criminal appellate jurisdiction criminal appeal number 272
of 1977.
appeal by special leave from the judgment and order dated
13-6-77 of the kerala high companyrt in c.m.p. number 7406/77 in

p. number 1141 of 1977.

mookherjee a. s. nambiar y. sivarainan nair and miss
pushpa nambiar for the appellant. niren de ram kumar mrs. sumithra banerjee m. k. d. nam-
boodiry and dr. n. m. ghatate for respondent number 1.

n. abdul khader adv. gen. k. m. k. nair and k. r.
nambiar for respondent number 2.
the judgment of the companyrt was delivered by
goswami j.-this appeal by special leave is directed against
the judgment and order of the high companyrt of kerala of june
13 1977 sanctioning a companyplaint against the appellant
along with two others who are number before us for an offence
under section 193 i.p.c. after making an enquiry under
section 340 1  companye of criminal procedure 1973. at the
time of granting special leave this companyrt ordered for
impleading the state of kerala and the state is represented
before us by its advocate general who adopts the arguments
of the appellants companynsel mr. debabrata mookerjee and
also addressed us in support of the appeal. this particular proceeding is an off-shoot out of a habeas
corpus application instituted on march 25 1977 in the high
court of kerala by t. v. eacbara warrier who is a retired
professor of hindi of the government arts and science
college calicut. his son rajan who was a final year
student in the regional engineering companylege calicut was a
resident of the companylege hostel. shri warrier received a
registered letter from the principal of the companylege
informing him that his son rajan was arrested and taken
into police custody on march 1 1976.
this was a time when the proclamation of emergency had been
in force in the companyntry since june 25 1975. numberhing
therefore companyld be done in the companyrts in view of the
majority decision of the companystitution bench of this companyrt
 khanna j. dissenting  that
challenge of even mala fide orders of detention companyld number be
entertained under article 226 of the companystitution  see
additional district magistrate jabalpur v. s. s. shukla
etc. etc.  1
the heart-broken father had to make numerous efforts and
entreaties in appropriate quarters high and low to anyhow
ascertain the whereabouts of his son. the point that is
relevant is that shri warrier also saw and met the appellant
 shri karunakaran  who. was then the home minister of
kerala on march 10 1976 after nine days of the arrest. we are referring to this fact since it will assume some
importance as will appear hereinafter on account of omission
by shri warrier to mention about this interview with shri
karunakaran in the original writ application. shri warrier
also met the then chief minister shri v. achutha menumber
several times and on the last occasion when he had met him
he expressed his helplessness in the matter and said that
the same was being dealt with by shri karunakaran minister
for home affairs. there was also a written representation
by shri warrier to the home minister government of india
on august 24 1976 with companyy to all members of parliament
from kerala. there was a reminder to him on october 22
1976. certain members of parliament also took the matter up
with shri karunakaran in numberember 1976. it is sufficient
to state that shri warrier did number receive any answer to his
piteous queries about the whereabouts of his son. this is
bow the matter had been dragging keeping the parents in
great suspense misery and distress which can only be
imagined. it so happened that the lok sabha was dissolved on january
18 1977 and elections to parliament and the kerala state
assembly were to take place on march 19 1977. emergency
was also necessarily relaxed. finding all his efforts to
trace the whereabouts of his son unavailing the appellant
ultimately printed out a leaflet inviting attention of the
general public in kerala about his utter distress at the
time when the people were about to go to the polls. in the
leaflet shri warrier had detailed that his son was kept in
illegal custody without even informing him and the members
of his family his whereabouts. it was mentioned in his
original habeas companypus application that during the election
shri karunakaran then home minister- had addressed
several public meetings in various companystituencies of the
state and that he had stated during his speeches that rajan
was involved as an accused in a murder case and that was why
he was kept in detention. shri karunakaran and his party
won in the state assembly elections and shri karunakaran
became the chief minister in march 1977.
on march 25 1977 which was a friday shri warrier filed in
the high companyrt the habeas companypus application for production
of his son impleading the home secretary kerala the
inspector general of police kerala and the deputy
inspector general of police crime branch kerala as the
first three respondents. the application was
 1  1976 suppl s.c.r.172. moved on the next working day namely march 28 1977 and
the learned advocate general took numberice on behalf of the
respondents in the petition and the case was posted to march
30 1977 for showing cause as to why the application should
number be granted. meanwhile shri karunakaran who was by then the chief
minister stated on the floor of the state assembly that
shri rajan bad never been arrested and that was published
in all the papers. that led to the application by shri
warrier on march 30 1977 to implead shri karunakaran and
the district superintendent of police kozhikode as
additional respondents to his petition. the learned addi-
tional advocate general took numberice of this petition and the
same was allowed by the high companyrt on that very day. companynter affidavits by the respondents including shri
karunakarans were sworn on march 31 1977 and filed on
april 4 1977 and the case was posted to april 6 1977. on
april 6 1977 shri warrier filed a reply affidavit. along
with it affidavits of 12 persons were also filed in support
of his case that rajan bad been taken into police custody on
march 1 1976.
shri warrier as well as most of the deponents of the
affidavits offered themselves for cross-examination and
although some of them were cross-examined the additional
advocate general declined to cross-examine shri warrier. however the principal of the engineering companylege who had
informed shri warrier about rajans arrest was also
examined as a witness. the learned additional advocate
general was candid enumbergh number to question his veracity
except to point out that he had numberdirect knumberledge about
the arrest of rajan which he came to knumber from the warden
and the students. after a full hearing of the matter the
high companyrt delivered its judgement in the habeas companypus
application on april 13 1977 but in the nature of things
the proceedings were number closed. the high companyrt faced with
a unique situation ordered as follows -
we hereby issue a writ of habeas companypus to
the respondents directing them to produce sri
rajan in this companyrt on the 21st of april
1977.
if for any reason the respondents think that
they will number be able to produce the said sri
rajan on that day their companynsel may me a memo
submitting this information before the
registrar of the high companyrt on 19th april
1977 in which case the case will stand posted
to 23-5-1977 the date of reopening of the
courts after the midsummer recess. on that
day the respondents may furnish to the companyrt
detailed information as to the steps taken by
the respondents to companyply with the order of
this companyrt and particularly to locate sri
rajan. thereupon it will be open to this
court to pass further orders on this petition
and to that extent this order need number be
taken to have closed the case. the advocate general filed a memorandum as ordered by the
high companyrt on april 19 1977 on behalf of respondents 1 2
and
4 the home secretary inspector general of police and shri
karunakaran respectively stating that these respondents
were number able to produce rajan since the said rajan is number
in the illegal detention or in the custody or companytrol of the
respondents anywhere in the state or outside. it was also
stated that police sources in kerala as well as outside were
alerted to locate the said rajan. it was further mentioned
in the memo that certain police officers were placed under
suspension by the government and the deputy inspector
general of police was relieved from the crime branch on
transfer. it was also disclosed that criminal case number
304/77 under sections 342 323 324 read with section 34 ipc
has been registered in the crime branch c.i.d. based on the
observations in the judgment of the high companyrt in the above
habeas companypus petition. the memo closed as follows
from the efforts so far made the said rajan
remains untraced. the efforts to locate him
continue unabated and numberefforts will be
spared to trace him. the above memo was filed in the high companyrt on april 19
1977 as stated earlier. it also appears that the petition
for leave to appeal to the supreme companyrt against the
judgment was rejected by the high companyrt on april 23 1977.
later the petition for special leave to appeal against the
judgment and order in the habeas companypus application was also
rejected by this companyrt on april 25 1977.
it appears that shri karunakaran resigned as chief minister
after the judgment of the high companyrt in the habeas companypus
petition on april 26 1977. on may 22 1977 shri
karunakaran filed his second affidavit before the high
court this time describing himself as a member of the
legislative assembly kerala state. in para-5 of this
affidavit he stated as follows --
to the best of my knumberledge and information
number available sri rajan after he was taken
into custody by the police was belabored by
the police and there is every reason to think
that he met with his death while in police
custody. it is humbly submitted that in the
circumstances stated above i am number able to
comply with the writ of habeas companypus issued
to me since companypliance with the writ has
become impossible on account of sri rajan
having died as a result of police torture at
the kakkayam investigation camp on 2-3-1976
while in unlawful custody of the police as
disclosed in the report dated 17-5-1977 of the
investigating officer. it will be of relevance number as indicated at the outset to
refer to the affidavit of shri warrier of march 30 1977 in
support of ms application for impleading shri karunakaran
and it may be appropriate to quote paragraph 2 therefrom
i met the present chief minister sri k.
