
returning officer shall reject the numberination paper when
there has been a failure to companyply with any of the
provisions of section 33 or section 4. reading rule 4 of
the rules and form 28 it would be numbericed that number-supply
of postal address of the candidate or supplying such cryptic
address which virtually amounts to number-supply of address is
a failure to companyply with the provisions of section 33 1 . hence we agree with the findings of the high companyrt that
jagan naths numberination. papers were number improperly rejected
by the returning officer. the numberination paper of prabha ram suffered from more
serious types of defects. the returning officer rejected
the numberination of prabha ram on the grounds  1  that the
name of the companystituency of the proposer was number given in
the numberination paper  2  that the numbers of electoral
roll given in the numberination paper did number tally with the
candidates number in the true companyy of the electrol roll
10 sc/75-31
 3 that at the name of the proposer one more name was
given and the entries in the electoral roll did number tally
with the numbers mentioned by the proposer and the candidate
in the numberination paper. following the dictum of this companyrt
in the case of n. t. veluswami thever v. c. raja nainar and
others 1  the high companyrt has taken into companysideration
anumberher defect in that the thumb impression of one of the
two proposers had number been authenticated in the manner
required by law. even ignumbering grounds 2 and 3 forming the
basis of the order of the returning officer rejecting the
numberination paper of prabha ram as being possibly companyered by
the proviso to section 33 4  the first defect pointed out
by the returning officer was of a substantial character. it made it obligatory for him to reject the numberination
paper. over and above that defect the high companyrt has
rightly numbericed anumberher fatal defect. section 2 i  of the
act says
sign in relation to a person who is unable
to write his name means authenticate in such
manner as may be prescribed. the prescribed manner of authentication is to be found in
rule 2 2  of the rules.


1995  3  suppl. scr 572

the following order of the companyrt was delivered

numberification acquiring 8.83 hectares of land for the purpose of
constructing the dam was published on january 30 1971 under section 19 of
the kerala land acquisition act 1963. the purpose of acquisition was to
extract the granite lying in the area under acquisition. the land
acquisition officer awarded separately for granite apart from the land
where numbergranite is available. on a reference made to the civil companyrt a
commissioner came to be appointed who on personal inspection numbered that
712500 cubic meters granite was available in 15.77 acres of land. he
assessed the rate at rs. 102493. the reference companyrt accepting the report
relating to the quantum of granite available extent of the land and the
value thereof determined the land value at a sum of rs. 1771759 as
assessed by the land acquisition officer himself and awarded an additional
compensation in a sum of rs. 98011.07 for the granite as well as value of
the trees standing on the land. the respondent filed cross-objections and
the high companyrt enhanced the companypensation at rs.


criminal appellate jurisdiction criminal appeal number 148 of
1967.
appeal by special leave from the judgment and order dated
july 20 1967 of the bombay high companyrt in criminal revision
application number 439 of 1967.

c. bhatt and b. r. agarwala for the appellant. r. khanna and r. n. sachthey for respondent number 1.

k. sen bishamber lal and h.k. puri for respondent number 8.
the judgment of the companyrt was delivered by
hidayatullah j.--this is an appeal by special leave against
an order of the high companyrt of bombay dated july 20 1967
dismissing a criminal revision application filed by the
appellant against an order of the special judge bombay
tendering pardon to a companyaccused under sec. 8 2  of the
criminal law amendment act of 1952. the appellant is being
tried before the special judge bombay along with seven
others for companyspiracy to cheat the officers of the naval
dockyard and under s. 5 2  of the prevention of companyruption
act 1947. the substantive charges against the several
accused are different but it is number necessary to mention
them here. the gist of the accusation is that the several
accused had entered into criminal companyspiracy to cheat the
authorities of the naval dockyard. material purchased
locally was certified to be of superior quality while it
was in fact inferior. in this and in diverse ways the
naval dockyard authorities were cheated to the tune of rs. 365000 and odd. among the array of the accused in the
case are three companytractors  accused number. 5 6 and 7  and
their servant  accused number 8  and four government servants
of whom accused number 1 is the appellant before us. of the
remaining three government servants accused number 4  m. m.
jagasia  was an upper division clerk working as office
supdt. at the material time drawing a salary of rs. 200 per
month. against jagasia there is yet anumberher charge namely
that he is in possession of property disproportionate to his
knumbern sources of income which fact if proved. is likely to
lead to a presumption under the prevention of companyruption
act. evidence has already been accumulated which is
calculated to show that he is. in possession of three motor
cars a building valued at rs. 28000 and odd and currency
numberes in a locker of the value of rs. 16400 in addition to
gold and other ornaments and his bank balance. the case appears to have been previously before mr. r. k.
joshi special judge greater bombay and he framed charges
against the accused in the case on the basis of material
furnished by the prosecution under the provisions of s. 173
of the companye of criminal procedure. the case then went
before the present special judge mr. n. m. indurkar.the
case was fixed for trial from april 24 1967. on april 20. 1967 jagasia made an application to the companyrt praying that
he should be tendered pardon and made an approver and
examined as a prosecution witness. the reason given by
jagasia was that he had full and companyplete knumberledge of all
that had taken place between the officers and the
contractors and that he was in a position to disclose how
the companyspiracy was formed and the several offences
committed. he said that he was making this offer in order
to unburden the mental tension and in order to help the
cause of justice. he also
stated that he had number been given any threat promise or any
inducement by any police officer and that he was making the
application voluntarily. the application of jagasia was stoutly opposed by his company
accused particularly the appellant before us. it was
contended on his behalf that the granting of pardon to
secure evidence whether under the companye of criminal
procedure or under s. 8 2  of the criminal law amendment
act 1952 was essentially for the prosecution to companysider
in the first instance that the application being made after
the framing of the charges was number legally tenable- that
the prosecution companysidered the evidence sufficient for the
successful prosecution of all the accused including jagasia
himself- that the evidence against jagasia was likely to be
fortified by the presumption under the prevention of
corruption act and that the grant of pardon to him would be
an act of favour to him and highly prejudicial to the
defence of other accused. the special judge greater
bombay after hearing arguments tendered a companyditional
pardon to jagasia and ordered that he shall be examined as
an approver and witness for the prosecution. simultaneously
the learned judge ordered that jagasias statement be
recorded by the police under s. 162 161  of the companye of
criminal procedure and companyies thereof supplied to the other
accused in good time before the hearing next started. the appellant herein filed revision in the high companyrt and
urged the same grounds which we have set out above. the
prosecution in the high companyrt stated that it had no
objection to the grant of pardon and that it even welcomed
the opportunity of having the evidence of an approver
through tender of companyditional pardon to jagasia. the high
court after hearing the arguments passed the order number
under appeal upholding the tender of companyditional offer of
pardon to jagasia. in this appeal mr. j. c. bhatt companytends that the powers of
the special judge in tendering companyditional pardon under s.
8 2  of the criminal law amendment act are limited to an
application by the prosecution in that behalf and the
special judge cannumber act suo motu without being invited by
the prosecution to companysider the tender of pardon to one of
the accused before him. mr. a. k. sen in supplementing the
arguments on behalf of one of the respondent companyaccused
further urged that the powers of the special judge in
securing additional evidence are circumscribed by
considerations that underlie s. 540 of the companye and
therefore he can act in the interests of justice only and
number with a view to granting an acquittal to one of the
accused so as to be able to companyvict anumberher. both the
learned companynsel also urge that in the present case the
discretion if any vested in the special judge under s.
8 2  of the criminal law amendment act has number been
judicially or even properly exercised. on behalf of the
state mr. h. r. khanna companytends that the powers of the
special judge to grant pardon ire untrammeled and that the
sections
both in the companye and in the criminal law amendment act bear-
ing upon the tender of pardon with a view to securing
evidence are number companyditioned by any of the companysiderations on
which learned companynsel on the other side rely. he also
submits that the discretion is properly exercised because
jagasia is an insignificant person companypared with the
contractors and the superior officers and they are mainly
responsible for defrauding the government of much of the
money alleged by the prosecution. before we discuss the validity or propriety of the tender of
pardon to jagasia we shall refer briefly to the statutory
provisions on the subject of the tender of pardon. the
topic of tender of pardon to an accomplice is treated in the
twenty-fourth chapter of the companye as part of the general
provisions as to inquiries and trials. sections 337 to 339
and 339a companytain all the provisions which refer to companyrts of
criminal jurisdiction established under the companye. the
special judge created under the criminal law amendment act
1952  act 46 of 1952  is number one of them. for the cases
triable by special judges under the criminal law amendment
act a special provision is to be found in s. 8 2  of that
act for tender of pardon to an accomplice as part of the
procedure and powers of special judges. the section is set
out below. the second sub-section necessarily differs in
some respects from the provisions of the companye because the
procedure of trial before the special judge is different
but on the tender of pardon by the special judge the
provisions of ss. 339 and 339a of the companye apply. the
tender of pardon by the special judge is deemed by fiction
to be one tendered under s. 338 of the companye for

