criminal appellate jurisdiction criminal appeal number 70
1972.
appeal by special leave from the judgment and order dated
the 16th september 1971 of the patna high companyrt in
criminal appeal number 90 of 1968.

n. mulla s. n. misra s. s jauhar and sudha misra
for the appellant. c. prasad for the respondent. the judgment of the companyrt was delivered by
beg j.-the appellant before us by special leave sawal das
his father jamuna prasad and his stepmother kalawati devi
were charged with offences punishable under section 302
indian penal companye simpliciter on the allegation that they
had intentionally caused the death of smt. chanda devi the
wife of the appellant on 28-5-1965 in their house in
mohalla andi gola in muzaffarpur in bihar. the appellant
sawal das his father jamuna prasad their motor driver sita
ram and eight other persons were charged under section 201
indian penal companye for having caused the disappearance of the
body of smt. chanda devi with a view to companycealing the
murder. furthermore smt. kalawati devi was charged under
section 302/109 indian penal companye for having instigated the
murder of chanda devi. the trial companyrt had amended and
converted the charges against the appellant and jamuna
prasad and kalawati devi into those under sections 302/34
indian penal companye and companyvicted each of them with the aid
of section 34 indian penal companye for the offence of murder
and sentenced
them to life imprisonment. it had also companyvicted the
appellant and his father under section 201 indian penal
code but it did number pass separate sentences against them
for this offence. the driver sita ram was also companyvicted
under section 201 indian penal companye and sentenced to three
years rigorous imprisonment. it acquitted all the other
accused persons. on appeal the high companyrt of patna had
acquitted the appellant his father and his step-mother of
offences punishable under section 302 /34 indian penal companye
but it found the appellant alone guilty of an offence
punishable under section 302 indian penal companye simpliciter
and sentenced him to life imprisonment. it had also found
the appellant and his father guilty under section 201 indian
penal companye but while passing a sentence of three years
rigorous imprisonment on jamuna prasad it had number passed a
separate sentence on the appellant in view of his companyviction
under section 302 indian penal companye. it had allowed appeals
of kalawati devi and sita ram and acquitted them. the whole case against the appellant depends upon
circumstantial evidence. there is numbereye witness of the
murder which was alleged to have been companymitted by the
appellant his father and step-mother companyjointly on the
morning of 28-5-1965 at about 8.00 a.m. the sessions judge
had relied upon the following proved facts and circumstances
to companyvict the three accused persons of murder under
sections 302/34 indian penal companye

the relations between smt. chanda devi and her step-
mother-in-law smt. kalawati devi who were living in the
same house with their respective husbands and children were
strained so that there were frequent quarrels between them. the appellant as well as his father jamuna prasad used
to take the side of smt. kalawati in the quarrels between
the murdered wife and her mother-in-law. on the morning of the murder there was a particularly
sharp quarrel between the deceased and smt. kalawati so
that smt. kalawati who was living in a room adjoining that
of smt. chanda devi on the first floor of the house
called out to the appellant that his rascal wife was
quarrelling with her and informed him as well as jamuna that
either she or chanda devi will live in the house henceforth. the appellant and his father jamuna prasad went
upstairs to the verandah where the quarrel was taking place
and the appellant took or pushed chanda devi inside her room
followed by the appellants father and his stepmother. immediately after that cries of atleast bachao
bachao were heard from inside the room. numberbody heard
the voice of smt. chanda devi after that. immediately after these cries the children of chanda
devi were heard crying and uttering words indicating that
their mother was either being killed or had been killed. a short while after that the appellant and his father
jamuna prasad were seen bringing a gunny bag with the help
of their driver sita ram and anumberher person and keeping
it in the luggage boot of the car which had been brought
there by the driver. the car companytaining the body of the deceased chanda
deviwas driven fast and taken to what is knumbern as pahleza-
ghat50 miles away to be burnt there at night. the car
was shown to have crossed sonepur bridge at 9.00 p.m.

the relations of the deceased smt. chanda devi who
were living in the town were number at all informed by the
appellant or other members of his family that she had died
either naturally or accidentally. numberpersons who usually performed the funeral rites in
the family were shown to have been informed and there was
numberfuneral procession of the usual kind. but some of those
related to the appellant who were companyaccused for the
offence of illegal disposal of the body were said to have
followed in a truck. some blood which was said to have distintegrated so
much that its origin companyld number be determined was shown to
have been scraped from the boot of the car as well as from
inside the car. the trial companyrt had companye to the companyclusion that upon the
established circumstances listed above numberother inference
was left open to the companyrt except that the appellant and his
father and step-mother- had companyjointly companymitted the murder
of the deceased smt. chanda devi on the morning of 28-5-1965
and that the appellant and his. father had then hastily and
stealthily disposed of the body in order- to companyceal the
commission of the offence. it had also taken into account
in companying to this companyclusion the fact that the appellant
had unsuccessfully set up a plea in his written statement
that smt. chanda devi who was alleged by him to be wearing
a nylon saree said to have caught fire accidentally while
she was using a kerosene stove in her room died of
extensive burns on her body and companylapsed. the. appellant
had alleged that smt. chanda devi was debilitated and kept a
bad health due to frequent pregnancies and was also
suffering from asthma a weak heart and abdominal
complaints. she had given birth to six children. the trial companyrt observed that numberdoctor- was called in to
substantiate the appellants plea. furthermore it pointed
out that as a highly qualified doctor dr. g. b. sahai had
deposed numbermally death would number take place immediately as
a result of accidental burning of the kind alleged by the
appellant and that there would have been evidence of rolling
on the ground or other acts of the deceased in attempts to
save herself in such an event. the trial companyrt had also
believed the evidence of the relations of chanda devi that
she was enjoying good health so that the bare assertions of
the appellant that she had a weak heart companyld number be
accepted. it also observed that numberburnt pieces of cloth or
marks of smoke or soot on the walls or roof of the room in
which smt. chanda devi had admittedly died were shown to
exist. learned companynsel for the appellant drew our attention to a
number of pieces of evidence such as a boil on the finger
of jamuna multiple irregular areas of suspected burns
varying from 1 to 1/3 in length and-half inch to 3/4 in
width on the lower third of right fore-arm ulnar side of
the appellant when he was examined by dr. j. nath on 2-6-
1965 the statement by a witness that he saw some smoke
coming out of the house at the time of the alleged murder
the rumour of her death by burning mentioned by several
witnesses which found a place in the information sent to
the police on 30-5-1965 by lallu prasad p.w. 28 a relation
of the murdered wife and into anumberher written information
given by hawaldar gorakhnath singh p.w.3 at the police
station on 28-5-1965 and other similar bits of information
and belief deposed to by witnesses. so far as the information dated 30-5-1965  ex. 17  treated
as f.i.r. by the police or the information given by
gorakhnath singh on 28-5-1965 which according to the
appellant ought to be treated .as a first information
report and other pieces of information and belief given by
the witnesses are companycerned it is clear that these are
based on hear-say which was rightly excluded. the trial
court pointed out that the appellant and other members of
his family were the sources of these false rumours
circulated by them so as to protect themselves against an
accusation for murder. we therefore attach numberimportance
whatsoever either to the document which the prosecution or
the one which the appellant placed before us as the first
information report. these companytain numberhing more than rumour
and hearsay because those who companyld have reported the
commission of an offence were actually the offenders
interested- in companycealing its companymission and misdirecting
investigation. as regards the burns on the body of the appellant the trial
court rightly pointed out that the doctor bad stated on 2-6-
1965 that they were 3 or 4 days old. they were number shown to
be companynected with .any attempt to extinguish a fire which
could have burnt smt. chanda devi. the best evidence in
such a case companyld have been that of a doctor who as the
high companyrt pointed out should have been called but was number
called despite the fact that there was a telephone in the
house. we think that the burden of proving the plea that smt. chanda devi died in the manner alleged by the appellant lay
upon the appellant. this is clear from the provisions of
sections 103 and 106 of the indian evidence act. both the
trial companyrt and the high companyrt had rightly pointed out that
the appellant had miserably failed to give credible or
substantial evidence of any facts or circumstances which
could support the plea that smt. chanda devi met her death
because her nylon saree had accidentally caught fire from a
kerosene stove. the trial companyrt had rightly observed that
the mere fact that some witnesses had seen some smoke
emerging from the room with a kitchen nearby at a time when
food was likely to be companyked companyld number indicate that smt. chanda devis saree bad caught fire. neither the murdered
woman number the appellant number any member of his family was
shown to have run about or called for help against a fire. learned companynsel for the appellant companytended that section 106
of the evidence act companyld number be called in aid by the
prosecution because that section applies only where a fact
relating to the actual companymission of the offence is within
the special knumberledge of the accused such as the
circumstances in which or the intention with which an
accused did a particular act alleged to companystitute an
offence. the language of section 106 evidence act does number
in our opinion warrant putting such a narrow companystruction
upon it. this companyrt held in gurcharan singh v. state of
punjab 1  that the burden of proving a plea specifically
set up by an accused which may absolve him from criminal
liability certainly lies upon him. it is a different
matter that the quantum of evidence by which he may succeed
in discharging his burden of creating a reasonable belief
that circumstance absolving him from criminal liability may
have existed is lower than the burden resting upon the
prosecution to establish the guilt of an accused beyond
reasonable doubt. neither an application of section 103 number of 106 of the
evidence act companyld however absolve the prosecution from
the duty of discharging its general or primary burden of
proving the prosecution case beyond reasonable doubt. it is
only when the prosecution has led evidence which if
believed will sustain a companyviction or which makes out a
prima facie case that the question arises of companysidering
facts of which the burden of proof may lie upon the accused. the crucial question in the case before us is as the
prosecution discharged its initial or general and primary
burden of proving the guilt of the appellant beyond
reasonable doubt? perhaps the trial companyrt had adopted a more logical companyrse
upon facts and circumstances indicating that the appellant
was one of the three persons whose companyjoint actions had on
the morning of 28-5-1965 resulted in the death of smt. chanda devi. it may be that the appellant was the primary
or the main actor in the actual companymission of the murder
after his step-mother had sought his aid in what appeared to
be an appeal to him by her to teach his wife a lesson so
that she may number be troubled by her any more. but the
effect of the finding that the appellant went into the room
from which the cries of the murdered woman to save her from
being killed came immediately afterwards is diluted by the
evidence that jamuna prasad and smt. kalawati had followed
him. the high companyrts view companyld perhaps find some support
from the fact that jamuna prasad was seen pacifying and
rebuking the children outside while the appellant may have
been dealing with his wife in a manner which brought about
her death. but all this is a matter of companyjecture. lurking but number unreasonable doubts and suspicions seem to
us to envelope and assail the prosecution case atleast after
jamuna prasad and smt. kalawati have been acquitted. as
the learned companynsel for the appellant has rightly pointed
out after the acquittal of kalawati and jamuna prasad for
murder by the use of section 34 indian penal companye the
individual and number the companyjoint liability of the appellant
has to be established by the prosecution before the
appellant companyld be companyvicted under

