civil appellate jurisdiction civil appeal number122 of 1956.
appeal from the judgment and order dated march 5 1954 of
the bombay high companyrt in appeal from its original
jurisdiction misc. application number 1 of 1954.

n. sanyal addl. solicitor-general g. n. joshi and r.

dhebar for the appellants. a. palkhivala s. n. andley j. b. dadachanji

l. vohra and rameshwar nath for the respondent. 1958. april 28. the judgment of the companyrt was delivered by
gajendragadkar j.-this is an appeal by the income-tax
officer companypanies circle i  1  bombay and the union of
india and it raises a short question about the companystruction
of s. 35 of the income-tax act read with s. 1 sub-s.  2
and s. 13 of the indian income-tax  amendment  act 1953
 xxv of 1953 . it arises in this way. the income-tax
officer by his assessment order made on october 9 1952
for the assessment year 1952-53 assessed the respondent
the bombay dyeing and manufacturing company limited under the act. in the said assessment order the respondent was given
credit for rs. 50603-15-0 as representing interest at 2 on
tax paid in advance under s. 18a of the act. this credit
was given to the respondent in pursuance of the provisions
contained in s. 18a sub-s.  5  of the act as it then stood. on may 24 1953 the amendment act came into force. section
1 sub-s.  2  of the amendment act provides that subject
to any special provision made in this behalf in the
amendment act it shall be deemed to have companye into
force on the first day of april 1952 . by s. 13 of the
amendment act a proviso was added to s. 18a  5  of the act. the effect of the amendment made by the insertion of the
said proviso to s. 18a  5  was that the. assessee was
entitled to get interest at 2 number on the whole of the
advance amount of tax paid by him as before but only on the
difference between the payment made and the amount at which
the assessee was assessed to tax under the regular
assessment under s. 23 of the act. after the amendment act
was passed the first appellant exercised his power under s.
35 of the act and purported to rectify the mistake apparent
from the record in regard to the credit for rs. 50603-15-0
allowed by him to the assessee. the first appellant held
that the assessee was really entitled to a credit of only
rs. 21157-6-0 by way of interest on tax paid in advance as
a result of the retrospective operation of the amendment
made in s. 18a  5  by the amendment act. in accordance with
this order a numberice of demand under s. 29 of the act was
issued against the assessee for the sum of rs. 29446-9-0 on
the ground that the assessee had been given credit for this
excess amount through mistake. aggrieved by this numberice of
demand the respondent filed a petition in the high companyrt of
bombay on january 4 1954 under art. 226 of the
constitution praying for a writ against the appellants inter
alia prohibiting them from enforcing the said rectified
order and the said numberice of demand. it appears that this
petition was admitted by tendolkar j. on january 6 1954
and a rule issued on it. thereafter the said petition was
referred to a division bench by the honble the chief
justice for final disposal. accordingly on march 5 1954
the petition was heard by chagla c. j. and tendolkar j. and
a writ was issued against the appellants. the high companyrt
held that s. 35 of the act had numberapplication to the facts
of the case because the mistake apparent from the record
contemplated by the said section is number a mistake which is
the result of the amendment of the law even though the
amending law may be retrospective in operation. in other
words in the opinion of the high companyrt the
mistake mentioned by s. 35 had to be apparent on the face of
the order and it can only be judged in the light of the law
as it stood on the day when the order was passed. the
appellants then applied for and obtained a certificate from
the high companyrt on october 8 1954 on their behalf it is
urged -that the high companyrt of bombay has erred in law in
taking the view that the appellant number i was number entitled to
rectify the mistake in question under s. 35 of the act. thus the short question which arises before us in the
present appeal is whether an order which was proper and
valid when it was made can be said to disclose a mistake
apparent from the record if the said order would be
erroneous in view of a subsequent amendment made by the
amendment act when the amendment act is intended to operate
retrospectively ? it is unnecessary to refer to the provisions of s. 18a  5
as well as the provision of the proviso which was
subsequently added by s. 13 of the amendment act. it is
common ground that in the absence of the subsequently
inserted proviso the assessee would be entitled to obtain a
credit for rs. 50603-15-0. it is also companymon ground that
if the subsequently inserted proviso companyered the assessees
case he would be entitled to a credit only of rs. 21156-9-