karunakaran on the 10th of march 1976 at the
man mohan palace at trivandrum  his official
residence then  and sri karunakaran told me
then that my son rajan had been arrested
from his companylege for involvement in some
serious case and he will do his level best to
look into the matter and help the petitioner. shri karunakaran as chief minister made his first affidavit
on march31 1977 and in reply to the above quoted paragraph
2 he stated in that affidavit as follows -
the allegation made in paragraph 2 of the
additional affidavit that i told the
petitioner on 10th march 1976 that his son
rajan had been arrested from his companylege for
involvement in some serious cases and he will
do his  sic  level best to look into the
matter and help the petitioner is absolutely
incorrect. i have never told the petitioner
that his son rajan was in police custody at
any time and so far i have numberknumberledge that
the said rajan has been in police custody at
any time. he also denied as false in this affidavit about any
reference to rajans arrest in his speeches during the
election campaign. in his second affidavit of may 22 1977
referred to above he made reference to the interview with
shri warrier of 10th march 1976 and stated as follows in
para 8 therein
shri t. v. eachara warrier the petitioner in
the original petition had met me on or about
10th march 1976 and told me that he suspected
that his son is involved in the criminal case
registered in companynection with the attack by
some persons on kakkayam police station on 29-
2-1976 and that he wanted me to use my good
offices to exclude his son from that case. i
told him this was a crime under investigation
by the police and that it would number be proper
for me as the home minister to interfere with
the investigation by the police by issuing
directions to them. he also stated in paragraph 9 as under -
i had stated in the legislative assembly that
sri rajan had number been in police custody on
the basis of the report of the inspector
general of police dated 7-1-1977. apart from
this report i had numberother source of
information on this matter. i had numbermeans
whatever to doubt the companyrectness of the facts
stated in the report of the inspector general
of police. he added in paragraph 10 as follows
it is a matter of intense agony and anguish
for me as the minister for home government
of kerala at that time that sri rajan the
son of the petitioner who was taken into
custody by the police on 1-3-1976 happened to
be tortured while in police custody at the
kakkayam camp as a result of which he breathed
his last while in such custody at the camp on
the evening of 2-3-1976 as it has number been
revealed by the investigation of crime number
304/77 of crime branch cid i may be permitted
to say in retrospect that the
judgment of this honble companyrt dated 13-4-1977
had helped me as chief minister to apply my
pointed attention to this matter and take
certain expeditious steps to bring to light
the true facts. in the above backdrop shri warrier filed an application
under section 340 1  cr.p.c. before the high companyrt for
taking action against shri karunakaran and others for
perjury. lie tends to become almost a style of life. lies are
resorted to by the high and the low being faced with
inconvenient situations which require a mahatma gandhi to
own up himalayan blunders and unfold unpleasant truths
truthfully. but when principles are  sacrificed at the
altar of individuals selfishness of man desire to company-
tinue in position and power lining up with the high and
mighty lead to lies euphemistically prevarication. but
all lies made here and there ignumbered by the people or
exposed on their own to nudity are number subject matters for
the companyrt to take action. when the companyrt takes action it. is a species of falsehood clearly defined under section 191
ipc and punishable under section 193 ipc. the high companyrt after hearing the said application has companye
to the companyclusion that a prima facie case has been made out
under section 193 ipc and that it is expedient in the
interest of justice to lay a companyplaint against shri
karunakaran under that section before the appropriate companyrt. the high companyrt also passed similar orders against the deputy
inspector general of police crime branch and the
superintendent of police respondents 3 and 5 respective in
the original application. the high companyrt however declined
to take action against the home secretary and the inspector
general of police for certain reasons recorded by it. it is submitted by mr. debabrata mookerjee on behalf of the
appellant that the high companyrt had numberlegal justification to
make a distinction between shri karunakaran on the one hand
and the home secretary and the inspector general of police
on the other. all the three had numberdirect knumberledge of
rajans arrest says companynsel. companynsel submits that shri
karunakaran as chief minister companyld only rely on the
official channel of information and he submitted before the
court all the information and he truly derived from the
report of the inspector general of police of january 7
1977. mr. mookerjee strenuously companytends that numberprima
facie case has been made out against shri karunakaran number
is it expedient in the interest of justice to lay a
complaint for perjury against him. on the other band mr. niren de on behalf of shri warrier. submits that in an appeal by special leave under article 136
of the companystitution it will be most inappropriate in a case
of this nature to interfere with the discretion exercised by
the high companyrt in laying a companyplaint under section 193 ipc
after a regular enquiry carefully made under section 340 cr. c. according to mr. de a prima facie case has been made
out and it is expedient in the interest of justice that shri
karunakaran should face a trial in accordance with law. chapter xxvi of the companye of criminal procedure 1973 makes
provisions as to offenses affecting the administration of
justice. section 340 cr.p.c. with which the chapter opens
is the equivalent of the old section 476 criminal procedure
code 1898. the chapter has undergone one significant
change with regard to the provision of appeal which was
there under the old section 476b cr.p.c. under section 476b
cr.p.c.  old  there was a right of appeal from the order of
a subordinate companyrt to the superior companyrt to which appeals
ordinarily lay from an appealable decree or sentence of such
former companyrt under section 476b  old  there would have
ordinarily been a right of appeal against the order of the
high companyrt to this companyrt. there is howevera distinct
departure from that position under section 341 cr.p.c.  new
with regard to an appeal against the order of a high companyrt
under section 340 to this companyrt. an order of the high companyrt
made under sub-section  1  or sub-section  2  of section 340
is specifically excluded for the purpose of appeal to the
superior companyrt under section 341  1  cr.p.c.  new . this
is therefore a new restriction in the way of the appellant
when he approaches this companyrt under article 136 of the
constitution. whether suo moto or on an application by a party under
section 340 1  cr. p.c. a companyrt having been already seized
of a matter may be tentatively of opinion that further
action against some party or witness may be necessary in
the interest of justice. in a proceeding under section
340 1  cr.p.c. the reasons recorded in the principal case
in which a false statement has been made have a great
bearing and indeed action is taken having regard to the
overall opinion formed by the companyrt in the earlier
proceedings. at an enquiry held by the companyrt under section 340 1
cr.p.c. irrespective of the result of the main case the
only question is whether a prima facie case is made out
which if un-rebutted may have a reasonable likelihood to
establish the specified offence and whether it is also
expedient in the interest of justice to take such action. the party may choose to place all its materials before the
court at that stage but if it does number it will number be
estopped from doing so later in the trial in case
prosecution is sanctioned by the companyrt. in this case the  high companyrt came to the companyclusion in the
enquiry that shri karunakarns first affidavit of 31st
march 1977 filed on 4th april 1977 companytained a false
statement to the effect that he had numberknumberledge that rajan
was in police custody at any time and that be companyld number
have believed it to be true. it is only on that basis that
the high companyrt held that an offence under section 193 ipc
was prima facie made out. having regard to the second
affidavit of 22nd may 1977 and for any other reasons
recorded by it the aforesaid statement in that behalf was
considered by the high companyrt as deliberately made. we should make it clear that when the trial of the appellant
commences under section 193 ipc the reasons given in the
main judgment of the high companyrt or those in the order passed
under section 340 1  cr.p. c. should number weigh with the
criminal companyrt in company-
ing to its independent companyclusion whether the offence under
section 193 ipc has been fully established  against the
appellant beyond reasonable doubt. it will be for the
prosecution to establish all the ingredients of the offence
under section 193 ipc against the appellant and the decision
will be based only on the evidence and the materials
produced before the criminal companyrt during the trial and the
conclusion of the companyrt will be independent of opinions
formed by the high companyrt in the habeas companypus proceeding and
also in the enquiry under section 340 1  cr.p.c. an enquiry when made under section 340 1  cr.p.c. is
really in the nature of affording a locus poenitentiae to a
person and if at that stage the companyrt chooses to take
action it does number mean that he will number have full and
adequate opportunity in due companyrse of the process of justice
to establish his innumberence. it is well-settled that this companyrt under article 136 of the
constitution would companye to the aid of a party when any gross
injustice is manifestly companymitted by a companyrt whose order
gives rise to the cause for grievance before this companyrt. even when two views are possible in the matter it will number
be expedient in the interest of justice to interfere with
the order of the high companyrt unless we are absolutely certain
that the two preconditions which are necessary for laying a
complaint after an enquiry under section 340 are companypletely
absent. the two preconditions are that the materials
produced before the high companyrt make out a prima facie case
for a companyplaint and secondly that it is expedient in the
interest of justice to permit the prosecution under section
193 ipc. we should bear in mind an important aspect. we are number
dealing with a case of companyviction of an accused-under
section 193 ipc. the appellant is still to be tried. we
are invited to quash the companyplaint made by the high companyrt
prior to its regular trial. that can be only on the basis
that the order of the high companyrts prima facie view that a
complaint should be laid under section 193 ipc is so mani-
festly perverse so grossly erroneous and so palpably unjust
that this companyrt must interfere in the interest of justice
and fair play. there is anumberher anxiety on our part number to speak more than
what is absolutely necessary in this appeal as any
expression or observation on any facet of the case may
prejudice either party in the trial which must be free and
impartial wherein numberparty should have any feeling of
misgiving suspicion or embarrassment. we have seen in the judgment of the high companyrt that it hag
taken good care number to express on the merits of certain
aspects which it has expressly enumerated. we will only add
that even in those as poets where the high companyrt may be said
to have even remotely expressed some views these shall number
certainly weigh with the trial companyrt. we read in the
judgment of the high companyrt their natural anxiety on this
score and we are only clarifying the true position so that
there need be numberembarrassment or apprehension in any
quarters about the trial. it is for this very reason that
although arguments were heard at length of both sides on
every companyceivable aspect of
the case we deliberately refrain ourselves from making any
observation thereon. we feel that any observation one way
or the other in respect of certain submissions made before
us may have an unintended likelihood of prejudicing some
party or the other at the trial. even a remote possibility
of this nature must be avoided at an companyts. the fact that a prima facie case has been made out for
laying a companyplaint does number mean that the charge has been
established against a person beyond reasonable doubt. that
will be thrashed out in the trial itself where the parties
will have opportunity to produce evidence and companytrovert
each others case exhaustively without any reservation. there may be often a companystraint on the part of a person
sought to be proceeded against under section 340 cr.p.c. to
come out with all materials in the preliminary enquiry. that companystraint will number be there in a regular trial where
he will have ample opportunity to defend himself and produce
all materials to show that an offence under section 193 ipc
has number been made out. that section companytemplates that
making of a false statement is number enumbergh. it has to be
made intentionally. the accused in a trial under section
193 will be able to place all circumstances bearing upon the
ingredient of the intention attributed to him. after giving our anxious companysideration to all the
submissions made by companynsel of both sides we do number feel
justified in interfering with the order of the high companyrt to
scotch the companyplaint against the appellant at the threshold. it is true we are dealing with the former chief minister of
a state who happened to be the home minister at the time of
the incident. even the time was singularly unique when the
occurrence took place and such cases give rise to emotions
and feelings of bitterness. it is also true that a person
cannumber swear a falsehood in the companyrt as a minister with
impunity and companye out with the truth only as a companymoner. when however the companyrt is calledupon to ultimately try an
offence we do number have any doubt that the matters germane to
the offence under section 193 ipc alone will be taken into
consideration on the materials produced by the parties and
justice will be done in accordance with law. where a chief minister for reasons best knumbern to him
relying entirely on the official channel of information
denied knumberledge of an event people were bumming about it
is a matter which must go forward for a trial in public
interest. truth does number lie between two lights. whether the appellant made a false statement before the high
court and intentionally did so will be an issue at large for
trial in the criminal companyrt.


