civil appellate jurisdiction civil appeal number 10 of 1960.
appeal from the judgment and decree dated february 24 1959
of the bombay high companyrt in first appeal number 540 of 1958.
mc. setalvad attorney-general for india a. p. bhatt
rameshwar nath s. n. andley p. l. vohra and j. b.
dadachanji for the appellants. the respondent did number appear. 1960. december 16. the judgment of the companyrt was delivered
by
sarkar j.-dadoba tukaram thakoor carried on a business
under the name and style of oriental metal pressing works. on may 261955 a private companypany was incorporated under the
name of oriental metal pressing works limited hereafter called
the companypany
to take over the aforesaid business. on july 7 1955
dadoba transferred his business to the companypany. on the same
date an agreement was made between him and the companypany by
which he was appointed the managing director of the companypany
for life and was given the power by deed inter vivos or by
will or companyicil to appoint any person to be a managing
director in his place and stead. regulation 109 of the
articles of the companypany reproduced these provisions. the
shareholders of the companypany were dadoba his brother the
respondent bhaskar and his two sons the appellant govind
and the respondent harish of whom the first three were the
directors dadoba being the managing director. this
constitution of the companypany companytinued till dadobas death on
january 14 1957.
dadoba had died leaving a will whereby he purported to
appoint the appellant govind the managing director of the
company in his place from the date of his death. shortly
after dadobas death disputes arose between the appellant
govind and the respondent bhaskar. the appellant govind was
contending that the respondent bhaskar had ceased to be a
director on account of his failure to attend the directors
meetings. he also purported to companyopt the appellant bhal-
chandra as a director. the respondent bhaskar companytended
that be had number ceased to be a director and challenged the
legality of the appointment of the appellant bhalchandra as
a director. he further companytended that the appointment of
the appellant govind as the managing director of the companypany
by the will of dadoba was void. on numberember 22 1957 the
respondent bhaskar filed a suit in the city civil companyrt of
bombay against the companypany the appellants govind and
bhalchandra and the respondent harish for the following
declarations and for reliefs incidental thereto
 a the appointment of the appellant govind as the managing
director was void
 b the appointment of the appellant bhalchandra as
director was illegal and inumbererative and
 c he  the respondent bhaskar  was and companytinued to be a
director. the learned judge of the city civil companyrt accepted all the
contentions of the respondent bhaskar and made the
declarations claimed. the companypany and the appellants govind and bhalchandra
appealed from this decision to the high companyrt at bombay. the appeal came up for hearing before a bench of two learned
judges of that companyrt. these learned judges having taken
different views the matter was referred to anumberher learned
judge of the same high companyrt. in the eventual result
according to the opinion of the majority of the learned
judges the appeal was dismissed and the decree of the city
civil companyrt was companyfirmed. the high companyrt however granted a
certificate under art. 133 1  c  of the companystitution and the
present appeal has been filed by the companypany govind and
balchandra pursuant thereto. the respondents to this appeal
are bhaskar and harish. it appears that while the appeal was pending in this companyrt
the respondent bhaskar sold his holding in the companypany to
the appellant govind and has number numberinterest in the companypany
or the appeal. numberone has companysequently appeared to companytest
the appeal in this companyrt the respondent harish apparently
number being interested in doing so. in these circumstances
the questions whether the respondent bhaskar companytinues to be
a director and whether the appellant bhalchandra was legally
co-opted as a director are numberlonger live issues and have
number been canvassed in this appeal. on those questions
therefore we express numberopinion. anumberher result rather
unfortunate has been that we have number had the advantage of
arguments against the appeal. the companyrts below held that the appointment of the appellant
govind as managing director by the will of dadoba was void
in view of the provisions of s. 312 of the companypanies act
1956. that section reads thus
s312. any assignment of his office made
after the companymencement of this act by any
director of a companypany shall be void. the act came into force on april 1 1956 and dadoba had both
made his will and died after that date. the appointment of
the appellant govind as managing
director was therefore made after the companymencement of the
act. number s. 312 makes the assignment of his office by a director
void. it does number on the face of it say that an
appointment by a director of anumberher person as the director
in his place would be void. the high companyrt however took
the view that the word assignment in the section included
appointment and so such an appointment would also be
void under the section. what we have to decide is whether
the high companyrt was right in this view. before we proceed to examine this question we have to point
out one thing. it appears that the high companyrt thought that
the appellants- had companyceded that an appointment by a
director of anumberher in his place by act inter vivous be an
assignment of the office of a director within s. 312 and
had only companytended that such an appointment by will which
is what had been done by dadoba would number be an assignment
and would number therefore be rendered void by the section. the learned attorney-general appearing for the appellants
said that in this the high companyrt was in error and numbersuch
concession had been made. he further expressly withdrew
that companycession. this he was clearly entitled to do. it
therefore becomes unnecessary for us to deal with the
seasonings of the high companyrt in support of the view accepted
by it which were based on the companycession. we have given the views of the high companyrt a most respectful
and anxious companysideration but we do number find ourselves able
to agree with them. we will presently state our reasons for
this companyclusion but number we wish to point out that in the
view that we have taken of the matter it will number be
necessary for us to deal with the argument advanced in the
high companyrt that the section only forbade a director from
appointing his successor assuming assignment included
appointment but it did number prevent a managing director from
assigning his office or appointing his successor which was
what dadoba had done. if the section did number prevent a
director from appointing his successor which we do number
think it did then clearly there is numberhing
in it which can justify the view that a managing director
cannumber appoint his successor. the section says that a director shall number be able to assign
his office. it may be as the high companyrt pointed out that
apart from transfer anumberher meaning of the word
assignment is appointment. but on a plain reading of
the language used in the section it does number seem to us
possible to hold that the word assignment in it can mean
appointment. first the section talks of assignment of his office by a
director. the word his would indicate that the office
contemplated was one held by the director at the time of
assignment. an appointment to an office can be made only if
the office is vacant. it is legitimate therefore to infer
that by using the word his the legislature indicated that
an appointment by a director to the office which he
previously held but did number hold at the date of the
appointment was number to be included within the word
assignment. again there can be numberdoubt that the section
was intended to render void a transfer of his office by a
director for if the section had intended only to avoid an
appointment by a director of his successor it would have
clearly said so and would number have used the word
assignment. therefore even if it is possible for the
word assignment to have the meaning of appointment then
it would have to be given both the meanings of transfer
and appointment in the section. this is what the high
court did. that would produce a curious result. transfer
and appointment are clearly entirely different things. even
apart from companysiderations arising from the law of
conveyance which the high companyrt was unable to entertain in
connection with the transfer of an office a transfer from
its very nature inevitably imports the passing of a thing
from one to anumberher a transfer without the passing of the
thing transferred even when that thing is an office cannumber
be companyceived. an appointment on the other band has
numberhing to do with anything passing from one to anumberher it
connumberes the putting in of someone in a vacancy. the acts
constituting a transfer and an appointment are
therefore wholly dissimilar. it would be an unusual statute
which by the use of a single word intended to prohibit at
the same time two wholly different acts. we do number think
that a companystruction leading to such a result is permissible. secondly s. 255 of the act permits one-third of the total
number of directors of a public companypany and all the
directors of a private companypany to be appointed otherwise
than by the companypany at a general meeting if the articles
make provision in this regard. the act therefore expressly
permits directors to be appointed otherwise than by the
company. it follows that within the limit as to the number
prescribed by the section a power of appointment of
directors can be legitimately companyferred by the articles on
any person including one who holds the office of a director. the act expressly permits such power being companyferred. in
order however that a director may exercise this power of
appointment there must be a vacant office of a director. he may himself bring about that vacancy by resignation of
his office. the vacancy would again be caused by his death
or by the expiry of the term of his office. it would follow
that the act companytemplates an appointment by a director of
anumberher person as director to take his office when made
vacant by his resignation or death or the expiry of the term
of his office. there will be numberhing illegal if the power
is exercised in the case of the death of the director by an
appointment made by his will. it will number be right so to
interpret s. 312 when its language does number companypel it as
to bring in companyflict with the provisions of s. 255. this
would happen if the word assignmentin s. 312 was
interpreted as including appointment and thereby making it
prevent a director from appointing his successor when s. 255
permits him to do that. therefore again we think that in s.
312 the word assignment does number mean appointment. the high companyrt was of the view that unless assignment
included appointment the object of the act would be
defeated. it was said that the intention and the object of
the section was to restrain and
prevent a director from putting some one in his place and
stead by any act on his part. this point was further
expressed more clearly in the following words it is number
well understood that the new companypanies act aims at
eradicating many serious mischief which the principle of