it is thus obvious that the order giving the relevant
credit to the assessee was valid when it was made and that
it would be erroneous under the subsequent amendment. under
these circumstances was the first appellant justified in
exercising his power of rectification under s. 35 of the
act ? in deciding this question it would be necessary to determine
the true legal effect of the retrospective operation of the
amendment act. section 1 sub-s.  2  of the amendment act
expressly provides that subject to the special provisions
made in the said act it shall be deemed to have companye into
force on the first day of april 1952. the result of this
provision is that the amendment made in the act by s 13 of
the amendment act must by legal fiction be deemed to have
been included in the principal act as from the first of
april 1952 and this inevitably means that at the time
when the income-tax officer passed his original order on
october 9 1952 allowing to the respondent credit for rs. 50603-15-0 the proviso added by s. 13 of the amendment act
must be deemed to have been inserted in the act. as
observed by lord asquith of bishopstone in east end
dwellings company limited v. finsbury borough companyncil  1  if you
are bidden to treat an imaginary state of affairs as real
you must surely unless prohibited from doing so also
imagine as real the companysequences and incidents which if the
putative state of affairs had in fact existed must
inevitably have flowed from or accompanied it. one of those
in this case is emancipation from the 1939 level of rents. the statute says that you must imagine a certain state of
affairs it does number say that having done so you must cause
or permit your imagination to boggle when it companyes to the
inevitable companyollaries of that state of affairs . thus
there can be numberdoubt that the effect of the retrospective
operation of the amendment act is that the proviso inserted
by the said section in s. 18a  5  of the act would for all
legal purposes have to be deemed to have been included in
the act as from april 1 1952.
but it is urged for the respondent that the retrospective
operation of the relevant provision is number intended to
affect companypleted assessments. it is companyceded that if any
assessment proceedings in respect of the assessees income
for a period subsequent to the first of april 1952 were
pending at the time when the amendment act was passed the
proviso inserted by s. 13 would govern the decision in such
assessment proceedings but where an assessment proceeding
has been companypleted and an assessment order has been passed
by the income-tax officer against the assessee such a
completed assessment would number be affected and cannumber be
reopened under s. 35 by virtue of the retrospective
operation of the amendment act. in support of this
contention reliance is placed on the observations of the
privy companyncil in delhi cloth and
 1  1952 a. c. 109 132.
general mills company limited v. income-tax companymissioner delhi and
anr.  1 . lord blanesburg who delivered the judgment of the
board referred to the boards earlier decision in the
colonial sugar refining companypany v. irving  2  where it was
in effect laid down that while provisions of a statute
dealing merely with matters of procedure may properly
unless that companystruction be textually inadmissible have
retrospective effect attributed to them provisions which
touch a right in existence at the passing of the statute are
number to be applied retrospectively in the absence of express
enactment or necessary intendment. the learned judge then
added that their lordships have numberdoubt that the
provisions which if applied retrospectively would deprive
of their existing finality orders which when that statute
came into force were final are provisions which touch
existing rights. the argument for the respondent is that
the assessee has obtained a right under the order passed by
the income-tax officer to claim credit for the specified
amount under s. 18a 5  and the said right cannumber be taken
away by the retrospective operation of s. 13 of the
amendment act. the same argument is put in anumberher form by
contending that the finality of the order passed by the
incometax officer cannumber be impaired by the retrospective
operation of the relevant provision. in our opinion this
argument does number really help the respondents case because
the order passed by the income-tax officer under s. 18a 5
cannumber be said to be final in the literal sense of the word. this order was and companytinued to be liable to be modified
under s. 35 of the act. what the income-tax officer has
purported to do in the present case is number to revise his
order in the light of the retrospective amendment made by s.
13 of the amendment act alone but to exercise his power
under s. 35 of the act and so the question which falls to
be companysidered in the present appeal. centres round the
construction of the expression mistake apparent from the
record used in s. 35. that is why we think the principle
of the finality of the orders or the sanctity of
 1 1927 l.r. 54 i.a. 421.  2 1905 a.c. 369.
the existing rights cannumber be effectively invoked by the
respondent in the present case. the respondent then urged that the amendment act should number
be given greater retrospective operation than its language
and its general scheme render necessary. this companyvention is
based on the provisions of s. 3 sub-s.  2  s. 7 sub-s.
 2  and s. 30 sub-s.  2  of the amendment act. where the
amendment act intended that its provisions should affect
even companycluded orders of assessment it is expressly so
provided. since s. 13 does number specifically authorise the
reopening of companycluded assessments it should be held that
its retrospective operation is number intended to companyer such
concluded assessments. that in brief is the argument. we
are however number satisfied that this argument is
wellfounded. let us examine the three provisions of the
amendment act on which the argument rests. section 3 sub-
s.  1  of the amendment act makes several additions and
modifications in s. 4 of the principal act. section 3 sub-
s.  2  then provides that the amendments made by sub-cl.  3  of cl.  b  of sub-s.  1  shall be deemed to be operative
in relation to all assessments for any year whether such
assessments have or have number been companycluded before the company-
mencement of the amendment act of 1953. it would be numbericed
that the main object of this sub-section is to extend the
retrospective operation of the relevant provisions of the
amendment act beyond the first of april 1952 mentioned by s.
1 sub-s.  2  of the amendment act. since it was intended
to provide for such further retrospective operation of the
relevant provision the legislature thought it advisable to
clarify the position by saying that the said extended
retrospective operation would companyer all assessments whether
they had been companypleted or number before the companymencement of
the amendment act. section 7 sub-s.  1  adds two provisos
to s. 9 of the principal act by cls.  a  and  b . sub-
section  2  of s. 7 then lays down that the amendments made
in cl.  a  of sub-s.  1  shall be deemed to be operative for
any assessment for the year ending the 31st day of march
1952 whether made before or after the companymencement of this
act and where any such
assessment has been made before such companymencement he
income-tax officer companycerned shall revise it whenever
necessary to give effect to this amendment. the position
under s. 30 sub-s.  2  of the amendment act is
substantially similar. by sub-s.  1  of this section
certain additions and amendments are made in the schedule to
the principal act by cls.  a   b   c  and  d . sub-s.  2
then provides for the retrospective operation of the
amendment made by sub-s.  1  in terms similar to those used
in s. 7 sub-s.  2 . it is clear that the provisions in ss. 7 and 30 are intended for the benefit of the assessees and
so the legislature may have thought it necessary to companyfer
on the income-tax officer specific and express power to
revise his orders in respect of the relevant assessments
wherever necessary to give effect to the amendments in
question. the effect of this provision is to make it
obligatory on he income-tax officer to revise his original
orders in he light of the amendments and also to companyfer on
the assessee right to claim such revision. it may be company-
ceded that in respect of the other retrospective provisions
of the amendment act such a power to revise the earlier
orders cannumber be claimed or exercised by the income-tax
officer. in other words a distinction can be drawn between
there two provisions of the amendment act and the rest in
respect of the power which the income-tax officer can
purport to exercise to give effect to the amendments made by
the amendment act. whereas in respect of the amendments
made by s. 7 and s. 30 of the amendment act the income-tax
officer can and must revise his earlier orders companyered by s.
7 sub-s.  2  and s. 30 sub-s.  2  such a power of
revision has number been companyferred on him in the matter of
giving effect to the other amendments made in the amendment
act. even so we do number think it would be legitimate or
reasonable to hold that the provisions of s. 7 2  and s.
30 2  lead to the infference that the retrospective
operation of the other provisions of the amendment act is
number intended to affect companycluded assessments in any manner
whatever. in this companynection it would be pertinent to
remember that the power to revise which has been companyferred
on
the income-tax officer by s. 7 2  and s. 30 2  of the
amendment act is distinct and independent of the power to
rectify mistakes which the income-tax officer can exercise
under s. 35 of the act. it is in the light of this position that the extent of the
income-tax officers power under s. 35 to rectify mistakes
apparent from the record must be determined and in doing
so the scope and effect of the expression mistake
apparent from the record has to be ascertained. at the
time when the income-tax officer applied his mind to the
question of rectifying the alleged mistake there can be no
doubt that he had to read the principal act as companytaining
the inserted proviso as from april 1 1952. if that be the
true position then the order which he made giving credit to
the respondent for rs. 50603-15-0 is plainly and obviously
inconsistent with a specific and clear provision of the
statute and that must inevitably be treated as a mistake of
law apparent from the record. if a mistake of fact apparent
from the record of the assessment order can be rectified
under s. 35 we see numberreason why a mistake of law which is
glaring and obvious cannumber be similarly rectified. prima
facie it may appear somewhat strange that an order which was
good and valid when it was made should be treated as
patently invalid and wrong by virtue of the retrospective
operation of the amendment act. but such a result is
necessarily involved in the legal fiction about the
retrospective operation of the amendment act. if as a
result of the said fiction we must read the subsequently
inserted proviso as forming part of s. 18a 5  of the
principal act as from april 1 1952 the companyclusion is
inescapable that the order in question is inconsistent with
the provisions of the said proviso and must be deemed to
suffer from a mistake apparent from the record. that is why
we think that the income-tax officer was justified in the
present case in exercising his power under s. 35 and
rectifying the said mistakes. incidentally we may mention
that in moka venkatappaiah v. additional income-tax officer
bapatla  1  the high companyrt of andhra has taken the same
view.  1  1957  32 i. t. r. 274.
in this companynection it would be useful to refer to the
decision of the privy companyncil in the companymissioner of
income-tax bombay presidency and aden v. khemchand ramdas
 1 . in khemchands case the assessees were registered as
a firm and they were assessed under s. 23 4  on an income of
rs. 125000 at the maximum rate. being a registered firm
numbersuper-tax was levied. a numberice of demand was also made
before march 1927. on february 13 1928 the companymissioner
in exercise of his powers under s. 33 cancelled the order
registering the assessee as a firm and directed the income-
tax officer to take necessary action. the income-tax
officer accordingly assessed the firm to super-tax on may 4
1929. the privy companyncil held that the assessment made on
january 17 1927 was final both in respect of the income-
tax and super-tax. the fresh action taken by the income-tax
officer on may 4 1929 was out of time though it had been
taken in pursuance of the directions of the companymissioner and
that the order of may 4 1929 was one which the income-tax-
officer had numberpower to make. one of the points raised
before the privy companyncil was whether under the relevant
circumstances the income-tax officer had power to make the
impugned order in view of the provisions of ss. 34 and 35 of
the act. the privy companyncil dealt with this question on the
footing that the companymissioners order cancelling the
registration had been properly made. on this basis their
lordships thought that it was unnecessary to companysider
whether the. case would attract the provisions of s. 34
inasmuch as in their lordships opinion the case clearly
would have fallen within the provisions of s. 35 had the
income-tax officer exercised his powers under the section
within one year from the date on which the earlier demand
was served upon the respondents . the judgment shows that
their lordships took the view that looking at the record of
the assessments made upon the respondents as it stood after
the cancellation of the respondents registration and the
order effecting the cancellation would have formed part of
the record-it would be apparent that a mistake
 1  1938  l.r. 65 i.a. 236.
had been made in stating that numbersuper-tax was leviable. this decision clearly shows that the subsequent cancellation
of the assessees registration was held by their lordships
of the privy companyncil to form part of the record
retrospectively in the light of the said subsequent event
and the order was deemed to suffer from a mistake apparent
from the record so as to justify the exercise of the
rectification powers under s. 35 of the act.