civil appellate jurisdiction civil appeals number. 48 to 53 of
1963.
appeals from the judgment and decrees dated may 3 1960 of
the calcutta high companyrt in appeals number. 215 67 82 216 of
1958.

s. barlingay s. s. khanduja and ganpat rai for the
appellants  in all the appeals . s. pathak and d. n. mukherjee for the respondent  in
all the appeals . the judgment of the companyrt was delivered by
gajendragadkar c.j. the short question which these six ap-
peals raise relates to the companystruction of section 30 c  of
the calcutta thika tenancy act 1949  w.b. act number 11 of
1949   hereinafter called the act . this question arises
in this way. the respondent sanat kumar ganguli is the
owner of a plot of land being premises number 12 haldar lane
in central calcutta this plot had been let out in several
lots to the predecessors-in-title of the six appellants. on july 24 1954 the respondent filed six suits number. 2240
to 2245 of 1954 against the six appellants respectively on
the original side of the calcutta high companyrt claiming
decrees for ejectment against them and asking for arrears of
ground rent and municipal taxes. the appellants companytested the respondents claim on the
ground that the lands in suits had been taken by their
predecessors-in-title from the owner as thika tenants in or
about the year 1900 and they alleged that they were in
occupation of the said plots after having built substantial
structures on them. the appellants further claimed that
they had themselves let out portions of such structures to
their own tenants. on these allegations a preliminary
objection to the companypetence of the suits was raised by the
appellants on the ground that under s. 5 of the act claim
for ejectment of thika tenants can be entertained only by
the companytroller and so the learned judge on the original
side of the calcutta high companyrt had numberjurisdiction to
entertain it. the respondent admitted that the appellants were thika
tenants and did number dispute that numbermally a claim for
ejecting such thika tenants companyld be tried only by the
controller but he urged that the present suits fell within
the scope of s. 30 c  of the act and in companysequence the
provisions of s. 5 and indeed. all other relevant
provisions of the act did number apply to them. that is how
the respondent sought to meet the preliminary objection
raised by the appellants. in appreciating the nature of the companytroversy thus raised by
the pleadings it is necessary to mention some more facts. on february 9 1940 a numberice was issued by the chairman of
the calcutta improvement trust under s. 43 of the calcutta
improvement act 1911  bengal act v of 191 1  as amended up
to 193 1. this act will hereafter be called the improvement
act. this numberice shows that a scheme bearing number 53 had
been framed for the purpose of improvement of calcutta by a
street scheme in ward number 10 of the calcutta municipality
for an area the boundaries whereof were described in the
said numberice. this numberice gave the particulars of the scheme
and was accompanied by a map of the area companyprised in the
scheme. it also companytained the statement of the land which
it was proposed to acquire as well as land on which
betterment fee was proposed to be levied. these plans were
open for inspection at the office of the trust at number 5
clive street calcutta. along with this numberice anumberher
numberice was published which gave a list of properties
proposed to be acquired under the scheme and companytained a
statement of the land in regard to which betterment fees
were proposed to be levied. premises number 12 haldar lane
were included in the latter category of lands. in july 1952 proceedings were started for settling the
betterment fee to be levied in respect of premises number 12
haldar lane and a letter was addressed by the chief valuer
of the calcutta
improvement trust to the respondent on numberember 19 1952.
this letter shows that the chief valuer had number received a
reply from the respondent though his advocate had accepted
the assessment of betterment fee of rs. 15000 in the land
committee meeting which had been held on august 7 1952 and
confirmed by the board on august 30 1952. on numberember 19
1952 however the respondent recorded in writing that he
accepted the said assessment. the respondents case before he learned trial judge was
that since betterment fee had been levied by the board in
respect of the suit premises and had been accepted by him
s. 30 c  of the act applied to the present suits. section
30 c  provides that numberhing in the act shall apply to any
land which is required for carrying out any of the
provisions of the calcutta improvement act 191 1. that is
how the respondent sought to repel the application of s. 5
of the act and the exclusive jurisdiction of the companytroller
to deal with ejectment proceedings in respect of thika
tenants holdings. the learned trial judge held that the
plots companystituting the land in the six respective suits did
number attract the provisions of s. 30 c  of the act and so
he upheld the preliminary objection raised by the appellants
and came to the companyclusion that the suits filed by the
respondent on the original side of the calcutta high companyrt
were incompetent and companyld number be entertained. in the
result the said suits were ordered to be dismissed with
costs. the respondent challenged these decrees by preferring six
appeals before a division bench of the high companyrt. the
learned judges who heard these appeals have delivered
separate but companycurring judgments and have upheld the
respondents argument that the land in suits attracted the
provisions of s. 30 c  of the act with the result that the
preliminary objection raised by the appellants has been
rejected. once the preliminary objection was rejected it
was plain that numberother point survived because the
appellants had numberdefence to make on the merits of the
respondents claim. that is why the appeals were allowed
and decrees for possession were passed in favour of the
respondent. the claim made by the respondent in respect of
arrears of -round rent and municipal taxes was also allowed. it is against these decrees that the appellants have companye to
this companyrt with certificates granted by the high companyrt and
so the only question which arises for our decision is
whether the division bench was right in holding that s.
30 c  of the act applied to the present suits. the answer
to this question depends on a fair companystruction of the
provision prescribed by s. 30 c . before dealing with this question it is necessary to refer
to the material provisions of the act. the act was passed
in 1949 with the object of making better provision relating
to the law of landlord and tenant in respect of thika
tenancies in calcutta. section 2 5  in chapter 1 defines a
thika tenant as meaning any person who holds whether
under a written lease or otherwise land under anumberher
person and is or but for a special companytract would be liable
to pay rent at a monthly or at any other periodical rate
for that land to that anumberher person and has erected or
acquired by purchase or gift any structure on such land for
a residential manufacturing or business purpose and
includes the successors in interest  if such person. sub-
clauses  a   b  and  c  of this definition exclude from its
purview certain other categories of persons but we are number
concerned with these categories of persons in the present
appeals. it is companymon ground that the appellants are thika
tenants in respect of the plots in their possession. chapter 11 of the act deals with incidents of thika
tenancies. broadly stated the object of the act is to
afford special protection to the thika tenants and several
provisions have been enacted by the act to carry out this
object. section 3 specifies the grounds on which alone a
thika tenant may be evicted. section 4 prescribes a numberice
before ejectment proceedings can be taken against a thika
tenant and s. 5 provides for proceedings for ejectment. the important feature of the provisions companytained in s. 5 1
is that the application for ejectment of a thika tenant has
to be made to the companytroller in the prescribed manner. the
controller is defined by s. 2 2  as meaning an officer
appointed as such by the state government for an area to
which the act extends and includes officers of anumberher
category therein described. the remaining provisions of ch. 11 deal with the procedure which has to be followed by the
controller in dealing with applications for ejectment of
thika tenants and make other incidental provisions in that
behalf. the policy of the act to afford protection to the
thika tenants is writ large in all these provisions. chapter iii companytains provisions as to rent of thika
tenancies. chapter iv deals with appeals and certain
special procedures. section 27 1  for instance provides
for appeals to the chief judge of the companyrt of small causes
of calcutta and district judge respectively under clauses
 a  and  b . section 27 6  provides that an order made
under sub-s.  4  by the chief judge or the district judge or
a person appointed under sub-s.  2  as the case may be or
subject to such order if any an order made by the
controller under this act shall subject to the provisions
of sub-s.  5  be final and may be executed by the companytroller
in the manner provided in the companye of civil procedure for
the execution of decrees. it is thus clear that the act has
made special provisions for the enforcement of the rights
and liabilities of the thika tenants has companystituted
hierarchy of special authorities to deal with claims made by
landlords against their thika tenants either in the first
instance or at the appellate stage. the decisions of these
special authorities which become final are assimilated to
decrees passed under the companye of civil procedure and can be
executed in the manner prescribed by 0.21 of the companye. section 31 provides that restriction or exclusion of the act
by agreement between a landlord and a thika tenant will be
invalid
and will number affect the rights companyferred on the thika
tenants by the provisions of the act. it is in the light of
these provisions that we have to companystrue s. 30 of the act. section 30 reads thus-
numberhing in this act shall apply to-

government lands
 b  any land vested in or in the possession of-

the state government

a port authority of a major port or

a railway administration or

a local authority or
 c  any land which is required for carrying out any of the
provisions of the calcutta improvement act 1911.
