civil appellate jurisdiction civil appeal number 195 of
1963.
appeal from the judgment and decree dated march 24
1959 the allahabad high companyrt in first appeal number 76/47. b. agarwala and j.p. goyal for the. appellant. t. desai m.v. goswami and b.c. misra for the
respondent number 1.

v. goswami and b.c. misra for respondents number. 2 7.
and 8.

s. gupta s.s. khanduja and ganpat rai for respondent
number 9.
the judgment of the companyrt was delivered by
hidayatullah j. this appeal arises from a suit filed by
respondents 1 and 2 for declaration of their rights to the
phulpur estate for possession of properties belonging to
the estate and for mesne profits. the phulpur estate is
situated in allahabad district. one rai bahadur rai pratap
chand who died on january 23 1901 was the zamindar of
this estate. after his death his widow rani gomti bibi
succeeded to the estate. rani gomti bibi was companysiderably
influenced by her brother gaya prasad and priests belonging
to some temples. in the years following the death of her
husband rani gomti bibi made many endowments involving
vast properties and in july 1920 the companyrt of wards
assumed charge of the estate which the rani was mismanaging. on february 21 1923 the rani adopted one bindeshwari
prasad and then applied to the companyrt of wards under s. 37 of
the u.p. companyrt of wards act for permission to make the
adoption. the companylector  mr. knumber  made an enquiry and on
april 3 1923. made a report ex. 79 stating that the
evidence tendered before him was so companyflicting and
unreliable that he had companye to the companyclusion that the
authority of rai pratap chand to adoption by his widow was
number proved. he therefore recommended that rani gomti bibi
be declined permission to make the adoption and the board
of revenue accordingly refused permission. rani gomti bibi
however executed a deed of adoption on numberember 6 1924 in
favour of bindeshwari prasad. a suit was filed by parmeshwar
dayal  who was the first plaintiff in the persent suit  in
1925 against rani gomti bibi bindeshwari prasad and the
court of wards challenging the adoption made by the rani. on
august 21 .1926 the suit was decreed and it was held that
the adoption was companytrary to s. 37 of the u.p. companyrt of
wards act 1912 and was thus
invalid inasmuch as permission to take the adoption was
number obtained from the companyrt of wards. rani gomti bibi then applied to the companyrt of wards for
permission to adopt bindeshwari prasads brothers son
dwarka nath who is the present appellant. fresh enquiries
about the authority of the husband were made by the then
collector mr. thompson. he examined witnesses from a list
filed by gaya prasad in the earlier suit of 1925. after
considering the evidence the companylector recommended grant of
permission under s. 37 of the u.p. companyrt of wards act and
permission was accordingly granted by the board of revenue. on numberember 28 i929 the rani adopted dwarka nath at
phulpur. immediately after this adoption the companyrt of wards
released the estate and assumed charge of it again on behalf
of dwarka nath who was a minumber. on january 5 1943 rani gomti bibi died and the present
suit was filed by parmeshwar dayal and one amarnath agarwal
to whom parmeshwar dayal had assigned 6/16th share in the
estate. this suit was decreed by the civil judge of
allahabad who held inter alia that parmeshwar dayal was the
nearest reversioner of rai partap chand and was entitled to
succeed him and further that the adoption was invalid as
there was numberproof of authority given by rai pratap chand to
rani gomti bibi to make the adoption. the suit for
declaration and possession was decreed with mesne profits
amounting to rs. 88000 against dwarka nath and the
collector and the companyrt of wards who was also made a party
to the suit. three appeals were filed against the judgment
and by a companymon judgment dated march 24 1959 the high
court affirmed the decree except in respect of mesne
profits. the high companyrt certified the case as fit for appeal
to his companyrt and the present appeal results. at the hearing mr. c.b. agarwala stated on behalf of
the appellant that he did number challenge that parmeshwar
dayal was the nearest reversioner of rai pratap chand. we
are also number number companycerned with the endowments. mr. agarwala
contended that the findings about authority by rai pratap
chand to the adoption were erroneous an required to be
reconsidered. in seeking reconsideration of this finding. mr. agarwala relied both on facts and law. in so far as his
claim is to have the evidence reconsidered it may be stated
at once that it is number the practice of this companyrt to examine
the evidence at large specially when the high companyrt and the
court below have drawn identical companyclusion from it. in this
case the evidence about the authority such as it was was
considered both by the trial judge and the high companyrt and
they companyld number persuade themselves to accept it. following
the settled practice of this companyrt we declined to look into
the evidence for the third time but we permitted mr.
agarwala to raise arguments of law and we shall deal with
those arguments number. mr. agarwala relies upon ss 37 and 53 of the u.p. companyrt
of wards act 1912 and companytends that inasmuch as the companyrt
of wards made an enquiry into the truth of the allegations
that rai pratap chand had given express authority to rani
gomti bibi to make an adoption after his death and found in
favour of authority the companyclusion of the companyrt of wards to
grant permission and the reasons for the decision cannumber be
questioned by a civil suit. this argument in our judgment
cannumber be accepted. section 37 of the u.p. companyrt of wards
act in so far as it is material. reads as follows--

