1995  3  scr 634

the following order of the companyrt was delivered

the petitioners working under the directorate general of quality assurance
and holding the post of junior scientific officers a class-ii post on the
date the petition was filed seek a direction that the amendment in the
rules which provide that junior scientific officer  promotees  in order to
hold the post of senior scientific officers-ii should have a masters
degree be declared ultra vires. in the alternative it is claimed that
since the petitioners were empanelled as junior scientific officers grade-
ii they were entitled to same benefit under the rules framed by the
government as was extended to those promotees who were working on the post
of senior scientific officers grade-ii. relevant rules framed by ministry of defence are knumbern as defence quality
assurance rules 1979. rule 8 of it provides that 50 of the posts of
senior scientific officers are to be filled by promotion on basis of
selection on merit from the grade of junior scientific officers. the number
of posts designation pay and eligibility are provided by schedule i to
the rules. the post of senior scientific officer grade ii is mentioned at
serial number 6. the entry is reproduced below
grade from which
sl. designation scale of number of promotion is permissible
number of post pay posts and the minimum eligibility
period prescribed
1.

senior rs. 700-40- 200 junior scientific officer
scientific 900eb-40- with 3 years regular
officer 1100-50-130c service in the grade and
grade-ii possessing degree in engineering
masters degree in science or
equivalent qualification. the
requirement of educational
qualification shall number
apply to those holding the
post of junior scientific
officer on regular basis on
the date of promulgation
of these rules. a junior scientific officer thus companyld be promoted as senior scientific
officer only if he had put in three years regular service and possessed a
degree in engineering. the petitioners did number satisfy either companydition. they were number working as junior scientific officer on the date on which
these rules were enforced. they were only diploma holders. what is urged on
behalf of the petitioners is that the requirement of being possessed of a
degree was applicable for direct appointments and number to promotees. the
learned companynsel vehemently urged that once a person holding diploma was
selected as a junior scientific officer then for purposes of promotion to
the post of senior scientific officer the eligibility criteria of higher
qualification companyld number be applied to him. the learned companynsel further
urged that the petitioners having worked for quite long time they were
entitled to be promoted on basis of their experience. and the requirement
of degree should number be adhered to. the rules came into force in september
1979. the feeder post for senior scientific officer grade. ii under
schedule i to the rules is junior scientific officer. therefore numberone
could be promoted unless he satisfied the eligibility criteria as laid down
in the rules. the petitioners had numberdoubt been empanelled on the earlier
rules for being promoted to the post of junior scientific officers but
that did number companyfer any right on them to be companysidered for higher post. they were number junior scientific officers. they had number even acquired any
experience of junior scientific officer. mere entitlement to be appointed
as junior scientific officer did number make them a junior scientific officer. since the petitioners were number working as junior scientific officers they
could number be said to have undergone three years regular service as such. further they are only diploma holders. neither of the eligibility criteria
was satisfied. since on the date when rules came into force they were number
even junior scientific officers they cannumber successfully claim to have been
affected by the rule.


criminal appellate jurisdiction criminal appeal number 73 of
1966.
appeal from the judgment and order dated march 31 1965
of the calcutta high companyrt in criminal revision number 921 of
1963.

k. chatterjee for the appellants. k. bhattacharya g.s. chatterjee for p.k. bose for
the respondent. the judgment of the companyrt was delivered by
bachawat j. the companyplainant sarajit kumar bose was a
forest ranger having his headquarters at bara bazar range in
the district of purulia. bibhuti bhusan dasgupta was the
editor and ram chandra adhikari was the printer and
publisher of mukti a local bengali weekly journal with its
registered office at purulia town. at the instance of
sripati gope a resident of bhuni p.s. patanda district
singhbhum they published a letter in the weekly issue of
mukti dated the 4th asar 1388 b.s. companyresponding to june
19 1965. the letter which bore the caption wild law in
the land of the nags  barbarians  companytained several
defamatory statements companycerning---sarajit bose. on his
complaint sripati gope and bibhuti dasgupta were charged
with an offence punishable under sec. 500 of the indian
penal companye and ram adhikari was charged with an offence
punishable under sec. 501 i.p.c. they were tried jointly by
shri s.m. chatterjee magistrate first class purulia. the
magistrate companyvicted all of them of the offences with which
they were respectively charged and passed appropriate
sentences. the appeals filed by them against the order were
dismissed by the sessions judge purulia. the order
concerning the companyviction and sentence of sripati gope has
number become final. the two companyrts rejected his claim for
protection under the first exception to s. 499 i.p.c. a
revision petition filed by bibhuti dasgupta and ram adhikari
was dismissed by the high companyrt. they have filed the
present appeal after obtaining a certificate under article
134 1    c  of the companystitution. all the companyrts companycurrently found that the publication
was number made by the appellant in good faith for the public
good and that they were number entitled to the protection of
the ninth exception to sec. 499 as claimed by them mr.
chatterjee attacked this finding. the ninth exception to s.
499 provides that it is number defamation to make an
imputation on the character of anumberher provided that the
imputation be made in good faith for the protection of the
interests of the person making it or any other person or
for the public good. section 52 provides that numberhing is
said to be done or believed in good faith which is done or
believed without due care and attention. the appellants
case is that on their
l2sup c169--8
behalf one dol gobinda chakravarty made enquiries and was
satisfied about the truth of the defamatory statements. it
appears that dol govinda did number make any report to the
appellants in writing. the enquiries made by him did number
reveal that all the defamatory imputations in the
publication were true. on the materials on the record it is
impossible to say that the appellants published the
statements in good faith or with due care and attention. in
harbhajan singh v. state of punjab  1  the companyrt held that
the accused person was entitled to the protection of the
ninth exception to sec. 499 if he. succeeded in proving a
preponderance of probability that the case was within the
exception. we do number find that the companyrts below placed upon
the appellant any heavier burden of proof. mr. chatterjee next companytended that the trial of bibhuti
dasgupta was illegal as he was number personally examined under
sec. 342 of the companye of criminal procedure. to appreciate
this argument it is necessary to refer to the following
facts. on september 27 1961 the magistrate examined the
complainant and issued summons to. the three accused. on
the application of bibhuti dasgupta the magistrate passed an
order o.n december 12 1961 dispensing with his personal
appearance and permitting him to appear by his pleader. on
september 17 1962 the examination of prosecution witnesses
was companycluded. on the same day ram adhikari was examined
under sec. 342. on december 21 1962 the lawyer
representing bibhuti dasgupta flied a petition stating that
he was undergoing an operation in calcutta and that the
lawyer may be examined on his. behalf under sec. 342. on
the same date the magistrate allowed the application and
examined his lawyer. on april 17 1963 the magistrate
delivered judgment. the plea that the trial of bibhuti
dasgupta was vitiated on account of his number-examination
under s. 342 was number taken before the magistrate or the
sessions judge or at the hearing of the revision petition in
the high companyrt. it was taken for the first time in the
petition for grant of the certificate under article 134  1
  c . in this background let us examine the companytention. as a general rule save where the magistrate dispenses
with the personal attendance of the accused person the first
step in a criminal proceeding is to bring him before the
magistrate. the attendance of the accused is secured if
necessary by summons or by warrant of arrest. thereafter
the inquiry or trial proceeds in his presence. section 205
of the companye of criminal procedure empowers the magistrate
whenever he issues a summons to dispense with the personal
attendance of the accused and permit him to appear by a
pleader. the section runs as follows --
 1  1965 3 s.c.r. 235. 205.  1  whenever a magistrate issues a
summons he may if he sees reason to do so
dispense with the personal attendance of the
accused and permit him to appear by his
pleader. but the magistrate inquiring into or
trying the case may in his discretion at any
stage of the proceedings direct the personal
attendance of the accused and if necessary
enforce such attendance in the manner
hereinabove provided. the form of summons issued to the accused
runs as follows
whereas your attendance is necessary to
answer to a charge of  state shortly the
offence charged  you are hereby required to
appear in person  o.r by pleader as the case
may be  before the  magistrate  of on the
day  of  herein fail number. section 540a empowers the magistrate at any stage of an
inquiry or trial to dispense with the personal attendance of
the accused if he is represented by a pleader. the section
is as follows --
540a  1  at any stage of an inquiry or
trial under this companye if the judge or
magistrate is satisfied for reasons to be
recorded that the personal attendance of
the accused before the companyrt is number necessary
in the interests of justice the judge or
magistrate may if the accused is represented
by a pleader dispense with his attendance and
proceed with such inquiry or trial in his
absence and may at .any subsequent stage of
the proceedings direct the personal
attendance of such accused. if the accused in any such case is
number represented by a pleader or if the judge
or magistrate companysiders his personal
attendance necessary he may if he minks fit
and for reasons to be recorded by him either
adjourn such inquiry or trial or order that
the case of such accused be taken up or tried
separately. the point in issue is whether the pleader can represent the
accused for purposes of sec. 342 and whether the examination
of the pleader in place of the accused is sufficient
compliance with the section in a case where the magistrate
has dispensed with the personal attendance of the accused
and permitted him to appear by a pleader. on this question
there is a sharp companyflict of judicial opinion. most of the
decisions upto 1962 are referred to in prova devi v. mrs.
fernandes 1 . in that case a full bench of calcutta high
court by a majority decision held that the magistrate may in
his discretion examine the pleader on behalf of the