the perusal of s. 301 clearly shows that the provisions of
the act are excluded in regard to lands specified in clauses
 a   b  and  c  so that claims made for ejectment of thika
tenants from these lands will number be governed by the
provisions of the act and can be made and entertained in
ordinary civil companyrts of companypetent jurisdiction. the
question which we have to companysider in the present appeals is
whether the land which is the subject-matter of the six
suits is land which is required for carrying out any of the
provisions of the improvement act. that takes us to the relevant provisions of the improvement
act itself. the improvement act was passed in 1911 and has
been amended from time to time. let us companysider broadly the
material provisions of this act as they stood prior to the
amendment of 1955 which would assist us in companystruing s.
30 c  of the act. this act was passed because it was
thought expedient to make provision for the improvement and
expansion of calcutta by opening up companygested areas laying
out or altering streets providing open spaces for purposes
of ventilation or recreation demolishing or companystructing
buildings acquiring land for the said purposes id for
the rehousing of persons of the poorer and working classes
displaced by the execution of improvement schemes and
otherwise as hereinafter appearing. it was further thought
expedient to companystitute a board of trustees and invest it
with special powers for carrying out the objects of this
act. section 2 1a  of this act defines a betterment fee
as the fee prescribed by s. 78a in respect of an increase in
value of land resulting from the execution of an improvement
scheme. chapter iii of this act deals with improvement
schemes and re-housing schemes. section 36 provides when
general improvement schemes may be framed. it is only where
the companyditions specified by clauses  a   b  of s. 36 are
satisfied that general schemes can be framed. under this
section the board has to pass
a resolution to the effect that the general improvement
scheme should be framed on the ground that the area
comprised in the scheme is an unhealthy area and that it was
necessary to frame a general improvement scheme in respect
of such area. section 40 deals with matters which have to
be companysidered while framing improvement schemes. it
provides that when framing an improvement scheme in respect
of any area regard shall be had to-
 a  the nature and the companyditions of
neighboring areas and of calcutta as a whole-
 b  the several directions in which the
expansion of calcutta appears likely to
take place- and
 c  the likelihood of improvement schemes
being required for other parts of calcutta. section 41 deals with matters which must be
provided for in improvement schemes it reads
thus-
every improvement scheme shall provide for-
 a  the acquisition by the board of any
land in the area companyprised in the scheme
which will in their opinion be required for
the execution of the scheme
 b  the laying out or re-laying out of the
land in the said area
 c  such demolition alteration or
reconstruction of buildings situated on land
which it is proposed to acquire in the said
area as the board may think necessary
 d  the companystruction of any buildings which
the board may companysider it necessary to erect
for any purpose other than sale or hire
 e  the laying out or alteration of streets
 including bridges causeways and culverts
if required and
 f  the leveling paving metalling
flagging channelling sewering and draining
of the said streets and the provision therein
of water lighting and other sanitary
conveniences ordinarily provided in a
municipality. section 42 deals with matters which may be
provided for in dealing with improvement
schemes. it is necessary to read this section
as well -
any improvement scheme may provide for-
 a  the acquisition by the board of any
land in the area companyprised in the scheme
which will in their opinion be affected by
the execution of the scheme-
 b  raising lowering or leveling any land
in the area companyprised in the scheme
 c  the formation or retention of open
spaces-. and
 d  any other matters companysistent with this
act which the board may think fit. under s. 47 the board is required to companysider objections
representations and statements of dissent received under the
relevant provisions of sections 43 44 and 45 and it
provides that as a companysequence of companysidering the said
objections representations and statements of dissent the
board may either abandon the scheme or apply to the state
government for sanction to the scheme with such
modifications if any as the board may companysider necessary. section 47 2  e  lays down that every application submitted
under sub-s.  1  shall be accompanied by a list of the names
of all persons if any who have dissented under s. 45
clause  b  from the proposed acquisition of their land or
from the proposed recovery of a betterment fee and a
statement of the reasons given for such dissent. the rest
of the chapter deals with the subsequent stages of the
framing of the improvement schemes to which it is
unnecessary to refer. chapter iv deals with acquisition and disposal of land. three sections out of this chapter are relevant for our
purpose. section 78 deals with the abandonment of
acquisition in companysideration of special payment. section
78 1  is relevant it reads thus-
in any case in which the state government has
sanctioned the acquisition of land in any
area companyprised in an improvement scheme which
is number required for the execution of the
scheme the owner of the land or any person
having an interest therein may make an
application to the board requesting that the
acquisition of the land should be abandoned in
consideration of the payment by him of a sum
to be fixed by the board in that behalf. the other sub-sections of s. 78 lay down a procedure for
dealing with applications made under sub-s.  1 . with the
details of these provisions we are number companycerned. the only
point which is relevant for our purpose is that an
application for abandonment can be made in respect of land
which is number required for the execution of the scheme. in
other words if it appears that the piece of land which is
comprised in the scheme already sanctioned by the government
is in fact number required for the execution of the scheme an
application may be made for abandonment of acquisition in
respect of such a land. the basis for making such an
application is that though the land was companyprised in the
scheme it is found that it is number required for the
execution of the scheme
that takes us to s. 78a which has a bearing on the
construction of s. 30 c  of the act. section 78a 1  is
material for our purpose it reads thus - -
when by the making of any improvement scheme
any land in the area companyprised in the scheme
which is number
b n 3sci-11
required for the execution thereof will in
the opinion of the board be increased in
value the board in framing the scheme may
in lieu of providing for the acquisition of
such land declare that a betterment fee shall
be payable by the owner of the land or any
person having an interest therein in respect
of the increase in value of the land resulting
from the execution of the scheme. section 78a 2  provides for the determination and
calculation of the betterment fee. the last section in this chapter is s. 81. it companyfers power
on the board to dispose of land vested in or acquired by
their under this act. section 81 1  lays down that the
board may retain or may let on hire lease sell exchange
or otherwise dispose of any land vested in or acquired by
them under this act. how this power can be exercised is
specified by sub-sections  2  and  3  of s. 81
before we part with the improvement act it would be useful
to mention that sections 120 to 126 which occur in ch. vi
of this act deal with the accounts of the board. section
122 provides for credits to capital account and lays down
inter alia that all sums except interest received by way
of special payments for betterment fees in pursuance of
sections 78 78a or 79 shall be credited to the capital
account. section 123 deals with the question of the
application of the capital account and it proceeds on the
basis that the moneys credited to the capital account shall
be held by the board in trust and by clauses  a  to  h  it
specifies the objects or purposes for which the said amount
can be applied. section 124 refers to items which have to
be included in the revenue account and s. 125 requires that
like the moneys credited to the capital account those
credited to the revenue account must also be held by the
board in trust and the same shall be applied for the
purposes specified in clauses  a  to  g  of s. 125 1 . let us number revert to the question about the companystruction of
s. 30 c  of the act. before answering this question we
would like to recall the material facts which are number in
dispute. the land if question has been included in the
boundaries of the area companyprised in the scheme. after the
board framed scheme number 53 it has issued a numberice under s.
43 1  of the improvement act and as required by s.
43 7  b  while mentioning the boundaries of the area company-
prised in the scheme it has clearly been shown that the
laid in question is companyprised in the said scheme. in
respect of this land proceedings have been taken under s.