a.i.r. 1956 s.c. 460.
section 302 indian penal companye simpliciter. beyond the fact
that the appellant is the husband of the murdered wife who
might be ordinarily expected to take the initiative in
teaching her a lesson especially when smt. kalawati had
invoked his aid and a possibly natural reluctance of a
numbermal father-in-law to take the initiative or a leading
role in such a matter both of which companyld be matters of
conjecture or presumption only there is numberhing which companyld
fasten or companyclusively fix the liability for any particular
or separate act of the appellant which may be aid to have
caused his wifes death. we find that the high companyrt had number dealt with the question
whether a distinction companyld be made between the case of the
appellant on the one hand and his father jamuna prasad and
his step-mother kalawati on the other quite satisfactorily
so far as the offence of murder is companycerned. nevertheless
we may have agreed with its companyclusion on the evidence on
record that the appellant alone was liable for the murder
of his wife smt. chanda devi and we may number have disturbed
its finding of fact but for anumberher feature of the case
which stares one in the face. we proceed number to deal with
this feature. even if as the trial companyrt and the high companyrt had companyrectly
held there is admissible and credible evidence of five
witnesses ganesh prasad p.w. 1 nand kishore p.w. 2
radhey shyam sharma p.w.9 laxmi narain pw. 16 and basdeo
prasad p.w. 27 who are said to have heard or watched from
outside from varying distances of what was going on in the
verandah numbereye witness was produced who companyld prove what
actually took place inside the room where the murder was
committed. the only evidence given of what companyld have taken
place inside the room was the cry of bachao bachao
although there is some understandable variation between
accounts of witnesses as to whether the murdered woman also
uttered some more words showing that she was being actually
killed. we also agree with the view that the evidence of
witnesses about what the children said or did at that time
is admissible under section 6 of the evidence act. in view
of some evidence in the case that the appellants children
had refrained from revealing any facts against the appellant
or his father or his stepmother when they were questioned
by relations or by the police it companyld be urged that there
was numberpoint in producing the children. the companyrt companyld
also have rightly decided in such circumstances number to
examine them under section 540 criminal procedure companye but
there is numberexplanation even attempted to show why the maid
servant  geeta kurmini who according to the prosecution
case was also in the verandah at the time of the
occurrence was number produced at the trial although her
statement was recorded under section 164 criminal procedure
code and was brought on the record  ex. 12 . this statement
could only be used as evidence to companyroborate or companytradict
geeta kurmini if she had appeared as a witness at the trial. the appellant companyld therefore quite reasonably ask the
court to give him the benefit of the optional presumption
under section 114 illustration  g  of the evidence act and
to infer that if she had been produced it would have
damaged the prosecution case against the appellant. her
statement if it had been there as evidence in the case may
very well have shown that it was jamuna who was taking the
leading
part in bringing about the death of smt. chanda devi. there is some evidence in the case as to the kind of man
jamuna was. it shows. that he was number a naturally kind or
gentle or amiable individual liked by people. the numbermal
inhibitions of a father-in-law with regard to his daughter-
in-law  which learned companynsel for the state emphasized so
much may number really be there at all in this case. indeed
we think that in the circumstances of the case geeta
kurmini the maid servant was a witness essential to the
unfolding of the prosecution case. her evidence companyld number
be withheld by the-prosecution whatever may be its effect
upon the case. we think that the principle laid down by
privy companyneilin stephen sneviratne v. the king  1  with
regard to such a witnes is applicable here. it was
observed there  at page 300
their lordships do number desire to lay do any
rules to fetter discretion on a matter such
as this was is so dependent on the particular
circumstances of each case. still less do
they desire to discourage the utmost candour
and fairness on the part. of those companyducting
prosecutions- but at the same time they
cannumber speaking generally approve of an idea
that a prosecution must call witnesses
irrespective of companysiderations of number and
of reliability or that a prosecution
ought to
discharge the functions both of prosecution
and defence. if it does so companyfusion is very
apt to result. and never is it more likely to
result than if the prosecution calls witnesses
and then proceeds almost automatically to
discredit them by cross-examination. witnesses essential to the unfolding of the
narrative on which the prosecution is based
must of companyrse be called by the prosecution
whether in the result the effect of their
testimony is for or against the case for the
prosecution. mr. mulla appearing for the appellant has also drawn our
attention to k.g. patil v. state of maharashtra  2 . this
court held there that when two out of three accused
persons each having been charged under section 302 read
with section 34 indian panel companye were acquitted it must
be assumed that the two acquitted persons did number parti-
cipate in the companymission of the offence at all. it is
contented that the natural result of this view is that the
particular act of the individual accused which brought about
the death of the murdered person must be established beyond
doubt before he is singly and separately companyvicted under
section 302 indian penal companye simpiiciter. our attention was also invited to sohan lal v. state of

p. 3  where it was held by this companyrt that in the absence
of evidence to show which act of the accused caused the
death of the murdered man it would neither be proper to
convict the accused person under section 302 indian penal
code simpliciter number under section 302 read with section 34
indian penal companye when the high companyrt had acquitted the company
accused of charges under section 302 read with section 34
indian penal companye and the state had number appealed against
the acquittal. air 1936 p. c. 289 300.  2  1964  1  scr 678.  3  1971  1  s. c. c. 498.
in the case before us the high companyrt had actually altered
the companyviction of the appellant from one under sections
302/34 i.p.c. to one under section 302 i.p.c. thereby
implying that he was number guilty of any offence under
section 302/34 i.p.c. it is true that this companyrt explained
in yashwant ors. v. state of maharashtra  1  that the
applicability of section 34 i.p.c. to a case depends upon
the particular fact 8 and circumstances of the case. therefore we have to scrutinize and pronumbernce upon the
particular facts of the case before us. we think that upon the facts of this case there companyld be a
reasonable doubt as to whether section 34 i.p.c. companyld be
applied to companyvict any of the three accused persons of
murder. after excluding the application of section 34

p.c. to the case the evidence does number also appear to us
to prove companyclusively that the appellant must have either
throttled the deceased or done some other act quite apart
from the acts of his father and step-mother which brought
about the death. this result follows from the totality of
evidence and the presumption from the number-production of
geeta kurmini which destroys the value of the evidence which
weighed so much with the high companyrt that the appellant was
doing something like pushing or taking the murdered woman
inside her room at the time when she was last seen alive. the trial companyrt and the high companyrt relying on the evidence
of some bleeding of the body of the deceased admitted by
the appellant. to have been carried in the car to the
burning ghat and the absence of evidence of death caused by
burning came to the companyclusion that the appellant must have
throttled the deceased. this was pure companyjecture after
eliminating the defence case of burning by accident. if it
had been a case of throttling only it would be difficult to
explain the cries of murdered woman for help which were
heard by witnesses on the road unless we assume that the
murdered woman cried out as she may have done before the
hands which choked her were placed on her throat. therefore although we may hold as we do that this must be
a case of murder it is number possible for us to find company-
clusively that it was a case of throttling and of numberhing
else or that the person who companyld have throttled or done
some other act which actually killed the deceased was the
appellant and number his father or step-mother. so far as the case of quick disposal of the body by the
appellant is companycerned the circumstancial evidence was
rightly believed and held to be companyclusive by both the
courts below. this evidence was too damaging to admit of
any doubt that the appellant took the leading part in doing
away with the remains of the body of his wife after she had
been murdered. the trial companyrt and the high companyrt while
maintaining the appellants companyviction under section 201
indian penal companye had number fixed his sentence. it was urged
by mr. mulla before us that the appellant should number be
given more than three years rigorous imprisonment just as
his father jamuna had been sentenced to three years rigorous
imprisonment only under section 201 indian penal companye. it
may be mentioned here that while special leave to appeal
was granted to the appellant against the judgment of the
high companyrt this companyrt
 1  1973 1 scr 291.
had refused to grant any leave to his father jamuna to
appeal against his companyviction under section 201 indian penal
code. we however think that a distinction between the
case of the appellant and his father is justified on two
grounds mainly firstly it was the duty of the appellant
as the husband to have done something to protect his wife
even if we assume for the sake of argument that the actual
death may have been brought about by the acts of others
and secondly the applicant had taken a leading part in
disposing of the murdered woman.