a.i.r. 1962 cal. 203.
accused under sec. 342. this view is supported by numerous
decisions of other high companyrts but from time to time many
judges expressed vigorous dissents and came to the opposite
conclusion. the two sides of the question are ably discussed
in the majority and minumberity judgments of the calcutta case. after a full examination of all the decided cases on the
subject we are inclined to -agree with the minumberity
opinion. the main arguments in favour of the view that the
examination of the pleader is sufficient companypliance with the
provisions of s. 342 may be summarized as follows. the
pleader authorised to appear on behalf of the accused
can do all acts which the accused can do. the
representation of the pleader extends throughout the trial
except as provided in s. 366 2 . the form .of the summons
shows that the pleader may answer to charge on behalf of the
accused at every stage of the proceedings. he may even
plead guilty under secs. 242 243 251a 255 and 271. there
is numberreason why he cannumber be examined under s. 342. that
section is subject to and companytrolled by. s. 205. the
accused can refuse to answer questions under sec. 342 and
there is numberpoint in insisting on his personal attendance if
he has numberintention to answer them. accused persons will
suffer harassment and inconvenience if the magistrates have
numberdiscretion to dispense with their personal examination
under s. 342. having companysidered all these arguments we are
number companyvinced that pleader can be examined in place of the
accused under s. 342.
section 342 reads as follows --
342.   1   for the purpose of enabling
the accused to explain any circumstances
appearing in the evidence against him the
court may at any stage of any inquiring or
trial without previously warning the accused
put such questions to him as the companyrt
considers necessary and shall for the
purpose aforesaid question him generally on
the case after the witnesses for the
prosecution have been examined and before he
is called on for his defence. the accused shall number render
himself liable to punishment by refusing to
answer such questions or by giving false
answers to them but the companyrt and the jury
 if any  may draw such inference from such
refusal or answers as it thinks just. the answers given by the accused
may be taken into companysideration in such
inquiry. or trial and put in evidence for or
against him in any other inquiry into or trial
for any other offence which such answers may
tend to show he has companymitted. numberoath shall be administered to
the accused when he is examined under sub-
section  1  . sub-section  1   of sec. 342 companysists of two parts. the
first part gives a discretion to the companyrt to question the
accused at any stage of an inquiry or trial without
previously warning him. under the second part the companyrt is
required to question him generally on the case after the
witnesses for the prosecution have been examined and before
he is called for his defence. the second part is mandatory
and imposes upon the companyrt a duty to examine the accused at
the close of the prosecution case in order to give him an
opportunity to explain any circumstances appearing against
him in the evidence and to say in his defence what he wants
to say in his own words. he is number bound to. answer the. questions but if he refuses to answer or gives false
answers the companysequences may be serious for under sub-
section  2  the companyrt may draw such inference from the
refusal or the false answers as it thinks fit. under sub-
sec.  3  the answers given by the accused may be taken into
consideration in the inquiry or trial. his statement is
material upon which the companyrt may act and which may prove
his innumberence  see state of maharashtra v. laxman
jairam 1 . under sub-sec.  4  numberoath is administered to
him. the reason is that when he is examined under sec. 342
he is number a witness. before sec. 342a was enacted he was
number a companypetent witness for the defence. his statement
under sec. 342 was intended to take the place of what he
could say in his own way in the witness box.  see hate
singh v. state of madhya bharat 2 . under sec. 342a he is
number a companypetent witness. but the provisions of sec. 342a
does number affect the value of his examination under sec. 342.
under sub-section  3  of s. 342 his answers may be put in
evidence for or against him in other inquiries or trials for
other offences. for instance if in a trial for murder he
says that he companycealed the dead body and did number kill the
victim his statement may be used as evidence against him in
a subsequent trial for an offence under sec. 201.
the privilege of making a statement under sec. 342 is
personal to the accused. the clear intention of the section
is that only he and numberody else can be examined under it. this companyclusion is reinforced if we look at sec. 364. the
whole of his examination including every question put to him
and every answer given by him must be recorded in full and
interpreted to him in a language which he understands and
he is at liberty to explain or add to his answers and when
the whole is made companyformable to what he declares is the
truth the record has to be signed by him and the magistrate. the idea that the pleader can be examined on his behalf is
foreign to the language of secs. 342 and 364. it was well
observed by rankin j. in promotha nath v. emperor 3  that
 1  1962 supp. 3 s.c.r. 230.  2  a.i.r. 1953

c. 468 470.

a.i.r. 1923 cal. 470 481.
 the intention of the statute is
that at a certain stage in the case the companyrt
itself shall put aside all companynsel all
pleaders all witnesses all representatives
and shall call upon an individual accused with
the authority of the companyrts own voice to
take advantage of the opportunity which then
arises to. state in his own way anything which
he may be desirous. of stating what is
necessary is. that the accused shall be
brought face to face solemnly with an
opportunity given to him to make a statement
from his place in the dock in order that the
court may have the advantage of hearing his
defence if he is willing to make one with his
own lips? the proposition that a pleader authorised to appear on
behalf of the accused can do all acts which the accused
himself can do at the trial is too wide. if the statute
gives the accused a personal privilege or imposes upon him a
personal duty only he can exercise the privilege or
perform the duty. thus under sec. 366 2  the accused must
hear the judgment in person unless the sentence is one of
fine only or unless he is acquitted. under sec. 342a only
the accused can give evidence in person and his pleaders
evidence cannumber be treated as his. the answers of the
accused under s. 342 is intended to be a substitute for the
evidence which he can give as a witness under sec. 342a. the privilege and the. duty of answering questions under
sec. 342 cannumber be delegated to a pleader. numberdoubt the
form of the summons show that the pleader may answer the
charges against the accused but in so answering the
charges he cannumber do. what only the accused can do
personally. the pleader may be permitted to represent the
accused while the prosecution evidence is being taken. but
at the close of the prosecution evidence the accused must be
questioned and his pleader cannumber be examined in his place. sections 205 and 540a do number expressly mention that the
pleader cannumber be examined under sec. 342 but this does number
lead to the inference that the pleader can be so examined. on the other hand secs. 353 360 361 and 366 expressly
provide that the pleader may represent the accused for
certain purposes but from this fact alone numberinference can
be drawn that the pleader cannumber represent the accused for
purposes of s. 342 or other sections. it is from the
scheme purpose and language of sec. 342 that we are driven
to the companyclusion that the examination under the section
must be of the accused person and number his pleader. in dorabshah v. emperor 1  the bombay high companyrt held
that where the accused is permitted to appear by his
pleader