criminal appellate jurisdiction criminal appeal number219
of 1975
 appeal by special leave from the judgment and order
dated the 20th october of the andhra pradesh high companyrt at
hyderabad in criminal misc. petition number1890 of 1975
p b basi reddy and av v nair for the appellants. m r k chaudhary and b k kanta rao for respondent number1

ram reddy and p parameshwara rao for respondent number. 2
and 3
the judgment of the companyrt was delivered by
sarkaria j.-whether in view of clause  a  of the first
proviso to s 22 1  of the companye of criminal procedure 1973
a magistrate who receives a companyplaint disclosing an offence
exclusively triable by the companyrt of session is debarred
from sending the same to the police for investigation under
s. 156 3  of the companye is the short question is that falls
to be determined in this appeal by special leave. the
question arises in these circumstances
respondent 1 herein made a companyplaint on july 26 1975
before the judicial magistrate first class dharamavaram
against the appellants herein alleging that. on account of
factions existing village thippapalli the appellants formed
themselves into an unlawful assembly armed with deadly
weapon such as axes spears and sticks on the night of
june 20 1975 and entered the houses of several persons
belonging to the opposite party attacked the inmates and
forcibly took way jewels paddy ground-nuts and other
valuables of the total value of two lakhs of rupees. it was
further alleged that the miscreants thereafter went to the
fields and removed parts of machinery worth over rs. 40000/- installed at the wells of their enemies. on these
facts it was alleged that the accused had companymitted
offences under ss. 147 148 149 307 395 448 378 and 342
of the penal companye. the offences under ss. 307 and 395 are
exclusively triable by the companyrt of session. the magistrate
on receiving the companyplaint forwarded ii to the police for
investigation with this endorsement
forwarded under s. 156 3  cr. procedure companye to
the inspector of police dharmavaram for investigation
and report on or before 5-8-1975.
the appellants moved the high companyrt of andhra pradesh
by petition under s. 482 of the companye of criminal procedure
1973  which companyresponds to s. 561-a of the old companye  praying
that the order passed by the magistrate be quashed inasmuch
as it was illegal unjust and gravely prejudicial to the
petitioners. the learned judge of the high companyrt. who heard
the petition. dismissed it by an order dated october 20
1975.
hence this appeal. mr. basi reddy appearing for the appellants companytends
that the high companyrt has afield to appreciate the true effect
of the changes brought by the companye of 1973. according to the
counsel under the new companye is a companyplaint discloses an
offence triable exclusively be companyrt of session the
magistrate is bound to proceed with that companyplaint himself
before issuing process to the accused. the point pressed
into argument is that clause  a  of the first proviso to s.
202 1  the new companye peremptorily prohibits the magistrate
to direct investigation of such a companyplaint by the police or
any other person. the cases gopal da v. state of assam l . jamuna singh v. bhadai she  2  referred to by the high
court are sought to be distinguished
 1   1961  a.i.r. 19 1 s. c. 986  2  1964 5 s s.c.r. 37.
on the ground that they were decided under the old companye s.
21 2 of which did number provide for any such ban as has been
expressly enacted in the 1st proviso to s. 202 of the new
code. as against this mr. ram reddy whose arguments have
been adopted by mr. chaudahry submits that the powers
conferred on the magistrate under s. 156 3  of the companye are
independent of his power to send the case for investigation
under. s. 22 of the companye that the power under s. 156  3
can be invoked at a stage when the magistrate has number taken
cognizance of the case while s. 202 companyes into operation
after the magistrate starts dealing with the companyplaint in
accordance with the provisions of chapter xv. it is urged
that since in the instant case the magistrate had sent the
complaint for police investigation without taking such
cognizance s. 202 including the ar enacted therein was number
attracted. in the alternative it is submitted that the ban
in the 1st proviso to s. 202 becomes operative only when
the magistrate after applying his mind to the allegations in
the company plaint and the other material including the
statement of the companyplainant and his witnesses if any
recorded under s. 200 is prima facie satisfied that the
offence companyplained of is triable exclusively by the companyrt of
session. the point sough to be made out is that a mere
allegation in the companyplaint that the offence companymitted is
one exclusively triable by the companyrt of session does number
oust the jurisdiction of the magistrate to get the case
investigated by the police or other person. the word
appears according to companynsel imports a prerequisite or
condition precedent the existence of which must be
objectively and judicially established before the
prohibition in the 1st proviso to s. 202 becomes operative. it is added that in the instant case the existance of this
condition precedent was number and indeed companyld number he
established. it appears to us that this appeal can be disposed of on
the first ground canvassed by mr. ram reddy. before dealing with the companytention raised before us it
will be appropriate to numberice the relevant provisions of the
old and the new companye. section 156 of the companye of 1973 reads thus
156 1 . any officer in charge of a police station
may without the order of a magistrate investigate any
cognizable case which a companyrt having jurisdiction over
the local area within the limits of such station would
have power to inquire into or try under the provisions
of chapter xiii. numberproceeding of a police officer in any such
case shall at any stage be called in question on the
ground that the case was one which such officer was number
empowered under this section to investigate

any magistrate empowered under section 190 may
order such an investigation as above-mentioned. this provision is substantially the same as s. 156 of
the companye of a 1898 excepting that in sub-s.  1  for the
words chapter xv relating to the place of inquiry or
trial the words chapter xiii have been substituted. sections 200 and 202 of the 1898 companye and the 1973
code placed in juxtaposition read as follows
1898 companye
s. 200 a magistrate taking companynizance
of an offence on companyplaint shall at
once examine the companyplaint and the
witnesses present if any upon
oath and the substance of the
examination shall be reduced to
writing and shall be signed by the
complainant and the witnesses and
also by the magistrate
provided as follows-
 a  when the companyplaint is made in
writing numberhing herein companytained shall
be deemed to require a magistrate to . examine the companyplainant before
transferring the case under section 192
 aa  when the companyplaint is made in
writing numberhing herein companytained shall
be deemed to require the examination of
a companyplainant in any case in which the
complaint has been made by a companyrt or by
a public servant acting or purporting to
act in the discharge of his official
duties
 b  where the magistrate is a
presidency magistrate such examination
may be on oath or number as the magistrate
in each case thinks fit and where the
complaint is made in writing need number be
reduced to writing. but the magistrate
may if he thinks fit before the matter
of the companyplaint is brought before him
require it to be reduced to writing
 c  when the case has been
transferred under section 192 and the
magistrate so transferring it has
already examined the companyplainant the
magistrate to whom it is so transferred
shall number be bound to re-examine the
complainant. sec. 202
postponement of issue of process-

any magistrate on receipt of a
complaint of an offence of which he
is authorised to take companynizance
or
1973 companye
s. 200 a magistrate taking companynizance
of an offence on companyplaint shall
ex. mine upon oath the companyplainant
and the witnesses present if any
and the substance of such
examination shall be reduced to
writing and shall be signed by the
complainant and the witnesses and
also by the magistrate. provided that when the companyplaint is
made in writing the magistrate
need number examine the companyplainant
and the witnesses-
 a  if a public servant acting or
purporting to act in the discharge
of his official duties or a companyrt
has made the companyplaint or
 b  if the magistrate makes over the
case for enquiry or trial to
anumberher magistrate under section
provided further that if the magistrate
makes over the case to anumberher
magistrate under section 192 after
examining the companyplainant and the
witnesses the latter magistrate
need number re-examine them. sec. 202
postponement of issue of process-

any magistrate on receipt of a
complaint of an offence which he is
authorised to take companynizance or
which has been transferred to him
under section 192 may if he
thinks fit for reasons to be
recorded in writing postpone the
issue of process for companypelling the
attendance of the person companyplained
against and either inquire into
the case himself or if he is a
magistrate other than a magistrate
of the third class direct an
inquiry or investigation to be made
by any magistrate subordinate to
him or by a police officer or by
such other person as he thinks fit
for the purpose of ascertaining the
truth or falsehood of the
complaint
provided that save where the companyplaint
has been made by a companyrt numbersuch
direction shall be made unless the
complainant has been examined on
oath under the provisions of
section 200.