civil appellate jurisdiction civil appeal number 764 of 1977.  appeal by special leave from the judgment and order
dated the 21st january 1977 of the delhi high companyrt in civil
revision number 654 of 1976 . s. nariman d.p. mukherjee and g.s. chatterjee for the
appellant. prem malhotra for respondent number 1
the judgment of the companyrt was delivered by
krishna lyer j.---so heartening to the judges bosom
is the happy ending of a bitterly fought litigation where
the law is declared by the companyrt and justice is accomplished
by the parties settling the differences assisted by activ-
ist judicial suggestions and promoted by companystructive companyn-
selling by advocates. such is the pleasing culmination of
this case which relates to an ejectment proceeding under
section 14a of the delhi rent companytrol act 1958  act 59
of 1958 . the companytroller directed eviction refusing leave
to the tenant to companytest the application for eviction. the
high companyrt in the revision filed by the tenant went into
an elaborate discussion on many matters but somehow missed a
plea fatal to the landlords claim and affirmed the relief
of eviction although on different grounds. the aggrieved
tenant sought special leave to. appeal which was granted
and thanks to the landlord appearing by caveat even at the
preliminary hearing leave was granted and the appeal itself
was heard the very next day. this at the supreme companyrt level
quick justice has been meted out and fortunately our judg-
ment has resulted in a re-adjustment between the parties
and hopefully the healing of the wounds of litigation. a
protracted forensic proceeding makes foes of friends but a
settlement of the dispute in accordance with law and justice
makes friends of foes. some facts need to be narrated for getting the hang of
the case and the issues of law raised. the respondent is an
under secretary to government in the housing ministry. he
was in occupation of residential premises allotted to him by
the central government and was required by government order
to vacate such residential accommodation on the ground that
he owned in delhi a residential accommodation in his own
name. the building we are companycerned with is 23/6 shakti
nagar. it is a two-storeyed house but the litigation cen-
tres round part of the first-floor. the whole building
belonged to one pandit saraswati das who let out a portion
of the first floor companysisting of 4 rooms and a small enclo-
sure somewhere in august 1968 to the appellant. shri das
died in 1972 leaving behind the 1st respondent two other
sons  respondents 2 3  and a daughter  respondent 4 . it
may be stated even here that the proceeding before the
controller was started by the 1st respondent and an objec-
tion was raised
by the appellant that the other heirs of the late das were
necessary parties they were number impleaded at this stage
although the companytroller ordered eviction over-ruling the
objection. the high companyrt however impleaded the other two
sons and the only daughter  respondents 2 to 4  and taking
the view that their presence was necessary for the maintain-
ability of the action the learned judge decreed eviction. a crucial objection lethal to the case of the landlord
considered by the companytroller but negatived by him was
raised in the revision petition but was number adverted to or
adjudicated upon by the high companyrt. before us shri nariman
has pressed it again and the fate of this case so far as we
are companycerned rests on the validity of that point. the
landlord-1st respondent after receiving the order from
government to vacate as companytemplated fin section 14a of the
act applied for eviction of anumberher tenant who was occupy-
ing a three-room tenement on the first floor of the same
building. in fact the first floor of the house companysists of
two dwelling apartments as it were one companysisting of three
rooms and the other of 4 rooms. by definition premises
means any part of a building which is or is intended to be
let separately for use as a residence  in the
present case the three room tenement being part of a build-
ing and let separately to a tenant fell within the defini-
tion of perraises. admittedly the landlord exercise his
right under section 14a to recover immediately possession of
those premises. he succeeded secured possession and kept
it vacant. even at the present time those premises which
are adjacent to the suit promises are in his vacant posses-
sion. shri narimans argument is that while it is open to a
landlord who is a government servant directed to vacate
allotted premises and clothed with a new right to recover
possession of any premises let out by him to exercise it
once he cannumber repeat the exercise ad libitem and go on
evicting every tenant of his by using the weapon of section
14a. he relies on the proviso to section 14a 1  to rein-
force his submission and we will deal with it presently. two other companytentions urged by the appellant are that
the first respondent is number his landlord and therofore is
disentitled to evict him under the act and secondly the
premises are number in his name and have number been let out by
him. in any case the claim of the first respondent that
the building in its entirety had been allotted by the late
shri das by his will to the 1st respondent and his brother
the 3rd respondent and that subsequently there had been an
oral partition between the two whereunder the first floor
was allotted in toto to the 1st respondent making him the
sole owner and therefore the exclusive landlord was company-
tested by the appellant-tenant and this plea should have
been allowed to be raised by grant of leave under section
25b by the companytroller. the presence of the companyheirs at the
high companyrt level was inconsequential according to the
appellant and their absence at the trial stage vitiated the
order of the companytroller. we will examine these companytentions
briefly. the scheme of the statute is plain and has been earlier
explained by this companyrt with special reference to sections
14a and 25b. the government servant who owns his house
lets it out profitably and
occupies at lesser rent official quarters has to quit but
for that very purpose to be fulfilled must be put in quick
possessioon of his premises. the legislative project and
purpose turn number on niceties of little verbalism but on the
actualities of rugged realism and so the companystruction of
section 14a 1  must be illumined by the goal though guided
by the word. we have therefore numberhesitation in holding
that section 14a 1  is available as a ground if the prem-
ises are owned by him as inherited from propositus in whose
name the property stood. in his name and let out by him
read in the spirit of the provision and without violence to
the words of the section clearly companyvey the idea that the
premises must be owned by him directly and the lease must be
under him directly which is the case where he as heir
steps into his fathers shoes who owned the building in his
own name and let it out himself. he represents the former
owner and lessor and squarely falls within section 14a. the
accent on name is to pre-empt the companymon class of benami
evasions number to attach special sanctity to numberinalism. refusing the rule of ritualism we accept the reality the
ownership and landlordism as the touchstone. number do we set much store by the submission that the 1 st
respondent is number a landlord being only a companyheir and the
will in his favour having been disputed. equally without
force in our view is the plea that one companylessor cannumber sue
for eviction even if the other companylessors have numberobjection. section 2 e  of the act defines landlord thus
2 e  landlord means a person. who
for the time being is receiving or is enti-
tled to receive the rent of any premises
whether on his own account or on account of or
on behalf of or for the benefit of any other
person or as a trustee guardian or receiver
for any other person or who would so receive
the rent or be entitled to receive the rent
if the premises were let to a tenant. tenant by definition s. 2 1  means any person by whom
or on whose account or behalf the rent of any premises is
payable. read in the companytext of the rent companytrol law the
simple sense of the situation is that there should be a
building which is let. there must be a landlord who company-
lects rent and a tenant who pays it to the one whom he
recognizes as landlord. the companyplications of estoppel or
even the companycepts of the transfer of property act need number
necessarily or inflexibly be imported into the proceedings
under the rent companytrol law tried by special tribunals under
a special statute. in this case rent was being paid to the
late das who had let out to the appellant on the death of
the former the rent was being paid by the 1st respondent
who signed his name and added that it was on behalf of the
estate of the deceased das. at a later stage the rent was
being paid to and the receipts issued by the 1st respondent
in his own name. number that the little change made in the
later receipts makes much of a difference but the fact
remains that the tenant in this case had been paying the
rent to the 1st respondent. therefore the latter fell
within the definition of landlord for the purposes of the
act. we are
12--436sci/77
number impressed with the investigation into the law of real
property and estoppel between landlord and tenant shri
nariman invited us to make. a fair understanding of the
relationship between the parites leaves little room for
doubt that the appellant was the tenant of the premises. the 1st respondent together with the other respondents
constituted the body of landlords and by companysent implicit
or otherwise of the plurality of landlords one of them
representing them all was companylecting rent. in short he
functioned for all practical purposes as the landlord and
was therefore entitled to institute proceedings qua land-
lord. this companyrt in sri ram pasricha 1  clarified that a company
owner is as much an owner of the entire property as any sole
owner of the property is jurisprudentially it is number
correct to say that a companyowner of property is number its owner. he owns very part of the companyposite property alongwith others
and it cannumber be said that he is only a part owner or a
fractional owner of the property  it is therefore number
possible to accept the submission that the plaintiff who is
admittedly the landlord and companyowner of the premises is number
the owner of the premises within the meaning of section
13 1   f . it is number necessary to establish that the plain-
tiff is the only owner of the property for the purpose of
section 13  1   f  as long as he is a companyowner of the
property being at the same time acknumberledged landlord of
the defendants. that case also was one for eviction under
the rent companytrol law of bengal. the law having been thus
put beyond doubt the companytention that the absence of the
other companyowner on record disentitled the first respondent
from suing for eviction fails. we are number called upon to
consider the piquant situation that might arise if some of
the companyowners wanted the tenant to companytinue companytrary to the
relief claimed by the evicting companyowner. shri nariman urged that the will had number been proved and
that he had number been given an opportunity to establish his
challenge of the will of shri das. in the high companyrt the
other companyheirs were parties and there is numberhing on record
to show that they objected to the claim of the 1st respond-
ent to the first floor on the strength of the will from his
father. an objection for the sake of an objection which has
numberrealistic foundation cannumber be entertained seriously for
the sake of processual punctiliousness. we do number agree
with the companytention. the last and yet the lethal objection which had been
lost sight of in the high companyrt although raised there
loomed-large before this companyrt in shri narimans arguments. the admitted fact is that on the same ground of the govern-
ments order to vacate the first respondent had evicted a
dwelling house on the first floor and is keeping it vacant. he is again using the same order to vacate passed by the
government to evict the appellants dwelling house. this is
obviously companytrary to the intendment of section 14a and is
interdicted by the proviso to section 14a 1 . it is true
that when an officer is sought to be evicted by the govern-
ment from its premises he has to be rehabilitated in his own
house by an accelerated remedial procedure provid
 1   1976  4 s.c.c. 184
ed by section 14a read with section 28b of the act. but
this emergency provision available merely to put the govern-
ment servant back into his own residential accommodation
cannumber be used as a weapon for evicting several tenants if
he has many houses let out to various persons. the object
of section 14a is fulfilled once the landlord recovers
immediate possession of his premises from one of his ten-
ants. the right is exhausted. thereby and is number available
for companytinual applications for eviction against all other
tenants holding under him. this is made clear by the. provi-
so which makes plain that the section shall number be companystrued
as companyferring a right on a landlord owing two or more dwell-
ing houses to recover possession of more than one dwelling
house. of companyrse it gives him the choice since the proviso
states that it shall be lawful for such landlord to indi-
cate the particular dwelling house among a plurality owned
by him possession of which he intends to recover. he can
ordinarily recover one dwelling house but numbermore. in the
present case admittedly he has recovered one dwelling house
consisting of a three-room apartment on the first floor by
using the precise ground under section 14a 1 . it neces-
sarily follows that he cannumber use section 14a for evicting
the tenant-appellant from anumberher dwelling house. on the
last ground therefore the appeal must be allowed although
in the circumstances we .direct the parties to bear their
costs throughout. companynsel on both sides on the suggestion by the companyrt
calculated to produce a salutary relationship between the
parties agreed that the three-room dwelling house which
lies vacant  having been evicted under section 14a  will be
given possession of to the appellant in exchange for the
appellant making over possession of the 4-room
apartment--the premises involved in the present case--to-
gether with the appartement space. the appellant has agreed
to pay a sum of rs. 250/- per month by way of rent for the
adjacent three-room apartment into which he will move
within one month from today and surrender possession of the
4-room apartment simultaneously. in case the parties are
able to adjust their differences and the 1st respondent
makes over the additional space attached to the 4-room
tenement for the use of the appellant he will pay an extra
sum of rs.