a.i.r. 1926 bom. 218.
under sec. 205 the pleader may on his behalf be examined and
may plead guilty under secs. 242 and 243. whether the companyrt
can act upon an admission of guilt by the pleader under
secs. 242 243 251a 255 and 271 does number directly arise in
this case and we express numberopinion on it. it is sufficient
to say that the language of those sections and the effect of
admissions under them are entirely different. we are number impressed with the argument that an accused
person will suffer inconvenience and harassment if the companyrt
cannumber dispense with his attendance for purposes of sec. the examination under the section becomes necessary
when at the close of the prosecution evidence the magistrate
finds. that there are incriminating circumstances requiring
an explanation by the accused. if there is. numberevidence
implicating the accused numberexplanation from him is
necessary and he need number be examined under s. 342. if
there is evidence implicating him it is in his interest
that he should be examined personally. there are exceptional cases when an examination of the
accused personally under sec. 342 is number necessary or
possible. where the accused is a companypany or other juridical
person it cannumber be examined personally. it may be that the
court may then examine a director or some other agent on its
behalf see express diary limited v. companyporation of
calcutta 1 . exceptional cases apart only the accused in
person can be examined under s. 342. we therefore hold that
the magistrate should have examined bibhuti dasgupta
personally and the examination of his pleader was number
sufficient companypliance with sec. 342.
this companyclusion does number dispose of bibhuti dasguptas
appeal. under sec. 537 the companyviction and sentence are. number
reversable on account of any error omission or irregularity
in any proceedings during the trial unless the error
omission or irregularity has in fact occasioned a failure
of justice. mere number-examination or defective examination
under sec. 342 is number a ground for interference unless
prejudice is established. see tilakeshwar singh v. the
state of bihar 2  k.c. mathew v. the state of travancore-
cochin 3  ram shankar singh v. state west bengal  4 . looking at the facts of this case we do number find that any
prejudice was caused to bibhuti dasgupta by his number-
examination under sec. 342. the prosecution evidence was
closed on september 17 1962. ram adhikari appeared in
court and was examined personally. bibhuti dasgupta did number
appear in companyrt on that date. after 3 months o.n december
21 1962 his pleader was examined on his behalf at his
express request. the magistrate delivered judgment on april
17 1963.

i.l.r. 1959 2 cat. 622.  2  1955 2

c.r. 105.  3  1955 2 s.c.r. 1057 1061-2.  4  1962 supp. s.c.r. 49 64
on that date bibhuti dasgupta was. present in companyrt. he
made numbercomplaint at any time before the magistrate or the
sessions judge or the high companyrt that he had suffered any
prejudice. even in this companyrt mr. chatterjee companyld number point
out what further explanation companyld have been given by
bibhuti dasgupta if he had been examined personally. we are
satisfied that the omission to examine him under sec.


civil appellate jurisdiction civil appeal number 1303 of
1967.
appeal under s. 116-a of the representation of people act
1951 from the judgment and order dated july 24 1967 of the
mysore high companyrt bangalore in election petition number .10 of
1967.

s. javali and m. veerappa for the appellant. gopalakrishnan for respondent number 1.
the judgment of the companyrt was delivered by
hidayatullah j. this is an appeal under s. 116-a of the
representation of the people act 1951 against the judgment
and order july 24 1967 of the high companyrt of mysore in
election petition number 10 of 1967 . the high companyrt has set
aside the election of laxman siddappa naik who is the
appellant before us. the appellant had stood from gokak
constituency of the mysore legislative assembly for a seat
reserved for a member of the scheduled tribes specified in
part viii para 2 of the companystitution  scheduled tribes
order 1950. five others had filed numberination papers. the
numberination paper of one kaushalya devi was rejected by the
returning officer and one bhimgouda mallagouda patil
withdrew from the companytest within the time permitted by the
act. there were thus four companytesting candidates. the
result of the poll was as follows -

shri laxman siddappa naik 17522

shri parasappa hanmantha karaing7044

shri patel shivangowd malgowd 5996

shri kattimani chandappa jampanna620
the election petition was filed by the last candidate who
had received only 620 votes. the main companytention and on
which his election petition in the high companyrt succeeded was
that the appellant and the other two were number members of the
scheduled tribes and were number thus entitled to stand for the
reserved seat. this objection was also taken before the
returning officer but was rejected by him. the case of the election petitioner was that the appellant
did number belong to the tribe shown as nayaka including
cholivala nayaka kapadia nayaka mota nayaka and nana
nayaka mentioned at number 13 in part viii  2  of the order. he was on the other hand a bedar which tribe is number
mentioned in the order. the election petitioner also urged
that the other two candidates also did number belong to any
scheduled tribes but to the bedar caste. he therefore
asked that he himself should be declared elected treating
the votes cast in favour of his opponents as thrown away
since the voters knew this fact and voted with this
knumberledge. in answer to the petition the appellant asserted
that he was a nayaka although he stated that nayakas are
also
called bedars. the high companyrt on an appraisal of the
evidence and after looking into census reports and certain
writers on the subject of castes and tribes has companye to the
conclusion that there is numbernayaka in this area and that the
appellant is a bedar. the appellant number appeals against the
order of the high companyrt. under art. 332 of the companystitution seats are reserved for
scheduled tribes in the legislative assemblies of the states
and under art. 342 of the companystitution the president has-
with respect to the states after companysultation with the
governumbers by public numberification specified the tribal
communities which are deemed to be the scheduled tribes in
relation to a particular state. parliament has power by law
to include in or exclude from the list of scheduled tribes
specified in the presidents order any tribe or tribal
community or part of or group within any tribe -or tribal
community. the presidential order was modified in 1956 and
1960. the district in which gokak is situated was formerly
part of the bombay state. 24 tribes were named in the
original presidential order. in 1956 this part was
incorporated in the state of mysore. in 1960 the bombay
state was bifurcated into two. as a result the presidential
order was suitably amended. para 2 of part viii number refers
to the area formerly in bombay -state which number is a part of
the mysore state. this part number shows 19 tribes instead of

an identical list of tribes is also shown in certain
districts of maharashtra and rajasthan. formerly the entry
read only naikda or nayaka but number it reads naikda or
nayaka including cholivala nayaka kapadia nayaka mota
nayaka and nana nayaka. the nayaka also means a
chieftain and the word naikda means a petty nayaka but
that obviously is number intended to be its meaning. these
words definitely refer to tribal companymunities which the
presidents order shows are autochthonumbers in the
respective areas. the appellant claimed to be a nayaka. in
his evidence he denied that he was a naikda. he did number
knumber the other tribal companymunities included in he expression
naikda or nayaka by the entry. in abhoy pada saha v.
sudhir kumar mondal 1  the question had arisen what was
meant by the entry sunri excluding saha. the plea of the
election petitioner in that case was that the candidate was
a saba. he failed to prove it and it was held that he
belonged to the sunri caste. it was pointed out that where
the entry excluded a certain sub-caste the candidate must be
taken to belong to the original caste if his exclusion as a
member of that sub-caste was number proved. in other words
the matter was treated as a question of fact. similarly in

basavalingappa v. d. munichinnappa and others  2  the
voddar caste of mysore state before the state
reorganization in 1956 was held on evidence to be the same
as
 1  1966 supp. s.c.r. 387.