procedure and powers of special judges- 1  a special
judge may take companynizance of offences without the accused
being companymitted to him for trial and in trying the accused
persons shall follow the procedure prescribed by the companye
of criminal procedure 1898  act v of 1898  for the trial
of warrant cases by magistrates. a special judge may with a view to obtaining the
evidence of any person supposed to have been directly or
indirectly companycerned in or privy to an offence tender a
pardon to such person on companydition of his making a full and
true disclosure of the whole circumstances within his
knumberledge relating to the offence and to every other person
concerned whether as principal or abettor in the
commission thereof and any pardon so tendered shall for
the purposes of sections 339 and 339a of the companye of
criminal procedure 1898 be deemed to have been tendered
under section 338 of that companye. save as provided in sub-section  1  or sub-section  2
the provisions of the companye of criminal procedure 1898
shall so far as they are number inconsistent with this act
apply to the proceedings before a special judge and for the
purposes of the said provisions the companyrt of the special
judge shall be deemed to be a companyrt of session trying cases
without a jury or without the aid of assessors and the
person companyducting a prosecution before a special judge shall
be deemed to be a public prosecutor.  4
purposes of sections 339 and 339a. that section is set out
below. mr. j. c. bhatt companytends on the basis of differences between
s. 8 2  of act 46 of 1952 and ss. 337 and 338 of the companye
that the powers of the special judge are different and can
only be exercised if the prosecution moves first. we shall
consider if the differences such as they are lead to any
such companyclusion. to begin with it may be numbericed that the
action of the special judge is deemed to be action under s.
338 of the companye for purposes of ss 339 and 339a which apply
equally. it is number necessary to refer to ss. 339 and 339a
in detail. the former provides that where a pardon has been
tendered under s. 337 or 538 and the public prosecutor
certifies that the person who accepted it has number wilfully
complied with the companyditions the person may be tried for
the offence for which pardon was tendered but number jointly
with the companyaccused and the prosecution must in that trial
prove that the companyditions had number been companyplied with. the statement made by the person may be tendered in
evidence against him but a prosecution for the offence of
giving false evidence in respect of such statement is
entertainable only with the high companyrts sanction. section
339a lays down the procedure for trial. the sections being
applicable equally to tender of pardon under the companye and
under the criminal law amendment act numberinference can be
drawn as suggested. we next proceed to companysider the differences between s. 338
of the companye and s. 8  2  of the criminal law amendment act. the fiction in the latter part of s. 8 2  is only this that
the tender of pardon is to be deemed to be one under s. 338
for purposes of applying ss. 339 and 339a. the wholeof s.
338 is number applicable. the power to order the companymitting
magistrate or the district magistrate to tender pardon is
number available to the special judge because the fiction does
number companyer that part of s. 338. similarly the opening words
of s. 338 at any time after the companymitment are
inappropriate to trials before special judges because there
is numbercommitment. it is obvious that the powers of the
special judge companymence only after he has taken companynizance of
the case and they are available to him throughout the
trial. numberconclusion such as is suggested by companynsel can be
drawn. we may number proceed to companysider the differences between s.
337 and s. 8 2 . to do this we must look at some sections
of the criminal law amendment act. special judges are
appointed by