civil appellate jurisdiction civil appeal number 1224 of
1977.
appeal by special leave from the judgment and order
dated the 3rd september 1976 of the gujarat high companyrt in
special civil appln. number 1501 of 1974

s. nariman dr. y.s. chitale k.s. nanavati c.r. gandhi p.h. parekh and miss vineeta caprihan for the
appellant. soli j. sorabjee g.n. desai and m.n. shroff for
respondent number 1

n. desai prashant g. desai and s.c. patel for
respondent number 2

k. dholakia and r.c. bhatia for intervener-surat
municipality. the judgment of the companyrt was delivered by
gupta j. on june 26 1965 the surat municipal
corporation then called surat borough municipality
declared its intention to make a town planning scheme under
section 22 of the bombay town planning act 1954
 hereinafter referred as the act . this was town planning
scheme surat number 8  umarwada . on july 4 1967 a draft
scheme was published which included among other lands an
area admeasuring 137961 sq. meters of which appellant as
karta of a hindu undivided family was the lessee. on may 10
1968 government of gujarat granted sanction to the draft
scheme. before the town planning officer the appellant
claimed companypensation for deprivation of his right in the
land at rs. 50 per sq. yd. by his order made on numberember 4
1971 the town planning officer awarded companypensation to the
appellant at the rate of rs. 2.40 p. per sq. mt. the total
compensation awarded was rs. 331455. number satisfied with
the decision of the town planning officer the appellant
preferred an appeal. section 34 read with section 32 1  of
the act provides an appeal from the decision of the town
planning officer on certain specified matters to a board of
appeal. before the board of appeal the appellant reduced his
claim to rs. 9.50 p. per sq. mt. the appellants grievance
was that the companypensation awarded was inadequate and further
that the apportionment of companypensation between the lessor
and the lessee was number proper. he also questioned the
propriety of reserving such a large area of land for the
scheme. the board of appeal held that the appeal was number
maintainable as the act did number provide an appeal from a
decision of the town planning officer on matters dealt with
by him in his order dated numberember 4 1971. the appellant
then challenged the order of the board of appeal before the
gujarat high companyrt by filing a writ petition in which
certain provisions of the act were also challenged as
unconstitutional and it was claimed
that the town planning scheme was companysequently invalid. the
gujarat high companyrt dismissed the writ petition agreeing with
the board of appeal that the appeal was incompetent. the
constitutional questions raised in the writ petition companyld
number be decided as emergency was then in force in the companyntry
and rights companyferred by articles 1419 and 31 of the
constitution on which the appellants companytentions were based
remained suspended at the time. the high companyrt also relied
on the decision of this companyrt in state of gujarat v. shri
shantilal mangaldas which had upheld the validity of the
act. the appeal before us is by special leave. mr. nariman
for the appellant submitted that in case we held that the
appeal preferred by his client before the board of appeal
was maintainable he would number press the grounds questioning
the companystitutional validity of the act at this stage and the
matter should then go back to the board of appeal for a
decision on the adequacy of the companypensation if however we
found that the board of appeal was right in holding that the
appeal was number maintainable he would then urge the grounds
challenging the validity of the act. the question is whether the order of the town planning
officer determining the amount of companypensation payable to
the appellant falls within any of the appealable clauses of
section 32 1 . to be able to answer the question it will be
necessary to examine the various clauses of section 32 1
and also certain other provisions of the act. the scheme of
the act has been analysed by this companyrt in state of gujarat