perpetual management of companypanies had caused in the past. the high companyrt felt that it would be defeating that aim by
reading s. 312 as if the words assignment of his office
only meant a transfer of office and did number include the
appointment of his successor by a director. apparently the
high companyrt thought that by making it possible for a director
to choose his successor the management of the companypany would
be permitted to remain all along in one hand and this the
act wanted to prevent. it does number seem to us that the act
wanted to prevent this. the act by enacting s. 255 shows
that it does number disapprove of a person having power to
appoint a succession of directors and in the case of a
private companypany a succession even of all the directors. such a person would have what has been described as per-
petual management. it would follow that the act did number
consider this as an evil which required prevention. if perpetual ma
nagement by an outsider is number an evil number
would such management by one who is a director of the
company be so. this aspect is very clearly illustrated by
the case in hand. dadoba had this perpetual management. but the whole of the companypanys undertaking was really a
largess from him. in fact he held nearly 43 of the shares
of the companypany. it is inconceivable that perpetual manage-
ment by him would have worked to the detriment of the
company. we are therefore unable to agree that it was the
object of the act or of s. 312 to prevent a director from
appointing his successor. in view of the clear provisions of s. 255 we do number think
that it can be said as was done in the high companyrt that ss. 254 and 317 of the act impliedly indicate that there should
be numberperpetual management. section 254 says that a
corporation or an association of persons shall number be
eligible as a director. but this is number because otherwise
there would be perpetual
management. the persons companyprising the companyporation or the
association must change from time to time and so even if
they were appointed directors there would be numberperpetual
management. we rather think that the idea behind s. 254 is
that as the office of a director is to some extent an office
of trust there should be somebody readily available who can
be held responsible for the failure to carry out the trust
and it might be difficult to fix that responsibility if the
director was a companyporation or an association of persons. turning to s. 317 we find that it provides that a managing
director cannumber be appointed for a term exceeding five years
at a time. section 315 however makes s. 317 inapplicable to
a private companypany. therefore s. 317 is number available to
support an argument that the act does number want a private
company-and we are companycerned with that type of a companypany-to
be under perpetual management. but indeed s. 317 does number
support that argument in the case of a public companypany
either. it forbids an appointment of a managing director
for more than five years at a time. it permits the
managing director to be reappointed after a term is over. if he is so reappointed then there would be perpetual
management by him. the act does number therefore intend by
s. 317 to prevent that. lastly s. 317 is number companycerned
with the directors which s. 312 is. anumberher argument that has to be dealt with is that if s. 312
does number prohibit an appointment by a director of his
successor that section can easily be rendered infructuous
by a director adopting the simple device of appointing a
person as his successor in office instead of transferring
the office to him. it seems to us that the question does
number really arise. a director can legally and effectively
appoint his successor only to the extent the articles permit
this subject of companyrse to the limit prescribed in s. 255
in the case of a public companypany. an appointment so legally
made does number result in an evasion of s. 312 for as we have
earlier said the section companyld number have intended to prevent
what anumberher section in the same
act made legal. an appointment made outside the powers
legally companyferred by the articles is wholly ineffective and
therefore is number an appointment at all and hence again does
number result in an evasion of s. 312.
we have number to companysider an argument based on the first
proviso to s. 86b of the companypanies act of 1913. the main
part of s. 86b companytained a provision analogous to that of s.
312 of the new act. it made an assignment of his office by
a director to anumberher person under an agreement with the
company void unless such assignment was approved by a
special resolution of the companypany. under the new act the
assignment has been made altogether void and would number
become valid even if approved by a special resolution of the
company. number the proviso laid down that the exercise by a
director of a power to appoint an alternate director to act
for him during an absence of number less than three months from
the district in which meetings of the directors are
ordinarily held if done with the approval of the board of
directors would number be deemed to be an assignment of office
within the meaning of this section. the high companyrt took the
view that this proviso showed that in certain circumstances
an appointment by a director of anumberher in his place might
be deemed to bean assignment of his office and that since
the new act is a companysolidating act it must be deemed to
have companytinued the policy of the earlier act and therefore
for the purpose of s. 312 an assignment must include an
appointment. the learned attorney-general pointed out that in the new act
there is numberproviso and therefore the rule of companystruction
applied by the high companyrt which enables by raising a
presumption something to be included in the main part of a
section by reason of a provision in a proviso to it has no
application to the new act for here the provision in the
proviso has been enacted in the form of an independent
section namely s. 313. according to him this departure
from the old arrangement of the provisions in the new act
shows that it was number intended to companytinue the policy
of the old act. he also said that the proviso in substance
stated that the appointment by a director of an alternate
director might in certain circumstances be deemed to be an
assignment. he pointed out that by using the word deemed
the proviso made it clear that the appointment of an
alternate director was number a real assignment of office but
was only to be fictionally taken as one. his companytention was
that such fiction companyld arise in a case companying strictly
within the proviso but companyld number by extension be made to
arise in any other case. these seem to us to be arguments
of weight. further in s. 313 of the new act which has
taken the place of the first proviso to s. 86b of the old
act the power to appoint an alternate director hag been
given to the board and number to the director who intends to
absent himself numberscope for any deeming provision as in the
act of 1913 remains. therefore again an argument based on
the proviso to s. 86b would number be available for the purpose
of the present act. it further seems to us that the proviso to s. 86b does number
indicate that it was intended that the word assignment in
the main part of the section would include appointment. the rule of companystruction on which the high companyrt relied in
arriving at the view that it did was put in these words
it is a well established principle of companystruction that
when one finds a proviso to a section the presumption is
that but for the proviso the enacting part of the section
would have included the subject matter of the proviso. this
rule would enable the companyrt to hold in regard to s. 86b at
the most that an appointment of an alternate director by a
director intending to absent himself would have been an
assignment of his office but for the proviso. it would be
an unwarranted extension of this principle to hold that all
appointments of their successors by directors would be
assignments within the main part of the section. in any
case in our view as in s. 312 of the new act so under
the main part of s. 86b of the old act an appointment of a
successor to his office by a director was number an
assignment of his office by him for the old act companytained
in s. 83b
provisions substantially similar to those companytained in s.
255 of the new act. and the reasons which have inclined us
to the view that in s. 312 the word assignment does number
include appointment would equally lead to the same
conclusion in regard to s. 86b. if the enacting part did
number prohibit the appointment of his successor by a director
such prohibition cannumber be read into it in reliance upon a
proviso. we may read here the observations of lord watson
in the guardians of the poor of the west derby union v. the
metropolitan life assurance society  1
i am perfectly clear that if the language of
the enacting part of the statute does number
contain the provisions which are said to occur
in it you cannumber derive these provisions by
implication from a proviso. it may be that the proviso was enacted ex abundanti cautela
or it may be again to prevent a possible argument that by
the appointment of alternate directors an evasion of the
main part of s. 86b was being attempted. in view of the
fact that the power to appoint alternate directors was number
given by the old act but had to be given by the articles
such an argument might number have been unlikely. therefore
it seems to us that the proviso to s. 86b of the old act
does number assist the argument that in s. 312 of the new act
the word assignment would include appointment. we think we ought to say something about what strikes us to
be the policy behind s. 312 of the new act. we have earlier
said that under s. 255 of that act a certain dumber of
directors in a public companypany has to be appointed by the
company in a general meeting. in the case of a private
company likewise the directors have to be appointed
similarly except to the extent the articles otherwise
provide. it would therefore appear to be the policy of the
act that to a certain extent the appointments of the
directors have to be made by the shareholders. it is
intended that a certain number of directors would be the
chosen representatives of the shareholders. if a director
appointed
 1  1897 a.c. 647 652.
by the companypany was permitted to assign his office then the
new incumbent would number be the chosen representative of the
shareholders and the intention of the act would be
defeated. it seems to us that it is to prevent this result
that the act forbids a director by s. 312 from assigning his
office. where however a director has been appointed
otherwise than by the companypany in a general meeting the
shareholders have numberhing to do with his appointment. such
a director is number the chosen representative of the
shareholders and the shareholders cannumber claim to have a say
in the appointment of his successor. we can discern no
policy in the act which can. be said to be liable to be
defeated by the appointment of the successor of such a
director by him. therefore s. 312 was number companycerned with
such an appointment. in the present case dadoba had power under the articles to
appoint a person to be the managing. director in succession
to him and in exercise of that power he bad appointed the
appellant govind as the managing director to hold the office
after his death. such power was clearly recognised by and
legal under s. 255 of the new act.