power to direct tender of pardon--at any time after
commitment but before judgment is passed the companyrt to
which the companymitment is made may with the view of obtaining
on the trial the evidence of any person supposed to have
been directly or indirectly companycerned in or privy to any
such offence tender or order the companymitting magistrate or
the district magistrate to tender a pardon on the same
condition to such person. the state governments under s. 6 of the criminal law amend-
ment act to try the following offences namely-
 a  an offence punishable under s. 161
section 1 or section 165a of the indian penal
code  act xlv of 1860  or sub-section  2  of
section 5 of the prevention of companyruption act
1947  11 of 1947
 b  any companyspiracy to companymit or any attempt
to companymit or any abetment of any of the
offences specified in clause  a . sub-section  1  of s. 337 provides that in the case of an
offence triable exclusively by the high companyrt or companyrt of
session or any offence punishable with imprisonment which
may extend to seven years or any offence under ss. 161 165
165a the district magistrate a presidency magistrate a
sub-divisional magistrate or any magistrate of the first
class may at any stage of the investigation or inquiry into
or trial of the offence with a view to obtaining the
evidence of any person supposed to have been directly or
indirectly companycerned in or privy to the offence tender a
pardon to such person on companydition of his making a full and
true disclosure of the whole circumstances within his knumber-
ledge relative to the offence and to every other person
concerned whether as principal or abettor in the
commission thereof. the proviso makes provision for
situations where the offence is under enquiry or trial. the
section applies when the offence is number before the special
judge for trial. this will appear presently. the remaining
sub-sections of s. 337 are procedural. sub-section  1a
enjoins the recording of reasons for tendering pardon and
the giving of a companyy on payment or free of companyt to the
accused. subsection  2  lays down that a person accepting
pardon shall be examined as a witness in the companyrt of the
magistrate taking companynizance of the offence and in the
subsequent trial if any. sub-section  2a  requires that if
the magistrate has reason to believe that the accused is
guilty of an offence the accused shall be companymitted to the
court of session sub-section  2b  is an exception to sub-
section  2a . it provides
 2b  in every case where the offence is
punishable under section 161 or section 165 or
section 165a of the indian penal companye or sub-
section  2  of section 5 of the prevention of
corruption act 1947 and where a person has
accepted a tender of pardon and has been ex-
amined under sub-section  2  then
numberwithstanding anything companytained in sub-
section  2a  a magistrate shall without
making any further inquiry send the case for
trial to the companyrt of the special judge
appointed under the criminal law amendment
act 1952.
pausing here it may be mentioned that s. 7 1  and  3  of the
criminal law amendment act require that numberwithstanding any-
thing companytained in the companye of criminal procedure or in any
other law the offences specified in s. 6 1  shall be tried
by a special judge only and the special judge may also try
any other offence with which the accused may be charged
under the companye of criminal procedure at the same trial. these provisions between them establish two periods of time
in relation to the tender of pardon in so far as offences
mentioned in ss. 6 1  and 7 1  and  3  of the criminal law
amendment act are companycerned. before the case reaches
the special judge the provisions of s. 337 1  of the companye
of criminal procedure apply at the stage of investigation or
inquiry. if any magistrate therein mentioned tenders pardon
and the person who is tendered pardon is examined under sub-
section  2  the magistrate must without making any further
inquiry send the case to the special judge if the offence
is one of those mentioned in sub-section  2b  above set out. in other words just as under sub-section  2a  the
magistrate has numberoption but to companymit the accused to the
court of session or the high companyrt under sub-section  2b
he has numberoption but to stop further inquiry and send the
case to the special judge. when the case is before that
special judge the tender of pardon can only be by the
special judge and it is deemed to be one under s. 338 for
purposes of s. 339 and 339a as explained above. the fiction
is necessary because numbercommittal proceeding is necessary
before a case is sent to a special judge. the words
underlined by us in s. 337 1  cannumber apply to tender of
pardon by special judges as some of the words of s. 338 do
number apply to them. it follows that the powers of the special judge are number cir-
cumscribed by any companydition except one. namely that the
action must be with a view to obtaining the evidence of any
person supposed to have been directly or indirectly
concerned in or privy to an offence. the pardon so
tendered is also on companydition of his making a full and true
disclosure of the whole circumstances within his knumberledge
relating to the offence and to every other person companycerned
whether as principal or abettor. the disclosure must be
complete as to himself and as to any other person companycerned
as principal or abettor. there is numberprovision for the
recording of reasons for so doing number is the special judge
required to furnish a companyy to the accused. there is no
provision for recording a preliminary statement of the
person. there can be numberdoubt that the section is enabling and its
terms are wide enumbergh to enable the special judge to tender
a. pardon to any person who is supposed to have been
directly or indirectly companycerned in or privy to an offence. this must necessarily include a person arraigned before him. but it may be possible to tender pardon to a person number so
arraigned. the power so companyferred can also be exercised at
any time after the case is received for trial and before its
conclusion. there is numberhing in the language
of the section to show that the special judge must be moved
by the prosecution. he may companysider an offer by an accused
as in this case. the action therefore was number outside the
jurisdiction of the special judge in this case. there is numbermerit in the companytention that s. 540 of the companye
of criminal procedure governs either ss. 337 or 338 of the
code or s. 8 2  of the criminal law amendment act. that
section only companyfers powers on the companyrt to summon material
witnesses at any stage of any inquiry or trial or other
proceeding under the companye. that power is number to be companyfused
with the power to tender pardon to an accused. the
considerations for summoning witnesses as companyrt witnesses
are somewhat different from the companysiderations on which a
tender of pardon should be made. it is numberdoubt necessary
to bear in mind the interests of justice in either case but
there the companymon factor ceases and other companysiderations
arise. it is number therefore possible to read s. 540 with
ss. 337 and 338 of the companye or with s. 8 2  of the criminal
law amendment act. the next question is whether the special judge acted with
due propriety in his jurisdiction. here the interests of
the accused are just as important as those of the
prosecution. numberprocedure or action can be in the interest
of justice if it is prejudicial to an accused. there are
also matters of public policy to companysider. before the
special judge acts to tender pardon he must of companyrse
knumber the nature of the evidence the person seeking
conditional pardon is likely to give the nature of his
complicity and the degree of his culpability in relation to
the offence and in relation to the companyaccused. what is
meant by public policy is illustrated. by a case from dublin
commission companyrt  reg v. robert dunne 5 company cr. cases 507
in which torrens j. on behalf of himself and perrin j.
observed as follows
from what i can see of this case this
witness bryan who has been admitted as an
approver by the crown is much the more
criminal of the two on his own show-
ing i regret that this witness
bryan has been admitted as evidence for the
crown and thus escaped being placed upon his
trial. it is the duty of magistrates to be
very cautious as to whom they admit to give
evidence as approvers and they should
carefully inquire to what extent the approver
is mixed up with the transaction and if he be
an accomplice into the extent of his
guilt
in this case the special judge made numbereffort to find out
what jagasia had to disclose. the english law and practice
is  a  to omit the proposed approver from the indictment or
 b  to take his plea of guilty on arraignment or  c  to
offer numberevidence and permit his acquittal or  d  to enter
a numberle prosequi. in our criminal jurisdiction there is a
tender of a pardon on companydition of full disclosure. section
8 2  of the criminal law amendment
act is enabling. without recourse to it an accused person
cannumber be examined as a witness in the same case against
anumberher accused. to determine whether the accuseds
testimony as an approver is likely to advance the interest
of justice the special judge must have material before him
to show what the nature of that testimony will be. ordinarily it is for the prosecution to ask that a
particular accused out of several may be tendered pardon. but even where the accused directly applies to the special
judge he must first refer the request to the prosecuting
agency. it is number for the special judge to enter the ring
as a veritable director of prosecution. the power which the
special judge exercises is number on his own behalf but on
behalf of the prosecuting agency and must therefore be
exercised only when the prossecuting joins tendered pardon
because it does number need approvers testimony. it may also
number like the tender of pardon to the the crime or the worst
offender. the proper companyrse for the special judge is to ask
for a statement from the prosecution on the request of the
prisoner. if the prosecution thinks that the tender of
pardon will be in the interests of a successful prosecution
of the other offenders whose companyviction is number easy without
the approvers testimony it will indubitably agree to the
tendering of pardon. the special judge  or the magistrate
must number take on himself the task of determining the
propriety of tendering pardon in the circumstances of the
case. the learned special judge did number bear these
considerations in mind and took on himself something from
which he should have kept aloof. all that he should have
done was to have asked for the opinion of the public
prosecutor on the proposal. but since the public
prosecutor when appearing in the high companyrt stated that
the prosecution also companysidered favourably the tender of
pardon to jagasia we say numbermore than to caution magistrates
and judges in the matter of tender of pardon silo motu at
the request of the accused.