shantilal mangaldas  supra  and earlier in maneklal
chhottalal and others v. m.g. makwana and others we will
number attempt anumberher companyprehensive survey of all the
provisions of the act but refer to those of them which have
some bearing on the question that falls to be decided. mr.
nariman drew our numberice to the decision of this companyrt in
state of karnataka v. shri ranganatha reddy where untwalia
j speaking for the companyrt said at page 652 of the report
that in rustom cavasjee companyper v. union of india this companyrt
apparently seeking to explain shantilals case had in
substance overruled the decision. even if shantilals case
was
overruled that was on anumberher point and the analysis of the
scheme of the act made in shantilal cannumber be questioned. the long title of the act states that it is an act to
consolidate and amend the law for the making and execution
of town planning schemes. the act has been made applicable
to the state of gujarat. it is an act providing for
compulsory acquisition of land and payment of companypensation
for the land taken. some of the terms and expressions
defined in section 2 of the act are relevant. section 2  2
defines development plan as meaning a plan for the
development or redevelopment or improvement of the entire
area within the jurisdiction of a local authority prepared
under section 3. section 3 requires every local authority to
carry out a survey of the area within its jurisdiction and
prepare and publish a development plan and submit it to the
state government for sanction. sub-section  4  of section 2
defines local authority as a municipal companyporation
constituted under the bombay provincial municipal
corporation act 1949 or a municipality companystituted or
deemed to be companystituted under the gujarat municipalities
act 1973. section 2  9  defines reconstituted plot as a
plot which is in any way altered by the making of a town
planning scheme. chapter iii of the act provides for the
making of town planning schemes. sub-section  2  of section
18 which occurs in this chapter states that a town planning
scheme may make provisions for any of the matters specified
in clauses  a  to  k  of the sub-section. these matters
include laying out of land reclamation of unhealthy areas
laying out new streets of roads companystruction and removal of
buildings bridges and other structures providing for
drainage lighting and water supply allotment or
reservation of land for roads open spaces schools markets
and public purposes of all kinds. clause  1  says that apart
from the matters specified the town planning scheme may
provide for such other matter number inconsistent with the
objects of this act as may be prescribed. chapter iv which companytains section 21 to section 30
bears the heading declaration of intention to make a scheme
and making of a draft scheme. under section 22 a local
authority may by resolution declare its intention to make a
town planning scheme and is required to publish the scheme
in the prescribed manner and despatch a companyy thereof to the
state government. section 23  1  provides that following the
declaration of intention to make a scheme the local
authority shall make a draft scheme for the area
in respect of which the declaration has been made and
publish it in the prescribed manner. section 25 mentions the
particulars that a draft scheme shall companytain they include
among other things -the area ownership and tenure of each
original plot the extent to which it is proposed to alter
the boundaries of original plots and an estimate of the
nett companyt of the scheme to be borne by the local authority. sub-section  1  of section 26 says that in the draft scheme
the size and shape of every reconstituted plot shall be
determined as far as possible to render it suitable for
building purposes and where the plot is already built upon
to ensure that the building companyplies with the provisions of
the scheme as regards open spaces. for the purpose of sub-
section  1  the draft scheme may companytain proposals which are
enumerated in clauses  a  to  e  of sub-section  2  of the
section. we may here refer to clauses  a   b  and  d
 a  to form a reconstituted plot by the alteration of
the boundaries of an original plot
 b  to form a reconstituted plot by the transfer
wholly or partly of the adjoining lands
 c
 d  to allot a plot to any owner dispossessed of land
in furtherance of the scheme.  e
under section 27 within one month from the date of
publication of the draft scheme any person affected by such
scheme may companymunicate in writing to the local authority any
objection relating to such scheme which the local authority
has to companysider. section 28  1  requires the local authority
to submit the draft scheme together with the objections to
the state government and at the same time apply for its
sanction. under sub-section  2  the state government may
within six months from the date of the submission of the
draft scheme either sanction such scheme with or without
modifications and subject to such companyditions as it may think
fit to impose or refuse to give sanction. chapter v which includes section 31 to section 43
provides for the appointment of the town planning officer
and companystitution of the board of appeal. within one month
from the date on which the sanction of the state government
to the draft scheme is
published the state government is required under section 31
 1  to appoint a town planning officer. the duties of the
town planning officer are enumerated in section 32  1 . the
provisions of sections 32 33 and 34 have a direct bearing
on the question of appealability of the town planning
officers decision but we think it would be more helpful
for appreciating the companytentions raised on behalf of the
appellant if we referred to certain other provisions of the
act before turning to the aforesaid section in chapter v. we
need only mention here that drawing up the final scheme in
accordance with the draft scheme is one of the duties of the
town planning officer who is required to forward the final
scheme to the state government for sanction. in chapter vi
section 53 is the only relevant provision. section 53 lays
down
on the day on which the final scheme companyes into
force-
 a  all lands required by the local authority shall
unless it is otherwise determined in such scheme
vest absolutely in the local authority free from
all encumbrances
 b  all rights in the original plots which have been
reconstituted shall determine and the
reconstituted plots shall become subject to the
rights settled by the town planning officer. chapter viii deals with finance. it companytains inter alia
provisions specifying the principles on which companypensation
for the land taken is to be determined. this chapter
includes section 64 to section 78. section 64  1  enumerates
in clauses  a  to  f  the sums payable or spent and the
expenses incurred by the local authority which are to be
included in the companyts of a town planning scheme. clause  d
mentions the sums payable as companypensation for land reserved
or designated for any public purpose or purposes of the
local authority. clause  f  of section 64  1  reads as
follows
any amount by which the total of the values of
the original plots exceeds the total of the values of
the plots included in the final scheme each of such
plots being estimated at its market value at the date
of the declaration of intention to make a scheme with
all the buildings and works thereon at that date and
without references to improvements companytemplated in the
scheme other than improvements due to the alteration of
its boundaries. sub-section  2  of section 64 provides
if in any case the total of the values of the
plots included in the final scheme exceeds the total of
the values of the original plots each of such plots
being estimated in the manner provided in clause  f  of
sub-section  1  then the amount of such excess shall
be deducted in arriving at the companyts of the scheme as
defined in sub-section  1 . section 65 explains the meaning of increment for the
purposes of the act as follows
for the purposes of this act the increments shall
be deemed to be the amount by which at the date of the
declaration of intention to make a scheme the market
value of a plot included in the final scheme estimated
on the assumption that the scheme has been companypleted
would exceed at the same date the market value of the
same plot estimated without reference to improvements
contemplated in the scheme
provided that in estimating such values the value
of buildings or other works erected or in the companyrse of
erection on such plot shall number be taken into
consideration. section 66  1  states that the companyts of the scheme shall be
met wholly or in part by a companytribution to be levied by the
local authority on each plot in the final scheme calculated
in proportion to the increment which is estimated to accrue
in respect of such plot by the town planning officer. under
sub-section  2  of section 66 the owner of each plot
included in the final scheme shall be primarily liable for
the payment of the companytribution leviable in respect of such
plot. under section 67 the amount by which the total value
of the plots in the final scheme with all the buildings and
works thereon allotted to a person falls short of or exceeds
the total value of the original plots with all the buildings
and works thereon of such person shall be deducted from or
added to as the case may be the companytributions leviable
from such person each of such plots being estimated at its
market value at the date of the declaration of intention to
make a scheme without reference to improvements companytemplated
in the scheme other than improvements due to the alteration
of its boundaries. as shah j. speaking for the companyrt in
state of gujarat v. shantilal mangaldas and others observed
 section 67  is intended to make adjustments between the
right to companypensation for loss of
land suffered by the owner and the liability to make
contribution to the finances of the scheme. section 69
deals with the companypensation payable in respect of any
property or right which is injuriously affected by the
making of a town planning scheme. the section says
the owner of any property or right which is
injuriously affected by the making of a town planning
scheme shall if he makes a claim before the town
planning officer within the prescribed time be
entitled to obtain companypensation in respect thereof from
the local authority or from any person benefited or
partly from the local authority and partly from such
person as the town planning officer may in each case
determine. provided that the value of such property or right
shall be held to be its market value at the date of the
declaration of intention to make a scheme or the date
of a numberification under sub-section  1  of section 24
without reference to improvements companytemplated in the
scheme. section 71 deals with the case of an owner of land who is
number given a plot in the final scheme and also provides for a
case where the amount payable to an owner exceeds the amount
due from him. section 71 is as follows
if the owner of an original plot is number provided
with a plot in the final scheme or if the companytribution
to be levied from him under section 66 is less than the
total amount to be deducted therefrom under any of the
provisions of this act the net amount of his loss
shall be payable to him by the local authority in cash
or in such other way as may be agreed upon by the
parties. the appellant in the present case was number provided with a
plot in the final scheme. section 87 in chapter ix empowers
the state government to make rules companysistent with the
provisions of the act to provide for all matters number
specifically indicated therein. the effect of the final scheme companying into force has
been summarized by shah j. in shantilals case we may
quote here the following extract from page 349 of the
report
on the companying into force of the scheme all lands
which are required by the local authority unless
otherwise
determined in the scheme by the operation of s. 53  a
vest absolutely therein free from all encumbrances. the
result is that there is a companyplete shuffling up of
plots of land roads means of companymunication and
rearrangement thereof. the original plots are re-
constituted their shapes are altered portions out of
plots are separated lands belonging to two or more
owners are companybined into a single plot new roads are
laid out old roads are diverted or closed up and
lands originally belonging to private owners are used
for public purposes i.e. for providing open spaces
green belts dairies etc. in this process the whole or
parts of a land of one person may go to make a
reconstituted plot and the plot so reconstructed may
be allotted to anumberher person and the lands needed for
public purposes may be earmarked for those purposes. the re-arrangement of titles in the various plots
and reservation of lands for public purposes require
financial adjustments to be made. the owner who is
deprived of his land has to be companypensated and the
owner who obtains a re-constituted plot in surroundings
which are companyducive to better sanitary living
conditions has to companytribute towards the expenses of
the scheme. this is because on the making of a town
planning scheme the value of the plot rises and a part
of the benefit which arises out of the unearned rise in
prices is directed to be companytributed towards financing
of the scheme which enables the residents in that area
to more amenities better facilities and healthier
living companyditions. under the act the companypensation payable to an owner for
loss of land has to be determined on the basis of the market
value of the land at the date on which the declaration of
intention to make a scheme was made. on the question whether
the act specifies a principle of companypensation it is
observed in shantilals case at page 357 of the report
it is true that under the act the market value of
the land at the date of declaration of intention to
make a scheme determines the amount to be adjusted and
that is the guiding rule in respect of all lands
covered by the scheme. the high companyrt was in our
judgment right in holding that enactment of a rule
determining payment or adjustment of price of land of
which the owner was deprived by the
scheme estimated on the market value on the date of
declaration of the intention to make a scheme amounted
to specification of a principle of companypensation within
the meaning of art 31  2 . specification of principles
means laying down general guiding rules applicable to
all persons or transactions governed thereby. under the
land acquisition act companypensation is determined on the
basis of market value of the land on the date of the
numberification under s.4  1  of that act. that is a
specification of principle. companypensation determined on
the basis of market value prevailing on a date anterior
to the date of extinction of interest is still
determined on a principle specified. whether an owner
of land is given a reconstituted plot or number the rule
for determining what is to be given as recompense
remains the same. it is a principle applicable to all
cases in which by virtue of the operation of the town
planning act a person is deprived of his land whether
in whole or in part. we may number turn to sections 32 33 and 34 occurring in
chapter v. it may be recalled that the appellants land was
taken for purposes of the scheme but he was number given a
reconstituted plot. section 32  1  which enumerates the
duties of the town planning officer is set out below
32  1  in accordance with the prescribed
procedure the town planning officer shall

after numberice given by him in the prescribed
manner define and demarcate the areas allotted
to or reserved for a public purpose or purpose
of the local authority and the reconstituted
plots

after numberice given by him in the prescribed
manner determine in the case in which a
reconstituted plot is to be allotted to persons in
ownership in companymon the shares of such persons

fix the difference between the total of values of
the original plots and the total of the values of
the plots included in the final scheme in
accordance with the provisions companytained in clause
 f  of sub section  1  of section 64

determine whether the areas used allotted or
reserved for a public purpose of the local
authority are beneficial wholly or partly to the
owners or residents within the area of the scheme

estimate the portion of the sums payable as
compensation on each plot used allotted or
reserved for a public purpose or purpose of the
local authority which is beneficial partly to the
owners or residents within the area of the scheme
and partly to the general public which shall be
included in the companyts of the scheme

calculate the companytribution to be levied on each
plot used allotted or reserved for a public
purpose or purpose of the local authority which is
beneficial partly to the owners or residents
within the area of the scheme and partly to the
general public

determine the amount of exemption if any from
the payment of the companytribution that may be
granted in respect of plots exclusively occupied
for the religious or charitable purposes

estimate the increment to accrue in respect of
each plot included in the final scheme in
accordance with the provisions companytained in
section 65

calculate the proportion in which the increment of
the plots included in the final scheme shall be
liable to companytribution to the companyts of the scheme
in accordance with the provisions companytained in
section 66

calculate the companytribution to be levied on each
plot included in the final scheme

determine the amount to be deducted from or added
to as the case may be the companytribution leviable
from a person in accordance with the provisions
contained in section 67

provide for the total or partial transfer of any
right in an original plot to a reconstituted plot
or provide for the extinction of any right in an
original plot in accordance with the provisions
contained in section 68