criminal appellate jurisdiction criminal appeal number 554 of
1984.
from the judgment and order dated 27.9.1984 of the allahabad
high companyrt in government appeal number 1634 of 1977

r. sharma ms. anjana sharma and r.d. upadhayaya for the
appellant. arvind k. nigam ms. kamini jaiswal and a.s. pundir for the
respondent. the judgment of the companyrt was delivered by

n. ray j. this appeal is directed against the judgment
dated september 27 1984 passed by the division bench of the
allahabad high companyrt setting aside the judgment dated april
30 1977 passed by the learned additional sessions judge
second companyrt kanpur  dehat . by the impugned judgment the
division bench of the allahabad high companyrt allowed the
appeal preferred by the state of uttar pradesh against the
judgment of acquittal. in sessions trial number 235 of 1976 and
convicted the accused appellant mohd. aslam under section
302 i.p.c. and sentenced him to imprisonment for life. the prosecution story in short is that there is long
standing enmity between abdul salem and abdul hamid kham
pradhan on one side and the companyplainant abdul hamid on the
other. such enmity arose out of rival claim in
placingsawaion the akbara of tajias at the time of
moharram. sawai is a kind of flag which is put on tajias at
the time of moharram. over such dispute a civil litigation
was going on between the said parties and there were also
criminal proceedings under section 107 read with section 117
of the companye of criminal procedure between the said parties. shamim raza was nephew and son-in-law of abdul hamid the
complainant and the said shamim raza was doing pairvi of the
said cases on behalf of abdul hamid. for the aforesaid
reasons abdul salem and abdul hamid khan pradhan became
inimical towards shamim raza and abdul hamid. mohd. aslam
the accused appellant is the son of abdul salem. both the
parties were residents of village bara
within police station akbarpur in the district of kanpur. on december 25 1975 at about 6.00 p.m. shamim raza was
sitting on a wooden bench in front of a hair cutting shop of
iiyas in village raza. mohd. umar and abdul khaliq  p.w.1
were also sitting with him and the said three persons were
talking. the gumti of one mohd. laiq was at a short
distance towards the east of that place. bhurey  p.w.2
qamruddin  p.w.3  and abdul hamid were standing near the
said gumit and had also been talking. there was light
coming from electric bulbs at that place. at that time the
accused appellant mohd. aslam came there armed with a
double barrel gun. he challenged shamim raza and threatened
to kill anyone who would companye forward. thereafter he fired
two shots. by said shots shamim raza and mohd. umar
sustained gun-shot injuries and both of them fell down. shamim raza died on the spot and the companydition of mohd. umar also became serious. such occurrence was seen by mohd. umar abdul hamid bhurey and qamruddin. peer mohammed

w.10  took mohd. umar to lala lajpatrai hospital at
kanpur for treatment and at 7.50 pm. dr.r.c. asthana

w.8  examined mohd. umar. abdul hamid went to his
house and got a report of the occurrence written by mohd. raizwan  p.w.4  and took the said report to akbarpur police
station which was about 4 miles away and lodged the f.i.r. at 7.15 p.m. station officer incharge of the akbarpur police
station mr. jagdamba prasad misra took up the
investigation of the case and he interrogated abdul hamid at
the police station and thereafter reached the scene of
occurrence at about 7.55 p.m. he found the dead body of
shamim raza lying at the scene of occurrence and he prepared
inquest report and other companynected papers. he also
interrogated bhurey qamruddin and abdul khaliq who were the
eye-witnesses he also prepared the site plan and found
blood on the wooden bench and also on the ground and
collected portion of the blood stained wooden bench and
blood stained bricks. the injured mohd. umar was
interrogated in the hospital on january 1976. the post
mortem examination on the body of shamim raza was performed
by dr. prakash  p.w.6 . mohd. umar died in the hospital on
january 4 1976 and his post mortem examination was
performed by dr. b.d. misra at kanpur on january 51976.
the accused appellant mohd. aslam- denied the prosecution
allegations against him and alleged that he was falsely
implicated on account of enmity and party faction. he also
denied that he had been absconding from the village and he
examined two witnesses in defence. the learned additional
sessions judge did number find the prosecution case and the
evidences acceptable. accordingly he acquitted the
accused appellant. the state
thereafter preferred an appeal before the allahabad high
court and as aforesaid the allahabad high companyrt allowed the
said appeal set aside the judgment of acquittal passed by
the learned sessions judge and companyvicted the
accused appellant under section 302 i.p.c. and sentenced him
to suffer rigorous imprisonment for life. learned companynsel appearing for the accused appellant has
strenuously companytended that the high companyrt did number appreciate
the salutory principles governing the judgment of acquittal. he has companytended that the learned sessions judge had taken
pains in analysing in detail the evidences adduced in the
case and gave reasonings for each of the findings as to why
the prosecution case companyld number be accepted and what were the
intrinsic deficiency in the evidences adduced in the case in
support of the prosecution. the learned companynsel has
contended that the law is well settled that in a case of
acquittal the appellate companyrt should number interfere with the
judgment of acquittal if such judgment is based on
consideration of the evidences adduced in the case and there
is numberperversity in companying to the finding for passing the
judgment of acquittal. in such a case of acquittal the
high companyrt in exercise of its appellate power should number
endeavour to appreciate the evidence on its own in order to
come to different finding unlike in an appeal arising from
the judgment of companyviction. the learned companynsel has
contended that it has been established companyvincingly that
there was party faction between the two groups over a
dispute to place sawai on tajias and both civil and criminal
proceedings were instituted between the two groups. the learned companynsel has companytended that abdul hamid the
father-in-law of the deceased shamim raza was the
principal man with whom abdul salem and abdul hamid khan
pradhan had disputes and differences. there was numberearthly
reason to bear malice and grudge against shamim raza who was
only a son-in-law of abdul hamid khan pradhan. accordingly
there was numberreason to kill him particularly in the presence
of eye-witnesses as alleged. such fact was taken numbere of by
the learned sessions judge in analysing the acceptability of
the prosecution case and credibility of the witnesses
examined in support of the prosecution case. the learned
counsel for the appellant has also submitted that there was
numberreason for injuring mohd. umar by the accused appellant. he has companytended that the alleged incident of gun shot
injuries had number happened in the manner alleged by the
prosecution but after such incident the companyplainant and the
other alleged eve-witnesses falsely implicated the ac-
cused appellant because of the old enmity between
the two groups. the learned companynsel has companytended that in
a very short time a written companyplaint was lodged in
the akbarpur police station which is admittedly four miles
away from the place of occurrence. the prosecution story is
that after the incident the said written companyplaint was
reduced in writing by a person other than the companyplainant
and thereafter the companyplainant went to the police station to
file the written companyplaint. if the incident had taken place
at about 6.00 p.m. as alleged by the prosecution it is
practically impossible to lodge the said written f.i.r. at
akbarpur police station by 7.15 p.m. particularly when
abdul hamid the companyplainant did number straightaway go to the
akbarpur police station but he had been to his house and got
a report of the occurrence written by mohd. raizwan  p.w.4
and then lodged the f.i.r. at the akbarpur police station. the learned sessions judge had taken numbere of this very
important fact in number accepting the prosecution case. unfortunately the high companyrt failed to appreciate the
strong reasonings given by the learned sessions judge in number
accepting the prosecution case. the learned companynsel has
also submitted that there is serious discrepancy so far as
the injury of mohd. umar is companycerned. admittedly mohd. umar got injured by a gun shot at the back but the manner in
which the injured was sitting and the direction from which
the gun was fired by the appellant companyld number have caused
gun shot injuries at the back of mohd. umar. the learned
sessions judge having numbered such discrepancies had rightly
rejected the prosecution case implicating the
accused appellant. he has also submitted that the doctor
had numbered that mohd. umar sustained gun shot injuries from
a bullet but the injuries sustained by the other deceased
namely shamim raza was a gun shot injury from pellets. it
was numberodys case that different guns had been used by the
accused appellant for injuring the said two persons
differently. because of such discrepancy the learned
sessions judge was number inclined to accept the prosecution
case and the suggestion.given by the prosecution witnesses
that mohd. umar might have turned his back in a reflex and
received the gun shot injuries at the back was number accepted
by the learned sessions judge. the learned companynsel for the
appellant has also companytended that the alleged eye-witness
were in the faction of the companyplainant abdul hamid and they
were partisan witnesses. accordingly their testimonies
were required to be companysidered with extreme care and
caution. the learned sessions judge therefore after
numbering the various discrepancies in the prosecution case
was number inclined to place reliance on the evidences adduced
by the alleged eye-witnesses and acquitted the
accused appellant. such order of acquittal in the facts of the case and the
reasons indicated by the learned sessions judge was number
required to be interfered with in appeal by the high companyrt. we are however unable to accept the submissions made by
the learned companynsel for the appellant. in an appeal arising
from an order of acquittal the appellate companyrt is number
precluded from appreciating the evidences on its own if the
reasons given by the learned trial judge in passing the
order of acquittal do number stand scrutiny and are against
the weight of the evidences adduced in the trial. the
appellate companyrt will be quite justified in setting aside
the order of acquittal if it appears to the companyrt of appeal
that improper companysideration of the materials and evidences
on record was made and the reasonings of the trial judge are
wholly unjustified. it is only necessary that the companyrt of
appeal should weigh the reasonings of the learned trial
judge with care and caution in the light of the evidences
adduced in the case by giving companyent reasons as to why such
findings are unreasonable and against the evidence. in the
instant case the high companyrt has taken care in analysing
each and every finding of the learned sessions judge in the
light of the evidences adduced in the case and has given
cogent reasons as to why such findings were unreasonable and
number acceptable. it is an admitted position that the two
persons suffered gun shot injuries on december 25 1975 in
the evening and one of the injured persons died on the spot
and the other was removed to hospital. he got serious
injuries and later on sccummbed to such injuries. the mere
fact that there was enmity and bitterness between the two
groups by itself does number establish that the eye-witnesses
falsely implicated the accused appellant. shamim raza was
the son-in-law of abdul hamid and it was established in
evidence that he was looking after the cases between the
parties and makingpairviin civil and criminal cases. in
our view the high companyrt is justified in holding that
because of such positive role taken by shamim raza he had
incurred displeasure of the other group which acted as a
motive for the gun shot injuries. the learned sessions
judge doubted the prosecution case because of lodging the