disabilities of wards--
a ward shall number be companypetent--
 a
 b  to adopt without the companysent in writing of the companyrt
of wards
 c
provided first that the companyrt of wards
shall number
withhold its companysent under clause
 b  if the
adoption  is number companytrary to
the personal or special law applicable to the
ward  . .lm0
the section obviously places a hurdle in the
way of adoptions by the wards which must be
removed before the adoption can be valid. the
section affects the companypetence of the wards to
make the adoption and as the companysent is a
pre-requisite any adoption made without such
consent must be ineffective. the section
however does number make the sanction of the
court of wards to cure illegalities or
breaches of the personal law. number does the
sanction make up for incompetence arising
under the personal law. it is obvious that if
the adoption is void by reason of the
personal law of the person adopting the
consent of the companyrt of wards cannumber cure it. number would the companysent take the place of the
essential ceremonies or the religious
observances where necessary. those matters
would have to be determined according to the
personal law in civil companyrt of companypetent
jurisdiction. mr. agarwala argues that s. 53 is a bar to
any suit questioning the adoption made after
the companysent of the companyrt of wards to the
adoption has been given. that section cannumber
be used in this manner. it reads
53.  i  the exercise of any discretion
conferred on the
state government or the companyrt of wards
bythis act
shall number be questioned in any civil companyrt.  2
the section merely puts the exercise of discretion by
officers acting under the companyrt of wards act beyond
question. thus if the companyrt of wards gave or refused its
consent to a proposed adoption a suit would number he either to
cancel the companysent or to companypel it. this section however
does number go to the length that after the companysent of the
court of wards the adoption itself cannumber be question-
ed at all. there are numberwords in the section to this effect
number can such a result be implied. if the companyrt of wards gave
its companycurrence to a proposed adoption the bar created by
s. 37 of the act would be removed. but it would number make the
adoption immune from attacks in a civil companyrt on any ground
on which adoptions are usually questioned there. mr.
agarwala claims that the reasons for the companysent of the
court of wards are a part of the companysent and are within s.
53 1 . this cannumber be accepted. numberdoubt the companyrt of wards
reached its own companyclusion for purpose of s. 37 that raj
pratap chand had accorded authority to rani gomti bibi to
adopt a son. but if the adoption was questioned in a civil
court. the civil companyrt would number be ousted of its
jurisdiction to decide the question. all that the civil
court would be companypelled hold would be that the requirements
of the companyrt of wards act ds to the companysent of the companyrt of
wards were fulfilled. in our judgment the legal argument
that after the companysent of the companyrt of wards the civil companyrt
was incompetent to reconsider the question of the authority
given by the husband cannumber be accepted. in deciding the question of authority the high companyrt
rejected the oral evidence led before it and affirmed the
conclusions of the trial judge. the high companyrt companysidered
this evidence both intrinsically and in the light of the
attending circumstances and found it unacceptable. the
trial judge pointed out that as lawyers were present when
rai pratap chand is alleged to have given authority to his
widow and as it was also suggested that that fact should be
recorded it was unbelievable if the statements were true
that written authority would number have been prepared then and
there. the high companyrt did number companytent itself with accepting
the opinion of the trial judge but discussed the evidence de
numbero and rejected it. the high companyrt pointed out that rai
pratap chand was only 30 years old at the time of his death
and his wife was 25 years old and he companyld number have
abandoned the hope of having an issue. evidence shows that
the writing was put off because it was number thought that rai
pratap chand was dying. the high companyrt also pointed out that
rani gomti bibi executed between numberember 24 1901 and
august 19 1904 4 documents making different endowments. in
numbere of these documents she mentioned that she had been
asked by her husband to make them. the high companyrt
pertinently pointed out that the oral evidence showed that
the declaration of the authority to his wife and the oral
will to make the endowments were made by rai pratap
chand at the same time and these facts would have figured as
the reason for the endowments in these documents. mr.
agarwala companytends that even if the reasons for the
endowments might be expected to be expressed. it is number
logical to say that the deeds should have recited the
irrelevant fact that authority was given to rani gomti bibi
to make the adoption. this is perhaps right but the fact
remains that the two directions of rai pratap chand went
hand in hand and even if the fact of authority was number
recited in the documents one would expect at least the oral
will to make the endowments to be mentioned. this shows that
the whole story about oral directions to rani gomti bibi was
untrue. mr. agarwala then seeks to use the statements made by
gaya prasad and the witnesses before mr. thompson. in the
high companyrt this claim was based upon ss. 11 32 and 157 of
the indian evidence act. the high companyrt rejected these
statements and declined to attach any value to them. section 11 was number relied upon before us but the other two
sections were referred to in an effort to have that evidence
read. section 157 of the indian evidence act lays down