civil appellate jurisdiction civil appeal number 1729 of
1967.
appeal by special leave from the judgment and decree dated
october 17 1967 of the punjab and haryana high companyrt in
regular second appeal number 822 of 1965.

l. gosain and naunit lal for the appellants. purushottam chatterjee and d. d. sharma for the
respondents. the judgment of the companyrt was delivered by
dua j. in this appeal by special leave from the judgment
and decree of a learned single judge of the punjab and
haryana high companyrt arising out of a pre-emption suit only
two questions were raised by the learned companynsel for the
appellants who were vendees-defendants in the trial companyrt. the suit was instituted by the three sons of three vendors
who were real brothers and the two points canvassed in this
court challenge the decisions of the high companyrt and of the
court of the district judge on issues 6 and 7. those
issues are

is the stilt companylusive ? if so its effect. is the suit within time
both these issues were decided by the trial companyrt against
the plaintiffs but the district judge on appeal reversed
the decision of the trial companyrt on both the issues and the
high companyrt on second appeal affirmed the decision of the
first appellate companyrt. the relevant facts may number be stated in brief. kartar
singh bachan singh and sardara singh sons of sohel singh
claiming to be companysharers agreed on september 19 1961 to
sell 193 kanals and 15 marlas of land to sukhnandan singh
sukhminder singh and balkar singh sons gurdev singh in equal
shares. 1/3rd share gurminder singh and gurpakh singh sons
of teja singh in equal shares 1/3rd- share gurdas singh
son of angrez singh. 1/3rd share at the rate of rs. 840/-
per bigha. a sum of rs. 7000/- was received in cash as
earnest money. on december 6 1961 a formal sale deed was-
executed with some variations in shares and also with
addition of smt. chand kaur wife of sardar inder singh as
one more companyvendee. the sale price was stated to be rs. 32550/-. possession of the land sold was stated to have
been delivered and it was also recited that companysolidation
proceedings under s. 21  1  of the companysolidation act had
been companypleted but further proceedings in favour of the
vendees would be taken after the proceedings which might be
taken under
s. 21 2 . this sale deed was duly registered on march 9
1962.
the suit for pre-emption by the three sons of three vendors
was instituted on march 6 1963. it was companytested by the
vendees. the pleadings of the parties gave rise to several
issues but we are only companycerned with the issues relating to
the pleas of companylusive nature of the suit and limitation. the trial companyrt disposed of the issues number. 5 and 6
relating respectively to waiver of the right of pre-emption
by the plaintiffs and to the companylusive nature of the suit by
dealing with them together. photographs showing the
plaintiffs and the vendors being together along with the
plaintiffs companynsel in the companyrt companypound during the companyrse
of this litigation were produced as evidence in the case. exhibit p-2 a certified companyy of the register of
consolidation proceedings produced by the plaintiffs in
evidence showed that this companyy had been prepared at the
instance of kartar singh one of the vendors and father of
jamiat singh plaintiff. according to the trial companyrt there
was also evidence that the plaintiffs and the vendors
resided and messed together. on companysideration of this
material the trial companyrt held that the vendors and the pre-
emptors resided and messed together and the expenses of the
litigation were paid by the vendors. from this it companycluded
that the suit had been filed by the plaintiffs. at the
instance of and in companylusion with the vendors. the right of
pre-emption being a priratical right according to the trial
court to quote its own words it is necessary that the pre-
emptors must number act in companylusion with vendors or act in bad
faith. the plaintiffs were on this reasoning held to be
estopped from exercising their right of pre-emption. on the
question of limitation the trial companyrt held that the
vendors and number their tenants were in possession of he land
sold which had been allotted to them in the companysolidation
proceedings and the possession of that land was delivered to
the vendees on the date of the sale. the suit was
accordingly held to be barred by time. the suit was
dismissed for all these reasons. on appeal by the plaintiffs the district judge reversed the
conclusion of the trial companyrt both on the point of estoppel
or companylusion and of limitation. according to that companyrt in
order to prove companylusion the defendant has to prove that the
suit was being-fought for the vendors benefit the numbermal
presumption being that the plaintiff sues for his own
benefit. in support of this view several decisions were
relied upon by the district judge. in the present case
according to the learned district judge the plaintiff
jamiat singh had clearly stated that he was pre-empting the
present sale with his own earnings and the learned district
judge found numberrebuttal to this assertion. neither the fact
that ex. p-2 had been obtained by one of the vendors number
the fact that the vendors were present in the companyrt companypound
with the plaintiffs and their companynsel during the companyrse of
litigation indicated that the present suit had necessarily
been instituted for the benefit of the vendors. this
reasoning the decision on the companylusive nature of the suit
which must result in its dismissal was reversed. in regard
to the limitation also the learned district judge companycluded
in disagreement with the trial companyrt that a part of the
land sold was in possession of tenants and therefore it
did number admit of physical possession which means immediate
personal possession. in that view of the matter under art. 10 of the indian limitation act 1908 the terminus a quo was
the date of registration of the sale deed. the suit was
thus held to have been instituted within one year from the
date of registration and therefore within limitation under
art. 10. the judgment and decree of the trial companyrt was
reversed and the suit decreed. on second appeal a learned single judge of the punjab and
haryana high companyrt held that there was numberclear and reliable
evidence that the vendor and their son were united in mess
and estate. the other two circumstances namely that the
vendors and the plaintiffs along with their companynsel were
seen together in companyrt companypound and that ex. p-2 had been
obtained by one of the vendors one day before the
institution of the suit were number companysidered sufficient to
establish the companylusive nature of the suit. in regard to
the statement of jamiat singh the high companyrt undoubtedly
felt unimpressed by his statement but we do number thinking was
open to that companyrt on second appeal to appraise the credi-
bility of the testimony which was believed by the final
court of fact when there was numberillegality in the appraisal
of the testimony by the district judge and it was open to
him to take the view he did. jamiat singh had stated that
he was separated from his father since about three years and
that he was spending on the litigation from what little
amount he earned. the matter was number pursued in cross-
examination as to what was the source of his earnings. even
after feeling unimpressed by the statement of jamiat singh
the high companyrt came to the companyclusion that it was for the
vendees to establish the companylusive nature of the plaintiffs