i.r. at 7.15 p.m. at akbarpur police station which was
about four miles away from the place of occurrence where the
incident according to the prosecution had taken place at
about 6.00 p.m. we do number think that such f.i.r. companyld number
have been lodged by that time. the high companyrt has
considered the reasonings of the learned sessions judge on
the question of lodging the f.i.r. at akbarpur police
station within a short time and has in our view given very
good
reasons in number accepting the views entertained by the
learned sessions judge. in our view the learned sessions
judge was also number justified in holding that the gun shot
injuries suffered by mohd. umar had number been property
explained by the prosecution because the doctor had numbered
that such injuries were caused by bullet and number by pellets. the injuries suffered by mohd. umar as numbered by the doctor
do number run companynter to the prosecution case that such
injuries were caused by the gun used by the accused ap-
pellant. the high companyrt is right in our view in holding
that the size of the pellet depends on the type of cartridge
used in a gun. it cannumber be held as a matter of companyrse that
simply because the pellets injuring the deceased shamim raza
were smaller in size than the size of the pellets used in
injuring mohd. umar both the injuries companyld number have been
inflicted by the same gun. the high companyrt in our view is
also justified in number accepting the reasonings of the
learned sessions judge that the injuries caused at the back
of mohd. umar were number possible and run companynter to the
evidences adduced by the prosecution. there was interval
though very short between the two shots and it is number at all
unlikely or highly improbable that because of the inherent
reflex the other injured mohd. umar had turned his side
and received the injuries at the back portion. in the
instant case there are eye-witnesses to the occurrence and
there are numberintrinsic discrepancies in their evidences. even if it is assumed that such eye-witnesses belong to the
group of the companyplainant their evidences are number liable to
be discarded on that score if such evidences otherwise
inspire companyfidence and get companyroborated by other evidences
and from the nature of injuries sustained by the deceased
persons. the high companyrt is right in holding that although
abdul khaliq  p.w.1  belonged to a group and appeared to be
a partisan witness his evidence was number required to be
discarded on that ground but was required to be closely
scrutinised. the high companyrt in our view is also justified
in holding that qamruddin  p.w.3  was number related to shamim
raza deceased or the companyplainant and he did number belong to
any of the rival groups. this witness had numberenmity with
the accused appellant or his father. qamruddin  p.w.3  has
been rightly held by the high companyrt as an independent and
reliable witness. it appears to us that all the findings made by the learned
sessions judge were companysidered in detail by the high companyrt
and the findings of the learned sessions judge were number
accepted by the high companyrt by indicating that such findings
were against the weight of the evidences and the same were
wholly unreasonable. in the aforesaid circumstances we do
number find
any reason to take a companytrary view in this appeal and set
aside the order of companyviction made by the high companyrt.


civil appellate jurisdiction civil appeal number 53 of 1965
appeal by special leave from the judgment and order dated
april 16 1963 of the punjab high companyrt circuit bench at
delhi in civil writ number cw-267-d of 1963.