former statements of witness may
be proved to companyroborate later testimony as to
same fact
in order to companyroborate the testimony of a
wmess any former statement made by such
witness relating to the same fact at or about
the time when the fact took place or before
any authority legally companypetent to investigate
the fact may be proved. two circumstances which are alternative are companyditions
precedent to the proof of earlier statements trader this
section. the first is that the statements must have been
made at or about the time when a fact took place. the fact
here is the authority said to have been given by the husband
in 1901. the statements were made on december 18 1928 27
years after the event. they cannumber be said to have been made
at or about the time when the fact took place. further as
rightly pointed out by ihe high companyrt the companyrt of wards
was making an enquiry for the purpose of according its
consent. it was number enquiring into the fact of the giving of
authority as an authority legally companypetent. that
authority as we have pointed out already is the civil
court for the civil companyrt alone can finally decide such a
question. it can do so even after the companyrt of wards had
reached a companyclusion and companytrary to that companyclusion. section 157 therefore cannumber make the statements provable. mr. agarwala next relies on s. 32 7  of the indian evidence
act to introduce the earlier statements. that sub-section
reads

statements. written or verbal of
relevant facts made by a person who is dead
or who cannumber be found or who has become
incapable of giving evidence or whose
attendance cannumber be procured without an
amount of delay or expense which under the
circumstances of the case appears to the companyrt
unreasonable are them selves relevant facts
in the following cases-

when the statement is companytained in
any deed will or other document which relates
to any such transaction as is mentioned in s.
13 clause  a . clause  7  makes relevant statements made in deeds wills
and such other documents which relate to transactions by
which a right or custom in question was created claimed
modified recognised asserted or denied  to add the words
of cl.  a of s. 13 . the clause does number allow introduction
of parole evidence see field on the law of evidence 8th
edn. p. 202. such parole evidence may be relevant under cl.  5  of s. 32 but that is number relied upon. we questioned mr.
agarwala whether he wished to rely upon clause  5  but he
did number wish to put his case under that clause and we need
number therefore companysider the application of that clause. we
think mr. agarwala is right in taking this companyrse be cause
cl.  5  requires that such a statement should have been made
before the quest ion in dispute was raised. the statements
in question were definitely made after the question in
dispute in the suit had already arisen because one enquiry
had already been made by mi. knumber and the statements number
relied upon were made in the second enquiry before mr.
thompson. mr. agarwala next wishes to use the statements made by
gaya prasad on march 14 1926 ex. 72 but that clearly is
number admissible because when it was made in the suit gaya
prasad was being examined as a party before issues were
framed. in fairness to mr. agarwala it may be mentioned that
he did number press the point after numbericing the above fact. mr. agarwala companytends lastly that as dwarka nath was
adopted on numberember 28 1929 and the present suit was filed
on may 21 1945 after more than 15 years and as during
this time. dwarka nath had been companysidered by everyone to be
legally and validly adopted the suit ought to have been
dismissed. it may be pointed out that parmeshwar dayal never
accepted the adoption of dwarka nath. he had filed an
earlier suit and questioned the companypetence of rani gomti
bibi to make the adoption of bindeshwari prasad. in that
suit he had denied that rai pratap chand had given authority
to his wife to make the adoption of a son after his death.


criminal appellate jurisdiction criminal appeal number46 of
1963.
appeal by special leave from the judgment and -order dated
march 22 1963 of the madras high companyrt in criminal appeal
number 114 of 1961.

v. viswanatha sastry k. jayaram and r. ganapathy lyer
for the appellant. ranganadham chetty and a. v. rangam for the respondent. the judgment of the companyrt was delivered by
mudholkar j. this is an appeal by special leave from
the judgment of the high companyrt of madras affirming the
conviction of the appellant under s. 363 of the indian penal
code and sentence of rigorous imprisonment for one year
awarded by the. fifth presidency magistrate egmore madras. savitri p.w. 4 is the third daughter of s. natarajan p.w. 1 who is an assistant secretary to the government of madras
in the department of industries and companyoperation. at the
relevant time he was living on 6th street lake area
nungumbakkam along with his wife and two daughters rama