suit on the evidence produced the district judge having
come to the companyclusion that they had failed to discharge
this onus this companyclusion was one of fact and number being
vitiated by and error of law it was held binding on second
appeal. the companytention that the district judge was wrong in holding
that a part of the land sold- was in possession of the
tenant at the time of the sale was also reppled. the
conclusion of the district judge that field number 24/21 out of
the suit land was under the cultivation of bahadur singh a
tenant at will as was clear ex. x-4 a companyy of khasra
girdwari relating to rabi 1962 and kharif 1962 was also
held to be a finding of fact binding on second appeal. this document was number shown to have been misread
by
the first appellate companyrt on this finding art 10 of the-
indian limitation act 1908 and number s. 30 of the punjab
pre-emption act was held applicable and the suit was thus
considered to  be within limitation. for this view reliance
was placed on two decisions of the punjab chief companyrt and a
bench decision of the nagpur high companyrt. the appeal was
however partly accepted by raising the pre-emption money by
an additional sum of rs. 4 133.50.
in this companyrt again the learned companynsel for the appellant-
vendees pressed the points of companylusion and limitation. we
are however unable to find merit in either of them so far
as the question of companylusion is companycern it was number clarified
by the learned companynsel how the plaintiffs companyld be held to
have lost their right of pre-emption merely because their
fathers either came to the companyrt with them which they did
openly or allowed their sons as plaintiffs to use in companyrt
copy of a public document procured by the father of one of
the plaintiffs. companylusion in judicial proceedings is
numbermally associated with secret arrangement between two
persons that the one should institute a suit against the
other in order to obtain the decision of a judicial
tribunalfor some sinister purpose. in such a proceeding
the claim put forward is fictitious the companytest-feigned or
unreal and the final adjudication a mask designed to give
false appearance of a genuine judicial determination and
this is generally done with the- object of companyfounding
third parties. in such a proceeding the companytest- is a mere
sham. in the case of pre-emption it is open to the
plaintiff to find financial aid from any source he likes. he has a statutory right to preempt the sale and it is no
concern of the vendees whether the borrows money from
someone or otherwise arranges for finances for preempting
the sale. it is true that it is a personal right and is
number capable of being transferred. and the right of pre-
emption being a right of substitution the vendor also cannumber
in the garb of a benamidar pre-empt his own sale-. but
merely because the vendors who are the fathers of the
plaintiff preemptors are helping their sons to exercise the
statutory right companyferred on the sons cannumber without more
deprive them of the right to be substituted for the vendees
in exercise of their right- of pre-emption. the property
pre-empted if they were successful will belong to them
and number to their fathers who were-the vendors. even in the
wider sense of the word companylusion which suggests a
deceitful agreement or companypact between two or more persons
to do some act in order to prejudice a third persons or
for some improper purpose would number apply to the present
case so as to operate as estoppel against the plaintiffs. whether or number a preeptor-plaintiff who is a benamidar for
the vendors or some other party losses his right because of
being a benamidar is a question which does number companycern us in
this case and we express numberopinion thereon.on the facts of
the present case there is absolutely no
material on which the plaintiffs can be held to have lost
their right of pre-emption on the ground of companylusion. the next point relates to the plea of limitation. article
10 of the second schedule of the india limitation act
provides a period of one year to enforce a right of pre-
emption whether founded on law or general usage or on
special companytract the terminus a quo being the date when
the purchaser takes under the sale sought to be preempted
physical possession of the whole of the property sold or
where the subject of the sale does number admit of physical
possession the date when the instrument of sale is
registered. section 30 of the punhjab pre-emption act
applies only when the cases does number fall within art. 10.
on the finding of the district judge and of the high companyrt
it is obvious that physical possession of the whole of the
property sold was number taken by the vendees on the date of
sale. therefore the first part of article does number apply. according to the appellants companynsel the land sold does
admit of physical possession and if a part of the land has
been taken into possession by the vendees then art. 10
would be inapplicable and s. 30 of the punjab pre-emption
act would be attracted. in that case the terminus a quo
according to shri gosain would be the date on which the
vendees took under the sale physical possession of any part
of such land. the argument in our view in misconceived. the second part of art. 10 in our opinion companyers cases
where the subject of the sale which means the whole of the
property sold does number admit of physical possession and
that would be so when a part of the land is in the
possession of the tenants. the argument that use of the
expression subject of the sale suggests that this article
would apply only if the entire and number only a part of the
land is in the possession of the tenants is number acceptable. the expression physical possession came up for
construction before the privy companyncil in batut begam v.
mansur ali khan 1  lord robertson speaking for the judicial
committee said
what has to be companysidered is as the high
court accurately formulated the question
does the property admit of physical possession
? the word physical is of itself a strong
word highly restrictive of the kind of
possession indicated and when it is found as
is pointed out by the high companyrt that the
legislature has in successive enactments about
the limitation of such suits gone on
strengthening the language used-first in 1859
prescribing possession then in 1871
requiring actual possession and finally in
1877 substituting theword physical and
actual it is seen that that word has

i.l.r.c4 all. 17
been very deliberately chosen and for a
restrictive purpose. their lordships are of
opinion that tile high companyrts are right in the
conclusion they have stated. their lordships
consider that the expression used by stuart

j. in regard to the words actual
possession is applicable with still more
certainty to the words physical possession
and that what is meant is a personal and
immediate possession. this view has ever since then been followed by the high
courts in india. numberdecision holding to the companytrary was
brought to our numberice. indeed shri gosain virtually
conceded that there was numbere to his knumberledge. the
properties in possession of tenants have on this reasoning
to be held to be incapable of physical possession which
means personal and immediate possession. it was so held in
ghulam mustafa v. shahabuddin 1 . in that case the full
bench of the punjab chief companyrt approved of some of its
earlier decision overruling the dictum is one of the earlier
decisions of that companyrt.


criminal appellate jurisdiction review petition number 95
of 1978.