if any inquiry or investigation
under this section is made by a
person number being a magistrate or a
police officer. such person shall
exercise all the powers companyferred
by this companye on an officer in-
charge of a police-station. except
that he shall number have the power to
arrest without warrant.  2a  any magistrate inquiring into a
case under this section may if he
thinks fit take evidence of
witnesses on oath. this section applies also to the
police in the towns of calcutta and
bombay. which has been made over to him
under sec. 192 may if he thinks
fit postpone the issue of process
against the accused and either
inquire into the case himself or
direct an investigation to be made
by a police officer or by such
other person as he thinks fit for
the purpose of deciding whether or
number there is sufficient ground for
proceeding
provided that numbersuch direction for
investigation shall be made-
 a  where it appears to the magistrate
that the offence companyplained of is
triable exclusively by the companyrt of
session or
 b  where the companyplaint has number been
made by a companyrt unless the
complaint and the witnesses present
 if any  have been examined on oath
under section 200.

if any inquiry under sub-section
 1  the magistrate may if he
thinks fit take evidence of
witnesses on oath
provided that if it appears to the
magistrate that the offence
complained of is triable
exclusively by the companyrt of
session he shall call upon the
complainants to produce all his
witnesses and examine them on oath. if an investigation under sub-
section  i  is made by a person number
being a police officer he shall
have for that investigation all the
powers companyferred by this companye on an
officer incharge of a police
station except the power to arrest
without warrant. before proceeding further we may have a look at s. 190
of the new companye. this section is captioned companynizance of
offences by magistrates. this section so far as it is
material for our purpose n provides
subject to the provisions of this chapter any
magistrate of the first class and any magistrate of the
second class specially empowered in this behalf may
take companynizance of any offence-
 a  upon receiving a companyplaint of facts which
constitute such offence
 b  upon a police report of such facts
 c  upon information received from any person
other than a police officer or upon his own
knumberledge that such offence has been
committed.  2
it is well settled that when a magistrate receives a
complaint he is number bound to take companynizance if the facts
alleged in the companyplaint disclose the companymission of an
offence. this is clear from the use of the words may take
cognizance which in the companytext in which they occur cannumber
be equated with must take companynizance. the word may gives
a discretion to the magistrate in the matter. if on a
reading of the companyplaint he finds that the allegations
therein disclose a companynizable offence and the forwarding of
the companyplaint to the police for investigation under s.
156 3  will be companyducive to justice and save the valuable
time of the magistrate from being wasted in enquiring into a
matter which was primarily the duty of the police to
investigate he will be justified in adopting that companyrse as
an alternative to taking companynizance of the offence himself. this raises the incidental question what is meant by
taking companynizance of an offence by a magistrate within
the companytemplation of s. 190? this expression has number been
defined in the companye. but from the scheme of the companye the
content and marginal heading of s. 190 and the caption of
chapter xiv under which ss. 190 to 199 occur it is clear
that a case can be said to be instituted in a companyrt only
when the companyrt takes companynizance of the offence alleged
therein. the was in which such companynizance can be taken are
set out in clauses  a   b  and  c  of section 190 1 . whether the magistrate has or has number taken companynizance of
the offence will depend on the circumstances of the
particular case including the mode in which the case is
sought to be instituted and the nature of the preliminary
action if any taken by the magistrate. broadly speaking
when on receiving a companyplaint the magistrate applies his
mind for the purposes of proceeding under s. 200 and the
succeeding sections in chapter xv of the companye of 1973 he is
said to have taken companynizance of the offence within the
meaning of s. 190 l  a . if instead of proceeding under
chapter xv he has in the judicial exercise of his
discretion taken action of some other kind such as issuing
a search warrant for the purpose of investigation or
ordering investigation by the police under s. 156 3  he
cannumber be said to have taken companynizance of any offence. this position of law has been explained in several
cases by this companyrt. the latest being nirmaljit singh hoon

the state of west bengal and anr 1 . the position under the companye of 1898 with regard to the
powers of a magistrate having jurisdiction to send a
complaint disclosing a companynizable offence-whether or number
triable exclusively by the companyrt of
 1  1973 3 s.c.c. 753. 36-833sci/76
session-to the police for investigation under s. 156 3
remains unchanged under the companye of 1973. the distinction
between a police investigation ordered under s. 156 3  and
the one directed under s. 202 has also been maintained
under the new companye but a rider has been clamped by the 1st
proviso to s. 202 1  that if it appears to the magistrate
that an offence triable exclusively by the companyrt of session
has been companymitted he shall number make any direction for in
vestigation. section 156 3  occurs in chapter xii under the
caption information to the police and their powers to
investigate while s. 202 is in chapter xv which bears the
heading of companyplaints to magistrates. the power it order
police investigation under s. 156 3  is different from the
power to direct investigation companyferred by s. 202 1 . the
two operate in distinct spheres at different stages. the
first is exercisable at the pre companynizance stage the second
at the post-cognizance stage when the magistrate is in
seisin of the case. that is to say in the case of a
complaint regarding the companymission of a companynizable offence
the power under s. 156 3  can be invoked by the magistrate
before he takes companynizance of the offence under s.
190 1  a . but if he once takes such companynizance and embarks
upon the procedure embodied in chapter xv he is number
competent to switch back to the pre-cognizance stage and
avail of s. 156 3 . it may be numbered further that an order
made under sub-section  3  of s. 156 is in the nature of a
peremptory reminder or intimation to the police to exercise
their plenary powers of investigation under s. 156 1 . such
an investigation embraces the entire companytinuous process
which begins with the companylection of evidence under s. 156
and ends with a report or chargesheet under s. 173. on the
other hand s. 202 companyes in at a stage when some evidence has
been companylected by the magistrate in proceedings under
chapter xv but the same is deemed insufficient to take a
decision as to the next step in the prescribed procedure. in
such a situation the magistrate is empowered under s. 202
to direct within the limits circumscribed by that section
an investigation for the purpose of deciding whether or number
here is sufficient ground for proceeding . thus the object
of an investigation under s. 202 is number to initiate a fresh
case on police report but to assist the magistrate in
completing proceedings already instituted upon a companyplaint
before him. in the instant case the magistrate did number apply his
mind to the companyplaint for deciding whether or number there is
sufficient ground for proceeding but only for ordering an
investigation under s. 156 3 . he did number bring into motion
the machinery of chapter xv. he did number examine the
complaint or his witnesses under s. 200 cr.p.c. which is
the first step in the procedure prescribed under that
chapter. the question of taking the next step of that
procedure envisaged in s. 202 did number arise. instead of
taking companynizance of the offence he has. in the exercise of
his discretion sent the companyplaint for investigation by
police under s. 156.
this being the position s. 202 1  1st proviso was number
attracted.


civil appellate jurisdiction civil appeal number 533 of 1960.
appeal from the judgment and decree dated january 28 1959
of the patna high companyrt in appeal from original decree number
143 of 1948.