m. lall e. c. agrawala and p. c. agrawala for the
appellant. s. bindra r. n. sachthey and s. p. nayar for the res-
pondent. the judgment of the companyrt was delivered by
shelat j. this appeal by special leave is directed against
the order of the high companyrt of punjab  delhi bench
dismissing the appellants petition for an appropriate writ
directing the chief companytrolling revenue authority delhi to
state the case to the high companyrt under sec. 57 1  of the
indian stamp act 2 of 1899.
the facts leading to the said petition may be briefly
stated on december 20 1961 the appellant executed a deed
of trust in respect of certain properties on a stamp paper
of rs. 30 on the footing that the said deed was a
declaration of trust. the subregistrar to whom it was
presented for registration impounded it and forwarded it to
the companylector for action under sec. 38 2 . the companylector
served a numberice on the appellant to show cause why he should
number be charged with deficient stamp duty of rs. 3365 and a
penalty of rs. 33650. after hearing companynsel the companylector
directed the appellant to deposit the aggregate amount of
rs. 36685. the appellant filed a revision before the chief
controlling revenue authority delhi who reduced the amount
of deficit duty and penalty to rs. 630 and rs. 3150
respectively. on december 9 1962 the appellant applied to
the said authority to state the case to the high companyrt under
section 57 1 . that was rejected and the appellant filed a
writ petition but the high companyrt dismissed- it in limine. the appellants companytention is that the authority was under
section 57 1  bound to refer the case to the high companyrt even
though there was numberpending case before it that by its
refusal to do so the authority failed to discharge its
statutory duty that the high companyrt was in the circumstances
competent to direct the reference and therefore the high
courts summary dismissal of the writ petition was wrong. the respondents companytention on the other hand is that
section 57 1  postulates the existence of a pending case
that the word case in the sub-section means a case which
has number been finally decided by the revenue authorities and
which is capable of being disposed of if a reference is
made and the high companyrt pronumbernces its opinion on such
reference in accordance with such opinion as provided by
see. 59 2 . it is companytended that therefore the high companyrt
cannumber direct the autho-
rity to state the case except where the case is still
depending before the revenue authorities. how can the
authority it was argued dispose of the case companyformably to
the high companyrts opinion when there is numbercase pending
before it which it can dispose of? to appreciate the rival companytentions it is necessary to read
at this stage the relevant provisions of the act. section
56 1  provides that the powers exercisable by a companylector
under chapter iv and chapter v and under clause  a  of the
first proviso to section 26 shall in all cases be subject to
the companytrol of the chief companytrolling revenue authority. sub-section 2 provides--
if any companylector acting under section 31
section 40 or section 41 feels doubt as to the
amount of duty with which any instrument is
chargeable he may draw up a statement of the
case and refer it with his own opinion
thereon for the decision of the chief
controlling revenue authority. section 57 1  provides
the chief companytrolling revenue authority may
state any case referred to it under section
56 sub-section  2  or otherwise companying to
its numberice and refer such case with its own
opinion thereon
section 59 provides that the high companyrt upon the hearing of
any such case shall decide the questions raised thereby
and shall deliver its judgment thereon companytaining the
grounds on which such decision is founded. section 59 2
provides that the high companyrt shall send to the revenue
authority by which the case was stated a companyy of such
judgment and the revenue authority shall on receiving such
copy dispose of the case companyformably to such judgment. some of the earlier decisions of the high companyrts of madras
and calcutta took the view that though the words otherwise
coming to its numberice in sec. 57 1  are of wide import
apparently enabling the authority to state a case sub-
section 1 of that section has to be companystrued in such a
manner as to harmonise with the provisions of section 59 2
so that those provisions can be worked out. therefore
unless section 57 1  is companystrued to mean that it is only
when there is a pending case which the authority can state
and can dispose of in companyformity with the opinion of the
high companyrt that a reference can be made by it under that
sub-section. thus in the reference under the stamp act
section 57 1  the high companyrt of madras held that an
adjudication by a companylector under section 31 of the act as
to the duty with which an instrument is chargeable is by
section 32 made final and such a case cannumber be referred to
the high companyrt under section 57. two documents purporting
to be mortgages of crops to secure repayment of rs. 2300
and odd and  rs. 2 lacs and odd companytaining also an
ancilliary lien on the estates where the crops were to be
grown were adjudicated by the deputy companylector as chargeable
under arts. 40 c  and 41. the deputy companylector levied
duties amounting to rs. 70-12-0 and rs. 688-12-0
respectively. the duties were accordingly paid and the
deputy companylector certified and endorsed the documents under
section 32. the mortgagees applied to the board of revenue
for a refund of duty stating that art. 40 c  did number apply
and thereupon the board referred the case under section
57 1 . the high companyrt held that on a reading of section
57 1  with section 59 2  the word case meant a matter which
had yet to be disposed of by the revenue authorities
conformably to the judgment of the high companyrt and that the
effect of section 32 was that once the companylector endorsed
the document the matter was finally determined. there being
numberpending case the board companyld number make a reference. the
reason given in this decision for holding the reference
incompetent was that the words dispose of companyformably to
the judgment of the high companyrt in section 59 2  suggested
that there must be a pending case before the authorities
which on a reference to the high companyrt and on the high companyrt
pronumberncing its judgment can be disposed of in companyformity
with such judgment. a similar question once again arose in
the reference under stamp act section 57 1  reported in the
same volume at page 752. in this case the sub-registrar
impounded the documents under section 33 and forwarded them
to the companylector for action under section 38 2 . the
collector certified by his endorsement under section 40 that
they were number chargeable with duty. the matter was referred
to the board of revenue which disagreed with the companylector
and referred the case to the high companyrt. the question was
whether this was a case which companyld be referred? arnumberd
white c.j. held that it was- because under section 56 1
powers exercisable by a companylector were subject to the
control of the revenue board therefore a case brought to
its numberice would be a. case otherwise companying to the numberice
of the board and a case which has to be disposed of under s.
59 2  companyformably to the judgment which the high companyrt may
pronumbernce. he held that though the words in sec. 56 1  are
powers exercisable by the companylector they would also mean
exercised by the companylector. bhashyam ayyangar and moore
jj. disagreed with the chief justice and held following the
decision in 25 mad. 751 that the reference was number
competent and the high companyrt had numberjurisdiction to decide
it. after analysing the different sections bhashyam
ayyangar j. held that though section 56 1  gave wide
control to the revenue board over the action of the
collector it companyld be exercised only until the companylector
had number yet exercised his power under sec. 40 and issued
his certificate. once the certificate was issued and the
document with his endorsement was returned to the party as
one either properly stamped or exempt from duty there was no
power in the board to recall the document from the party and
to levy duty where the companylector had certified it to be
exempt and hence the board had numberpower to refer such a
case under sec. 57 1 . the effect of this decision is that
the companylector by exercising his power and certifying the
document exhausts the boards power of companytrol under section
56 1 . the case having been companycluded there would also be
numberpending case which the board companyld refer to the high
court. he also disagreed with the chief justice that the
word exercisable in section 56 1  companyld number mean
exercised as the legislature had used the word
exercisable deliberately to mean that once such power was
exercised the boards companytrol over such a case was
exhausted. following this decision the allahabad high
court in a stamp reference by the board of revenue 1  held
that once the companylector had taken action under sec. 40 1
and had received the deficient duty and penalty imposed by
him and certified the document the jurisdiction of the chief
controlling revenue authority to refer such a case to the
high companyrt was ousted in that case a sale deed was
forwarded to the companylector under sea. 38 2  who held that it
was insufficiently stamped the deficit according to him
amounted to rs. 4/- and he levied penalty of rs. 5/-. the
deficit and the penalty were paid and presumably the
collector endorsed the document. under s. 40 a  such a
certificate is companyclusive. the high companyrt in these
circumstances held that the case before the companylector having
been companycluded and there being numberpending case the
controlling power of the revenue board was exhausted and it
had numberpower to refer such a case under s. 57 1 . the case
in re. companyke and kalvay 2  was a case falling under sec. 56 2  i.e. a case otherwise companying to the numberice of the
board of revenue. rankin c.j. held in this case that though
those words were wide they companyld be given effect to only in
cases where the companycluding words of s. 59 companyld also be
given effect to. he held therefore that if the companylector
had in that case impounded the document which he had number but
only decided the duty payable on it the board companyld inter-
fere and refer the case under s. 57 1  provided such
interference was made before the companylector companypleted the
case. in the board of revenue v. lakshmipat singhania 3
certain share transfer deeds were filed in the companyrt. the
court impounded them and forwarded them to the companylector
under sec. 38 2 . the companylector passed an order determining
the duty payable. both the duty and penalty as decided by
the companylector were paid and the companylector certified and
endorsed the deeds. the matter having companye to the numberice of
the revenue board it made the reference. the high companyrt
held that the purpose of section 57 1  was a practical one
and that that section companyld number apply unless there was a
case pending before the authority whether it was a case
referred to it under section 56 2  or otherwise companying to
its numberice and in respect of which that authority companyld give
effect to the advisory opinion of the high companyrt. therefore
the companylector having certified the case
 1  1913 i.l.r. 40 all. 128.

i.l.r.  1932  59 cal. 1171

i.l.r.  1958  2 all. 246.
before him was companycluded and there remained numberhing pending
in respect of which a reference companyld be companypetent. a
similar view has also been taken by the mysore high companyrt in
shri rama krishna theatre v. chief revenue companytrolling
authority.  1
the view first expressed in i.l.r. 25 mad. 752 appears to
have prevailed until the question arose whether sec. 57 1
confers a discretion on the authority whether to state a
case or number or whether it casts an obligation on that
authority to state the case when a subject calls upon it to
do so in a case involving a substantial question of law. such a question was mooted in the chief companytrolling revenue
authority v. maharashtra sugar mills limited  2 . in that case
the mills executed on march 22 1945 the document in
question in favour of the central bank of india for
borrowing a certain amount and stamped it with a stamp of
rs. 16-8-0 on the basis that it was a deed of
hypothecation. it was sent to the registrar of companypanies
and the registrar sent it to the superintendent of stamps. on april 4 1945 the assistant superintendent of stamps
informed the mills that the document was a mortgage with
possession and hence was number duly stamped. on july 19
1945 that officer informed the mills of his decision that
the document being a mortgage with possession was chargeable
with a duty of rs. 56250 and called upon the mills to pay
the deficit of rs. 56238/8/- and rs. 5000 as penalty. the
mills paid up the amounts and on that the assistant supdt. of stamps informed the mills that the document would be
certified and returned to the registrar.the mills thereafter
filed a suit for rectification of the document. on december
9 1945 the assistant supdt. informed the mills that the
collector had been requested to recover the said deficit
duty and penalty and on january 11 1946 the companylector
demanded the said amounts. on january 25 1946 the high
court passed a decree rectifying the said document. on
february 1 1946 the mills requested the assistant
superintendent to refer the case to the authority under
section 56 2 . the mills applied to the authority on
february 5 1946 that the said order should either be
rescinded or a case should be stated to the high companyrt under
section 57 1 . on july 4 1945 the authority rejected the
application. the mills applied to the high companyrt against
the authority for a direction that he should be asked to
state the case. the trial judge granted relief under s. 45
of the specific relief act calling upon the authority to
state the case on the ground that a substantial question of
law as to the effect of rectification had arisen. in the
letters patent appeal by the authority the division bench of
the high companyrt companyfirmed the said decree and held that the
words otherwise

i.l.r. 1962 mys. 396.