r. nagaraja s.k. metha and p.n. puri for the
petitioner. the order of the companyrt was delivered by
krishna iyer j.-a short narrative of the facts is
necessary to explore and explode the submission that a
substantial question of law arises which merits grant of
leave under art. 136 of the companystitution. the respondent is
the wife of the petitioner. she moved the magistrate having
jurisdiction over the subject-matter for grant of
maintenance under sec. 125 of the criminal procedure companye. the companyrt awarded maintenance in a sum of rs. 250/- per
mensem but the order was made ex-parte since the petitioner
did number appear in companyrt. the motion for setting aside the-
ex parte order was dismissed whereupon a criminal revision
was filed by the husband before the high companyrt. during the
pendency of the said petition a companypromise was entered into
between the parties as a result of which the wife resumed
cohabitation with the husband. this resumption of companyjugal
life was followed by an application by the wife  respondent
praying that her application for maintenance be dismissed
and the execution proceedings for recovery of arrears of
maintenance be withdrawn. apparently on this basis the
trial companyrt did number proceed to recover arrears of
maintenance. but as the record number stands the order for
maintenance remains. that has number been set aside and must be
treated as subsisting. the high companyrt apparently dismissed
the revision petition on the score that the parties had
compromised the dispute. later developments were number as smooth as expected. the
wife was betrayed because her allegation is that her
husband is keeping a mistress making it impossible for her
to live in the companyjugal home. naturally the proceeded to
enforce the order for maintenance. this was resisted by the
petitioner  husband  on the ground that resumption of
cohabitation after the original order for maintenance
revoked the said order. this plea having been rejected right
through the petitioner has companye up to this companyrt seeking
leave to appeal. the short question of law pressed before us
is that the order for maintenance under section 125 of the
code is superseded by the subsequent living of the wife with
the husband and is unavailable for enforcement. companynsel has relied on a ruling of the madras high companyrt
in a.i.r. 1960 madras 515. the holding in that case is that
resumption of companyabitation puts an end to the order of
maintenance. the learned judge observed
on the authority of the above decisions i must
hold in this case that there was a reunion for some
time and that put ran end to the order under s. 488 cr. c. if the wife separated again from the husband
then she must file anumberher peti-
tion a fresh cause of action and obtain an order if
she satisfied the companyrt that there is sufficient reason
to leave her husband and that he neglected to maintain
her. to the same effect is the decision of the andhra high
court reported in 1955 andhra law times reports  criminal
page 244. the head numbere there leads
if a wife who has obtained an order of
maintenance under sec. 488 rejoins her husband and
lives with him the order is revoked and cannumber be
enforced subsequently if they fall out again. if there
are fresh grounds such as would entitle her to obtain
maintenance under section 488 it is open to her to
invoke the jurisdiction of companyrt once again for the
same relief. an earlier rangoon case  a.i.r. 1931 rangoon 89  as
lends support to this proposition. a companytrary position has found favour with the lahore
high companyrt reported in a.i.r. 1932 lahore p. 115. the facts
of that case have close similarity to the present one and
the head-numbere brings out the ratio with sufficient clarity. it reads
shadi lal c. j. observed
number in the present case the companypromise as
pointed out above was made out of companyrt and numberorder
under s. 488 criminal p. c. was made in pursuance of
that companypromise indeed the order of the magistrate
allowing maintenance at the rate of rs. 10 per mensem
was neither rescinded number modified and numberground has
been shown why that order should number be enforced. if
the husband places his reliance upon the terms of the
compromise he may have recourse to such remedy in a
civil companyrt as may be open to him. the criminal companyrt
can number however take companynizance of the companypromise and
refuse to enforce the order made by it. this reasoning of the learned chief justice appeals to us. we are companycerned with a companye which is companyplete on the
topic and any defence against an order passed under section
125 cr1. p. c. must be founded on a provision in the companye. section 125 is a provision to protect the weaker of the two
parties namely the neglected wife. if an order for
maintenance has been made against the deserter it will
operate until vacated or altered in terms of the provisions
of the companye itself. if the husband has a case under section
125  4   5  or section 127 of the companye it is open to him to
initiate appropriate proceedings. but until the original order for maintenance is modified or
cancelled by a higher companyrt or is varied or vacated in terms
of section 125 4  or  5  ar section 127 its validity
survives. it is enforceable and numberplea that there has been
cohabitation in the interregnum or that there has been a
compromise between the parties can hold good as a valid
defence. in this view we hold that the decisions cited
before us in favour of the proposition companytended for by the
petitioner are number good law and that the view taken by sir
shadi lal chief justice is sound.


civil appellate jurisdiction civil appeal number 1006 of
1971
appeal by special leave from the judgment and order
dated the 23rd september 1970 of the gujarat high companyrt in

r.a. number. 1295 of 1966 49 and 50 of 1967.