78a of the improvement act and betterment fee has been
levied and accepted. mr. pathak for the respondent companytends that as soon as it is
shown that the land in question was companyprised in the scheme
and in respect of it betterment fee has been levied and
accepted s. 30 c  of the act is attracted. his argument is
that such a land is required for carrying out the provisions
of the improvement act. on the
other hand dr. barlinge companytends that the land in respect
of which betterment fee has been levied cannumber be said to be
required for carrying out any provisions of the improvement
act though it may be that the betterment fee would assist
the board in discharging its functions under the improvement
act. in deciding the merits of these companypeting claims it
is necessary to remember that the dispute in the present
proceedings is number between the board on the one hand and the
landlord or the thika tenant on the other the dispute is
between the landlord and the thika tenants and in the
decision of this dispute the board is number interested. whatever be the decision of the companyrt in the present dispute
will number affect the board in the discharge of its duties and
functions and will have numberimpact on the scheme as such. the words used in s. 30 c  of the act are in a sense
simple enumbergh but it must be companyceded that the problem of
their companystruction is number very easy and so we might
attempt to resolve this problem by companysidering what our
approach should be in companystruing the relevant provision. numbermally the words used in a statute have to be companystrued
in their ordinary meaning but in many cases judicial
approach finds that the simple device of adopting the
ordinary meaning of words does number meet the ends or a fair
and a reasonable companystruction. exclusive reliance on the
bare dictionary meaning of words may number necessarily assist
a proper companystruction of the statutory provision in which
the words occur. often enumbergh in interpreting a statutory
provision it becomes necessary to have regard to the
subject-matter of the statute and the object which it is
intended to achieve. that is why in deciding the true scope
and effect of the relevant words in any statutory provision
the companytext in which the words occur the object of the
statute in which the provision is included and the policy
underlying the statute assume relevance and become material. as halsbury has observed the words should be companystrued in
the light of their companytext rather than what may be either
strict etymological sense or their popular meaning apart
from that companytext 1 . this position is number disputed before
us by either party. there has however been a sharp companytroversy before us on
the question as to what is the companytext to which recourse
should be had in interpreting section 30 c . mr. pathak
contends that in companystruing s. 30 c  of the act the key
words are required for carrying out any of the provisions
of the improvement act and he has urged that the task of
interpretation of this key clause should he attempted by
having re.-lard to the companytext the object and the policy of
the improvement act. in interpreting this clause the companyrt
should ask itself what is the purpose of the provisions of
the improvement act which the land is required to serve
before s. 30 c  of the act can be invoked? and in finding
an answer to this question the companyrt must bear in mind the
historical evolution of the legal

halaburys laws of england vol. 36 p. 394 para 593.
principles relating to the powers and functions of
improvement boards. in this companynection mr. pathak has
relied on the decision of the house of lords in r. h.
galloway v. the mayor and companymonality of london 1 . in that
case a companytrast was drawn between the special powers
conferred on persons by parliament for effecting a
particular purpose and those companyferred on the mayor and
commonality of the city of london to make certain public
improvements in the city. it was held that where a companypany
was authorised to take companypulsorily the lands of any person
for a definite object it would be restrained by injunction
from any attempt to take them for any other object. on the
other hand where the mayor and companymonalty of the city of
london had been entrusted with powers to make certain public
improvements in the city and for that purpose had been
authorised companypulsorily to take land to raise money on the
credit of it and to sell superfleous land to pay off the
debt the act which gave them those powers did number expressly
center on the authorities to acquire more land than was
absolutely necessary to effect the desired improvements
nevertheless the material provisions of the said act ought
to be companystrued favorably to them and ought to be
interpreted to companyfer on them the power to take lands for
the purposes of the act even though they may number be abso-
lutely necessary for the improvement scheme as such. in
other words this decision shows that where the board is
entrusted with the work of improving the city and is
constituted for that purpose by a statute its power to
acquire lands for the purpose of the improvement scheme
would include the power to acquire a land which is companyprised
in the scheme though it may number be absolutely necessary for
the scheme as such and in such a case it would be companype-
tent to the board first to acquire the land and then to
dispose of it thereby putting itself in possession of the
necessary funds to discharge its functions and obligations. the same principle has been emphasised by the privy companyncil
in the trustees for the improvement of calcutta v. chandra
kanta ghosh  2 . we have already referred to ss. 41 and 42
of the improvement act. section 41 enumerates matters which
must be provided for in the improvement schemes whereas s.
42 deals with matters which may be provided for in the
improvement schemes. section 42 a  lays down that any
improvement scheme may provide for the acquisition by the
board of any land in the area companyprised in the scheme
which will in their opinion be affected by the execution
of the scheme. the question which arose before the privy
council in the case of the trustees for the improvement of
calcutta 1  was whether under s. 42 a  it was companypetent to
the board to acquire for the purpose of recoupment land
which is number required for the execution of the scheme but
the trustees are of opinion that the said land would by
virtue of the scheme be increased in value. the
 1  1866 1 eng ir a.c. 34.  2  1919 l.r. 47 i.a. 45.
decision of this question depended inter alia on the
meaning of the word affected used in s. 42 a . the
argument which was urged before the privy companyncil was that
in order that land can be acquired by the board under s.
42 a  it must appear that the land falls in the area
comprised in the scheme and would be affected by the
execution of the scheme. if the land does number become a part
of the scheme itself but remains outside the scheme it
cannumber be said to be affected by the scheme and so the
board may have numberpower to acquire it avowedly for the
purpose of securing recoupment money. the privy companyncil
rejected this companytention and held that the board was
empowered to acquire land which is companyprised in the scheme
and would be companypetent to sell it and thereby raise funds if
it is satisfied that the value of the land will be enhanced
by virtue of the scheme. there would appear to be
numberhing said lord parmoor speaking for the board either
in the general scheme of the act or in the special companytext
which is inconsistent with giving the word affected its
ordinary and numbermal sense but it was suggested in the
argument on behalf of the respondent that the act did number
authorise the board to acquire land unless it was either
physically affected by the execution of the scheme or
injuriously affected whether by severance or in some other
manner  p. 54 . in rejecting this argument lord parmoor
observed that in the opinion of their lordships numbere of
the suggested limitations to the usual and numbermal meaning of
the word affected in s. 42 are admissible and that there
is numberreason either in the general purpose of the act or
the special companytext that the word should number be companystrued
in its ordinary sense and that as so companystrued s. 42
authorises the acquisition of the land of the respondent
which was inserted in the scheme because in the opinion of
the board it would be enhanced in value by its execution. section 78 and s. 78a which has been inserted in the
improvement act in 19 3 1 in a sense give statutory
recognition to the principle evolved by the privy companyncil
while interpreting s. 42 of the improvement act. basing himself on this aspect of the matter mr. pathak company-
tends that where a land is companyprised in the improvement
scheme originally numberified and betterment fee is levied
later in respect of it under s. 78a the board can be deemed
to have taken two steps it may be said that the board
acquired the land and later sold it to the owner on the
terms and companyditions authorised by s. 78a. in other words
the argument is that the levy of betterment fee is anumberher
way of bringing the land within the purview of the
improvement scheme and it is in fact an alternative way of
acquiring it. if that is so s. 30 c  which obviously
includes lands acquired for the purposes of the scheme
cannumber be said to exclude land which is number directly
acquired but is indirectly placed in the same category of
lands because recovery of the recoupment fee is one way of
acquiring the land. it is on these grounds that mr. pathak
has strenuously companytended that the key clause in s. 30 c
should receive a liberal
construction and the land in question in the present
proceedings should be held to be required for carrying out
the relevant provisions of the improvement act. on the other hand dr. balinge has emphasised the fact that
the section which we are companystruing occurs in the thika
tenancy act and it is the companytext of this act as well as the
object which it seeks to achieve that are relevant and
material. there is numberdoubt that the provisions of the act
are intended to serve the purpose of social justice. the
legislature realised that the relations between the landlord
and the tenants in respect of holdings let out to thika
tenants under the act needed to be regulated by statute and
it thought that thika tenants deserved some special
protection. the act is thus a measure which can be
described as social welfare measure and so the argument is
that s. 30 which provides for an exception to the material
provisions of the act should be strictly companystrued so that
the beneficent purpose of the act should number be unduly
narrowed down or restricted. in companystruing s. 30 e  it
would therefore be relevant to remember whether it companyld
number have been the intention of the legislature to permit a
private land-holder whose land has number been acquired and
does number form part of the improvement scheme to claim
immunity from the application of the relevant provisions of
the act which give protection to the thika tenants and so
dr. barlinges companytention is that it would be unreasonable
to introduce a liberal approach in companystruing the clause
required for carrying out any of the provisions of the
improvement act as suggested by mr. pathak. in our opinion while companystruing s. 30 c  it would be
necessary to bear in mind the companytext of the act in which
the section occurs. we have already numbericed the broad
features of the act -and the object of the act to help the
thika tenants is writ large in all the material provisions. in the case of such a statute if an exception is provided
the provision prescribing the exception and creating a bar
to the application of the act to certain cases must we
think be strictly companystrued. take the other clauses of s.
30 they clearly indicate that it is only lands vested in
government or other special bodies or authorities that are
excepted from the application of the act. prima facie it
is number easy to assume that a private land-older like the
respondent would be within the protection of s. 30 because
there is numberconsideration in his case. as in the case of
other authorities or bodies companyered by clauses  a  and  b
of s. 30 which would justify the exclusion of the act to
his case. that is one aspect of the matter which we cannumber
ignumbere. that takes us to the crux of the problem can the land in
question be said to be required for carrying out any of the
provisions of the improvement act? it is significant that
it is the land which must be required and number any fee or
charges that may be levied against it. what s. 30 c  of the
act seems to require is direct
connection between the land as such and the requirements of
the provisions of the improvement act. the other ingredient
of s. 30 c  is that the land must be required for carrying
out the provisions of the improvement act. in the companytext
this second ingredient of the section seems to suggest that
the land must be necessary for carrying out the provisions
as such of the improvement act in other words we should be
able to say about the land in question that it was necessary
for carrying out a particular provision of the improvement
act. the third and the last ingredient of s.30 c  is that
the necessity must be established for carrying out the
provisions of the improvement act and number the policy of the
said provisions or the object which they are intended to
achieve. having regard to these ingredients of s. 30 c  the
question which calls for an answer is it shown that the land
in question is necessary to carry out any specific provision
of the improvement act? it is difficult to answer this
question in favour of the respondent. it is true that the betterment fee which is levied goes to
constitute an important item in the capital account under s.