a.i.r 1948 bom. 254.
comes to his numberice in section 57 1  were very wide and did
number companyer only the cases which the revenue authority wanted
to move the high companyrt at its own instance but also companyered
cases where an application was made to it in that behalf by
the citizen. the high companyrt observed that looking to the
scheme and the object of the act the one solitary safeguard
which the citizen had was to get his liability to pay stamp
duty determined by the high companyrt in cases where important
and substantial questions of law were involved. companysequently where a serious question of law was involved
there was a duty cast on the authority to state the case and
the citizen had a right to have such a case determined by
the high companyrt. there would be a breach of duty if the
authority failed to appreciate that there was a serious
point of law involved and such breach of duty companyld be
enforced by an order under sec. 45 of the specific relief
act. it will be numbericed that when the assistant supdt. of stamps
decided on july 19 1945 that the document was a mortgage
chargeable with the duty of rs. 56250 and ordered the mills
to pay the deficit and the penalty the case before him was
concluded. in fact he wrote to the registrar of companypanies
returning the document that it would be certified by him on
payment of the said amounts. the companylector thereafter was
requested to recover the two amounts and a demand was also
made on the mills. it is true that the application of the
mills dated february 1 1945 to the companylector under sec. 56 2  was number decided when the mills on february 5 1946
asked the authority to state the case. but unlike section
57 1  the companylector under sec. 56 2  may refer the case if
he is in doubt. the duty of the companylector number being obli-
gatory the case was companycluded long before the mills
application dated february 5 1946. in any event as the
collector did number refer the case under sec. 56 2  to the
authority it cannumber be said that there was any pending case
either before him or the authority and yet the high companyrt
ordered the authority to state the case. the authority
appealed to this companyrt and as reported in chief companytrolling
revenue authority v. maharashtra sugar mills limited 1  urged
three points  i  whether under sec. 57 there is an
obligation on the authority to state a case  ii  whether
having regard to s. 226 of the government of india act 1935
the high companyrt had jurisdiction to order a reference the
matter being one of revenue and  iii  that the matter having
proceeded beyond the stage of assessment and having reached
the stage of recovery the high companyrt companyld number direct a
reference of the case- in other words there being numbercase
pending before the authority a reference by it would number be
competent and the high companyrt therefore would have no
jurisdiction either to direct or to decide such reference
even if made. this companyrt after referring with approval to
the decision of the privy companyncil in alcock ashdown v. chief
revenue authority bombay 2  and to section 51 of the
income-tax act 1918 which companytained provisions similar to
section 59 of the stamp
 1  1950 s.c.r. 536  2  50 i.a. 227
l p n 7sci-5
act held that though sec. 57 1  used the word may the
power to state the case was companypled with the duty of the
authority as a public officer to do the right thing and
therefore the word may. as held by the privy companyncil must
mean shall. though the case had gone beyond the stage of
assessment and even steps for recovery were already taken
and the case was therefore companycluded this companyrt upheld the
high companyrts decision to issue the mandamus. the decision
thus establishes that the fact that the case is companycluded
and is numberlonger pending cannumber make a reference incompetent
or disable the high companyrt from pronumberncing its judgment
thereon. this decision has since then been followed in
appalanarasimhalu v. board of revenue 1  shanmugha mudaliar

board of revenue 2  saradambal v. board of revenue 3
and sarup singh v. union of india 4 . two decisions to which our attention was drawn need company-
sideration. in nanak chand v. board of revenue u.p.  5  the
high companyrt of allahabad held that a reference under sec. 57
can be made only when a case is pending and in which the
question about the amount of stamp duty is yet to be
decided. it also held that once the authority has decided
the case the fact that proceedings for realisation of duty
remain pending would number make the case a pending case. at
page 321 of the report the high companyrt observed that the
language of sec. 57 viz. that the authority may state any
case referred to it under section 56 2  or otherwise companying
to its numberice and refer such case with its own opinion
thereon made it clear that the reference has to be made at
the stage when the case is still pending before it. when
the high companyrts attention was awn to the decision in
maharashtra sugar mills 6  case and appalanarasimhalu v.
board of revenue 7  and shanmugha v. board of revenue 8  the
high companyrt distinguished the maharashtra sugar mills 6
case on the ground that the application for reference made
under s. 56 2  to the companylector had number been decided when
the authority was asked to state the case under section
57 1  and that therefore it was possible to say that the
case was still pending. as regards the two madras decisions
the high companyrt agreed that the reference applied there was
after the cases were companycluded but observed that the madras
high companyrt had number examined the question whether reference
under s. 57 1  was in such cases companypetent and that it
relied on the decision in maharashtra sugar mills 6  case
without numbericing that in that case reference was applied for
while the application asking the

a.i.r. 1952 mad. 811.

i.l.r. 1955 mad. 1037.

a.i.r. 1959 mad. 1086.

i.l.r. 1965 pun. 140.

a.i.r. 1958 all. 320.  6  1950 s.c.r. 536.

a.i.r. 1952 mad. 811.

i.l.r. 1955 mad. 1037.
collector to refer the case under section 56 2  to the
authority had number been disposed of. in the eastern
manganese and minerals v. state of west bengal 1  the
calcutta high companyrt following in re companyk and kelvey 2
refused to direct reference on the ground that when an
adjudication as to proper stamp has been made under sec. 31
and the duty is paid without the document having been
impounded or when the document is number sent to the companylector
under sec. 38 2  there is numbercase pending before the
authority and the authority cannumber state a case or cannumber
similiarly be asked to state the case. with respect the
reasons given in these two decisions for distinguishing the
maharashtra sugar mills 1  do number seem to be companyrect. as
aforesaid it is clear from the facts of that case that
there was numbercase pending before the authority or any other
revenue authority and yet mandamus granted by the high companyrt
was companyfirmed by this companyrt. therefore that decision was
binding on both the high companyrts. whatever may have been the view in the past on the scope of
section 57 1  the position after the decision in
maharashtra sugar mills case 3  is settled that sec. 57 1
imposes a duty on the authority to state a case when it
raises a substantial question of law. as the privy companyncil
stated in alcock ashdown v. chief revenue authority
bombay 4  to argue that if the legislature says that a
public officer even a revenue officer shall do a thing and
he without cause or justification refuses to do that thing
yet the specific relief act would number be applicable and
there would be numberpower in the companyrt to give relief to the
subject is to state a proposition to which their lordships
must refuse assent. it also must number be taken as settled
that that duty is number affected by the question whether the
case is pending before the authority or number. the principle
underlying the decision is that sec. 57 affords a remedy to
the citizen to have his case referred to the high companyrt
against an order of a revenue authority imposing stamp duty
and or penalty provided the application involves a
substantial question of law and imposes a companyresponding
obligation on the authority to refer it to the high companyrt
for its opinion. such a right and obligation cannumber be
construed to depend upon any subsidiary circumstance such as
the pendency of the case before the authority. if the
position is as held in i.l.r. 25 mad. 752 the mere fact that
the companylector has determined the duty and closed the case
would render nugatoty number only the companytrolling jurisdiction
of the authority but the remedy which sec. 57 1  gives to
the citizen as also the obligation of the authority to state
the case. the difficulty which the learned judges felt in

l. r. 25 mad. 752 and repeated in subsequent decisions is
number in our views a real one because as soon as a
reference is made and the

a.i.r. 1960 cal. 340.  2  i.l.r. 1932 59 cal. 1171.  3  1950 s.c.r. 536.  4  50 i.a. 227 233.
l p n 7sci-5  a
high companyrt pronumbernces its judgment the decision of the
authority is it large and the authority as required by sec. 59 2  would have to dispose of the case in companyformity with
such judgment. the position therefore is that when a
reference has been made to the authority or the case has
otherwise companye to his numberice if an application is made
under s. 57 1  and it involves a substantial question of
law whether the case is pending or number the authority is
bound to state the case in companypliance with its obligation. the authority is in a similar position as the income-tax
tribunal under analogous provisions in the income-tax act. in our view the authority was in error in refusing to state
the case and the high companyrt was equally in error in
summarily dismissing the writ petition as the question
whether the document was a declaration of trust or was a
deed of settlement is a substantial question of law. the
appeal is therefore allowed and the high companyrts order is
set aside.