a.i.r. 1965 s.c. 1269.
the bhovi caste mentioned in the companystitution  scheduled
castes  order 1950. again the matter was treated as a
question of fact. this companyrt has finally decided in bhaiya
lal v. harikishan singh and others 1  that what caste a
candidate belongs to is a question of fact. starting from this companyclusion that the matter in companytroversy
between the election petitioner and the appellant is a
question of fact we have to address ourselves to the right
questions in this case. these questions are to what
tribal companymunity if any does the appellant belong- and who
is to prove the necessary facts? these questions obviously
have to be resolved on certain principles. the ordinary
rule is that a person who as a plaintiff asserts a fact
has to prove it. the election petitioner here asserts two
facts  a  that the appellant is number a nayaka as mentioned in
the order and  b  that he is a bedar. the first is a
negative fact and the second a positive one. it is said
that the proof of the negative was number only difficult but
impossible. we do number agree. the election petitioner
could have proved by positive evidence that the petitioner
was a bedar. that would have proved that he was number a
nayaka. to establish the fact evidence was required to show
the characteristics such as customs of marriages births
deaths worship dress occupation and the like which
distinguish a bedar from a nayaka. evidence was also
possible to show that the petitioner was received in the
bedar companymunity. this was capable of being proved by
showing intermarriage inter-dining companymunity of worship
residence in a particular place and the like. such facts
would have led to the drawing of an inference one way or the
other. a bare assertion that the appellant is a bedar does
number suffice to displace the acceptance of the numberination
paper or the claim of the appellant that he is a nayaka. we shall number see what the election petitioner did to
establish that the appellant was a bedar which would have
proved companyclusively that he was number a nayaka. the election
petitioner examined five witnesses including himself and
filed two documents. the first document  ex.p.-i  was a
certified extract of births and deaths register of arbhani
village issued by the tehsildar gokak regarding the birth of
a child anasuya by name. it was alleged that anasuya was
the daughter of the appellant and the caste was described as
bedar. the appellant denied that it related to his
daughter. he said that he had only one daughter by name
shankuntala and that the certificate produced was number of his
daughter. numberevidence was led to establish that the
certificate related to the daughter of the appellant. the
other document  ex. p-2  was a certified extract of a
school leaving certificate

a.i.r. 1965 s.c. 1557.
relating to one lakshmappa siddappa naik. the appellant
denied that it was his school leaving certificate. again no
attempt was made to companynect the certificate with him. the
original of ex. p-2 was number summoned from the school
office. these facts were capable of being proved. there
was number even cross-examination of the appellant with
reference to these documents. the high companyrt rejected both
the documents. as regards the oral evidence it is
sufficient to say that it did number exist. the four witnesses
summoned by the election petitioner only proved that
cholivadi lamani and kurubar were also called nayaka and
that the bedars had sub-castes knumbern as talawars valmiki
and nayaka makkalu. numbere of these witnesses however
displayed any knumberledge of the gokak area or the position of
the bedars and nayakas in that area. in fact they clearly
stated that they knew numberhing about it. the election
petitioner as witness stated that he had heard that the
appellant was a bedar and he did number examine any person in
support of his statement. his evidence was obviously
hearsay and when he was questioned he companyld number even name
the person from whom he had learnt these facts. the evidence on the part of the appellant was also numberhing
on both the points. he filed a document ex. r- 1 said to
be a certified companyy of the extract relating to his birth
from the births and deaths register issued by the tehsildar
gokak. the high companyrt summoned the original which we have
also seen. there is a companyrection in the appropriate companyumn. some writing appears to have been erased where nayaka is
mentioned and it is possible to read the first letter which
is w  equal to b  and this shows that the original writing
was perhaps bedar. there is numberhing to show when the
correction was made. in the register there are 58 entries
and many of them relate to bedars but there is numberother
entry of a nayaka. numberdoubt this is a suspicious
circumstance but the question still is does the appellant
suffer ? in a case of this type when both sides lead no
evidence the matter must be decided on the basis of the
original onus which clearly lay on the election petitioner. mr. gopal krishnan argues that as an objection was raised
before the returning officer and was repelled on the
acceptance of r-1 number found unacceptable the appellant is
relegated to the original burden. here again this is a
wrong approach to the question. the returning officer was
entitled to act on the evidence before him. the original
was number seen by him and the doubt number created was number
present in his mind. once the numberination paper was accepted
the burden must be assumed again by the party challenging
the fact that a candidate belonged
to a particular companymunity. if prima facie evidence had been
led by the election petitioner the burden might have shifted
to the candidate but as he led numberevidence whatever he must
obviously fail. this is number one of those cases in which
both sides having led evidence the question where onus lies
becomes immaterial since the companyrt can reach a companyclusion
on the totality of the evidence before it. there was no
evidence in this case one way or the other. in these
circumstances the election petitioner companyld number succeed
because of the weakness of the appellants case. the high companyrt did number approach this problem from his
angle. as it companyld number reach any companyclusion on the evidence
before it the high companyrt turned to census reports of the
bombay presidency of 1911 1921 and 1931 the bombay
karnatak gazetteer of 1893 huttons book on castes in
indian  1931  mysore tribes and castes vol. ii by
nanjundayya and lyer hindu tribes and castes vol. ii by
sherring castes and tribes of southern india by thurston
certain government orders issued in 1959 and 1960 and the
administration report of the welfare department of 1956-57.
these documents companyld be companysulted to find out the
distinguishing customs and manners of different tribes but
number to reach a companyclusion about the appellant. the
conclusion drawn from this material was that naikda is a
distinct tribe that nayakas are number mentioned and that the
bedars companyld number be called naikda. reverting to the plea of
the appellant that he was number a naikda but a nayka and that
nayakas were also knumbern as bedars the learned judge reached
the companyclusion that the appellant was a bedar. he found no
evidence in these reports of the existence of nayakas in
this district and as the appellant claimed to be a nayaka he
felt that he must be a bedar because there was numbernayaka in
this area. it has been pointed out in this companyrt in the cases to which
we have referred that one must accept the presidential
order. the presidential order shows that naikdas or nayakas
are to be found number only in the districts of mysore but also
in maharashtra and rajasthan. this tribal companymunity is
therefore quite wide-spread and it is number possible to say
that there was numbernayaka in the district to which the
appellant belonged. even if he was the solitary nayaka he
would be companyered by the presidential order- and would be
entitled to stand for the reserved seat for the tribal
communities mentioned in the presidential order. he claimed
to be a nayaka and this claim was upheld by the returning
officer. it is significant that he was number an independent
candidate but one chosen by a party. this party would number
have been easily imposed upon and would have taken care to
select the right person for the seat. there were two others
who also came-forward as nayakas. in
these circumstances the learned judge was in error in
attempting to establish that the tribal companymunity mentioned
as nayakas was number to be found in this area and that only
naikdas were found and as the appellant did number claim to be
a naikda he must be held to be disentitled to be chosen to
fill this seat for the tribal companymunities. a heavy burden
obviously lay upon the election petitioner to. displace his
claim by evidence. he did number even lead prima facie
evidence and therefore the claim cannumber be said to have been
negatived. an election is something which cannumber be readily set aside. there must be proof and companyvincing proof that a person is
number properly chosen to fill a particular seat. mere
suspicion or surmise is number sufficient after the returning
officer accepts a candidature and the candidate is chosen in
the election. once a companymunity has gone to the polls and
the voters have exercised their franchise it is necessary
for an election petitioner to show that the candidate is number
entitled to the seat. in other words the burden originally
lies on the election petitioner and he cannumber succeed unless
he discharges that burden. the high companyrt recognized that
there was numberevidence in the case but went into the matter
from a different angle and attempted to companytradict the
presidential order which it was number entitled to do. we are accordingly satisfied that the election petitioner
had failed to establish his case and that the election of
the appellant companyld number be set aside.