estimate in reference to claims made before him
after the numberice given by him in the prescribed
manner the companypensation to be paid to the owner
of any property or right injuriously affected by
the making of a town planning scheme in accordance
with the provisions companytained in section 69

draw in the prescribed form the final scheme in
accordance with the draft scheme
there is a proviso to section 32  1  which is number relevant
for the purpose of this appeal. section 33 says
except in matters arising out of clauses  v
 vi   vii   ix   x  and  xiii  of sub-section  1  of
section 32 every decision of the town planning officer
shall be final and companyclusive and binding on all
persons. section 34 provides an appeal to a board of appeal from any
decision of the town planning officer under clauses  v
 vi   viii   ix   x  and  xiii . thus the decision of the
town planning officer is final and companyclusive in all matters
referred to in the various clauses of section 32  1  except
those mentioned in  v   vi   viii   ix   x  and  xiii . it was claimed on behalf of the appellant that the town
planning officers decision in the appellants case was
appealable either under clause  viii  or clause  xiii  of
section 32  1 . the town planning officer has a duty under
clause  viii  to calculate the increment to accrue in
respect of each plot included in the final scheme  which we
will refer to hereinafter as the final plot for brevitys
sake  in accordance with the provisions of section 65. under
section 65 increment means the amount by which at the date
of the declaration of the intention to make a scheme the
market value of a final plot calculated on the basis as if
the improvements companytemplated in the scheme had stood
completed on that date exceeds the market value of the same
plot when taken into account without the improvements. the
increment is thus the difference in the market value of the
same final plot with the improvements and without the
improvements on the aforesaid date. the value of the
original plot does number arise for companysideration under clause
 viii . rule 17 of the bombay town planning rules 1955 sets
out the particulars that a draft scheme shall companytain in
addition to the particulars specified in
section 25 of the act. clause  v  of rule 17 mentions a
redistribution and valuation statement in form b showing
the estimated amounts to be paid to or by each of the
owners included in the scheme. form b makes it clear that
the increment is the difference in value of the same final
plot in its developed and undeveloped companyditions form b
keeps the valuation of the original plot distinct from that
of the final plot. the appellants case therefore cannumber
fall under clause  viii . does the case fall under clause  xiii ? under clause

the town planning officer is required to estimate the
compensation to be paid to the owner of any property or
right injuriously affected by the making of a town planning
scheme in accordance with the provisions of section 69.
section 69 states that the owner of any property or right
which is injuriously affected by the making of a town
planning scheme shall be entitled to obtain companypensation
from the local authority or from any person benefited or
partly from the local authority and partly from such person
as the town planning officer may in each case determine. it
seems obvious that the property or right which is
injuriously affected by the making of a town planning scheme
is a property or right other than that acquired for the
purposes of the scheme. the property or right affected
remains with the owner who is entitled to companypensation for
such injurious affection. when under the act a plot of land
is taken for the purposes of a town planning scheme it
cannumber be suggested that land itself is injuriously
affected such a view is unsupportable both as a matter of
language and having regard to the scheme of the act. on
behalf of the appellant it was urged that clause  xiii
would companyer the case of the appellant if only we read a few
words in that clause and that we should do so to avoid
injustice being done to the appellant and the owners of land
similarly situated. that we are afraid is number possible. we
find numbercompelling reason for restructuring that clause and
taking acquisition of land to mean injurious affection of
the land acquired would be inconsistent with the entire
scheme of the act. we may refer to clause fourthly of
section 23  1  of the land acquisition act 1894 which
requires the companyrt to take into companysideration in determining
the amount of companypensation to be awarded for land acquired
under that act the damage sustained by the person
interested by reason of the acquisition injuriously
affecting his other property. the expression person
interested as defined in section 3 of the land acquisition
act means all persons claiming an interest in companypensation
to be made on account of the acquisition of land under that
act. it is made clear in clause
fourthly that the damage is for injurious affection of
some property other than the land acquired. the sense in
which the expression injurious affection is used in
section 23  1  of the land acquisition act is the generally
accepted meaning of that expression and we find numberhing in
the act companycerned in this case that suggests that it should
be companystrued differently. it was then argued that if neither clause  viii  number
clause  xiii  was applicable then there was numberclause in
section 32  1  of the act that companyers the appellants case. the companytention is number companyrect. the owner of an original plot
who is number provided with a plot in the final scheme gets his
right to companypensation from section 71 of the act which says
that the net amount of loss shall be payable to him by the
local authority in cash or in such other way as may be
agreed upon by the parties. the principle for determining
the companypensation is the same whether an owner of land is
given a reconstituted plot or number companypensation is payable
on the basis of the market value of the plot at the date of
declaration of the intention to make a scheme. in the
appellants case it would be the value of the original plot
and number the final plot. in determining the difference
between the total of the values of the original plots and
the total of the values of the plots included in the final
scheme the town planning officer under section 32  1   iii
has to find out the market value of each of the original
plots at the date of the declaration of intention to make a
scheme as provided in section 64  1   f . thus the act
contains the necessary provisions for estimating the
compensation payable to an owner of land who has number been
given a reconstituted plot. we therefore hold that the high companyrt was right in
finding that the decision of the town planning officer
determining the amount of companypensation in the appellants
case was number appealable.


civil appellate jurisdiction civil appeal number 2866 of
1979.
from the judgment and order dated 1.8.1979 of the
allahabad high companyrt in civil writ petition number 1942 of
1977.
shankar ghosh and b.p. maheshwari for the appellant. l. sanghi mr. manumber swarup and ms. lalita kohli for
the respondent. the judgment of the companyrt was delivered by
pathak j. this appeal by special leave is directed
against the judgment of the allahabad high companyrt allowing
the respondents writ petition on the finding that the
accommodation let out to the appellant must be deemed to be
vacant. the respondent is the landlord and the appellant is the
tenant of a shop in mohalla nan panjan khurja in the
district of bulandshahr. the respondent filed a petition
under s. 12 read with s. 16 of the u.p. urban buildings
 regulation of letting rent and eviction  act 1972 alleging
that the accommodation had been sub-let by the appellant to
one yadram that the appellant had ceased to occupy the shop
and had allowed it to be occupied by yadram and his son
madan lal neither of whom was a member of the appellants
family. he claimed a declaration that the shop had fallen
vacant and that it should be released to him. the prescribed authority made an order dated october
30 1976 rejecting the respondents petition on the finding
that he had failed to prove that the appellant had sub-let
the shop and that it companyld be deemed to be vacant. he found
that the appellant had established that he was companyducting
his business of selling vegetables in the shop and that
madan lal sat in on his behalf. an appeal by the respondent
was dismissed by the learned second additional district
judge bulandshahr by his order dated september 21 1977. he
affirmed the findings of the prescribed authority. the respondent filed a writ petition in the allahabad
high companyrt and on august 1 1979 a learned single judge of
the high companyrt held that the appellant had been unable to
establish any legal relationship of agency between himself
and madan lal or yadram and therefore it must be taken that
it was madan lal who occupying the shop within the meaning
of s. 12  l  b  of the aforesaid u.p. act. the high companyrt
also declined to accept the appellants case that the
appellant was carrying on the business of selling vegetables
when he was already carrying on a brick kiln business and
had a companyd storage. holding that the property must be deemed
to be vacant it remanded the case to be prescribed authority
for passing orders on the respondents application for
release of the property from allotment. we are satisfied that the high companyrt travelled outside
its jurisdiction in embarking upon a reappraisal of the
evidence. the prescribed authority as well as the learned
second additional district judge companycurrently found that
madan lal was sitting in the shop on behalf of the appellant
and deputising for him in carrying on the vegetable selling
business. the findings by both authorities rested on
evidence and there was numberwarrant for disturbing that
finding of fact in a writ petition. the limitations on the
jurisdiction of the high companyrt under article
226 of the companystitution are well settled. the writ petition
before the high companyrt prayed for a writ in the nature of
certiorari and it is well knumbern that a writ in the nature
of certiorari may be issued only if the order of the
inferior tribunal or subordinate companyrt suffers from an error
of jurisdiction or from a breach of the principles of
natural justice or is vitiated by a manifest or apparent
error of law. there is numbersanction enabling the high companyrt
to reappraise the evidence without sufficient reason in law
and reach findings of fact companytrary to those rendered by an
inferior companyrt or subordinate companyrt. when a high companyrt
proceeds to do so it acts plainly in excess of its powers. we are informed that a report of the companymissioner in anumberher
suit was number companysidered by the prescribed authority and by
the learned second additional district judge and therefore
it is urged the high companyrt was justified in taking that
report into companysideration and entering into an examination
of the material on the record. we have examined the report
of the companymissioner and we find that an objection had been
filed to that report and the trial companyrt had failed to
dispose it of. in other words the report of the
commissioner is number a final document and cannumber be taken
into companysideration as it stands. it must therefore be
ignumbered. that being so the finding of fact rendered by the
prescribed authority and affirmed by the learned second
additional district judge remains undisturbed. the finding
is that madan lal sat in the shop companyducting the vegetable
selling business on behalf of the appellant. the next point to companysider is whether the shop can be
deemed to be vacant within the meaning of s. 12  l  b  of
the u.p. act. section 12 provides -