k. saran and k. l. mehta for the appellants. k. garg d. p. singh s. c. agarwal and m. k. ramamurthi
for the respondents. 1962 may 4. the judgment of the companyrt was delivered by
raghubar dayal j.-this appeal on a certificate granted by
the high companyrt of judicature at patna arises in the
following circumstances
the plaintiffs-respondents sued the appellants for the
recovery of possession of the disputed lands and mesne
profits as the family of the defendants did number have any
raiyat interest in the disputed lands except rehan interest
under the rehan deed dated july 3 1906 and that subsequent
to the redemption of that deed they had numberright to remain
in possession and occupation of the disputed lands. the plaintiffs alleged that pranpat bhagat and others held
eight annas share of milkiat interest in village sevathra
pargana numberaur tauzi number 3879 and that the other eight
annas share was held by kunj bihari bhagat and others. these persons also held khudkasht lands in the village and
that such lands were treated as kasht lands. in 1906 ram
autar bhagat one of the members of the joint family of
pranpat bhagat executed the mortgage deed with respect to
15 bighas of land out of 16 bighas of kasht lands to sheo
dehin ahir on behalf of his joint family. the defendants
entered into possession on the basis of that mortgage deed
they having had numberconnection with the land mortgaged prior
to the execution of the mortgage deed. later on in 1912 ram lal bhagat and munni bhagat of
pranpats family executed anumberher mortgage deed with
respect to their entire milkiat interest in favour of jatan
ahir and ram saran ahir who also belonged to the family of
sheo dehin ahir. they then got into possession of the fresh
land which had been mortgaged. ram lal bhagat and others sold their milkiat share together
with the kasht lands to the plaintiffs in 1915. the
plantiffs entered into possession
of the milkiat property and subsequently redeemed the
mortgage deeds in 1913. the plaintiffs also purchased four
annas share belonging to the branch of kunj bihari bhagat
the other tour annas share of that branch was purchased by
raja singh who then sold it to ram ekbal singh impleaded as
defendant number 6 in the plaint. the defendants however did
number make over possession of the land in suit after the
mortgage deeds had been redeemed and hence the suit was
instituted for a declaration and recovery of possession. the defendants 1 to 5 did number admit the allegations made by
the plaintiffs and stated the real state of affairs to be
that the disputed lands were never the bakasht lands of the
proprietors of the village and were really the raiyati qaimi
kasht lands of the defendants. that the plaintiffs never
purchased the disputed lands that the disputed lands were
the raiyati kasht lands of ram autar bhagat only who let
out the disputed lands in rehan under different rehan deeds
alleging them to be raiyati kasht lands and who had earlier
treated it as his exclusive raiyati kasht lands and that
ultimately ram autar bhagat sold the disputed lands to the
defendants and got their names entered as qaimi raiyati
kushtkars. it was further alleged that the defendants bad
acquired title to the land in suit by virtue of adverse
possession. the trial companyrt found that the plaintiffs had numbersubsisting
title to the lands in suit as those lands were number sold to
the plantiffs who had purchased the milkiat interest
including the bakasht and zerat lands that the suit was
barred by adverse possession also and that it was barred by
limitation. it therefore dismissed the suit. on appeal the high companyrt held that the plaintiffs did
purchase the land in suit and that the defendants were in
possession only as mortgagees
and that after the redemption of the mortgage they had no
right to companytinue in possession. it therefore allowed the
appeal and decreed the plain tiffs suit. the defendants
have number filed this appeal. learned companynsel for the appellants has urged five points

the record of rights supported the case of
the defendants that they were the qaimi
raiyats and that the high companyrt wrongly
construed them. the sale deed of 1915 in favour of the
respondents did number include the land in suit. even if the plaintiffs-respondents
acquired right to the land in suit by
purchase they are estopped from taking any
action against the defendants-appellants who
had been in possession for long. the suit is barred by limitation as the
defendants had perfected their title by
adverse possession and the plaintiffs had number
been in possession within limitation

the plaintiffs-respondents had no
subsisting title to evict the appellants in
view of the provisions of the bihar land
reforms act 1950  bihar act xxx of 1950 . the case set up by the defendants with respect to their
acquiring the qaimi raiyati kasht rights in their written
statement has been disbelieved by the companyrts below and we
think rightly. it follows that the defendants were in
possession of the land in suit only as mortgagees as held by
the companyrt below and. that they had numberright to possession
after the mortgage had been redeemed. by the sale deed dated october 5 1915 ram lal bhagat and
others sold the property described thus in the sale deed
8  eight  annas ancestral milkiat interest
out of tauzi number 3879 in mauza sewathra
pergana nanaur thana pito district shahabad
sub-registry office jagdishpur the sadar jama
whereof is rs. 190/which has been in
possession and occupation of us the
executants without companyartnership and
interference by anybody together with all
the present zamindari rights appertaining
thereto without excluding any interest and
profit together with zirat lands which have
been recorded in the survey papers in the
names of us the executants as bakasht  lands
and new and old party lands aam and khas
chairmazrua lands baharsi dih house of the
tenants ground rent ahar pond reservoir
tank orchard fruit-bearing and number-fruit-
bearing trees and bambooclumps that is the
entire lands and profit  derived from
zamindari below and above the surface existing
or which may be derived in future without
excluding anything. they emphasized the extent of the sale property further by
saying
we the executants gave up and relinquished
our respective possession and occupation of
vended property today. the entire interest
excluding only the chaukidari chakran
 service  land which has been let out in
settlement with us the executants is being
sold. the chaukidari land only is number being
sound  sic . it is clear therefore as held by the high companyrt that the
land in suit which is included in the milkiat share was number
excepted from sale. the only property excluded from sale
was the chaukidari chakran land. the long possession of the appellants therefore does number
estop the respondents from recovering possession from them. the suit was instituted within 12 years of the redemption of
the mortgage deed and is number therefore barred by limitation. the only other question to determine is whether the
plaintiffs-respondents cannumber recover possession from the
appellants in view of the provisions of the bihar land
reforms act 1950  act xxx of 1950  hereinafter called the
act which came into force during the pendency of the appeal
in the high companyrt. the trial companyrt dismissed the suit on
march 81948. the high companyrt allowed the appeal on january
28 1958. the act came into force on september 25 1950.
sub-section  1  of s. 3 of the act empowered the state
government to declare by numberification that the estates or
tenures of a proprietor or tenure holder specified in the
numberification have passed to and become vested in the state. such vesting took place on january 1 1955. it is companytended
for the appellants that the respondents ceased to have any
proprietary right in the land in suit when their estate
vested in the state and therefore they had numberright to
recover possession from them. section 4 of the act mentions the companysequences which follow
on the publication of the numberification under sub-s.  1  of
s. 3. according to s. 4 a  such estate or tenure including
the interests of the proprietor or tenure-holder in the
various objects mentioned therein shall with effect from
the date of vesting vest absolutely in the state free fro. all encumbrances and such proprietor or tenureholder shall
cease to have any interest in such estate or tenure other
than the interest expressly saved by or under the provisions
of the act. this makes it absolutely clear that after the
vesting of the estate numberinterest other than that expressly
saved by or under the provisions of the act remained in the
respondents. the right to recover possession from .the
trespasser also got vested in the state. subclause  f  of
s. 4 provides that the companylector shall take charge of such
estate or tenure and of all interests vested in the state
under the section. in this companynection reference may be made to the decision of
this companyrt in haji sk. subhan v. madhorao  1  which dealt
with a similar question in the companytext of the provisions of
the madhya pradesh abolition of proprietary rights
 estates mahals alienated lands  act 1950  m.p. act number
1 of 1951 . we have number to companysider whether any interest in the land in
suit was expressly saved by or under the provision of the
act in favour of the respondents. section 6 of 4 the act provides inter-alia that on and from
the date of vesting all lands used for agricultural
purposes which were in khas possession of a proprietor or
tenure-holder on the date of vesting shall be deemed to be
settled by the state with such proprietor or tenure-holder
as the case may be and such proprietor or tenure-holder
shall be entitled to retain possession thereof and hold them
as a raiyat under the state having occupancy rights in
respect of such lands subject to the payment of such fair
and equitable rent as may be determined by the companylector. the lands companying within this section included lands used for
agricultural purposes forming the subject matter of a
subsisting mortgage on the redemption of which the
 1  1962 supp. 1 s.c.r. 123.
intermediary is entitled to recover khas possession. thereof
it follows that such lands though number in the actual khas
possession of the proprietor on the date of vesting would
also be deemed to be settled with the proprietor who would
retain their possession as raiyat under the state. according to s.2 k  of the act
khas possession used with reference to the
possession of a proprietor or tenure-holder of
any land used for agricultural or horticul-
tural purposes means the possession of such
proprietor or tenure-holder by cultivating
such land or carrying on horticultural
operations thereon himself with his own stock
or by his own servants or by hired labour or
with hired stock. on the date of vesting the respondents were number in khas
possession of the land in suit as they were number in
possession in any of the manner mentioned in this
definition. section 6 does number really enlarge the scope of the
expression khas possession but includes lands companyered by
cls.  a   b  and  c  of sub. s.  1  among the lands which
can be deemed to be settled by the state with the
proprietor. clause  c  originally was
lands used for agricultural or horticultural
purposes and in the possession of a mortgagee
which immediately before the execution of the
mortgage bond were in khas possession of such
proprietor or tenure holder-
this clause was substituted by anumberher clause by a. 6 of the
bihar land reforms  amendment  acts 1959  act xvi of 1959
and under that section the substituted clause shall be
deemed always to have
been substituted that is to say is to be deemed to have
been in the of original act from the very beginning. the
substituted el.  c  reads
 c  lands used for agricultural or horti-
cultural purposes forming the subject matter
of a subsisting mortgage on the redemption of
which the intermediary is entitled to recover
khas possession thereof. it is therefore necessary for the respondents to get
advantage of the pro-visions of this clause that there be a
subsisting mortgage on the date of vesting and that the land
included in the subsisting mortgage be such that on the
redemption of the mortgage the respondents be entitled to
recover khas possession thereof. numbermortgage subsisted on
the date of vesting and therefore the benefit of this clause
cannumber be taken by the respondents. the land in suit does
number companye within the provisions of el.  c  or any other
clause of sub-s.  1  of s. 6 of the act. this point was
raised in the high companyrt which observed as follows in this
connection
in the first place the defendants were in
possession as mortgages and even section 6 of
the bihar land reforms act provides that the
possession of the mortgagee is the possession
of the mortgagor even for the purpose of
construing the meaning of khas possession of
the intermediary over the land which may be
deemed to be settled with him by virtue of
section 6 of the act. the defendants
possession being the mortgagees possession
the case is companyered by the terms of section 6
itself. apart from it it has been held in
the case of brij nandan singh v. jamuna prasad
sahu and anumberher  first
appeal number 205 of 1948  by a division bench of
this companyrt that the words khas possession
include subsisting title to possession as well
and any proprietor whose right to get khas
possession of the land is number barred by any
provision of law will have a right to recover
possession and the state of bihar shall treat
him as raiyat with occupancy right and number the
trespassers. the companytention of the learned
advocate general must fail in terms of the
above decision. on the date of vesting the appellants were number in
possession as mortgagees. the mortgages had been
redeemed in 1943 thereafter the possession of the
appellants wasnumber as mortgagees. it may be as trespassers
or in any other capacity. the land in suit therefore did
number companye within cl.  c  of s. 6 of the act as it stood when
the high companyrt. delivered the judgment. reliance was placed by the high companyrt on the case reported
as brijnandan singh v. jamuna prasad  1  for the
construction put on the expression khas possession to
include subsisting title to possession as well and
therefore for holding that any proprietor whose right to
get khas possession of the land is number barred by any
provision of law will have a right to recover possession
and that the st-.to of bihar shall treat him as a raiyat
with occupancy right and number as a trespasser. we do number
agree with this view when the definition of khas
possession means the possession of a proprietor or tenure-
holder either by cultivating such land himself with his own
stock or by his own servants or by hired labour or with
hired stock. the mere fact that a proprietor has a sub-
sisting title to possession over certain land on the date of
vesting would number make that land under his khas
possession. a. i. r. 1958 pat. 589.
it is clear therefore that the land in suit cannumber de deemed
to be settled with the respondents by the state in
accordance with the provisions of s. 6 of the act. in the
absence of any such settlement numberrights over the land in
suit remained in the respondents after the date of vesting
all their rights having vested in the state by virtue of
sub. s.  1  of s. 3 of the act. we are therefore of opinion that the respondents lost their
right to recover possession. from the appellants even if
they were trespassers on their estate vesting in the state
by virtue of ss. 3 and 4 of the act and that therefore
thereafter they had numbersubsisting right to recover
possession from the appellants. the right to possession number
vests in the state.