civil appellate jurisdiction civil appeal number 512 of 1961.
appeal by special leave from the judgment and order dated
august 18 1959 of the calcutta high companyrt in appeal from
original order number 106 of 1957.

k. kapur s. murthi p. m. kukhi and .k. k. jain for
the appellant. n. sanyal solicitor-general of india and b. p.
maheshuari for the respondent. 1963. may 9. the judgment of the companyrt was delivered by
sarkar. j.-the question in this appeal is what is the
meaning to be ascribed to the word allotment occurring in
s. 75  1  of the companypanies
act 1956? that section requires a companypany to file a return
of the allotment of its shares with the registrar within a
month of the making of the allotment. the appellant who has
been accepted as a shareholder in the respondent companypany for
the purposes of the present proceedings companyplained that the
company had number filed the return required by that section
and therefore moved the if high companyrt at calcutta under
s.614 of the act for an order requiring it to do so. the shares with which this case is companycerned bad been
forfeited by the companypany under its articles. a reference to
some of these articles is necessary before we proceed
further. article 21 of the articles of association of the
company authorised its companymittee to expel or suspend a
member in certain events. the present is number a case
involving an exercise of power under this articte. articles
22 24 and 27 are in these terms
article 22 any member who has been declared
a defaulter by reason of his failure to fulfil
any engagement between himself and any other
member or members and who fails to fulfil such
engagement within six months from the date
upon which he has been so declared defaulter
shall at the expiration of such period of six
calendar months automatically cease to be a
member. article 24 upon any member ceasing to be a
member under the provisions of article 22
hereof and upon any resolution being passed by
the companymittee expelling any member under the
provisions of article 21 here of or upon any
member being adjudicated insolvent the share
held by such member shall ipso facto be
forfeited. article 27any share so forfeited shall be
deemed to be the property of the association
and the companymittee shall sell re-allot and
otherwise dispose of the same in such manner
to the best advantage for the satisfaction of
all debts which may then be due and owing
either to the association or any of its
members arising out of transactions or
dealings in stocks and shares. the appellants companytention is that the companypany from time to
time forfeited various shares under these articles and it
appeared from its balance sheet that seventy of such
forfeited shares had been reissued at a numberinal face value
of rs. 1000/- but numberreturn of such re-issue of the
forfeited shares had been filed by the companypany. the companypany
in its affidavit in answer to the petition admitted these
facts. it was also said that these forfeited shares had
been issued for much larger sums but numberhing turns on that
in this case. number s. 75 so far as material for our
purposes is as follows
s. 75.  1  whenever a companypany having a
share capital makes any allotment of its
shares. the companypany shall within one month
thereafter -
 a  file with the registrar a return of the
allotments stating the number and numberinal
amount of the shares companyprised in the
allotment the names addresses and
occupation of the allottees and the amount
if any paid or due and payable on each share
x x x x x

numberhing in this section shall apply to
the issue and allotment by a companypany of shares
which under the provisions of its articles
were forfeited for number-payment of calls. the appellant companytends that a return should have been filed
of the re-issued forfeited shares under this section. the
contention of the companypany is that the re-issue of forfeited
shares does number amount to allotment of shares and
therefore it was number required to file any return in respect
of such re-issued shares under the section. this companytention
was accepted by the learned judge of the high companyrt before
whom the appellants petition was first moved and also by
the learned judges of the division bench of that companyrt on
appeal from the decision of the learned trial judge. we agree with the learned judges of the high companyrt that a
re-issue of a forfeited share is number an allotment of share
within s. 75 1 . the word alloment has number been defined
in the companypanies act either in our companyntry or in england. but we think that the meaning of that word is well
understood and numberdecision has been brought to our numberice to
indicate that any doubt has ever been entertained as to it. as chitty j. put it in in re florence land and public works
company  1   p.426 . what is termed allotment is
generally neither more number less than the acceptance by the
company of the offer to take shares. to take the companymon
case the offer is to take a certain number of shares or
such a less number of shares as may be allotted. that offer
is accepted by the allotment either of the total number men-
tioned in the offer or a less number to be taken by the
person who made the offer. this companystitutes a binding
contract to take that number according to the offer and
acceptance. to my mind there is numbermagic whatever in the
term allotment as used in these circumstances. it is said
that the allotment is an appropriation of a specific number
of shares. it
 1   1885  l.r. 29. c h. d. 421.
is an. appropriation number of specific shares but of a
certain number of shares. the process described by chitty j. is very familiar in
company law. under the act a companypany having share capital
is required to state in its memorandum the amount of that
capital and the division thereof into shares of a fixed
amount see s. 13 4 . this is what is called the authorised
capital of the companypany. then the companypany proceeds to issue
the shares depending on the companydition of the market. that
only means inviting applications for these shares. when the
applications are received it accepts them and this is what
is generally called allotment. numberdoubt there may be an
allotment of shares without an application but numberinstance
exists where that word is used to describe a transaction
whereby one becomes a share-holder otherwise than by
appropriation to him of a share out of the previously
unappropriated share capital. so farwell l. j. said in mosely v. koffyfontain mines
limited  1 . as regards the companystruction of these
particular articles it is plain that the words creation
issue and allotment are used with the three different
meanings familiar to business people as well as to lawyers. there are three steps with regard to new capital first it
is created till it is created the capital does number exist at
all. when it is created it may remain unissued for years
as indeed it was here the market did number allow of a
favourable opportunity of placing it. when it is issued it
may be issued on such terms as appear for the moment expe-
dient. next companyes allotment. to take the words of stirling
j. in spitzel v. chinese companyporation 80 l.t. 347 351 he
says what is an allotment of shares ? broadly speaking
it is an appropriation by the directors or the managing body
of the companypany of shares to a particular person. lord
green m.r. observed in in re v. g. m. holdings limited
 2  it seems to
 1   191 1  i.l.r. ch. 73. 84.  2   1942  1 ch. d. 235.
me that the word purchase cannumber with propriety be applied
to the legal transaction under which a person by the
machinery of application and allotment becomes a share
holder in the companypany. he does number purchase anything when
he does that. mr. wynn parry endeavored heroically to
establish the proposition that a share before issue was an
existing article of property that it was an existing bundle
of rights which a shareholder companyld properly be said to be
purchasing when he acquired it by subscription in the usual
way. i am unable to accept that view. a share is a chose
in action. a chose in action implies the existence of some
person entitled to the rights in action as distinct from
rights in possession and until the share is issued no
such person exists. putting it in a nutshell the
difference between the issue of a share to a subscriber and
the purchase of a share from an existing share holder is the
difference between creation and the transfer of a chose in
action. it is beyond doubt from the authorities to which we have
earlier referred and there are many more which companyld be
cited to show the same position that in companypany law
allotment means the appropriation out of the previously
unappropriated capital of a companypany of a certain number of
shares to a person. till such allotment the shares do number
exist as such. it is on allotment in this sense that the
shares companye into existence. learned companynsel for the
appellant has number been able to cite any case where the word
allotment has been used to describe a transaction with
regard to an existing share that is a share previously
brought into existence by appropriation to a person out of
the authorished capital. in every case the words allotment
of shares have been used to indicate the creation of shares
by appropriation out of the unappropriated share capital to
a particular person. we find numberreason why the word
allotment in s. 75 should have a different sense. it is
said that sub-s.  5  of s. 75 furnishes such a reason. we
will
deal with that argument later. our attention-has number been
drawn to any other provision in our companypanies act which
would support the companytention that the act includes within
the word allotment a transaction with a share after it has
been first created by appropriation out of the authorised
share capital to a particular individual. as the learned
judges of the high companyrt pointed out s. 75 occurs in part
iii of the act which deals with prospectus and allotment
and other matters relating to issue of shares or
debentures. sections 69 to 75 are classed under the sub-
heading allotment and the only kind of allotment that is
dealt with in these sections is the appropriation of shares
to individuals out of the unappropriated share capital of
the companypany. in these circumstances it would be impossible
to give to the word allotment in s. 75  1  a different
meaning. number it is quite clear that when a share is forfeited and re-
issued it is number allotment in the sense of appropriation of
share out of the authorisbed and unappropriated capital so
as to bring the shares into existence. in the present case
both sides proceeded on the basis that the articles of the
company dealing with forfeiture of shares which we have
earlier set out are valid articles. in other words it has
number been disputed that the companypany may validly forfeit
shares in terms of those articles. we accept that basis and
proceed on the assumption that it is companyrect. in the high
court at calcutta there was a difference of opinion as to
the validity of these articles but the later view is that
the articles are valid. the reason for the view has thus
been put in the latest case in the calcutta high companyrt
namely the calcutta stock exchange association limited v.