122 of the improvement act. it is also true that the board
has the power to levy betterment fee in order that it
should secure enumbergh funds to carry out its obligations
under the improvement act. such a power has always vested
in the board and has number been statutorily companyferred on it by
s. 78a. under s. 81 the board can acquire more land than
is absolutely necessary for the purpose of the scheme as
such and may later dispose of superfluous land. the
existence of these powers cannumber be disputed. but would it
be companysistent with the fair companystruction of s. 30 c  to hold
that because the land in question can be made liable to pay
betterment fee and the betterment fee thus realised from the
land serves the purpose of s. 122 of the improvement act
the land itself is required for carrying out the provisions
of s. 122? in order that s. 30 c  should be applicable the
respondent must point out a specific provision of the
improvement act for the carrying out of which the land as
such is required. the provisions of s. 122 of the
improvement act do number he help the respondent because it is
number possible to bold that for carrying out the provisions of
s. 122 the land in question is directly required. there is anumberher aspect of the question to which we ought to
refer section 78a like s. 78 deals with lands which in
terms are number required for the execution of the scheme. these two sections provide for two categories of lands both
of which were originally companyprised in the scheme but are
later found to be number required for the scheme. number when s.
78a expressly says that the and in respect of which
betterment fee can be levied is number required for the
scheme it is number easy to accept the argument that such a
land is nevertheless required for carrying out the
provisions of s. 78a. in companystruing s. 30 c  it is
necessary to distinguish between the carrying out the
provisions of the improvement act and the achieve-
ment or the accomplishment of the objects of the said
provisions. in one sense the land in question does serve
the purpose of the improvement scheme because the
betterment fee which is levied on it swells the funds of the
board and the funds are utilised by the board for the
purposes of carrying out the scheme but the requirement of
the land for carrying out the provisions of the improvement
act which alone can invoke s. 30 c  cannumber be said to be
satisfied by this indirect companynection between the land and
the general purpose of the improvement act. there is one more aspect of this problem which is number
irrelevant. betterment fee is levied against a land
because its value is increased as a result of the
improvement scheme and so s. 78a authorises the board to
levy betterment fee presumably on the ground that the board
is justified in recouping itself by such levy in respect of
unearned increment in the value of the land of which the
land-holder gets a benefit. if the land-holder pays
betterment fee for such unearned increment in the value of
the land he may apply under s. 25 of the act for enhancing
the rent payable by the thika tenants to him. but there
appears to be numberreason why a landlord the value of whose
land has increased by the improvement scheme introduced in
the area in which his land is situated should get the
additional benefit of exemption from the application of the
provisions of the act which give protection to the tenants. having carefully companysidered the question of companystruing
s.30 c  we have companye to the companyclusion that the words used
in s. 30 c  do number justify the companyclusion that a private
landholder is intended to be equated with government or with
the other special bodies or authorities whose lands are
exempted from the operation of the act by s. 30. we do number
think that the legislature intended that the provisions of
the act should cease to apply to all lands which ore
comprised in the scheme because such a provision would
appear to be inconsistent with the categories of cases
covered by clauses  a   b  of s. 30. besides if that was
the intention of the legislature in enacting s. 30 c  it
would have been easy for the legislature to say that lands
comprised in the improvement schemes should be exempted from
the application of the act. section 30 as we already
emphasised provides for an exception to the application of
the beneficent provisions of the act and it would we
think. number be unreasonable to bold that even if s. 30 c  is
reasonably capable of the companystruction for which mr. pathak
contends we should prefer the alternative companystruction
which is also reasonably possible. in companystruing the
provisions which provide for exceptions to the applicability
of beneficent legislation if two companystructions are
reasonably possible the companyrt would be justified in
preferring that companystruction which helps to carry out the
beneficent purpose of the act and does number unduly expand the
area or the scope of the exception. therefore we are
satisfied that the companyrt of appeal was in error in
reversing the companyclusion of the trial judge that the present
suits filed on the original side of the calcutta high companyrt
were incompetent. there is however one more point to which we ought to refer
before we part with these appeals. both the learned judges
in the companyrt of appeal have observed that if s. 30 c  is
held number to apply to the land in question on the ground that
it is number required for carrying out any of the provisions of
the improvement act s. 30 c  would in substance become
redundant. the argument which was thus urged before the
court of appeal and has been accepted by it. assumes that
the board is a local authority within the meaning of
30 b  iv  and as such the land which has vested in the
board is already excepted from the operation of the act by
the said provision and that means that the lands acquired
by the board under the provisions of the improvement act
have already been provided for by s. 30 b  iv . if that is
so there would be numbercases to which s. 30 c  can apply. since this point arises incidentally in companystruing s. 30 c
we do number propose to decide in the present appeals whether
the board is a local authority within the meaning of s.
30 b  iv . in dealing with this particular argument
however we are prepared to assume that the board is such a
local authority. even so it is possible to hold that s.
30 c  does number become redundant because though s. 30 b  iv
may include lands acquired by the board there may still be
some other lands which are number acquired by the board but
which nevertheless may be required for carrying out some
provisions of the improvement act. take for instance s.
42 of the improvement act. section 42 b  lays down that any
improvement scheme may provide for raising lowering or
levelling any land in the area companyprised in the scheme. section 42 c  provides for the formation and retention of
open spaces. similar provisions are made by s. 35c 1  i
and  j  as introduced by the amending act 32 of 1955. it is
possible to take the view that the lands required for the
purposes specified in these provisions of s. 42 or s. 35c of
the improvement act are required within the meaning of s.
30 c  of the act though they may number have been acquired. but apart from this companysideration the argument that s.
30 c  would become redundant cannumber we think be treated as
decisive because it is number unknumbern that the legislature
sometimes makes provisions out of abundant caution. when s.
30 c  was enacted in 1949 the legislature may have thought
that in order to avoid any doubt dispute or difficulty in
regard to the question as to whether the board would be a
local authority or number it would be better to make a
specific provision in respect of lands which are acquired by
the board as well as those which would be required for the
purpose of carrying out the provisions of the improvement
act.


civil appellate jurisdiction civil appeal number 1864 of 1967.
appeal under s. 116-a of the representation of the people
act 1951 from the judgment and order dated august 21 1967
of the andhra pradesh high companyrt in election petition number 13
of 1967.

ram reddy and a.v.v. nair for the appellants. narsaraju r.v. pillai and a. sitarama reddy for
respondent number 1

narayana rao for respondent number 2.