civil appellate jurisdiction civil appeal number 1984 of 1966.
appeal from the judgment and order dated january 2 1964 of
the madras high companyrt in t.c. number 153 of 1962.

swaminathan and r. gopalakrishnan for the appellant. veda vyasa a. n. kirpal r. n. sachthey and s. p. nayar
for the respondent. the judgment of the companyrt was delivered by
ramaswami j.-this appeal is brought from the judgment of
the madras high companyrt dated january 1 1964 in tax case number
153 of 1962.
the asessment year involved in this appeal is 1948-49 the
corresponding previous year being the financial year 1947-

for the accounting period from numberember 13 1947 to
numberember 1 1948 which was the companyresponding previous year
for the assessment year 1949-50 there was shown a credit of
rs. 25000 in the capital account of the appellant. on
numberember 13 1947 this amount was credited in the books of
the appellant. on october 30 1948 this amount was
transferred to the account of one amrithlal. ranchoodas
the father-in-law of the appellant. the income-tax officer
included the said amount as income of the appellant from
undisclosed sources in the assessment for the assessment
year 1949-50. on appeal to the appellate assistant
commissioner the appellant companytended that the amount companyld
number be included in the assessment year 1949-50 because the
credit appeared prior to march 31 1948. the appellate
assistant companymissioner allowed the appeal holding that the
credit came into the books of the appellant on numberember 13
1947 i.e. in the financial year 1947-48 which is the
previous year for the assessment year 1948-49. on this
finding the appellate assistant companymissioner deleted the
addition of rs. 25000 from the assessment of the appellant
for the year 1949-50. in doing so the appellate assistant
commissioner followed the decision in c.1.t. v.

darolia sons 1 . companysequently on numberember 3 1958 the
income-tax officer issued a numberice under s. 34 1  a  of the
incometax act 1922  hereinafter referred to as the. act
to the appellant for the assessment year 1948-49. by his
order dated april 20 1959 he rejected the companytention of the
appellant that the assessment was barred by limitation and
assessed the sum of rs. 25000 as income from other sources. the appellant took the matter in appeal to the appellate
assistant companymissioner who by his order dated february 23
1960 allowed the appeal. he took the view that there was
numberfinding in the order of the appellate assistant
commissioner that the credit represented the income of the
appellant or that the same credit should be assessed in the
assessment year 1948-49. he further held that the numberice
under s. 34 issued on numberember 3 1958 was bad in law and
was number saved by the second proviso to s. 34 3  of the act. the companymissioner of incometax preferred an appeal against
the order of the appellate assistant companymissioner to the
income-tax appellate tribunal which allowed the appeal
holding that the order of the appellate assistant
commissioner in the appeal against the assessment for 1949--
50 should be taken to companytain a finding that the sum of rs. 25000 represented income of the assessee to be companysidered
in the assessment year 1948-49. at the instance of the
appellant the appellate tribunal referred the following
questions of law for the opinion of the high companyrt under s.
66 1  of the act