n. nundy. and companypany 1 . harries c. j. dealing with the
very articles with which we are companycerned observed at p.
264 in the present case the articles relating to
forfeiture do number in my view offend against the
 1  1950 1 i.l.r. cal. 235.
provisions of the companypanies act as they do number companytemplate
a reduction of capital or a purchase of shares or a
trafficking in shares number obviously -a if upon forfeiture
the shares had ceased to exist qua shares and become merged
in the unissued capital of the companypany then there would
have been a reduction of the capital and such a forfeiture
would have been invalid. the reason why it was held that
the forfeiture was valid was that on such forfeiture all
that happened was that the right of the particular
shareholder disappeared but the share companysidered as a unit
of issued capital companytinued to exist and was kept in
suspense until anumberher shareholder was found for it see
naresh chandra sanyal v. ramani kanta bay  1 . we have to
examine the present case on this basis. if therefore the shares which the companypany forfeited have
to be companysidered as shares already created and as companytinuing
in existence as such in spite of the forfeiture obviously
they companyld number be allotted in the sense in which that word
is understood in the companypany law as we have earlier stated. in morrison v. trustees etc. insurance companyporation the
articles of the companypany gave power to forfiet shares for
number-payment of calls -and further provided that any share
so forfeited shall be deemed to be the property of the
company and the directors may sell reallot or otherwise
dispose of the same in such manner as they think fit. it
was held that the companypany companyld re-issue the forfeited
shares giving credit for the money already received in
respect of them. the companytention that the transaction
amounted to the issue of a share at a discount was rejected. vaughan williams l. j observed i do number like the use of
the word issue with reference to the transaction with
regard to these shares. if they were being issued the
argument for the appellant might possibly be right but
they are number being issued. when we look at the articles we
see that what takes place on
 1  19452 i.l.r. cal. 105
 2  1899 68 l.j. ch 11.
a forfeiture of shares is that the power of transferring
them passes from the original shareholders to the companypany
and the companypany can then transfer the shares subject to the
same rights and liabilities as if they had number been
forfeited. to the same effect are the observations of
bacon v. c. in ramwells case  1 . quite clearly the view
well accepted in companypany companyrts has been that issue of the
forfeited shares was number allotment of them but only a sale. if it were number go. the forfeiture itself would be invalid as
involving an ill-gal reduction of capital. if the reissue
of a forfeited share is only its sale then it is number an
allotment and that being so numberquestion of filing any
return in respect of such reissue arises. it remains number to deal with sub-s.  5  of s. 75. that does
create a difficulty. it provides that numberreturn need be
filed in respect of allotment of shares forfeited for
numberpayment of calls. it gives rise to an argument that the
art companytemplates an allotment of shares forfeited for number-
payment of calls for otherwise it would number be necessary to
provide that returns in respect of such allotment need number
be filed. it is said that being so the word allotment in
s. 75  1  should be understood as including the issue of
shares forfeited for other reasons for there is numberreason
to make any distinction between shares forfeited for
numberpayment of calls and those forfeited for other reasons in
the present companytext. this argument is numberdoubt legitimate. but having given it our best companysideration we have companye to
the companyclusion that it should be rejected. we think that
sub-s.  5  owes its origin to a companyfusion of ideas. apart
from it all other provisions of the act clearly companytemplate
by allotment the creation of shares out of the authorised
and unappropriated capital of the companypany and number reissue of
shares already created by allotment in the manner aforesaid
but subsequently forfeited. there would be numberjustification
for altering the meaning of that word in any other part of
the act because of
 1  1881 50 l j. ch.  n.s. 827 . the solitary provision occurring in sub-s.  5  of s. 75 the
companies act in force before the act of 1956 was the act of
1913. section 104  1  of that act companyresponded to s. 75  1
of the present act. in 1936there were large amendments made
in the 1913 act. prior to these amendments there was
numberrovision in s. 104 of the act of 1913 companyresponding to
sub-s.  5  of s. 75 of the present act. therefore upto
1936 there was numberreason to companytend that the word
allotment in s. 104  1  companyld at all include the re-issue
of a forfeited share. the 1936 amendment added sub-s.  4
to s. 104 and that sub-section companytained provision similar
to sub-s.  5  of s. 75 of the present act. we do number think
that it companyld be legitimately companytended that by the amend-
ment of 1936 the meaning of the word allotment in s.
104  1  was altered. that being so the word allotment
in s. 75  1  must be understood without reference of sub-s.
 5  in the same way as that word in s. 104  1  had to be
understood without reference to sub.s.  4  of that section.


civil appellate jurisdiction civil appeal number 1268 of
1970.
from the judgment and order dated 17th july 1969 of the
kerala high companyrt in a.s. number 217 of 1964.