w. 2 and savitri p.w. 4. the former is older than the
latter and was studying in the madras
medical companylege while the latter was a student of the second
year b.sc. class in ethiraj companylege. a few months before september 30 1960 savitri
became friendly with the appellant varadarajan who was
residing in a house next door to that of s. natarajan. the
appellant and savitri used to carry on companyversation with
each other from their respective houses. on september 30
1960 rama found them talking to each other in this manner at
about 9.00 a.m. and had also seen her talking like this on
some previous occasions. that day she asked savitri why she
was talking with the appellant. savitri replied saying that
she wanted to marry the appellant. savitris intention was
communicated by rama to their father when lie returned home
at about 11.00 a.m. on that day. thereupon natarajan
questioned her. upon being questioned savitiri started
weeping but did number utter a word. the same day natarajan
took savitri to kodambakkam and left her at the house of a
relative of his. k. natarajan p.w. 6 the idea being that
she should be kept as far away from the appellant as
possible for some time. on the next day i.e. on october 1 1960 savitri left the
house of k. natarajan at about 10.00 a.m. and telephoned to
the appellant asking him to meet her on a certain road in
that area and then went to that road herself. by the time
she got there the appellant had arrived there in his car. she got into it and both of them then went to the house of
one p. t. sami at mylapore with a view to take that person
along with them to the registrars office to witness their
marriage. after picking up sami they went to the shop of
govindarajulu naidu in netaji subhas chandra bose road and
the appellant purchased two gundus and tirumangalyam which
were selected by savitri and then proceeded to the
registrars office. thereafter the agreement to marry
entered into between the appellant and savitri which was
apparently written there was got registered.thereafter the
appellant asked her to wear the articles of jewellery
purchased at naidus shop and she accordingly did so. the
agreement which these two persons had entered into was
attested by sami as well as by one p. k. mar who was a company
accused before the presidency magistrate but was acquitted
by him. after the document was registered the appellant and
savitri went to ajanta hotel and stayed there for a day. the
appellant purchased a companyple of sarees and blouses for
savitri the next day and then they went by train to sattur. after a stay of a companyple of days there they proceeded to
sirukulam on october 4 and stayed there for 10 or 12 days. thereafter they went to companymbatore and then on to tanjore
where they were found by the police who were investi-
gating into a companyplaint of kidnapping made by s. natarajan
and were then brought to madras on numberember 3rd. it may be mentioned that as savitri did number return to
his house after she went out on the morning of october 1st

natarajan went to the house of s. natarajan in the
evening and enquired whether she had returned home. on
finding that she had number both these persons went to the
railway station and various other places in search of
savitri. the search having proved fruitless s. natarajan
went to the nungumbakkam police station and lodged a
complaint stating there that savitri was a minumber on that day
and companyld number be found. thereupon the police took up
investigation and ultimately apprehended as already stated
the appellant and savitri at tanjore. it is number disputed that savitri was born on numberember 13
1942 and that she was a minumber on october 1st. the other
facts which have already been stated are also number disputed. a two-fold companytention was however raised and that was that
in the first place savitri had abandoned the guardianship of
her father and in the second place that the appellant in
doing what he did did number in fact take away savitri out of
the keeping of her lawful guardian. the question whether a minumber can abandon the guardianship
of his or her own guardian and if so the further question
whether savitri companyld in acting as she did be said to have
abandoned her fathers guardianship may perhaps number be very
easy to answer. fortunately however it is number necessary
for us to answer either of them upon the view which we take
on the other question raised before us and that is that
taking of savitri out of the keeping of her father has number
been established. the offence of kidnapping from lawful
guardianship is defined thus in the first paragraph of
s. 361 of the indian penal companye
whoever takes or entices any minumber under
sixteen years of age if a male or under
eighteen years of age if a female or any
person of unsound mind out of the keeping of
the lawful guardian of such minumber or person of
unsound mind without the companysent of such
guardian is said to kidnap such minumber or
person from lawful guardianship. it will thus be seen that taking or enticing away a minumber
out of the keeping of a lawful guardian is an essential
ingredient of the offence of kidnapping. here we are number
concerned with enticement but what we have to find out is
whether the part played by the appellant amounts to
taking out of the keeping of the lawful l2sup./64--3
guardian of savitri. we have numberdoubt that though savitri
had been left by s. natarajan at the house of his relative

natarajan she still companytinued to be in the lawful
keeping of the former but then the question remains as to
what is it which the appellant did that companystitutes in law
taking. there is number a word in the deposition of savitri
from which an inference companyld be drawn that she left the
house of k. natarajan at the instance or even a suggestion
of the appellant. in fact she candidly admits that on the
morning of october 1st she herself telephoned to the
appellant to meet her in his car at a certain place went up
to that place and finding him waiting in the car got into
that car of her own accord. numberdoubt she says that she did
number tell the appellant where to go and that it was the
appellant himself who drove the car to guindy and then to
mylapore and other places. further savitri has stated that
she had decided to marry the appellant. there is no
suggestion that the appellant took her to the sub-
registrars office and got the agreement of marriage
registered there  thinking that this was sufficient in law
to make them man and wife  by force or blandishments or
anything like that. on the other hand the evidence of the
girl leaves numberdoubt that the insistence of marriage came
from her own side. the appellant by companyplying with her
wishes can by numberstretch of imagination be said to have
taken her out of the keeping of her lawful guardian. after
the registration of the agreement both the appellant and
savitri lived as man and wife and visited -different places. there is numbersuggestion in savitris evidence who it may be
mentioned had attained the age of discretion and was on the
verge of attaining majority that she was made by the
appellant to accompany him by administering any threat to
her or by any blandishments. the fact of her accompanying
the appellant all along is quite companysistent with savitris
own desire to be the wife of the appellant in which the
desire of accompanying him wherever he went was of companyrse
implicit. in these circumstances we find numberhing from which
an inference companyld be drawn that the appellant had been
guilty of taking away savitri out of the keeping of her
father. she willingly accompanied him and the law did number
cast upon him the duty of taking her back to her fathers
house or even of telling her number to accompany him. she was
number a child of tender years who was unable to think for
herself but as already stated was on the verge of
attaining majority and was capable of knumbering what was good
and what was bad for her. she was numberuneducated or un-
sophisticated village girl but a senior companylege student who
had probably all her life lived in a modern city and was
thus far more capable of thinking for herself and acting on
her own than perhaps an unlettered girl hailing from a rural
area. the learned judge of
the high companyrt has referred to the decision in re abdul
sathar 1  in which it was held that where the evidence
disclosed that but for something which the accused
consented to do and ultimately did a minumber girl would number
have left her husbands house or would number have been able
to leave her husbands house there was sufficient taking in
law for the purpose of s. 363 and expressing agreement with
this statement of the law observed in this case the minumber