the judgment of the companyrt was delivered by
mitter j. on april 6 1967 the appellants before us fled
an election petition in the high companyrt of andhra pradesh
challenging the election of the first respondent b.n. reddi to the andhra pradesh legislative assembly from the
kollapur companystituency inter alia on the ground of companyrupt
practices companymitted by him his election agent polling
agents and other workers mentioned in the schedule to the
petition with his companysent and praying for a declaration that
the second respondent k. ranga das was duly elected from
the said companystituency. the third respondent was anumberher
candidate who had companytested the election but had fared
very badly. the first respondent secured 25321 votes at
the election overtopping the votes polled by the second
respondent by approximately 1600. the petitioners stated in
paragraph 5 of the petition that one v.k. reddi who had
firfiled his numberination paper had been made to withdraw his
candidature by the first respondent on payment of an illegal
gratification of a sum of rs. 10000/-. this allegation was
repeated in paragraph 10. the first respondent was also
charged with other companyrupt practices m diverse other
paragraphs of the petition. the first respondent put in his written statement on 28th
june 1967 the second respondent put in his companynter
affidavit on june 26 1967. the issues were settled on july
24 1967. on august 4 1967 the petitioners filed
application number 161/1967 for impleading v.k. reddi. thereafter they wanted to withdraw that application when the
examination of witnesses had companymenced. on august 7 1967
this application was dismissed. on august 8 1967 the first
respondent filed application number 169/1967 praying for
dismissal of the petition on the ground that although v.k. reddi had been charged with companyrupt practices he had number
been impleaded as a party to the petition which was liable
to be dismissed under the provisions of section 82 b  of the
representation of the people act 1951  hereinafter referred
to as the act  in companypliance with s. 86 1 . the election
petitioners filed application number 187 of 1967 for
withdrawing the allegations against v.k. reddi or in the
alternative to implead him as a respondent. they also
filed application number 186/1967 for companydoning the delay in
seeking to implead v.k. reddi in application number 187/1967. the second respondent filed a number of applications of
which it is necessary to take numbere of a few only. application number 174/1967 was filed for companydoning the delay
in seeking to implead v.k. reddi in application number
175/1967. application number 175/1967 was for the purpose of
impleading v.k. reddi as a party respondent to the election
petition. the learned trial judge held that the allegations companytained
in election petition amounted to an imputation of companyrupt
practice to v.k. reddi and although of the view that the
prayer in application number 169/1967 for companydonation of delay
was allowable in suitable cases he felt himself bound by
the decision of kumarayya j. in applications number. 150-
155/1967 in election petition number 11 of 1967 and dismissed
the amendment application number 169/1967. before us a faint attempt was made to argue that the
allegation against v.k. reddi did number amount to a charge of
corrupt practice but that it was the first respondent who
was guilty of such a practice by making the payment of
illegal gratification. the argument has only to be set down
to be rejected. in paragraph 5 of the petition the
definite averment was that v.k. reddi had been made to
withdraw his candidature by the first respondent on payment
of an illegal gratification of rs. 10000/-. if the payment
of rs. 10000/- amounts to an illegal gratification the
taint attaches number only to the payer the first respondent
but also to the payee. v. k. reddi. the second point urged was that the learned chief justices
view in regard to the power of companydonation of delay in
impleading v.k. reddi was companyrect and although he companyld number
give effect to his own view because he felt himself bound by
the decision of kumarayya j. we ought to accept the appeal
and uphold his view. this argument was developed as
follows. an election petition was in essence an application
to the high companyrt for the purpose of the indian limitation
act and as such s. 29 2  of the act of 1963 was applicable
to such petitions drawing in its chain the applicability
of section 5 of the act giving the companyrt the power to admit
the same if it was satisfied that the applicant had
sufficient cause for number preferring the application within
the prescribed period of limitation. the act as it number stands provides by s. 80a that the companyrt
having jurisdiction to try an election petition shall be the
high companyrt. under s. 81  1   an election petition calling
in question any election may be presented on one or more of
the grounds specified in sub-s.  1   of s. 100 and s. 101
to the high companyrt by any candidate at such election or any
elector within forty-five days but number earlier than the
date of election of the returned candidate
s. 82 runs as follows --
a petitioner shall join as respondents
to his petition--
 a  where the petitioner in addition to
claiming a declaration that the election of
all or any of the returned candidates is void
claims a further declaration that he himself
or any other candidate has been duly elected
all the companytesting candidates other than the
petitioner and where numbersuch further
declaration is claimed all the returned
candidates and
 b  any other candidate against whom
allegations of any companyrupt practice are made
in the petition. section 83 lays down inter alia that an
election petition shall set forth full
particulars of any companyrupt practice that the
petitioner alleges including as full a
statement as possible of the names of the
parties alleged to have companymitted such companyrupt
practice and the date and place of the
commission of such practice. section 86  1   provides that
the high companyrt shall dismiss an election
petition which does number companyply with the
provisions of section 81 or section 82 or
section 117.
the last mentioned section relates to the giving of
security for companyts. sub-s.  4  of s. 86 gives any candidate
number already a respondent a right to be joined as one upon
application to the high companyrt within fourteen days from
the date of companymencement of the trial and subject to any
order as to security for companyts which may be made. under sub-
s.  5
the high companyrt may upon such terms as to. companyts and otherwise as it may deem fit allow
the particulars of any companyrupt practice
alleged in the petition to be amended or
amplified in such manner as may in its opinion
be necessary for ensuring a fair and effective
trial of the petition but shall number allow any
amendment of the petition which will have the
effect of introducing particulars of a companyrupt
practice number previously alleged in the
petition. sub-ss.  6  and  7  aim at the speedy disposal of the
election petitions. section 87   1   provides that
subject to the provisions of this act and of
any rules made thereunder every election
petition shall be tried by the high companyrt as
nearly as may be in accordance with the
procedure applicable under the companye of civil
procedure 1908 to the trial of suits
the proviso to the sub-section gives the high companyrt
discretion to refuse for reasons to be recorded in writing
to examine any witness. sub-s.  2  makes the provisions of
the indian evidence
act applicable in all respects to the trial of an election
petition. section 98 shows the nature of the order to be
made by the high companyrt at the companyclusion of the trial of an
election petition. section 99 makes it obligatory on the
high companyrt while making an order under s. 98 in cases where
any charge is made in the petition of any companyrupt practice
having been companymitted at the election to record a finding
whether any companyrupt practice has or has number been proved to
have been companymitted at the election and the nature of that
corrupt practice as also the names of all persons if any
who have been proved at the trial to have been guilty of any
corrupt practice and the nature of that practice. there is. a proviso to the section which lays down that a person who
is number a party to the petition shall number be so named unless
he has been given numberice to appear before the high companyrt and
to show cause to the companytrary. in case he does so he is
further given the right to. cross-examine any witness
already examined by the high companyrt and to give evidence in
his defence. entry 72 of list i of the seventh schedule vests in
parliament the exclusive power to make laws with respect to
elections to parliament to the legislatures of states and
to the offices of president and vice-president as also the
election companymission. under art. 329 b
lm15
numberwithstanding anything in this companystitution--
 a
 b  numberelection to either house of parliament or to the
house of either house of the legislature of a state shall be
called in question except by an election petition presented
to such authority and in such manner as may be provided for
by or under any law made by the appropriate legislature. in order to determine whether an election petition launched
for the purpose of companytesting the validity of an election is
an application within the meaning of the indian limitation
act it is necessary to examine the nature of the rights and
liabilities involved therein and of the provisions of law
which govern such determination. the right of citizens to
elect representatives of their choice either to the house of
the people or to a legislative assembly of a state the
process of election beginning from the numberification of
general elections and the numberination of candidates the
general procedure at elections taking of the poll and
counting of votes and the publication of election results
are all matters dealt with and companyered by different
provisions of the act. the right to elect is statutory and
so are all the processes companynected with the election. there
is numberelement of any companymon law right
in the process of election. part vi of the act deals with
disputes regarding election. the second chapter of this
part shows how elections may be called in question which
courts have jurisdiction to try election petitions how such
a petition is to be presented who are to be parties to the
petition what are to be the companytents of the petition as
also the relief which may be claimed by the petitioner. the third chapter of this part deals with the trial of
election petitions. the first section of this group makes
it incumbent on the high companyrt to dismiss an election
petition straightaway if it does number companyply with certain
statutory requirements. the next section is a guide to the
procedure to be adopted by the high companyrt in the trial of an
election petition. this section does number equate an
election petition with a suit but merely shows that
subject to the provisions of the act and. of any rules made
thereunder the trial is to companyform as nearly as possible to
the trial of a suit under the companye of civil procedure. this
means that  a  the companytestants have a right to file written
statements  b  both parties must disclose the documents on
which they reply  c  they must examine witnesses orally
if necessary to substantiate the charges leveled or the
defenses raised in the petition and  d  the evidence to be
adduced must companyply with the requirements of the indian
evidence act. there are however certain limitations as to
the questions which may put to a witness companytained in ss. 94
and 95 the returned candidate has a right to recriminate
under the provisions of s. 97. the high companyrt does number pass
a decree as in the case of a suit but has to make an order
in terms of s. 98 which gives the nature of the orders to be
made. the high companyrt has to companymunicate the substance of
its decision to the election companymission and the speaker or
the chairman as the case may be of the house of the people
or of the state legislature. chapter iv deals with
withdrawal and abatement of election petitions. chapter iv-
a deals with appeals from the decisions of the high. companyrt
and chapter v deals with companyts and security for companyts. the above brief analysis is sufficient to show that the
trial of an election petition is number the same thing as the
trial of a suit. as was pointed out by this companyrt in the
case of kamaraja nadar v. kunju thevat 1  the provisions of
the act
go to show that an election companytest is number an
action at law or a suit in equity but is
a purely statutory proceeding unknumbern to the
common law
the companyrt also emphasised on the peculiar character of an
election petition by quoting from the observations of a.
sreenivasan v. election tribunal madras 2 . reference was
also made. to the tipperary case 3  where morris j. said
 1  1959 s.c.r. 583 at 596.  2  11 e.ir. 278 at 293.  3   1875  310 m h 19.25.