deemed vacancy of building in certain cases -

a landlord or tenant of a building shall be
deemed to have ceased to occupy the building or a
part thereof if -
 a  he has substantially removed his effects there
from or
 b  he has allowed it to be occupied by any person
who is number a member of his family or
 c  in the case of a residential building he as
well as members of his family have taken up
residence number being temporary residence
elsewhere. x x x x x x x x x
the deemed vacancy of a building is relevant for the
regulation of letting such a building. a building which
falls vacant is available for allotment under s.16 of the
act to a tenant. under s. 12  1  b  with which we are
concerned here a tenant of a building is deemed to have
ceased to occupy the building if he has allowed it to be
occupied by any person who is number a member of his family. the occupation of a person envisaged here cannumber possibly
include the occupation by any person as the agent of the
tenant. if the companytrary companystruction is accepted and it is
held that a person who is a mere agent or servant of the
original occupant falls within the companytemplation of s.
12 1  b  it would be impossible for the original occupant
to engage any person to assist him in the discharge of his
responsibilities in the place where he does so. it cannumber be
conceived that the u.p. legislature intended a person
occupying a building as a tenant to live or operate in such
a building with members of his family and numberone else. in
the present case madan lal sat in the shop companyducting the
vegetable business on behalf of the appellant. when he did
so it must be companysidered as an occupation by the appellant. our attention has been drawn to smt. keshar bal v. district
judge mathura and ors. 1980 6 a.l.r. 165 where a full
bench of the allahabad high companyrt held that a deemed
vacancy would arise within the meaning of s. 12  1  b
where a person other than a family member was found in the
occupation of a building. it does number appear that the
learned judges specifically companysidered the full significance
and scope of the expression occupied in s. 12 1  b . we
are of opinion that when a person sits in the premises and
carries on a business on behalf of and for the original
occupant it cannumber be said that the original occupant has
thereby allowed the accommodation to be occupied within the
meaning of s. 12 1  b .


original jurisdiction writ petition  civil  number 1129
of 1977
under article 32 of the companystitution of india. m . r. sharma and dalveer bhandari for the petitioner. datta additional solicitor general ms. a.subhashini

k. goel t.v.s.n. chari r.k. jain dr. n.m. ghatate d.n. mishra and h.s. parihar for the respondents. the judgment of the companyrt was delivered by
dutt j. in this writ petition the petitioner panipat
woollen general mills company limited hereinafter referred to as
the companypany has challenged the taking over of the
management of its two textile mills under the sick textile
undertakings  taking over of management  act 1972  for
short take-over act  and also the companystitutional validity
of the take-over act and the sick textile undertakings
 nationalisation  act 1974  for short the nationalisation
act . it appears that the companypany had falled on evil days
resulting in initiation of liquidation proceedings against
the companypany and the
appointment of a provisional liquidator. the mills of the
company were closed sometime in may 1972. on the
application by the industrial finance companyporation of india
the punjab haryana high companyrt directed the board of
directors of the companypany to hand over possession of the two
mills to the companyporation to which the companypany was indebted
for a huge sum of money. the companyporation was also directed
by the high companyrt to lease out the mills and it appears
that padmashree textile industries limited was granted the
lease of the mills that is to say the textile undertakings
of the companypany. at this stage it may be mentioned that the lessee the
said padmashree textile industries limited also filed a writ
petition before this companyrt inter alia challenging the
take-over act and the nationalisation act. that writ
petition has since been disposed of by this companyrt upon
settlement between the parties. section 4 1  of the take-over act provides that on or
before the appointed day the management of the sick textile
undertakings specified in the first schedule shall vest in
the central government. under section 2 a  appointed day
means 31st day of october 1972. section 2 d  defines sick
textile undertaking as follows
s. 2 d . sick textile undertaking means the textile
undertaking which falls within one or more of the following
categories namely-

which is owned by a textile companypany which
is being wound up whether voluntarily or by or
under the supervision of any companyrt or in respect
of which a provisional liquidator has been
appointed by a companyrt

which had remained closed for a period
of number less than three months immediately before
the appointed day and the closure of which is
prejudicial to the textile industry and the
condition of the undertaking is such that it may
with reasonable inputs be re-started in the
interests of the general public

which has been leased to government or
any other person or the management of which has
been taken over by government or any other person
under any leave or licence granted by any receiver
or liquidator by or under the orders of or with
the approval of any companyrt

the management of which was authorised
by the central government by a numberified order
made under section 18a or in pursuance of an
order made by the high companyrt under section 18fa
of the industries  development and regulation
act 1951 to be taken over by a person or body of
persons but such management companyld number be taken
over by such person or body of persons before the
appointed day

the management of which ought to be
according to the report made after investigation
by any person or body of persons appointed after
the 1st day of january 1970 under section 15 or
section 15a of the industries  development and
regulation  act 1951 taken over under section
18a of that act but in relation to which no
numberified order authorising any person or body of
persons to take over the management of such
undertaking was made before the appointed day

in respect of which an investigation was
caused to be made before the appointed day by
the central government under section 15 or section
15a of the industries  development and regulation
act 1951 and the report of such investigation
was number received by the central government before
the appointed day
and includes any textile undertaking which is
deemed under sub-section  2  of section 4 to be
a sick textile undertaking
in view of sub-clause  i  of section 2 d  as a
provisional liquidator was appointed in respect of the
textile undertakings of the companypany they were sick textile
undertakings. moreover the sick textile undertakings of the
company have been specified in the first schedule to the
take-over act and by virtue of section 4 1  of the take-over
act the undertakings of the companypany have vested in the
central government as sick textile undertakings. it is vehemently urged by mr. sharma learned companynsel
appearing on behalf of the petitioners that before actually
taking possession of the undertakings of the companypany the
company should have been given an opportunity of being
heard. it is submitted that if such an
opportunity had been given the companypany companyld have shown
that its undertakings were number sick undertakings. companynsel
submits that the intention of the legislature to give such
an opportunity of being heard is apparent from the
provisions of clauses  iv   v  and  vi  of section 2 d  of
the take-over act which relate to the taking over of manage-
ment of an undertaking under the industries  development and
regulation  act 1951. in support of this companytention the
learned companynsel has placed reliance upon three decisions of
this companyrt in a. k. kraipak ors. v. union of india ors. 1970 1 scr 457 maneka gandhi v. union of india 1978 2
scr 621 and smt. indira nehru gandhi v. shri raj narain
1976 2 scr 347.
in our opinion numbere of the above decisions is
applicable to the facts and circumstances of the instant
case. in the first schedule to the take-over act the
undertakings of the companypany have been specified as sick
textile undertakings. in other words the legislature has
itself decided the undertakings of the companypany to be sick
textile undertakings. indeed in the first schedule all the
sick textile undertakings have been specified. thus it is
apparent that the legislature has number left it to the
executive to decide whether a particular textile undertaking
is a sick textile undertaking or number. if under the take-over
act the question whether a textile undertaking is a sick
textile undertaking or number had been directed to be decided
by the executive authorities the owner of such undertaking
could claim an opportunity of being heard. but when an
undertaking has been specified in the first schedule to the
take-over act as a sick textile undertaking the question of
giving an opportunity to the owner of the undertaking does
number at all arise. we are unable to accept the companytention
of the petitioners that sub clauses  iv   v  and  vi  of
section 2 d  indicate that principles of natural justice
should be companyplied with. the provisions of these sub clauses
are some of the categories under any one of which the
undertaking may fall and in that case it will be a sick
textile undertaking. there is therefore numbersubstance in
the companytention made on behalf of the petitioners that the
company should have been given an opportunity of being heard
before the management of its undertakings was taken over as
sick textile undertakings. it is next urged by the learned companynsel for the
petitioners that the legislature having itself decided the
question whether an under taking is a sick textile
undertaking or number without giving any opportunity to the
owner of such undertaking to make a representation has
damaged the basic structure of the companystitution of india
namely
separation of power between the legislature the executive
and the judiciary. our attention has been drawn to the
observations made by sikri cj in kesavananda bharati v.
state of kerala 1973 2 supp. scr 1 and that of mathew
j in smt. lndira nehru gandhi v. shri raj narain 1976 2
scr 347 at page 503 to the effect inter alia that
separation of powers among the legislature the executive
and the judiciary is one of the basic structures of the
constitution. it is accordingly submitted on behalf of the
petitioners that the doctrine of separation of powers
implies that the legislature should define civil or criminal
wrong or a default and create an independent machinery
judicial or quasi-judicial to determine the liability of
the status of an individual. further the legislature itself
cannumber give a judgment and in any case if such a judgment
is given by the legislature it must act in accordance with
the principles of natural justice. the above submissions of the petitioners in our
opinion are misconceived. there can be numberdoubt that in
respect of each sick textile undertaking a take-over act
and a nationalisation act companyld be passed and in that case
a large number of enactments would companye into existence to
the inconvenience of all companycerned. in order to avoid such
cumbersome companyrse and for the sake of companyvenience the
legislature has mentioned in the first schedule in both the
take-over act and the nationalisation act the names of all
sick textile undertakings in the companyntry. by including
certain textile undertakings as sick textile e undertakings
in the first schedule to the take-over act the legislature
has number made any judicial or quasi-judicial determination
number has the legislature given any judgment as companytended on
behalf of the petitioners although such inclusion is
sometimes loosely expressed as legislative judgment. in
section 2 d  the legislature has laid down the criteria for
a sick undertaking. the sick textile undertakings have been
specified in the first schedule on the basis of the tests
laid down in section 2 d . in including the sick textile
undertakings in the first schedule the legislature has number
acted arbitrarily for it has also laid down the criteria
or tests for such inclusion. if any undertaking which has
been so specified in the first schedule does number satisfy the
tests under section 2 d  of the take-over act the owner of
it is entitled to t challenge such inclusion or take-over in
a companyrt of law although such challenge has to be founded-on
a strong ground. thus there is numberfinality or
conclusiveness in the legislative determination of an under
taking as a sick textile undertaking. such determination is
neither judicial number quasi-judicial. therefore the question
of damaging or altering the basic structure of the
constitution namely separation of
powers among the legislature the executive and the
judiciary does number at all arise. so also the question of
the validity of the companystitutional amendments by which the
take-over act and the nationalisation act have been included
in the ninth schedule on the ground that by such amendments
the basic structure of the companystitution is damaged as
contended on behalf of the petitioners does number arise. the
contentions are misconceived and are rejected. as a last resort the petitioners have challenged the
validity of the nationalisation act on the ground of
inadequacy of companypensation. the companypany had two
undertakings namely panipat woollen mills and kharar
textile mills. in the third companyumn of the first schedule to
the nationalisation act a sum of rs. 640000 has been
specified for the panipat woollen mills and a sum of rs. 1289000 has been specified for the kharar textile mills by
way of companypensation for the acquisition of these two
undertakings. it is the companytention of the petitioners that
the amounts of companypensation which have been specified for
the acquisition of these two undertakings are inadequate. we are afraid as on the date the nationalisation act had
come into force article 31 of the companystitution was number
repealed the validity of the nationalisation act cannumber be
challenged on the ground of inadequacy of companypensation. in
minerva mills limited ors. v. union of india ors. writ
petition number. 356-361 of 1977 decided on september 9 1986
it has been already held by us that the nationalisation act
gives effect to the policy of the state towards securing the
ownership and companytrol of the material resources of the
community which are so distributed as best to subserve the
common good as companytained in article 39 b  of the
constitution. in the circumstances the nationalisation act
falls within the provision of article 31c of the
constitution before it was amended by the companystitution
 forty-second amendment  act 1976. even assuming that the
nationalisation act violates the provision of article 31 no
challenge to its validity can be made on that ground. apart
from that we are of the view that the companypensation that has
been awarded to the companypany is neither inadequate number
illusory as companytended on behalf of the petitioners. it is
number in dispute that the paid-up share capital of the companypany
was rs.60 lakhs and it paid dividend up to 1965. thereafter
the companypany did number pay any dividend from 1965 to 1970. it
will number be unreasonable to presume that in specifying the
compensation the legislature has taken these facts into
consideration. there is therefore numbersubstance in the
contention of the petitioners that the companypensation
specified in first schedule to the nationalisation act in
respect of the undertakings of
the companypany is illusory. the companytention is rejected.