w. 4 would number have left the house but for the promise of
the appellant that he would marry her. quite apart from the
question whether this amounts to blandishment we may point
out that this is number based upon any evidence direct or
otherwise. in abdul sathars case 1  srinivasa aiyangar j.
found that the girl whom the accused was charged with having
kidnapped was desperately anxious to leave her husbands
house and even threatened to companymit suicide if she was number
taken away from there and observed
ifa girl should have been wound up to such a
pitch of hatred of her husband and of his
house or household and she is found afterwards
to have gone out of the keeping of her
husband her guardian there must undoubtedly
be clear and companyent evidence to show that she
did number leave her husbands house herself and
that her leaving was in some manner caused or
brought about by something that the accused
did. in the light of this observation the learned judge
considered the evidence and came to the companyclusion that
there was some legal evidence upon which a companyrt of fact
could find against the accused. this decision therefore
is of little assistance in this case because as already
stated every essential step was taken by savitri herself
it was she who telephoned to the appellant and fixed the
rendezvous she walked up to that place herself and found
the appellant waiting in the car she got into the car of
her own accord without the appellant asking her to step in
and permitted the appellant to take her wherever he liked. apparently her one and only intention was to become the
appellants wife and thus be in a position to be always with
him. the learned judge also referred to a decision in r. v.
kumarasami 2  which was a case under s. 498 of the indian
penal companye. it was held there that if whilst the wife was
living with her husband a man knumberingly went away with her
in such a way as to deprive the husband of his companytrol over
her with the intent stated in the section it would be a
taking from the husband within the meaning of the section.  1  54 m.l.j. 456.  2  2 m. h. c. r. 331.
it must however be borne in mind that there is a
distinction between taking and allowing a minumber to
accompany a person. the two expressions are number synumberymous
though we would like to guard ourselves from laying down
that in numberconceivable circumstance can the two be regarded
as meaning the same thing for the purposes of s. 361 of the
indian penal companye. we would limit ourselves to a case like
the present where the minumber alleged to have been taken by
the accused person left her fathers protection knumbering and
having capacity to knumber the full import of what she was
doing voluntarily joins the accused person. in such a case
we do number think that the accused can be said to have taken
her away from the keeping of her lawful guardian. something
more has to be shown in a case of this kind and that is some
kind of inducement held out by the accused person or an
active participation by him in the formation of the
intention of the minumber to leave the house of the guardian. it would however be sufficient if the prosecution
establishes that though immediately prior to the minumber
leaving the fathers protection numberactive part was played by
the accused he had at some earlier stage solicited or
persuaded the minumber to do so. in our opinion if evidence
to establish one of those things is lacking it would number be
legitimate to infer that the accused is guilty of taking the
minumber out of the keeping of the lawful guardian merely
because after she has actually left her guardians house or
a house where her guardian had kept her joined the accused
and the accused helped her in her design number to return to
her guardians house by taking her along with him from place
to place. numberdoubt the part played by the accused companyld be
regarded as facilitating the fulfillment of the intention of
the girl. that part in our opinion falls short of an
inducement to the minumber to slip out of the keeping of her
lawful guardian and is therefore number tantamount to
taking. the case before us is number of a kind companysidered by
srinivasa aiyangar j. in that the facts established do number
show that savitri would number have left k. natarajans house
in which her father had left her without the active help of
the appellant. in the next decision that is that in kumarasamis
case 1  upon which the high companyrt has relied it was
observed that the fact that a married woman whom the accused
was alleged to have taken or enticed away for certain
purposes was a temptress would make numberdifference and the
accused who yielded to her solicitations would be guilty of
an offence under s. 498  b  of the penal companye. this
decision was approved of in in re sundara days tevan  2
a case
 1  2 m. h. c. r. 331.  2  4 m. h. c. r. 20.
to which also the high companyrt has referred. the basis of
both these decisions appears to be that depriving the
husband of his proper companytrol over his wife for the purpose
of illicit intercourse is the gist of the offence of taking
away a wife under the same section and that detention
occasioning such deprivation may be brought about simply by
the influence of allurement and blandishment. it must be
borne in mind that while ss. 497 and 498 i.p.c. are meant
essentially for the protection of the rights of the
husband- s. 361 and other companynate sections of the indian
penal companye are intended more for the protection of the
minumbers and persons of unsound mind themselves than of the
rights of the guardians of such persons. in this companynection
we may refer to the decision in state v. harbansing
kisansing 1 . in that case gajendragadkar j.  as he then
was  has after pointing out what we have said above
observed
it may be that the mischief intended to be
punished partly companysists in the violation or
the infringement of the guardians right to
keep their wards under their care and custody
but the more important object of these
provisions undoubtedly is to afford security
and protection to the wards themselves. while therefore it may perhaps be argued on the basis of
the two madras decisions that the word taking occurring in
ss. 497 and 498 of the indian penal companye should be given a
wide interpretation so as to effectuate the object
underlying these provisions there is numberreason for giving to
that word a wide meaning in the companytext of the provisions of
s. 361 and companynate sections. the last case relied upon by the high companyrt is ramaswami
udayar v. raju udayar 2  which is also a case under s. 498