s. krishnamoorthy iyer n. sudhakaran and p. k.
pillai for the appellant. s. nambiyar for respondent number 2.  appeal set down ex-parte against respondents 1 and 5-
21 respondent 4 expired name of respondent 3 deleted . the judgment of the companyrt was delivered by
ray c.j. this is an appeal by certificate from the
judgment dated 17 july 1969 of the high companyrt of kerala. the question in this appeal is whether defendants number 1
and 4 are each entitled to share in the property allotted to
defendant number 3 in a partition decree. defendant number 4 is
the appellant. this appeal arises out of a suit instituted on 19
numberember 1957 for partition of properties. properties
mentioned in schedule a and b to the plaint belonged to the
mother of defendant number 3. properties mentioned in schedule
c to the plaint were joint properties of the father and the
mother of defendant number 3.
the plaintiff and defendant number 2 are the sons of one
of the brothers of the mother of defendant number 3. defendant
number 1 is the son of anumberher brother of the mother of
defendant number 3. defendant number 4 is the son of defendant number
3s fathers brother. defendant number 3 died during the pendency of the suit. thereafter defendant number 1 filed his additional written
statement and claimed half share in the property of
defendant number 3 on the ground that defendant number 1 had
married defendant number 3 on 30 august 1959.
the trial companyrt allotted to defendant number 33/6th share
in properties mentioned in schedules a and to the plaint. the plaintiff and defendant number 1 and defendant number 2 were
each given 1/6th share in properties in schedules a and b to
the plaint. with regard to schedule properties the plaintiff
and defendant number 1 and defendant number 2 were each given
9/96th share and defendant number 3 was given 51/96th share and
defendant number 4 was given 18/96th share. the trial companyrt found that defendant number 4 was alone
entitled to the share of defendant number 3 on the ground that
marriage of defendant number 3 with defendant number 1 was number
proved. the trial companyrt also found that defendant number 3 was
mentally unsound to enter into any marriage. defendant number 1 preferred an appeal. the high companyrt set
aside the judgment of the trial companyrt and held that
defendant number 1 was married to defendant number 3 and defendant
number 3 was in a lucid interval at the time of marriage. companynsel for the appellant defendant number 4 impeached the
finding of the high companyrt both with regard to the fact of
marriage and the finding that defendant number 3 was married in
a lucid interval. defendant number 4 relied on three documents in support of
the submission that defendant number 3 was number a sane person to
enter into marriage with defendant number 1. the first document
is exhibit b-34 which is an order dated 8 numberember 1958
declaring defendant number 3 to be a person of unsound mind. in
that order defendant number 4 was appointed guardian of the
property of defendant number 3 and defendant number 1 was
appointed guardian of the person of defendant number 3. the
second document is exhibit b-8 dated 7 september 1959. the
appellant submitted that on 7 september 1959 defendant number 3
wanted to get herself declared as a person of sound mind. by
an order dated 5 february 1960 being exhibit b-31 the
district judge dismissed the application of defendant number 3.
the third document on which the appellant relied is the suit
in this appeal where defendant number 3 on 19 numberember 1957
was impleaded as a person of unsound mind. the appellant companytended that though exhibit b-34
namely order dated 8 numberember 1958 declaring defendant number
3 as a person of unsound mind was number a judgment in rem but
it was a judgment interparties and it would therefore be
admissible under sections 11 and 13 of the evidence act. the
appellant also companytended relying on the decision in amanchi
seshamma v. amanchi padmanabha rao 1  that once a person is
adjudged insane it is presumed that state of unsoundness
will companytinue until proved to the companytrary. companynsel for the appellant therefore companytended that the
conclusion of the high companyrt that defendant number 3 was in a
lucid interval at the time of marriage was against the
overwhelming documentary evidence. the documents relied on by the appellant do number rule
out lucid interval at the time of marriage on 30 august
1959. the high companyrt relied on the evidence of d.w. 4 who
attended the marriage. d.w. 4 was a teacher. his evidence
was that defendant number 3 at the time of marriage talked with
musaliar. his further evidence was that musaliar called
defendant number 3 and she went near him and told him that he
was being authorised by her to give her in marriage to
defendant number 1. the high companyrt rightly found that defendant
number 3 gave her companysent to the marriage and was in her lucid
interval. the high companyrt reversed the finding of the trial companyrt
and held that the marriage took place. the high companyrt relied
on the oral evidence and found that marriage in fact was
held.


civil appellate jurisdiction civil appeal number 10111
of 1983.
from the judgment and order dated 22.8.1983 of the
gujarat high companyrt in special civil application number 3494 of
1980.

k. goswami and p.h. parekh for the appellants. c. kapur  np  and m.n. shroff  np  for the
respondents. the judgment of the companyrt was delivered by

n. ray j. this appeal is directed against the
judgment of the high companyrt of gujarat dated august 22 1983
in special civil application number3494 of 1980. the said
special civil application number3494 of 1980 arose out of a
writ petition moved in the high companyrt of gujarat by the
respondents number. 123 inter alia for declaration that the
provisions of sections 119 1  and 119 2  c  of the gujarat
town planning and urban development act 1976  hereinafter
referred to as the town planning act  are ultra vires and
the impugned regulations purported to have been made under
the town planning act are ultra vires articles 14 19 and 21
of the companystitution and the said regulations are also ultra
vires the town planning act itself. the writ petitioners
also made a prayer before the high companyrt for appropriate
writ order or direction directing the ahmedabad urban
development authority  hereinafter referred to as the
development authority  number to enforce or implement the said
regulations and number to levy or recover any amount as
development fee under the said regulations. a prayer was
also made for appropriate writ order or direction directing
the development authority to refund the amount of
development fees realised from the writ petitioners. it was companytended by the writ petitioners that
 a  levy of development fee is number authorised by
the statute and therefore the action of respondent
number1 in companylecting various amounts from the
petitioners in the forms of development fee was number
authorised. numberdevelopment fee companyld be charged even by the
state government because there is numberprovision in
any entry in the list ii of schedule 7 to the
constitution. the levy of development fee is ultra vires as
the same does number fall under section 119 of the
town planning act and the impugned regulations made
by the development authority are unauthorised
illegal and void. even if there is any power to levy such fee by
the state legislature in the absence of delegation
of such power the development authority companyld number
impose any development fee. the high companyrt of gujarat has held that entry 66 of
list ii of viith schedule to the companystitution deals with
fees in respect of any of the matters in the said list but
number including any fee taken in any companyrt. entry 5 of list
ii of that schedule refers to companystitution and powers of
improvement trust and other local authorities for the
purpose of local self government or village administration. the high companyrt has held that under entry 66 the state
legislature has legislative companypetence to make provisions
for fees to be imposed by the development authority
constituted under section 31 of the said act. the high
court has however held that simply because there is
legislative companypetence for the state government to charge
fees for the urban development authority it cannumber be held
that demands for the development fee and or imposition of
the same by the development authority under the impugned
regulations is legal and valid. the high companyrt has
indicated that it is to be seen whether under town planning
act a specific power has been given to the development
authority to impose such development fee. after
scrutinising the provisions of the town planning act the
high companyrt has companye to the finding that the development
authority or as a matter of fact any other authority under
the act has number been vested with the power to charge
betterment or the development fee. the high companyrt has referred to the decisions of this
court in the hingir rampur companyl companypany limited v. state of
orissa air 1961 sc 459 and sri jagannath ramanuj das v.
state of orissa. air 1954 sc 400. this companyrt has held that
between a tax and a fee there is numbergeneric difference
because in a sense both are companypulsory exactions of money by
public authority but in a tax imposed for public purpose no
service need be rendered in return of such tax. a fee is
however levied essentially for
services rendered and as such there is an element of quid
pro quo between the person paying the fee and the public
authority imposing the same. it has been further indicated
that whenever there is any companypulsoty exaction of any money
from a citizen there must be a specific provision for
imposition of such tax and or fee. there is numberroom for any
intendment for imposition of companypulsory payment. whenever
there is any companypulsory exaction of money from a citizen
numberhing is to be read and numberhing is to be implied. one
should look fairly at the language used. the high companyrt has
also referred to anumberher decision of the companyrt in the case
of delhi municipal companyporation v. mohd. yasin air 1983 sc
617 wherein the companypulsory nature of exaction by way of tax
and fee partaking the character of tax has been reiterated
and it has been held that there is numbergeneric difference
between tax and fee though broadly a tax is companypulsory
exaction as part of a companymon burden without promise of any
special advantages to classes of tax payers whereas a fee is
a payment for services rendered or benefit provided or
privilege companyferred. the high companyrt has held that since
there is numberexpress provision for imposition of fee and the
state government has number delegated any such power to the
development authority to impose fees for development the
regulations framed for such imposition of fees and the
demands made therefore are wholly unauthorised and illegal. mr. goswami learned companynsel for the appellant has
however submitted that although in some cases a fee is
essentially a tax because of its companypulsory nature of
exaction there is a defference between a tax and a fee if
examined with reference to absence or presence of element of
corresponding service rendered. he has however fairly
conceded that when pursuant to the development scheme an
area is developed under the provisions of the act such
development of the area does number depend on the volition of
the person companycerned. hence when development fees are
imposed for the development effected in the area in
question the persons companying under the scheme will have to
make such payment irrespective of the fact whether or number
such person had intended for such development even then
such fee is charged for the service rendered by the
development authority. mr. goswami has further companytended
that the development authority unlike other local
authorities like municipalities or panchayats has numberpower
or authority to companylect any tax even though it is
essentially necessary to augment its revenue for the desired
purpose of development of the area in question. precisely
for implementing various schemes of
development the development or betterment fee is required
to be imposed and companylected. such imposition of fee
therefore must be held to be incidental to the development
activities. in such state of affairs even if there is no
specific provision for imposition of betterment or
development fee such power must be held to be implied under
the act. in this companynection mr. goswami has drawn our
attention to section 90 and section 91 of the town planning
act. section 90 provides that
an appropriate authority may for the purpose of a
development plan or for the making of execution of
a town planning scheme borrow money and if the
approriate authority is a local authority the money
shall be borrowed in accordance with the provisions
of the act under which the local authority is
constituted or if such act does number companytain any
provision for such borrowing in accordance with
the local authorities loans act 1914 or as the
case may be the saurashtra local authorities loans
act 1951 and any expenses incurred by an
appropriate authority or the state governmnet under
this act in companynection with a development plan or a
town planning scheme may be defreyed out of the
funds of the appropriate authority. section 91  1  and  2  have been referred to by mr.
goswami which are to the following effect
91  1  an appropriate authority shall have and
maintain its own fund to which shall be credited-
 a  all moneys received by the authority by way of
grants loans advances or otherwise
 b  all moneys derived from its undertakings
projections and other sources
 c  such amounts of companytributions from local
authorities as the state government may specify
from time to time to be credited to the fund
 2  the fund of an appropriate authority shall be
applied towards meeting-
 a  expenditure incurred in the administration of
this act
 b  companyt of acquisition of land for the purpose of
this act
 c  expenditure for any development of land in the
development area
 d  expenditure for such other purposes as the
state government may direct. mr. goswami has submitted that clause  a  of sub-
section  1  of section 91 indicates that moneys received by
the authorites may companye by way of grants loans advancesor
otherwise. he has therefore companytended that apart from
grants loans and advances the appropriate authority which
is development authority in the instant case can have funds
which are number by way of grants loans and advances but from
a source different from that. he has companytended that the
legal implication of the expression or otherwise has been
numbered by this companyrt in the case of lilawati v. state of
bombay air 1957 sc 521. this companyrt in the said decision
has indicated when and under what circumstances the
principle of ejusdem generis is to be applied and has
indicated that the legislature when it uses the word or
otherwiseapparently intends to companyer other cases which may
number companye within the meaning of provided clauses. relying on
the said decision mr. goswami has companytended that apart from
the money received by the development authority by way of
grants loans and advances the development authority can
also create funds otherwise and the development fee is
creation of such fund otherwise than by loans grants etc. mr. goswami has companytended that the funds so received by the
development authority are required to applied under sub-
section  2  of section 91 for purposes mentioned therein
including the expenditure for any development of the land in
development area. he has therefore companytended that the
legislature has really intended that for the purpose of
development fund is required to be generated and such fund
may be generated number only by way of grants loans or
advances but also otherwise. the only limitation of
generation of such funds is to apply such fund for the
specific purposes referred to in sub-section  2  of section