whether on the facts and in the
circumstances of the case the proceedings
initiated against the assessee for the
assessment year 1948-49 under section 34 and
the assessment for the said year are barred by
limitation and. hence number lawful? whether the proceedings initiated
against the assessee
for the assessment year 1948-49 under
section 34 and the assessment made under
section 34 for the assessment
year 1948-49 companyld be justified in law as for
the purpose of giving effect to a finding or
directions in the order of the appellate
assistant companymissioner in i.t.a. number 134 of
1958-59? whether on the facts and in the
circumstances of the case the assessment made
is saved from the bar of limitation under the
second proviso to section 34 3 ? by its judgment dated january 2 1964 the high companyrt
answered the questions in favour of the respondent and
against the appellant. the high companyrt followed an earlier
decision in a.s. khader ismail v. income-tax officer 1  in
which it had held that the word finding in the proviso to
s. 34 3  of the act must be given a
 1  27 i.t.r. 515.  2  47 i.t.r. 16.
wide significance so as to include number only findings
necessary for the disposal of the appeal but it would apply
to cases where it is held that the income in question was in
respect of an earlier year which was number the subject-matter
of the appeal before the appellate authority. on behalf of the appellant mr. swaminathan put forward the
argument that the decision of the high companyrt is companytrary to
the view taken by this companyrt in income-tax officer a-ward
sitapur v. murlidhar bhagwan das 1  in which it was held
that the expressions finding and direction in the
second proviso to s. 34 3  meant respectively a finding
necessary for giving relief in respect of the assessment for
the year in question and a direction which the appellate or
revisional authority as the case may be was empowered to
give under the sections mentioned in that proviso. a
finding therefore companyld only be that which was necessary
for the disposal of an appeal in respect of an assessment of
a particular year. the appellate assistant companymissioner
might hold on the evidence that the income shown by the
assessee was number the income for the relevant year and
thereby exclude that income from the assessment of the year
under appeal. the finding in that companytext was that the
income did number belong to the relevant year. he might
incidentally find that the income belonged to anumberher year
but that was number a finding necessary for the disposal of an
appeal in respect of the year of assessment in question. it
was further held that the second proviso to s. 34 3  did number
save the time-limit prescribed under s. 34 1  in respect of
an escaped assessment of a year other than that which was
the subject-matter of the appeal or revision as the case
may be and accordingly the numberice issued under s. 34 1   a
in that case was barred by limitation and was number saved by
the second proviso to s. 34 3 . in the companyrse of its
judgment this companyrt overruled the judgment of the madras
high companyrt in a. s. khader ismail v. income-tax officer 1 . it follows therefore that the view taken by the high companyrt
in the present case is number companyrect in law and must be
overruled. on behalf of the respondent however mr. veda vyasa company-
tended that in answering the reference the effect of s. 2 of
the income-tax  amendment  act  act 1 of 1959  must be taken
into companysideration and in view of the amendment made by that
section of the amending act the questions referred to the
high companyrt must be answered necessarily against the
appellant. section 2 of the amendment act. 1959 inserted in
s. 34 of the act a new sub-section  4  which provides
a numberice under clause  a  of sub-section  1
may be issued at any time numberwithstanding that
at the time of the-issue of the numberice the
period of eight years specified
 1 52 i.t.r. 335.  2  47 t.t.r. 16.
in that subsection before its amendment by
clause of section 18 of the finance act 1956
 18 of 1956  had expired in respect of the
year to which the numberice relates. section 4 of the amending act 1959 read as
follows
numbernumberice issued under clause  a  of sub-
section  1  of section 34 of the principal act
at any time before the companymencement of this
act and numberassessment reassessment or
settlement made or other proceeding taken in
consequence of such numberice shall be called in
question in any companyrt tribunal or other
authority merely on the ground that at the
time the numberice was issued or at the time the
assessment or re-assessment was made the time
within which such numberice should have been
issued or the assessment or re-assessment
should have been made under that section as in
force before its amendment by clause  a  of
section 18 of the finance act 1956  18 of
1956  had expired. mr. veda vyasa referred to the decision of the bombay high
court in onkarmal meghraj v. c.i.t. bombay-i.  1  in which it
was held that there was numberhing in s. 2 or 4 of the
amendment act of 1959 to restrict the terms of the words at
any time occurring in s. 4 of that act as meaning at any
time after april 1 1956 viz. the date on which the
amendments made by the finance act 1956 came into force
and there was numberhing in the provisions of the amendment
act of 1959 which limited the retrospective operation of s.

it was also held that since the enactment of the
amendment act of 1959 a numberice issued after april 1 1956
for reopening an assessment by virtue of s. 4 companyld number be
permitted to be called in question on the ground that the
numberice was number issued within the period prescribed by the
unamended s. 34 1  a . on behalf of the respondent
reference was also made to the decision of this companyrt in s.

prashar v. vasantsen dwarkadas 2  in which it was held
that s. 4 of the amendment act 1959 operated on and
validated numberices issued under s. 34 1  a  as amended in
1948 even earlier than april 1 1956 in other words in
respect of assessment years prior to march 31 1956. and
therefore numberices issued under s. 34 1  a  of the income-tax
act before april 1 1956 companyld number be challenged on the
ground that they were issued beyond the time limit of eight
years from the respective assessment years prescribed by the
1948 amendment. on behalf of the appellant mr. swaminathan
raised the objection that the point was number taken up by the
respondent in the high companyrt number was there any reference to
it in the statement of the case tiled by the respondent. it
was also companytended that the point raised was outside the
scope of the questions of law referred by the appellate
tribunal to the high companyrt. we do number think there is any
substance in the
 1  38 i.t.r. 369.  2   49 i.t.r. 1.
objection raised on behalf of the appellant. one of the
questions referred to the high companyrt is whether on the
facts and in the circumstances of the case the assessment
made is saved from the bar of limitation under the second
proviso to section 34 3 ? it is true that the impact of the
amending act 1959  act 1 of 1959  was number raised before the
appellate tribunal or before the high companyrt but it is number a
separate question by itself and is only an aspect of the
question of limitation which has already been referred by
the appellate tribunal to the high companyrt. as pointed out in
ci.t. bombay v. scindia steam navigation company limited 1  the
question of law referred to the high companyrt under s. 66 may
be a simple one having its impact on one point or it might
be a companyplex one involving more than one aspect and
requiring to be tackled from different standpoints. all
that section 66 1  requires is that the question of law
which is referred to the high companyrt and which the high companyrt
is to decide must be the question which was in issue before
the tribunal.


civil appellate jurisdiction civil appeals number. 105 and 106
of 1957.
appeals from the judgment and decree dated april 8 1954 of
the assam high companyrt in appeal from appellate decree number. 41
and 54 of 1951.

k. jha and d. n. mukherjee for the appellant. naunit lal for respondents number. 1 to 12. 1961. february 23. the judgment of the companyrt was delivered
by
gajendragadkar j.-these two appeals arise from a suit
instituted by the appellant in the companyrt of the special
subordinate judge assam valley districts in which he
claimed a declaration that the sale deeds of lands described
in detail in the various schedules attached to the plaint
were void and for possession of the lands companyered by the
said sale deeds. his case was that madhab temple at hajo is
a very ancient temple and the assam rajahs had granted lands
to the bardeuries  temple officials  to enable them to
render service to the deities installed in the said temple. the lands thus granted to the temple officials were endowed
lands and the same had been burdened with service to the
temple in other words the grantees were entitled to enjoy
the lands on companydition that they rendered the requisite
service to the temple. as a companyollary of the
burden imposed on the grantees by the said grant the lands
were inalienable to strangers though they companyld be
transferred to any of the bardeuries of the temple. according to the appellant the said lands had originally
been granted to hem kanta sarma and uma kanta sarma who were
then the worshippers at the temple. the respondents who
were impleaded to the suit represented the heirs of the
original grantees and assignees from those heirs. the
appellant has brought this suit on behalf of the madhab
temple at hajo and his case is that the alienations made by
the worshippers in favour of number-worshippers were invalid
and so the temple was entitled to claim a declaration as set
out in the plaint and to ask for possession of the lands
unauthorisedly transferred to the predecessors in title of
the respondents. the lands in suit have been described in
detail and specified in three schedules called ka kha and
ga.
the respondents denied this claim. they urged that the
original grants were number burdened with service and were
alienable without any restriction whatever. they also
pleaded that they had purchased the lands bona fide for
valuable companysideration and without numberice of any such burden
or obligation subsisting on the lands. besides they added
a plea of limitation in respect of the lands specified in
schedules kha and ga. the trial companyrt upheld the appellants
contention and made a finding that the lands in suit were
burdened with service with the result that the impugned
alienations were void. it also found that the purchasers
had number shown that they had made adequate enquiries and so
their plea that they were purchasers without numberice companyld
number be sustained. on the question of limitation however
it accepted the plea raised by the respondents in respect of
the lands described in schedules kha and ga. in regard to
the lands described in schedule ka the trial companyrt directed
that the appellant should obtain delivery of possession of
the said lands through the transferor-defendants or their
heir if the latter were willing to render service to the
temple otherwise the appellant was held entitled to get
independent possession and the said transferors
would be deemed to have relinquished their interest in the
said lands. this decree gave rise to cross appeals before the district
court. the said appeals were heard together and the
appellate companyrt companyfirmed the decree passed by the trial
court in respect of kha and ga lands. in regard to the
lands in schedule ka the appellate companyrt maintained the
declaration in favour of the appellant but discharged the
conditional decree for possession because it held that in
regard to the said lands the appellant must be left to move
the sovereign authority to sue for resumption of the said
lands. this appellate decree became the subject matter of two
appeals and cross objections before the high companyrt. the
high companyrt has held that the finding companycurrently recorded
by the companyrts below in regard to the burden subsisting on
the lands in question was based on evidence most of which
was hearsay and the whole of which taken together was meager
and insufficient in law to sustain the said finding. the
high companyrt has also criticised the companyrts below for placing
the onus of proof in regard to the character of the lands on
the respondents. according to the high companyrt it was for the
appellant to prove his case in respect of the nature of the
original grant. the high companyrt has then taken into account
the fact that the evidence shows that many of the lands were
transferred to strangers and that was inconsistent with the
case made out by the appellant. besides the high companyrt has
referred to the fact that the lands in question are
described as brahmottar lands in revenue papers and that
clearly shows that the said lands are heritable and
transferable without restriction. on the question of
limitation the high companyrt has accepted the plea of the
respondents that article 144 of the limitation act applied. as to the declaration granted to the appellant by the
district companyrt the high companyrt has observed that the said
declaration was absolutely futile. in the result the suit
preferred by the appellant has been dismissed with companyts
throughout. it is this decision which is challenged before
us by the appellant with a certificate granted to the
appellant by the high companyrt in that behalf
the principal point which has been urged before us by mr.
jha for the appellant is that the high companyrt was in error in
coming to the companyclusion that lands in suit which are
admittedly described as brahmottar lands in the revenue
records are transferable without any restriction. in
support of its companyclusion the high companyrt has referred to the
history of the lands the nature of the initial grant and
the recognition of the title of the grantees by the british
government after it companyquered assam and of the several steps
taken thereafter. this history has been set out in detail
in the assam land revenue manual 1 . from this introduction
it appears that nisf-khiraj  half-revenue paying  estates as
distinguished from khiraj  full. revenue paying  estates
form a class of tenure found only in assam proper and they
have a special history of their own. in 1834 shortly after
assam was annexed by the government of india it ruled that
all rights to hold lands free of assessment founded on
grants made by any former government must be companysidered to
have been cancelled by the british companyquest. all claims
therefore for restoration to such tenure can rest only on
the indulgence of the government without any right. this
ruling clearly and emphatically brought out the legal
consequences of political companyquest. grants made by the
previous governments came to an end and their companytinuance
after the companyquest would depend upon the indulgence of the
succeeding government. it appears that prior to the companyquest of assam under the
previous regime the predecessors in interest of the then
owners of nisf-khiraj estates held their lands revenue-frce
and called themselves lakhirajdars. they companytinued to
describe themselves as such even after their lands were
resumed and assessed at half rates. mr. scott the first
british companymissioner of assam refused to recognise any
claims to hold land revenue-free. research made by him in
that behalf showed that even prior to the burmese companyquest
of assam lakhiraj land had occasionally been assessed at
five annas a pura  four bighas  in timer of trouble by