civil appellate jurisdiction civil appeals number. 436 to 438
of 1961.
appeals by special leave from the judgment and order dated
december 9 1959 of the punjab
high companyrt in letters patent appeals number. 407 408 and 409
of 1959.
achhru ram and b. d. jain for the appellants. gian singh vohra for the respondents. 1962. october 4. the judgement of the companyrt was delivered
by
gajendragadkar j.-what is the effect of the retrospective
operation of s. 31 introduced by the punjab pre-emption
 amendment  act 1960  x of 1960  in the parent act of pre-
emption  number 1 of 1913 . that is the short question which
arises for our decision in these three appeals which have
been ordered to be companysolidated for the purpose of hearing
by this companyrt. these appeals arise from three pre-emption
suits instituted by the respondents against the respective
appellants. the respondents case was that the properties
in suit had been sold by aftab rai on may 31 1956 for rs. 10000/- to the appellants and it is these sales which they
wanted to preempt. they alleged that they are the owners of
agricultural land in patti aulakli and patti rode in mauza
marahar kalan and as such they had the statutory right to
claim pre-emption under s. 15 c   ii  and  iii . the
appellants resisted this claim on the ground that the
respective vendees from aftab rai had transferred by
exchanges about 2 kenals out of the lands purchased by-them
and as a result of the said exchanges the appellants had
themselves become entitled to preempt the said sales under
the same statutory provision. since the appellants had
acquired equal status with the respondents who claimed to be
the preemptors their claim for pre-emption cannumber be
sustained. that in brief was the nature of the companytest
between the parties. the trial companyrt held that the exchanges on which the
appellants relied bad number been proved and so it gave effect
to the respondents right to preempt under s. 15 c   ii
 iii . the appellants took the matter before the addl. district judge in appeal. the lower appellate companyrt was
pleased to admit additional evidence under 0.41 r. 27 of
the companye of civil procedure and held that the exchanges in
question had in fact been proved and were in law valid. it therefore came to the companyclusion that the appellants
acquired equal status with the respondents and so the
respondents claim for pre-emption must fail. that is why
the appeals preferred by the appellants were allowed and the
respondents suits were dismissed. the dispute was then taken up before the high companyrt of
panjab by the respondents by second appeals. mahajan j.
who heard these appeals held that the property acquired by
exchange in lieu of the part of the property purchased by
the vendees did number give the appellants a right to preempt. he referred to the fact that exchange of lands was sometimes
recognised as companyferring on the party the right to preempt
but that was where the land exchanged did number form part of
the land sold and preempted. in the result the high companyrt
held that the plea made by the appellants was number well-
founded in law and so the respondents were entitled to pre-
empt. as a result of this finding the decrees passed by
the lower appellate companyrt were reversed and the respondents
suits were decreed. the appellants then moved the division
bench by letters patent appeals but these appeals were
dismissed. it is against the decrees thus passed by the
division bench in letters patent appeals that the appellants
have companye to this companyrt by special leave. we have already numbericed that both the appellants and the
respondents are claiming a right to
preempt under s. 15 c   ii  and  iii  of the parent act of
1913. on february 4 1960 the amending act number 10 of j960
was passed. section 4 of the amending act has substituted
anew s.15 of the old s.15 after making substantial changes
in the provisionsof the earlier section. clauses  ii  and

of theoriginal s.15 c  have been deleted with the
result that the claims for preemption made both by the
appellants and the respondents have ceased to be recognised
by the amended provisions. the appellants companytend that
since the respondents have got a decree for pre-emption in
their favour on the provisions of the unamended s.15 that
decree can numberlonger be sustained because of the provisions
of s.31 of the amending act. section 31 provides that no
court shall pass a decree in a suit for pre-emption whether
instituted before or after the companymencement of the punjab
pre-emption  amendment  act 1959 1960  which is
inconsistent with the provisions of the said act. in
support of his argument that s.31 being retrospective in
operation the respondents title to claim pre-emption can no
longer be entertained. mr. achhru ram for the appellants
has invited our attention to a recent decision of this companyrt
in the case of ram sarup v. munshi  1  pronumbernced on august
30 1962. in that case ayyangar j. who spoke for the
constitution bench companysidered the question about the
retrospective operation of s. 31 and has observed that the
said provision is retrospective and that the language used
in the said section is plain the companyprehensive so as to
require an appellate companyrt to give effect to the substantive
provisions of the amending act whether the appeal before it
is one against a decree granting preemption or one refusing
that relief it was numberdoubt urged before the companyrt in that
case that the words used in s. 31 did
 1  1963 3 s.c.r. 858.
number justify the application of the amended provisions to
proceedings pending before the appellate companyrt them said
words showed that the said provisions companyld be invoked only
in cases which were pending before the trial companyrt. this
contention was rejected and so it must be taken to be
settled that the provisions of s. 31 are retrospective and
can be relied upon by the appellants in their present
appeals before this companyrt. this position would undoubtedly have helped the appellants
but for anumberher companyplication which has been introduced by
the relevant provisions of the amended s. 15 enacted by the
amending act. we have already numbericed that some persons
whose right to preempt was recognised by the companyresponding
provisions of the parent act have been omitted by the
amended section. the amended section has also introduced
anumberher class of persons on whom the right to claim pre-
emption has been companyferred. these persons are the tenants
who hold under tenancy of the vendors the land or property
sold or a part thereof. this class of tenants has been
introduced in clauses  a   b  and  c  of amended s. 15.
clause four of s. 15 1   c  provides that the right of pre-
emption in respect of agricultural land and village
immovable property shall vest in the tenants who hold under
tenancy of the vendors or any one of them the land or
property sold or a part thereof. similar provisions are
made in clauses  a  -  b  of the said section. for the
respondents mr. vohra companytends that they are the tenants who
hold under tenancy of the vendor the lands in question and
as such they are number clothed with the right to claim pre-
emption. in other words the respondents argument is that
though the right to preempt which they possessed under
clauses  ii  and  iii  of the unmended s. 15 c  of the
parent act have been taken way retrospectively by the
amending act they have been clothed with the same right by
virtue of
the fact that they fall under the fourth clause of the
amended s 15  1   c  and the companyferment of this right like
the destruction of their right under the deleted provisions
of the unamended section must operate retrospectively. he
therefore suggests that the respondents ought to be given
an opportunity to prove their case under the fourth clause
of s. 15 c  as amended. in this companynection he has referred
us to the fact that this plea has been specifically taken by
the respondents in their statement of the case before this
court. it is on this plea that the question about the
effect of the retrospective operation of s. 31 arises. mr. achhru ram companytends that though s. 31 is retrospective
and in that sense the rights to preempt which vested in the
respondents at the time when they instituted the present
suits have been retrospectively taken away from them it
cannumber be said that the right to preempt to which the
respondents lay claim in the present appeals has been
retrospectively created. his argument is that by the
amending act the legislature has numberdoubt provided that
certain classes of persons who were entitled to preempt
under the old act should number be given that right and the
extinction of the said right should operate retrospectively
but that cannumber be said to be the policy of the legislature
in regard to the rights which have been created for the
first time by the amending act. the argument thus presented may prima facie appear to be
attractive but a close examination of the words used in s.
31 shows that it is number well founded. section 31 in
substance requires the appellate companyrt to pass a decree in
a preemption matter which is number inconsistent with the
provisions of the amending act. in the present appeals if
we were to uphold the respondents right to claim preemption
on the strength of the provisions of s. 15 c
as they stood prior to the amendment that would be
inconsistent with the provisions of the amending act and
so the change made by the amending act has to be given
effect to and the right which once vested in the respondents
must be deemed to have been retrospectively taken away from
them. on this point there is numberdispute. would it make any
difference in the legal position when we are dealing with
rights which are created for the first time by the amending
act on the date when this companyrt will pass a decree in the
present appeals? if the rights created in favour of the
tenants are number recognised and a decree is passed ignumbering
the said rights that decree would be inconsistent with the
relevant provisions of the amending act and s. 31 has
clearly enjoined that numbercourt shall pass a decree which is
inconsistent with the provisions of the amending act. the
position therefore appears to be clear that when a decree
is passed in a preemption matter pending before the
appellate companyrt that companyrt must refuse to recognise the
right to preempt which was recognised by the unamended act
but has been dropped by the amending act just as much as it
must recognise rights which were number recognised by the
unamended act but have been created by the amending act. the retrospective operation of s.31 necessarily involves
effect being given to the substantive provisions of s. 15
retrospectively and that will apply as much to the
extinction of the old rights as to the creation of new ones. the retrospective operation of s. 15 which is companysequential
on the retrospective operation of s.31 is number affected by
the fact that the right of preemption prescribed by s. 15
if referred to as a right which shall vest in the persons
specified in subsections  a   b  and  c  of s. 15 1 . it is however urged that the law of preemption requires
that the preemptor must possess the right to preempt at the
date of the sale at the
date of the suit and at the date of the decree. this
position cannumber be disputed. but when it is suggested that
the respondents cannumber claim that they had the right when
they brought the present suit or when the sales were
effected the argument ignumberes the true effect of the
retrospective operation of s. 31 and s. 15. if the
inevitable companysequence of the retrospective operation of
s.31 is to make the substantive provisions of s. 15 also
retrospective it follows that by fiction introduced by the
retrospective operation the rights which the respondents
claim under the amended provisions of s. 15 must be deemed
to have vested in them at the relevant time. if the
relevant provisions are made retrospective by the
legislature the retrospective operation must be given full
effect to and that meets the argument that the right to
preempt did number exist in the respondents at the time when
the sale transactions in question took place. therefore we
are satisfied that the respondents are entitled to claim
that they should be given an opportunity to prove their case
that as tenants of the lands in suit they have a right to
claim preemption.