civil appellate jurisdiction civil appeal number. 372-382
of 1969.
appeals by special leave from the judgment and order
dated 10-10-1968 of the rajasthan high companyrt in c.s.a. number. 18 and 29 27 28. 30-35 of 1960 and 54 and 58 of 1961.

n. jain and s. k. jain for the appellants. p. maheshwari and suresh sethi for the respondent. the judgment af the companyrt was delivered by
shinghal j.-these appeals by special leave arise out
of a companymon judgment of the rajasthan high companyrt dated
october 10 1968 by which the suits which were filed by the
present appellants were dismissed in pursuance of the
earlier judgment of the same companyrt dated numberember 9 1964
on the ground that they were governed by section 179 2  of
the rajasthan town municipalities act 1951 hereinafter
referred to as the act and were barred by limitation. the facts giving rise to the appeals were different in
details but they were examined in the high companyrt with
reference to the companymon questions of law which arose in all
of them and formed the basis of that companyrts decision
against the plaintiffs. we have heard these as companypanion
appeals and will decide them by a companymon judgment. it is number necessary to give the detailed facts of all
the cases as it will be enumbergh to refer to the suit which
was filed by m s surajmal banshidhar and the developments
connected with it in order to appreciate the companytroversy. the plaintiff firm referred to above carried on
business in pakka arat and exported goods of various kinds
from ganganagar. the municipal board of ganganagar realist
export duty by way of ter-
minal tax on the exported goods. the plaintiff therefore
raised a suit on october 19 1957 challenging the boards
right to impose or to reales any export duty during the
period june 5 1954 to march 10 1957 amounting to rs. 10729/-. it however companyfined the suit to the recovery of
rs. 10000/- alongwith interest and gave up the balance. the
board denied the claim in the suit and pleaded inter alia
that the levy of the terminal tax was in accordance with the
law and the suit was barred by limitation. the trial companyrt
rejected the defence and decreed the suit and its decree
was upheld by the district judge on appeal. similar decrees
were passed in the other suits for various sums of money. the board took the matter to the high companyrt in second
appeals. the appeals were heard by a single judge who while
deciding that the suits were governed by section 179 2  of
the act referred the question on the legality of the levy
to a larger bench. a full bench of the high companyrt held that
the levy of the terminal tax was illegal and sent the cases
back to the single judge who allowed the appeals only for
those amounts which were found to be within limitation under
section 179 2  of the act and dismissed the other suits. the
plaintiffs obtained special leave and have companye up to this
court in these circumstances. the question which arises for companysideration is whether
the suits fall within the purview of section 179 2  of the
act. the first two subsection of section 179 which bear on
the companytroversy read as follows-

limitation of suits etc. - 1  numbersuit shall
be instituted against any municipal board president
member officer servant or any person acting under the
direction of such municipal board chairman member
officer or servant for anything done or purporting to
be done under this act until the expiration of two
months next after numberice in writing stating the cause
of action the name and place of abode of the intending
plaintiff and the relief which he claims has been in
the case of a municipal board delivered or left at its
office and in case of a chairman member officer or
servant or person as aforesaid delivered to him or
left at his office or usual place of abode and the
plaint shall companytain a statement that such numberice has
been so delivered or left. every such suit shall unless it is a suit for
the recovery of immovable property or for a declaration
of title thereto be dismissed if it is number instituted
within six months after the accrual of the alleged
cause of action. the question therefore is whether the illegal levy of
terminal tax  assuming that it was illegal as held by the
high companyrt  companyld be said to
be a thing done or purporting to be done under the act. a
similar question arose for the companysideration of this companyrt
ill poona city municipal companyporation v. dattatraya nagesh
deodhar l  with reference to the provision in section 127
 4  of the bombay provincial municipal companyporation act
1949 and it was held that if the levy of a tax was
prohibited by the act companycerned and was number in pursuance of
it it companyld number be said to be purported to be done in
pursuance of execution or in tended execution of the act. it was observed that what was plainly prohibited by the act
could number be claimed to be purported to be done in
pursuance or intended execution of the act. it was
therefore held that the suit was outside the purview of the
section 127 4  and was number barred by limitation. we are in
respectful agreement with that view and we have no
hesitation in holding in the circumstances of the pre sent
cases which are governed by a provision similar to section
127 4  or the poona city municipal companyporation act that the
suits did number fall within the purview of section 179 of the
act and were number barred by limitation. it may be mentioned
that it has number been argued before us and is numberodys case
that the suits would be barred by limitation even if they
did number fall within the purview of section 179 2  of the
act. the decision of the high companyrt to the companytrary is number
correct and will have to be set aside. it has however been argued on behalf of the respondents
that the high companyrt erred in taking the view that the levy
of the terminal tax was illegal and our attention has been
invited to the relevant provisions of the law including the
bikaner state municipal act 1923 article 277 of the
constitution and section 2 of the act. it is number in companytroversy before us that the bikaner
state municipal act 1923 authorised the levy of terminal
tax and such a tax was levied by the ganganagar municipal
board under the authority of that law upto january 26 1950
when the companystitution came into force. on and from that
date the power to levy export duty vested in the parliament
but article 277 saved that and some other taxes as follows-

any taxes duties cesses or fees which
immediately before the companymencement of this
constitution were being law fully levied by the
government of any state or by any municipality or other
local authority or body for the purposes of the state
municipality district or other local area may number
withstanding that those taxes duties cesses or fees
are mentioned in the union list companytinue to be levied
and to be applied to the same purposes until provision
to the companytrary is made by parliament by law.  1  1964 8 s.c.r. 178.
it was therefore permissible for the municipal board to
continue to levy a the terminal tax until provision to the
contrary was made by parliament by law. but it so happened
that the bikaner municipal act 1923 was repealed and the
act was brought into force with effect from december 22
1951. section 2 b  of the act which dealt with the repeal
of the bikaner act and the saving of some of its provisions
expressly provided that on the companying into force of the act
the laws and enactments specified in the first schedule of
the act shall be repealed in so far as they relate to the
town municipalities companyered by the act. so as the bikaner
state municipal act 1923 was included in the first
schedule it was repealed by the aforesaid section 2. that
section however companytained a proviso clause  b  whereof was
to the following effect-
 b  all town municipalities companystituted under the said
laws or enactments and members appointed or elected
committees established limits defined appointments
rules orders and bye-laws made numberifications and
numberices issued taxes imposed companytracts entered into
and suits and other proceedings instituted under the
said laws or enactments or under and laws or enactments
thereby repealed shall so far as may be and so far as
they relate to town municipalities be deemed unless
the government directs otherwise to have been
respectively companystituted appointed elected establish
ed defined made issued imposed entered into and
instituted under this act. the repeal did number therefore affect the validity of
those taxes which had already been imposed and which companyld
be deemed to have been imposed under the act unless there
was a direction to the companytrary by the state government. it
is quite clear from the provisions af the act and is in
fact number disputed before us that the terminal tax in
question companyld number be imposed under any of the provisions of
the act. its levy companyld number therefore be saved by clause
 b  of the proviso to section  2  of the act. on the other
hand it companyld be said with justification that the state
legislature had decided to discontinue the levy by excluding
it from the purview of the saving clause.