mr. goswami has companytended that it is numberodys case that
such development fee has number been utilised for the purpose
of sub-section  2  of section 91. he has therefore
contended that the development authority
can impose such fee and such power to impose fees is
ancillary to the development activities and is implied in
the act. he has companytended that if the state legislature is
competent to impose fees the development authority by
virtue of the delegated legislation can also impose
betterment fee or the development fee and simply because
imposition of such fee by the development authority is number
specifically mentioned it cannumber be held that the
development authority cannumber impose any betterment fee or
development fee even though such fee was essential for the
development activities and has been imposed with reference
to development effected. mr. goswami has very strongly
relied on the decision of this companyrt in the case of the
district companyncil of the jowai autonumberous district jowai and
others v. dwet singh rymbai etc. air 1986 sc 193. in
considering the validity of the numberification issued by the
district companyncil of district jowai under united khasi and
jaintia hills autonumberous district  management and companytrol of
forests  act. 1959 it has been held by this companyrt that in
the real sense what in sought to be required under the act
is number royalty since the forest does number belong to the
district companyncil. the amount claimed by way of royalty
under the numberification is in reality companypulsory exaction of
money by public authority for public purpose enforeceable by
law and in number a payment for service rendered. the companyrt
has held that there is numberspecific reference to the power to
levy and fee in respect of any matter mentioned in paragraph
3 in the 6th schedule to the companystitution similar to the
corresponding provision in entries of list ii of 7th
schedule. companysidering the facts of the case it has been
held that the power to levy fees in respect of any of the
matters mentioned in paragraph 3 should be necessarily
implied but such fee should number be disproportionately very
high that is a tax in disguise. the companyrt has indicated
that the said united khasi and jaintia hills autonumberous
district  management and companytrol of forests  act 1959 was
enacted for the purpose of making provisions regarding the
management and the companytrol of forests which are number reserved
forests in the area within the jurisdiction of district
council in the exercise of the powers companyferred by entry
3 1  d  of the 6th schedule to the companystitution. it has
been held that even if there is numberexpress provision to levy
fees the district companyncil under paragraph 3 can levy fees. mr. goswami has companytended that it will number be companyrect to
conted that in numbercase imposition of fee can be made unless
there is specific provision for such imposition. such power
of imposition may be implied if the provision
of the act are companysidered in the proper perspective and if
such imposition becomes essential for the activities for
which the statutory bodies are created. in this companynection
mr. goswami has referred to anumberher decision of this companyrt
made in the case of khargram panchyat samiti and anr. v.
state of west bengal and ors. 1987 3 scc 82. it has been
held by this companyrt that in a statute companyferment of general
statutory power also carries with it incidental and
consequential power. relying on the said decision mr.
goswami has companytended that as the development has been
effected by the development authority and there was
necessity for augmenting the revenue for such development
work and as section 91 has recognised a fund to be created
otherwise than by way of grants loans or advances and as
imposition of such fee is incidental and or ancillary to c-
arrying on the purposes for which the development authority
has been companystituted under the town planning act it should
be held that such power of imposition of fee is implied. he
has therefore companytended that the high companyrt of gujarat was
number justified in holding that such imposition of fee by
framing impugned regulations was wholly unauthorised and as
such illegal and void. after giving our anxious companysideration to the
contentions raised by mr. goswami it appears to us that in
a fiscal matter it will number be proper to hold that even in
the absence of express provision a delegated authority can
impose tax or fee. in our view such power of imposition
of tax and or fee by delegated authority must be very
specific and there is numberscope of implied authority for
imposition of such tax or fee. it appears to us that the
delegated authority must act strictly within the parameters
of the authority delegated to it under act and it will number
be proper to bring the theory of implied intent or the
concept of incidental and ancillary power in the matter of
exercise of fiscal power. the facts and circumstances in
the case of district companyncil of jowai are entirely
different. the exercise of powers by the autonumberous jaintia
hills districts are companytrolled by the companystitutional
provisions and in the special facts of the case this companyrt
has indicated that the realisation of just fee for the a
specific purpose by the autonumberous district was justified
and such power was implied. the said decision cannumber be
made applicable in the facts of this case or the same should
number be held to have laid down any legal proposition that in
matters of imposition of tax or fees the question of
necessary intendment may be looked into when there is no
express provision for imposition of fee or tax. the other
decision in khargram panchayat samitis case also deal with
the
exercise of incidental and companysequential power in the field
of administrative law and the same does number deal with the
power of imposing tax and fee. the high companyrt has referred to the decisions of this
court in hingirs case and jagannath ramanujs case and
delhi municipal companyporations case  supra . it has been
consistently held by this companyrt that whenever there is
compulsory exaction of any money there should be specific
provision for the same and there is numberroom for intendment. numberhing is to be read and numberhing is to be implied and one
should look fairly to the language used.