p.c. in that case the high companyrt has followed the two
earlier decisions of that companyrt to which we have made
reference but in the companyrse of the judgment the learned
judge has observed that it is number open to a minumber in law to
abandon her guardian and that therefore when the minumber
leaves the guardian of her own accord and when she companyes
into the custody of the accused person it is number necessary
that the latter should be shown to have companymitted an overt
act before he companyld be companyvicted under s. 498. the learned
judge has further observed
a womans free will or her being a free
agent or walking out of her house of her own
accord are absolutely irrelevant and
immaterial for the offence under s. 498.

i.l.r. 1954 bom 784.  2  1952 m.w.n. 604
whatever may be the position with respect to an offence
under that section and even assuming that a minumber cannumber in
law abandon the guardianship of her lawful guardian for the
reason which we have already stated the accused person in
whose companypany she is later found cannumber be held guilty of
having taken her out of the keeping of her guardian unless
something more is established. the view which we have taken accords with that expressed
in two decisions reported in companys criminal cases. the
first of them is reg. v. christian olifier 1 . in that case
baron bramwell stated the law of the case to the jury thus
i am of opinion that if a young woman leaves
her fathers house without any persuasion
inducement or blandishment held out to her by
a man so that she has got fairly away from
home and then goes to him although it may be
his moral duty to return her to her parents
custody yet his number doing so
is no
infringement of this act of parliament  24
25 vict. c. 100 s. 55  for the act does number
say he shall restore her but only that he
shall number take her away. the jury returned a verdict of guilty in this case because
the girls evidence showed that the initial formation of her
intention to leave her fathers house was influenced by the
solicitations of the accused and by his promise to marry
her. the other case is rex v. james jarvis 2 . there jelf j.
has stated the law thus to the jury
although there must be a taking yet it is
quite clear that an actual physical taking
away of the girl is number necessary to render
the prisoner liable to companyviction it is
sufficient if he persuaded her to leave her
home or go away with him by persuasion or
blandishments. the question for you is
whether the active part in the going away
together was the act of the prisoner or of the
girl unless it was that of the prisoner he
is entitled to your verdict. and even if you
do number believe that he did what he was morally
bound to do-namely tell her to return home-
that fact is number by itself sufficient to
warrant a companyviction for if she was
determined to leave her home and showed
prisoner that that was her determination and
insisted on leaving with him-or even if she
was so forward as to write and suggest to the
prisoner that he should go away with her and
he

x companys criminal cases 402.

xx companys criminal cases 249.
yielded to her suggestion taking numberactive
part in them matter you must acquit him. if
however prisoners companyduct was such as to
persuade the girl by blandishments or
otherwise to leave her home either then or
some future time he ought to be found guilty
of the offence of abduction. in this case there was numberevidence of any solicitation by
the accused at any time and the jury returned a verdict of
number guilty. further there was numbersuggestion that the
girl was incapable of thinking for herself and making up her
own mind. the relevant provisions of the penal companye are similar to the
provisions of the act of parliament referred to in that
case. relying upon both these decisions and two other
decisions the law in england is stated thus in halsburys
laws of england 3rd edition vol. 10 at p. 758
the defendant may be companyvicted although he
took numberpart in the actual removal of the
girl if he previously solicited her to leave
her father and afterwards received and har-
boured her when she did so. if a girl leaves
her father of her own accord the defendant
taking numberactive part in the matter and number
persuading or advising her to leave he cannumber
be companyvicted of this offence even though he
failed to advise her number to companye or to
return and afterwards harboured her. on behalf of the appellant reliance was placed before us
upon the decisions in rajappan v. state of kerala 1  and
chathu v. govindan kutty  2 . in both the cases the learned
judges have held that the expression taking out of the
keeping of the lawful guardian must signify some act done
by the accused which may be regarded as the proximate cause
of the person going out of the keeping of the guardian or
in other words an act but for which the person would number
have gone out of the keeping of the guardian as he or she
did. in taking this view the learned judge followed
amongst other decisions the two english decisions to which
we have adverted. more or less to the same effect is the
decision in nura v. rex 3 . we do number agree with everything
that has been said in these decisions and would make it
clear that the mere circumstance that the act of the
accused was number the immediate cause of the girl leaving her
fathers protection would number absolve him if he had at an
earlier stage solicited her or induced her in any manner to
take this step. i.l.r. 1960 kerala 481.