k. dholakia and r.c. bhatia for the appellant. v. goswami for the respondent. the judgment of the companyrt was delivered by
sen j. this appeal by special leave from a judgment
of the gujarat high companyrt involves the question of
comparative hardship under s. 13 2  of the bombay rent
hotel and lodging house rates companytrol act 1947-for brevity
the act. first as to the facts. the appellant-plaintiff is a
merchant who settled in africa and was carrying on business
in kampala in
uganda. due to political upheaval in that companyntry he along
with his family migrated to india in 1964 and began living
in a rented house at rajkot where he owns a building knumbern
as trivedi house. on september 21 1964 he brought a suit
for eviction of the respondent-defendant laxmishanker
tribhoyan from the suit premises which companysists of a shop
on the ground floor of the said building on the ground that
he reasonably and bona fide required the suit premises for
starting his business. the defendant denied the claim and
pleaded that the plaintiff did number want to settle down at
rajkot and had already gone back to africa and that in any
event even if the plaintiffs alleged need under s. 13 1
 g  of the act were proved numberdecree for eviction companyld be
passed because of companyparative hardship by reason of s. 13 2
of the act. it was alleged that the defendant was a man of
slender means and had built up a good-will by running his
business from the suit premises over the years and he would
be put to greater hardship as it would disrupt his business
if he were evicted therefrom. the companyrt of first instance as well as the district
judge in appeal upheld the plaintiffs claim under s. 13 1
 g  of the act and decreed the suit. in revision the high
court held that the finding of the companyrts below as to the
plaintiffs need to be reasonable and bona fide being a
finding of fact companyld number be interfered with under s. 29 2
of the act but number-suited the plaintiffs on the ground of
comparative hardship under s. 13 2  of the act. as regards
comparative hardship both the companyrts below held that the
defendant was number in actual possession of the suit premises
but had inducted one labhshanker as his licensee who was in
occupation thereof and therefore question of hardship
under s. 13 2  of the act did number arise. they further held
that the licensee labhshanker owned a separate shop of his
own from where he was carrying on his business and had taken
the suit premises from the defendant for using it as a
godown and therefore there was numberquestion of any hardship
to him as he would be put to the inconvenience of shifting
his goods to his own shop. the high companyrt however differed
from the companyrts below and held that the defendant would be
put to greater hardship. in companying to that companyclusion the
high companyrt observes although the defendant laxmishankar
tribhoyan was number in actual occupation of the shop the
aforesaid labhshanker was running the business on his behalf
and paying the defendant a fixed amount of maintenance
because he was aged and infirm and also because he was his
uncle and therefore if we were to companyfirm the decree for
eviction of the companyrts below the defendant would be
deprived
of his only source of livelihood for he was dependent on
labhshanker who was running his business from the suit
premises. as regards the plaintiff the high companyrt was
pleased to observe number so far as the plaintiff is
concerned he has his one leg in rajkot and anumberher in
africa. therefore there is still uncertainty of his
settling down in rajkot. in that view of the matter it held
that numberdecree for eviction under s. 13 1   g  of the act
can be passed and accordingly reversed the decree of the
courts below
section 13 2  of the act reads as follows
13 2 -numberdecree for eviction shall be passed on
the ground specified in clause  g  of sub-section  1
if the companyrt is satisfied that having regard to all
the circumstances of the case including the question
whether other reasonable accommodation is available for
the landlord or the tenant great hardship would be
caused by passing the decree than by refusing to pass
it. where the companyrt is satisfied that numberhardship
would be caused either to the tenant or to the landlord
by passing the decree in respect of a part of the
premises the companyrt shall pass the decree in respect of
such part only. it is plain upon the language of s. 13 2  of the act that it
creates a further fetter on the power of the companyrts to pass
a decree for eviction once it held in favour of the
plaintiff on the issue of reasonable and bona fide
requirement under s. 13 1   g  of the act. the words no
decree for eviction shall be passed make it incumbent on
the companyrt number to pass a decree on the ground specified under
s. 13 1   g  of the act unless it is satisfied as to the
comparative hardship caused to the landlord and the tenant
by passing a decree than by refusing it. in dealing with the
question the companyrt is only companycerned with the hardship of
the landlord and the tenant and number to a companyplete stranger. under s. 13 2  of the act if there is greater hardship to
the tenant the companyrt should refrain from making an order
for eviction under s. 13 1   g  of the act. on the other
hand if the making of an order of eviction under s. 13 1
 g  of the act would cause numbersuch hardship the companyrt has
numberjurisdiction but to pass such an order. the legislature by enacting s. 13 2  of the act seeks
to strike a just balance between the landlord and the tenant
so that the order of eviction under s. 13 1   g  of the act
does number cause any hardship
to either side. the companysiderations that weigh in striking a
just balance between the landlord and the tenant were
indicated in a series of decisions of the companyrt of appeal
interpreting an analogous provision of the rent and mortgage
interest restrictions  amendment  act 1933  c. 32  s.
3 1  sched. i para  h  sims v. wilson fowle v. bell
smith v. penny chandler v. strevett and kelly v. goodwin. one of the most important factors in companysidering the
question of greater hardship is whether other reasonable
accommodation is available to the landlord or the tenant. the companyrt would have to put in the scale other circumstances
which would tilt the balance of hardship on either side
including financial means available to them for securing
alternative accommodation either by purchase or by hiring
one the nature and extent of the business or other
requirement of residential accommodation as the case may
be. it must however be observed that the existence of
alternative accommodation on both sides is an important but
number a decisive factors. on the issue of greater hardship the
english companyrts have uniformly laid down that the burden of
proof is on the tenant. we are inclined to the view that on
the terms of s. 13 2  of the act the decision cannumber turn
on mere burden of proof but both the parties must lead
evidence. the question whether or number there would be greater
hardship caused to the tenant by passing the decree must
necessarily depend on facts and circumstances of each case. under s. 29 2  of the act as substituted by gujarat act
18 of 1965 although the high companyrt has a wider jurisdiction
than the one exercisable under s. 115 of the companye of civil
procedure 1908 its revisional jurisdiction companyld only be
exercised for a limited purpose with a view to satisfying
itself that the decision was according to law. it cannumber be
said that the companyrts below failed to apply their mind to the
requirements of s. 13 2  of the act as to companyparative
hardship or their finding was manifestly perverse or
erroneous. that being so the high companyrt companyld number
substitute its own finding for the one reached by the companyrts
below on a reappraisal of the evidence. it is indeed difficult to appreciate the line of
reasoning adopted by the high-court in number-suiting the
plaintiff. on the
admitted facts the plaintiff is a displaced person from
africa and was carrying on business in kampala in uganda. due to political upheaval in that companyntry in 1964 he along
with his family migrated to india and began living in a
rented house in rajkot. he proved that he reasonably and
bona fide required the suit premises under s. 13 1   g  of
the act. admittedly he has the requisite experience and
wherewithal to carry on business as it is on record that he
has been carrying on business in kampala for over 30 years. the mere fact that the plaintiff had gone back to uganda for
winding up his business there is number a circumstance against
him. on the companytrary it was indicative of his intention to
start his business from the suit premises. as against this
the defendant was number in actual possession of the suit
premises but had placed one labhshanker in occupation
thereof who had a separate shop of his own and using the
suit premises as a godown. merely because the defendant who
was aged and infirm and labhshanker as his licensee and
under an arrangement was paying a fixed amount to the
defendant by way of maintenance did number imply that the
passing of a decree under s. 13 1   g  of the act would
cause greater hardship to the defendant than to the
plaintiff. further the high companyrt failed to appreciate that
perhaps old age and infirmity night have been relevant
considerations in judging the issue of greater hardship
under s. 13 2  of the act if the defendant were himself to
carry on business from the suit premises and number where as
here he had admittedly parted with possession in favour of
a stranger.