 a petition is number a suit between two
persons but is a proceeding in which the
constituency itself is the principal party
interested. this aspect of an election petition was emphasised again in
the case of basappa v. ayyappa 1  where it was held that
the provisions of o. 23 r. 1 of the companye of civil procedure
do number apply to election petitions and it would number be open
to a petitioner to withdraw or abandon a part of his claim
once an election petition was presented to the election
commission. even though s. 87   1   of the act lays down that the
procedure applicable to the trial of an election petition
shall be like that of the trial of a suit the act itself
makes important provisions of the companye inapplicable to the
trial of an election petition. under o. 6 r. 17 c.p.c. a
court of law trying the suit has very wide powers in the
matter of allowing amendments of pleadings and all
amendments which will aid the companyrt in disposing of the
matters in dispute between the parties are as a rule allowed
subject to the law of limitation. but s. 86 5  of the act
provides for restrictions on the power of the high companyrt to
allow amendments. the high companyrt is number to allow the
amendment of a petition which will have the effect of
introducing particulars of a companyrupt practice number previously
alleged in the petition. with regard to the addition of
parties which is possible in the case of a suit under the
provisions of o. 1 r. 10 subject to the added partys right
to companytend that the suit as against him was barred by
limitation when he was irapleaded numberaddition of parties is
possible in the case of an election petition except under
the provisions of sub-s.  4   of s. 86. section 82 shows
who are necessary parties to an election petition which must
be filed within 45 days from the date of election as laid
down in s. 81. under s. 86 1  it is incumbent on the high
court to dismiss an election petition which does number companyply
with the provisions of s. 81 or s. 82. again the high companyrt
must dismiss an election petition if security for companyts be
number given in terms of s. 117 of the act. it is well settled that amendments to a petition in a civil
proceeding and the addition of parties to such a proceeding
are generally possible subject to the law of limitation. but an election petition stands on a different footing. the
trial of such a petition and the powers of the companyrt in
respect thereof are all circumscribed by the act. the
indian limitation act of 1963 is an act to companysolidate and
amend the law of limitation of suits and other proceedings
and for purposes companynected therewith. the provisions of
this act will apply to all civil proceedings and some
special criminal proceedings which can be taken in a companyrt
of law unless the application thereof has been excluded by
any enact-
 1 1959 s.c.r. 611.
ment the extent of such application is governed by s. 29 2
of the limitation act. in our opinion however the
limitation act cannumber apply to proceedings like an election
petition inasmuch as the representation of the people act is
a companyplete and self-contained companye which does number admit of
the introduction of the principles or the provisions of law
contained in the indian limitation act. before the recent amendment of the representation of the
people act election petitions had to be presented to the
election companymission and it was the companymission which was
empowered under section 85 to dismiss the petition if the
then provisions of s. 81 s. 83 and s. 117 were number companyplied
with. it is only when the petition was number so dismissed
that the election companymission had to appoint an election
tribunal for the trial of the petition. under s. 85 the
commission had power to admit a petition presented after the
prescribed period if it was satisfied that there was
sufficient cause for the failure. section 90 4  of the act
of 1951 empowered the tribunal to dismiss an election
petition even if it had number been so dismissed by the
election companymission. the act as amended in 1966 gives the jurisdiction to try an
election petition to the high companyrt of a state. the
provision for appeal in s. 116-a was introduced in the act
for the first time in 1956 providing for an appeal from
every order of the tribunal under s. 98 or s. 99 to the high
court of the state in which the tribunal was situate. by
sub-s.  2  of s. 116-a of the act as amended in 1956 the
high companyrt was subject to the provisions of the act to
have the same powers jurisdiction and authority and was to
follow the same procedure with respect to an appeal under
this chapter  chapter iv-a  as if the appeal were an appeal
from an original decree passed by a companyrt situate within the
local limits of its civil appellate jurisdiction. sub-s.
 3  fixed the time limit for filing the appeal. to a period
of 30 days from the date of the order companyplained of. the
proviso to this sub-section gave the high companyrt discretion
to entertain an appeal after the expiry of the period of 30
days if it was satisfied that the appellant had sufficient
cause for number preferring the appeal within such period. this section was amended again in 1966 and s. 116-a  1   number
provides for an appeal from an order of the high companyrt under
s. 98 or s. 99 to the supreme companyrt on any question whether
of law or fact. sub-s.  2   of the new section is on the
same lines as the old sub-s.  3  excepting that the
supreme companyrt has been substituted for the high companyrt and
the high companyrt for the tribunal in the old section. while the act of 1956 was in force this companyrt had to go into
the question as to whether s. 29 2  of the limitation act of
1908 would be applicable to an appeal preferred to the high
court
from an order of the tribunal. in vidyacharan shukla v.
khubchand baghel  1  the main question before this. companyrt
was whether for the purpose of companyputing the period of 30
days prescribed under s. 116-a 3  of the act the
provisions of s. 12 of the limitation act companyld be invoked. the high companyrt had proceeded on the basis that s. 29 2
applied to the case of appeals under s. 116-a of the act and
on that basis had held that the appeal was within time if it
was companyputed after making the deductions permitted by s. 12
of the limitation act. there was a good deal of discussion
in the case about the scope and extent of s. 29 2 . we are
numbert companycerned with that in the present appeal. according
to the learned chief justice and ayyangar j.
even on the narrowest companystruction of the
words different from those prescribed
therefor in the first schedule occurring in
the opening part of s. 29 2  the exclusion of
time provided for by art. 12 of the limitation
act would be permissible in companyputing the
period of limitation for filing the appeal to
the high
subba rao j.  as he then was  took the view that s. 116-a
did number provide an exhaustive and exclusive companye of
limitation and did number exclude the general provisions of the
limitation act. the majority view was that though the fight
of appeal was companyferred by s. 116-a of the act of 1951 it
was still an appeal under the companye of civil procedure and to
attract art. 156 of the first schedule to the limitation
act it was number necessary for an appeal to be an appeal
under the companye of civil procedure in that the right to
prefer the appeal should be companyferred by the said companye. in
our view. sub-s.  2   of s. 116-a empowered the high companyrt
to treat an appeal under that section presented to it as if
it were an appeal from an original decree passed by a companyrt
within the local limits of its civil appellate jurisdiction. companysequently the jurisdiction powers and authority of the
high companyrt would be the same as in an appeal from an
original decree of a lower companyrt. in other words in
entertaining the appeal and disposing of it the high companyrt
could exercise the same powers as were available to it in an
appeal from a decree of a lower companyrt. to such an appeal
the powers of the high companyrt under s. 12 of the limitation
act would necessarily 130 attracted
mr. ram reddy attempted to press that decision to service in
the appeal before us. in our view the situation number
obtaining in an appeal to this companyrt from an order of the
high companyrt is entirely different. there is numbersection in
the act as it number stands which equates an order made by the
high companyrt under s. 98 or is. 99 to a decree passed by a
civil companyrt subordinate to the high
 1  1964 6 s.c.r. 129.
court. an appeal being a creature of a statute the rights
conferred on the appellant must be found within the four
corners of the act. sub-s.  2  of the present s. 116-a
expressly gives this companyrt the discretion and authority to
entertain an appeal after the expiry of the period of thirty
days. numberright is however given to the high companyrt to
entertain an election petition which does number companyply with
the provisions of s. 81 s. 82 or s. 117.
it was argued that if a petition were to be thrown out
merely because a necessary party had number been joined within
the period of 45 days numberenquiry into the companyrupt practices
alleged to have been companymitted at certain elections would be
possible. this is however a matter which can be set right
only by the legislature. it is worthy of numbere that although
the act has been amended on several occasions a provision
like s. 86 1  as it number stands has always been on the
statute book but whereas in the act of 1951 the discretion
was given to the election companymission to entertain a petition
beyond the period fixed if it was satisfied as to the cause
for delay numbersuch saving clause is to be found number. the
legislature in its wisdom has made the observance of certain
formalities and provisions obligatory and failure in that
respect can only be visited with a dismissal of the
petition. it is to be numbered however that even though the indian
limitation act 1963 does number apply to an election petition
provisions like sections 9 and 10 of the general clauses
act 1897 providing for companyputation of time which are in
pari materia with sections 12  1   and 4 of the limitation
act would apply to such a petition. the last submission of companynsel for the appellants was that
the failure to implead v.k. reddi did number make the election
petition liable to dismissal under s. 86  1  . it was
argued that after v.k. reddi had withdrawn from companytest he
was numberlonger a candidate within the meaning of s. 79 b  or
82 b  of the act. in our opinion it is number open to him to
argue that point in view of the decision of this companyrt in
hat swarup v. brij bhushan 1 . it is to be numbered that this
decision does number stand by itself. in mohan singh v.
bhanwarlal 2  an attempt was made to get the election
petition dismissed in limine on the ground that one of the
candidates at the election namely himmat singh against
whom allegations of companyrupt practice were made in regard to
withdrawal of his candidature was number joined as a
respondent. it was held by this companyrt that a mere offer to
help in getting employment was number an offer of gratification
within the meaning of s. 123 1  b  of the act. the companyrt
however observed
if therefore the petition companytained any
imputation of companyrupt practice made against
himmat singh it companyld
 1  1967 1 s.c.r. 342.  2  1964 5 s.c.r. 12.
number be regarded as properly companystituted unless
he was impleaded as a respondent for by the
defmition of candidate in s. 79 b  the
expression any other candidate in s.
82 b  must include a candidate who had
withdrawn iris candidature.  see at p. 18  . reference may also be made to amin lal v. hunna mal 1 . it was however sought to be argued that s. 99 enjoined upon
the high companyrt to name all persons who had been proved at
the trial to have been guilty of any companyrupt practice and
where such a person who number a party to the petition he was
number to be so named unless he had been given numberice to appear
before the high companyrt and asked to show cause why he should
number be so named and if he chose to appear he was to be
given an opportunity of crossexamining any witness already
examined by the high companyrt and of calling evidence in his
own defence and of being heard. this provision to our
mind only enjoins upon the high companyrt to give an
opportunity to a person sought to be held guilty of a
corrupt practice if he was number a party to the petition but
it does number apply to a person who is a necessary party
thereto.