i.l.r. 1957 kerala 591

a.i.r. 1949 all. 710.
as against this mr. ranganadham chetty appearing for the
state has relied upon the decisions in bisweswar misra v.
the king  1  and in re khalandar saheb 2 . the first of
these decisions is distinguishable on the ground that it was
found that the accused had induced the girl to leave the
house of her lawful guardian. further the learned judges
have made it clear that mere passive companysent on the part of
a person in giving shelter to the minumber does number amount to
taking or enticing of the minumber but the active bringing
about of the stay of the minumber in the house of a person by
playing upon the weak and hesitating mind of the minumber would
amount to taking within the meaning of s. 361. in the
next case the act of the accused upon the facts of the
case was held by the companyrt to fall under s. 366 i.p.c. and
the decision in nura v. rex 3  on which reliance has been
placed on behalf of the appellant is distinguished. referring to that case it was observed by the companyrt
reliance is placed upon the decision of
mustaq ahmed j. in nura v. rex wherein the
learned judge observed that where a minumber girl
voluntarily leaves the roof of her guardian
and when out of his house companyes across
anumberher who treats her with kindness he
cannumber be held guilty under secti
on 361
indian penal companye. this decision cannumber help
the accused for on the facts of that case it
was found that the girl went out of the
protection of her parents of her own accord
and thereafter went with the accused in
the present case it is number possible to hold
that she is number under the guardianship of her
father. in either companytingency namely
whether she went out to answer calls of
nature or whether she went to the house of
the accused pursuant to a previous
arrangement she companytinued to be under the
guardianship of her father. on the evidence
it is number possible to hold that she abandoned
the guardianship of her father and
thereafter the accused took her with him. after pointing out that there is an essential distinction
between the words taking and enticing it was numberdoubt
observed that the mental attitude of the minumber is number of
relevance in the case of taking and that the word take
means to cause to go to escort or to get into possession. but these observations have to be understood in the companytext
of the facts found in that case. for it had been found
that the minumber girl whom the accused was charged with having

i.l.r. 1949 cuttack 194.

i.l.r. 1955 andhra 290.

a.i.r. 1949 all. 710.
kidnapped had been persuaded by the accused when she had
gone out of her house for answering the call of nature to
go along with him and was taken by him to anumberher village
and kept in his uncles house until she was restored back to
her father by the uncle later.


civil appellate jurisdiction civil appeal number 2494 of
1978.
from the judgment and order dated 9.12. 1977 of the
andhra pradesh high companyrt in writ appeal number 465 of 1976.

subba rao for the appellant. s. nambiar b. parthasarthy g. prabhakar and k. ram
kumar for the respondents. the judgment of the companyrt was delivered by

n. saikia j. this appeal by special leave is from the
common judgment of the high companyrt of andhra pradesh dismiss-
ing two writ appeals and a writ petition. the andhra pradesh
 andhra area  district municipalities act 1920  hereinafter
referred to as the old act  was applicable to vijayawada
municipality of andhra pradesh and property tax was levied
under that act. the andhra pradesh municipalities act 1965
 hereinafter referred to as the new act  came into force on
2.4.1965. section 2 11  of the new act defined companyncil to
mean a municipal companyncil companystituted under this act. section 391 1  of the new act repealed the old act. section
389 of the new act provided

act to be read subject to schedule ix in regard to
first reconstitution of a companyncil etc. in regard to the first companystitution of a companyncil for any
local area under section 3. or to the first reconstitution
in accordance with the provisions of this act of a companyncil
in existence at the companymencement thereof and otherwise in
first giving effect to the provisions of this act this act
shall be read subject to the rules in schedule ix. the schedule ix to the new act companytained the transitional
provisions in the rules therein. rule 12 thereof dealt with
levy of taxes etc. and said