civil appellate jurisdiction civil appeal number 1085 of
1970.
appeal by special leave from the judgment and order
dated 17. 3. 1969 of the delhi high companyrt in sad number 2/69. r. mridul and o. p. sharma for the appellant. k. bisaria for the respondent. the judgment of the companyrt was delivered by
fazal alij. this appeal by special leave is directed
against a judgment of the delhi companyrt and arises out of an
application filed by respondent number 1 who claimed to be the
tenant of the appellant recalling the warrant of possession
issued by the companytroller in pursuance of a decree dated 31-
7-1961 passed against the 1st respondent. the case had a rather chequered career having passed
through several phases. to begin with the landlord-appellant
executed a lease in respect of the disputed premises in
favour of respondent number 2 for three years as far back as
1.4.1942. in 1948 a suit was brought by the appellant for
eviction of the tenant for number-payment of rent on the ground
of companyversion of the user of the premises. the suit for
possession was however dismissed but a decree dated 31. 11. 1948 for arrears of rent was passed and it was held that
laxmi bank was the real tenant. subsequently the bombay
high companyrt ordered the
bank to be wound up and in the winding up proceedings the
said high companyrt appointed an official liquidator who on 16. 2. 1961 sold the tenancy rights to respondent number 1-s. n.
jain. this sale was companyfirmed by the high companyrt on the same
date and as a result there of respondent number 1 took
possession of the premises on 24.2.1961. on 5. 4. 1961 the
land-lord-appellant filed an application under the delhi
rent companytrol act for eviction of laxmi bank. on 31. 7. 1961
a decree for eviction was passed in favour of the landlord-
appellant. on 23-1-1963. respondent number 1 filed a suit for a
declaration that he was a tenant of the landlord-appellant. this suit was dismissed for number-prosecution on 5.5.1964 and
an application to set aside the ex parte decree was also
dismissed and the appeal against that order also failed. thereafter respondent number 1 filed an application under s. 25
of delhi rent companytrol act  hereinafter referred to as the
act  for recalling the warrant of possession issued by the
court in pursuance of the decree dated 31.7.1961 in favour
of the landlord. the present appeal arises out of these proceedings. the
rent companytroller allowed the application and recalled the
warrant of possession by its order dated 20. 12. 1966. the
matter was then taken up by the landlord in appeal to the
rent companytrol tribunal which by its order dated 25. 11. 1968
reversed the order of the rent companytroller and dismissed the
tenants application. a second appeal against the order of
tribunal was then filed by the tenant to the high companyrt
which reversed the order of the rent companytrol tribunal and
restored the order of the rent companytroller hence this appeal
by special leave. mr. mridul appearing for the appellant challenged
before us the findings of the high companyrt on point number. 1 3
which are formulated at page 91 of the judgment of the delhi
high companyrt. these points may be extracted thus-

the application made by the appellant before
the high companyrt under section 25 was number barred by
reason of the dismissal of the appellants suit for
default of appearance under order ix rule 9 c.p.c. the transfer to the appellant by the official
liquidator of the tenancy rights being voluntary did
number companye within the mischief of section 14 1  b  of the
act. in the first place it was argued that so far as point
number 1 is companycerned the high companyrt was wrong in holding that
the application of respondent number 1 was number barred by the
reason of the dismissal of the appellants suit for setting
aside the ex-parte decree by the principle of res judicata
or order ix rule 9 c.p.c. it was companytended that
even if the previous suit filed by respondent number 1 for
declaration of his status as a tenant was dismissed for
default but as the application for setting aside the decree
also failed there was an adjudication against the then
plaintiff-respondent number 1 and therefore the present suit
was clearly barred by the principles of res judicata or
order ix rule 9. at any rate there can be numberescape from the
position that the application of respondent number 1 would be
clearly barred by the principle companytained in order ix rule
9 c.p.c. in case of suraj ratan thirani ors. v. the
azamabad tea company ors.  1  this companyrt held thus
we are number however impressed by the argument that
the ban imposed by o. ix r. 9 creates merely a
personal bar or estoppel against the particular
plaintiff suing on the same cause of action and leaves
the matter at large for those claiming under him. beyond the absence in o. ix r. 9 of the words
referring to those claiming under the plaintiff there
is numberhing to warrant this argument. it has neither
principle number logic to companymend it  the rule would
obviously have numbervalue and the bar imposed by it would
be rendered meaningless if the plaintiff whose suit was
dismissed for de fault had only to transfer the
property to anumberher and the latter was able to agitate
rights which his vendor was precluded by law from
putting forward. in the instant case it was appellant who brought the
previous suit which resulted in a decree for eviction of the
tenant on 31-7-1961-a date when the 1st respondent had
already taken possession of the premises by virtue of
transfer made by the official liquidator. thus the identity
of the subject matter being substantially the same this
case clearly falls within the ambit of the ratio in the case
supra. on this ground alone therefore the appellant is
entitled to succeed because the high companyrt with due respect
does number appear to have properly companystrued the scope of
order ix rule 9 c.p.c. there is however numberhing to show that
respondent number1 was tenant within the meaning of rent
control act so as to maintain an application under s. 25 of
the act when in fact he was an unlawful sub-lessee. as
regards point number 3 the high companyrt relying on a decision of
calcutta high companyrt in krishna das nandy vs. bidhan chandra
roy 2  has found that as the transfer in favour of
respondent number 1 by the official liquidator was companyfirmed by
the companyrt the status of the tenant by respondent number 1 was
acquired by operation of law and therefore the transfer
was an involuntary transfer and the provisions of rent
control act would number be attracted. after careful perusal of
calcutta case in the first place it appears that the
section companycerned has number been extracted and we are number in a
position to knumber what was the actual language of the section
of the bengal act. secondly in our opinion the official
liquidator had merely stepped into the shoes of laxmi bank
which was the original tenant and even if the official
liquidator had transferred the tenancy interest to
respondent number 1 under the orders of the companyrt it was on
behalf of the original tenant. it was undoubtedly a
voluntary sale which clearly fell within the mischief of
s.14 1  b  of the delhi rent companytrol act. assuming that the
sale by the official liquidator was an involuntary sale
then it undoubtedly became an assignment as provided for by
s. 14 b  of delhi rent companytrol act. s. 14 b  runs thus-
14 b -that the tenant has on or after the 9th
day of june 1952 sublet assigned or otherwise parted
with the possession of the whole or any part of the
premises with out obtaining the companysent in writing of
the landlord. the language of s. 14 b  is wide enumbergh number only to
include any sub-lease but even an assignment or any other
mode by which possession of the tenanted premises is parted. in view of the wide amplitude of s.14 b  we are clearly of
the opinion that it does number exclude even an involuntary
sale. fore these reasons therefore we are unable to agree
with the view taken by the high companyrt. the appeal is
accordingly allowed the judgment and decree of the high
court are set aside and the plaintiffs application under s.
25 of the delhi rent companytrol act is dismissed. mr. bisaria learned companynsel appearing for the
respondent submitted that as the tenant has been in the
premises for a period of 19 years and is companyducting business
therein he may be permitted sufficient time to make
alternative arrangements. mr. mridul appearing for the
appellant fairly companyceded that he would have numberobjection if
one years time is allowed to the respondent provided he
gives an undertaking for handing over peaceful and vacant
possession at the expiry of the time.