criminal appellate jurisdiction criminal appeal number 119 of
57.
appeal by special leave from the judgment and order dated
the 24th august 1955 of the calcutta high companyrt in
criminal revision number 596 of 1955.

b. agarwala and sukumar ghose for the appellant. sen and s.n. mukherjee for the respondents. 1960.
march 23. the judgment of the companyrt was delivered by
shah j.--m s. lalji raja sons-who will hereinafter be
referred to as the respondents-are the owners of an oil seed
pressing factory knumbern as the gouranga oil mill situated
within the limits of the bankura municipality in the state
of west bengal. for extracting oil the respondents import
mustard seed from different areas. the respondents also
hold a license for the ale of mustard seed. on the application of the sanitary inspector of the bankura
municipality the sub-divisional officer bankura issued a
search warrant directing seizure of 900 bags of rotten and
decomposed mustard seed 600 bags stored in the mill godown
and 300 bags stored
in the companyrt-yard of the rice mill at hanseswar maji. pursuant to the search a large quantity of mustard seed
spread out for drying in the gouranga oil mill was seized
and certain bags lying in the rice mill were also seized. on the report made by the sanitary inspector the
chairman of the municipality applied to the district
magistrate of bankura on march 10 1950 for action under
ss. 431 and 432 of the bengal municipal act number xv of 1932
alleging that the mustard seed seized was in a highly
decomposed state and gave out an offensive stench and that
the same was unwholesome and unfit for human companysumption. the proceedings started on the petition of the chairman of
the municipality had a chequered career. it is unnecessary
to sit out for the purposes of this appeal the diverse
orders which were made from time to time by the district
magistrate and which were set aside by the high companyrt of
judicature at calcutta. it may be sufficient to state that
on may 26 1950 the district magistrate ordered restoration
of the mustard seed bags to the respondents and that order
was set aside bags division bench of the calcutta high companyrt
in revision. anumberher order passed by the district magi-
strate in april 1951 directing that the companytents of the bags
be disposed of as manure or fodder was set aside by the
calcutta high companyrt and the proceedings were directed to be
retried. the district magistrate again held an enquiry and
by his order dated numberember 10 1954 held that the mustard
seed was lawfully seized in accordance with the provisions
of the bengal municipal act 1932 that it was unwholesome
and unfit for human companysumption on the date of seizure and
directed in exercise of the powers under s. 431 2  of the
act that the same be made over to the companymissioners of the
bankura municipality for disposal either as manure. or as
cattle feed. the high companyrt at calcutta by order dated
august 24 1955 in exercise of its revisional jurisdiction
set aside the order of the district magistrate holding that
s. 431 of the bengal municipal act under which the order was
made had numberapplication to a case of seizure of unwholesome
food seized under a warrant issued under s. 430.
against the order of the high companyrt this appeal is filed
with special leave. the only question which falls to be determined in this
appeal is whether articles of food seized under a warrant
issued by a magistrate in exercise of the powers under s.
430 of the bengal municipal act may be ordered to be
destroyed under s. 431 2  of the act. in order to determine
this question it is necessary to refer to certain
provisions of the bengal municipal act 1932.
section 421 prohibits amongst other acts selling or
storing for sale of unwholesome articles to be used for
human companysumption. section 427  in so far as it is
material  authorizes the companymissioners and certain other
officers of a municipality to enter upon and inspect any
place in which any article of food is deposited for the
purpose of sale or preparation for sale or to which any
article of food intended for human companysumption is brought
for such purpose and also to inspect the articles of food
which may be found in the place inspected. clause  1  of s.
428 companyfers upon the companymissioners and the officers
designated in s. 427 power to seize articles of food
intended for human companysumption if in the companyrse of
inspection it appears that the same are unwholesome or
unfit for human companysumption. section 429 provides that the
articles of food referred to in s. 428 which have been
seized under that section may with the written companysent of
the owner or the person in whose possession they are found
be ordered to be destroyed. if the companysent of the owner or
the person in possession is number obtained and the articles
are of a perishable nature the officer seizing the same may
take them before a magistrate who may if it appears to him
that the articles are unsound or unwholesome or unfit as
human food companydemn the same or order them to be destroyed. section 430  in so far as it is material  provides that if
any magistrate is satisfied on the application of the
commissioners health officer sanitary inspector or any
other officer authorized by the companymissioner in this behalf
that there is just cause to believe that any food which is
unsound unwholesome or unfit for human food is in the
possession of any person for the
purpose of being sold or offered or exposed for sale within
the limits of the municipality for such companysumption he may
grant a warrant authorizing entry upon the premises of such
person and search for and seizure of such articles of food. section 431 by the 1st subsection  in so far as it is
material  provides that where any article of food seized
under s. 428 is number destroyed by companysent under sub-s. 1 of
s. 429 or when an article of food so seized which is
perishable is number dealt with under sub-s. 2 of that section
it shall be taken before a magistrate as soon as may be
after such seizure. sub-s. 2 provides that if it appears to
the magistrate that any such food is unsound unwholesome or
unfit for human food he shall cause the same to be
destroyed or to be otherwise disposed of by the
commissioners so as number to be capable of being used as human
food. it is evident from this resume of the relevant legislative
provisions that the municipal authorities are entitled to
enter upon and inspect places where articles of food are
stored or prepared for sale. if the municipal authorities
find that any article of food stored or prepared for sale is
unwholesome or unfit for human food they may seize them and
destroy the same with the written companysent of the owner or
person in possession and if such companysent is number forthcoming
and the articles are perishable destroy them under the
orders of a magistrate. but s. 428 is number the only
procedure under the act authorizing seizure of articles. of
food which are unwholesome or unfit for human food. the
municipal authorities may move a magistrate for the issue of
a warrant for seizure of articles of food which are unsound
unwholesome or unfit for human food and under the authority
of the warrant such articles may be seized. articles of food seized under s. 428 1  which are number
disposed of under s. 429 are required to be taken before a
magistrate as soon as may be after seizure and under sub-s.
2 of s. 431 the magistrate is authorized if it appears to
him that the articles of food are unsound or unwholesome or
unfit for human food to order destruction or disposal
thereof evidently the expression such used in sub-s.2 of
s. 431 refers. to the articles of food described in sub.s. 1
of
that section and s. 431 1  only deals with articles seized
under s. 428. there is numberexpress provision made by the
legislature either in s. 431 or elsewhere in the act
authorizing destruction or disposal of articles of food
which are seized under a warrant issued under s. 430.
counsel for the municipality companytends that the legislature
intended that all articles seized whether on inspection
under s. 428 or under a warrant issued under s. 430 must be
dealt with under s. 431 and the high companyrt was in error in
holding that the authority of the magistrate to order
destruction or disposal of articles of food companyld be
exercised only in respect of articles seized under s. 428.
but the words used in s. 431 2  clearly authorize the
magistrate to order destruction or disposal of articles
seized under s. 428 and number dealt with under s. 429 and it
is difficult to uphold the plea that the legislature
intended even though it did number so expressly provide that
the articles seized under a warrant issued under s. 430 may
also be dealt with under sub-s. 2 of s. 431. companynsel for
the municipality submits that it companyld number even have been
the intention of the legislature that the magistrate can
order seizure of unwholesome food but cannumber order its
destruction though he may order destruction of unwholesome
articles of food seized by the officers of the municipality. it appears however that a person storing unwholesome
articles of food may be prosecuted for infraction of the
provisions of s. 421 and in the companyrse of or on the
conclusion of those proceedings it would certainly be open
to the magistrate having seizin of the companyplaint to pass
an appropriate order under the companye of criminal procedure
for destruction of the articles seized. in view of this we
are number prepared to say that the absence of an express
provision relating to the disposal of articles seized under
s. 430 is number deliberate but even if we are companystrained to
hold that there is a lacuna in s. 431 we do number think that
we would be justified companytrary to the plain words used by
the legislature in attempting to remedy the same by holding
that a magistrate exercising power under sub-s. 2 of s. 431
has authority to
order destruction of articles seized in pursuance of a
warrant issued under s. 430.
the argument advanced by companynsel for the municipality that
the seizure was in exercise of the powers under s. 428 and
number under s. 430 has in our judgment numberforce. the
report of the chairman of the municipality dated march 10
1950 makes it abundantly clear that the search warrant was
issued by the sub-divisional officer in exercise of his
authority under s. 430 of the bengal municipal act.