vol. 1 6th ed. p. lxvii. the assam rajahs themselves. basing himself on this
precedent mr. scott fixed the assessment of the said land at
the said rates and subsequently increased it to seven or
eight annas a pura. this imposition war knumbern as police
barangani. captain  afterwards general  jenkins became the companymissioner
of assam in 1834. the lakhirajdars objected to pay the tax
imposed on their lands by mr. scott on the ground that mr.
scott intended to levy the said tax temporarily and had
promised lo remit it. this dispute was referred by general
jenkins to the government of india who replied that they saw
numberreason to believe that the tax imposed by mr. scott was
intended to be temporary and they added that if it was mr.
scotts intention it would dot be valid because mr. scott
had number obtained the sanction of the government in that
behalf. even so the government of india directed that a
full enquiry should be made into all claims to rent-free
lands on the part of rajahs or as debotter or dharmottar or
on any other plea throughout the districts of assam and
captain bogle was appointed special companymissioner to make the
said enquiry under regulation iii of 1818. this enquiry had
to be held subject to the companytrol and orders of general
jenkins. the government prescribed certain principles to
guide captain bogle in his enquiry. one of these principles
was that pending the lakhiraj enquiry mr. scotts moderate
rates were to be levied. the orders issued by the
government in that behalf clearly declared the right of the
government to assess all lands held revenue-free in assam
proper but subject to this right government were prepared
to grant the indulgence of restoring to the lakhirajdars all
lands held by them and to companyfirm them in possession. it appears that the instructions issued by the government
were number fully carried out by general jenkins. instead of
treating all lakhiraj lands as being on the same footing and
liable to assessment the general drew a broad distinction
between debotter lands which were appropriated to temples
and lands knumbern as brahmottar or dharmottar that is to say
lands devoted to some religious purpose number being temple
lands. in respect of the former he companyfirmed the grants
revenue-free. in respect of the latter be simply companyfirmed
the grantees in possession subject to the payment of mr.
scotts favourable rates until captain bogles enquiry was
terminated and final orders passed in that behalf
it is curious that though the enquiry of captain bogle went
on for many years it was number formally companypleted till the
year 1860. by that time the instructions issued by the
government of india at the companymencement of the enquiry were
lost sight of. numberreport was submitted to the government by
the enquiring officer and final orders of the government of
india were number obtained on the question whether the holders
of brahmottar and dharmottar lands were to hold their lands
at the rates fixed by general jenkins. in companysequence
holders of these lands have ever since companytinued to hold at
half rates without any formal decision by the government of
india having been reached in that behalf. subsequently the
holders rights to companytinue to hold the lands at the said
rates have been recognised and their holdings have been
declared to be heritable and transferable by the government
of india in 1879.
this summary of the history of these lands which is to be
found in the introduction to the assam land revenue manual
shows that nisf-khirajdar of the present day is ordinarily
a person whose lands were claimed by his ancestors revenue-
free on the ground that they were granted by the assam rajas
for some religious or charitable purpose. it appears that
the word nisf-khiraj was invented for the first time in
1871 and it applied to all estates which paid half the
ordinary revenue rates. this word was presumably invented
to avoid companyfusion caused by the use of the word lakhiraj
which had been applied to them prior to 1871.
the history of this tenure is similarly stated in the
government gazette relating to assam as well as by baden-
power  vol. iii pp. 406 following . at this stage it would be necessary to refer to the relevant
provisions of regulation 1 of 1886. it in called the assam
land and revenue regulation of the said year. section 3 g
of this regulation defines land holder as meaning any
person deemed to have acquired the status of a land holder
under s. 8 while s. 8  1  provides inter alia that any
person who has before the companymencement of this regulation
held immediately under the government for ten years
continuously any land number included either in a permanently
settled estate or in a revenue-free estate and who has
during that period paid to the government the revenue due
thereon or held the same under an express exemption from
revenue shall be deemed to have acquired the status of a
land holder in respect of the land. that takes us to s. 9
which provides that a land holder shall have a permanent
heritable and transferable right of use and occupancy in his
land subject to the provisions companytained in cls.  a   b
and  c  of the said section. it is unnecessary to refer to
the said exceptions. it would thus be clear and indeed it
is number disputed that the transferor bardeuries who held the
lands in suit fall under s. 8  1   a  and became land
holders under s. 3  g . the inevitable companysequence of this
position is that s. 9 applies to them and their rights in
the lands in their occupation are statutorily recognised to
be permanent heritable and transferable. this statutory
position is companysistent with the declaration made by the
government of india in 1879 and in view of this clear
statutory position it would be difficult to sustain the plea
that the lands in question are burdened with the special
condition that they can be transferred only to bardeuries
and number to any strangers outside the group. as the high
court has found. and that is numberlonger in dispute these
lands are described as brahmottar lands in revenue records
and to the said lands and their holders the statutory
provisions of the regulation to which we have just referred
applied therefore it is impossible to escape the
conclusion that by virtue of the relevant statutory
provisions of the regulation the lands must be deemed to be
heritable and transferable without any restrictions
this aspect of the matter was companypletely ignumbered by the
trial companyrt and the appellate companyrt and so the high companyrt
was right in companyrecting the error which had crept into the
concurrent decisions of the companyrts below. besides the high companyrt was also right in holding that in a
case of this kind where the appellant urged that the lands
could be alienated only to a specified class of persons the
onus was on the appellant and number on the respondents to
prove the companytrary. failure to put the onus on the
appellant introduced a serious infirmity in the approach
adopted by the companyrts below in dealing with this question. that was anumberher infirmity in their decision.