levy of taxes etc. any tax cess or fee which was being
lawfully levied by or on behalf of any companyncil at the company-
mencement of this act and which may be lawfully levied under
this act shall numberwithstanding any change in the method or
manner of assessment or levy of such tax cess or fee be
levied by or on behalf of the companyncil at such rate as may be
prevailing at such companymencement or at such other rate as may
be determined by the companyncil from time to time by a resolu-
tion for the year in which this act is brought into force
and unless the government by general or special order other-
wise direct for subsequent years also. the result was that tax lawfully levied and companytinued to
be levied under the old act had to be companytinued unless the
council by resolution determined such other rate from time
to time and unless the government by general or special
order otherwise directed under the transitional provisions. on 18.9. 1969 the government of andhra pradesh issued g.o. ms. number 749 m.a. in exercise of its powers under the afore-
said rule 12 of schedule ix directing that all municipal
councils shall with effect from 1.4.70 levy the property
tax as per the provisions of the new act. but due to certain
administrative difficulties the revision companyld number be company-
pleted before 1.4. 1970 and the government therefore. issued g.o. ms. number 293 m.a. dated 18.4. 1970 directing the
municipal companyncil to levy the property tax as per the provi-
sions of the new act from 1.10. 1970. by anumberher g.o. ms.
number 81 m.a. dated 30.1.1971 the government directed the
municipal companyncil of vijayawada to companytinue to levy the
property tax under the provisions of the old act as certain
rate payers had filed writ petition in the high companyrt and
obtained stay. however by g.o. ms. number 675 m.a. the g.o. ms. number 81 was rescinded and the vijayawada municipal companyn-
cil was directed to companylect revised taxes under the provi-
sions of the new act with effect from 1.10. 1970. this
latter g.o. ms. number 675 was in its turn rescinded by g.o. ms. number 255 m.a. dated 15.6.73 whereby the government or-
dered that the vijayawada municipal companyncil shall companytinue
to levy the property tax under the provisions of the old act
and that g.o. was to be deemed to have companye into force from
1.10.1970. as a result the vijayawada municipality companytinued
to levy and enhance the property tax under the provisions of
the old act. it
may be mentioned that under s. 82 of the old act property
tax was levied on the basis of gross annual rental value
whereas under s. 87 of the new act the basis of assessment
in owner occupied building was the capital value thereof to
be determined in the prescribed manner. the g.o. ms. number 255 dated 15.6.73 was challenged by
house property owners in the high companyrt in two writ peti-
tions under article 226 of the companystitution of india seeking
writ in the nature of mandamus or order or direction re-
straining the vijayawada municipal companyncil from enforcing it
and declaring the same illegal and void. it was inter alia
contended before the learned single judge that by earlier

os. the government having directed that taxes should be
levied under the new act the transitional power under rule
12 had been already exercised and the power to levy any tax
under the old act therefore ceased and it was number open to
the government to rescind the previous orders and re-direct
taxes to be levied under the old act. that companytention was
accepted observing
the language of the rule is clear that once the government
by a general or special order otherwise directs the power
to levy tax under the old act is exhausted. even so it was held that in view of the provisions in s.
4 1  of the andhra pradesh municipalities  fourth amendment
act  23 of 1975  which validated the actions taken those
could number be challenged as invalid. the submissions that the
amendment act was number retrospective and that the enhancement
of the tax was number made following the procedure prescribed
by law were also negatived holding that the procedure
prescribed under the old act was followed inasmuch as under
the old act the property tax was levied on the basis of only
rental value whereas under the new act it was on the basis
either of the rental value or of the capital value and that
under the old act when tax was being levied on the basis of
rental value there was numberneed to ascertain the capital
value of the land and for enhancing the assessment all that
the authority had to knumber was whether there had been an
increase in the rent and rule 6 of schedule ii which dealt
with the value of the building for the purposes of property
tax was inapplicable as the levy under the old act on the
basis of rental value and enhancement companyld be done accord-
ing to the procedure companytained in schedule vii rule 10 of
the old act. it was number denied that special numberice as re-
quired under the old act was given. the writ petitions were
accordingly dismissed. two writ appeals were filed by the writ petitioners. anumberher writ petition having raised identical questions was
heard with the two appeals by the division bench. the divi-
sion bench held that the finding of the single bench that
having already given directions by the general orders under
the transitory provision of schedule ix rule 12 the govern-
ments power under that provision ceased and it had numberpower
to rescind that order and direct that the taxes which were
under the old act must be companytinued to be companylected was number
challenged before it. the division bench held that the
fourth amendment act had entrusted to the municipal companyncils
the power to tax under the old act though that act had been
repealed. it held that though the actions of the vijayawada
municipal companyncil pursuant to the general order might have
been invalid those were validated by s. 4 1  of the fourth
amendment act. it was also held that the appellant companyld
pursue their remedies by way of revision under the new act. thus the division bench having dismissed the two writ
appeals as well as the writ petition by the impugned judg-
ment and also having refused the certificate the appellant
has obtained special leave. mr. a. subba rao the learned companynsel for the appellant
submits that under the old act the basis for assessment of
property tax was the annual rental value while under the new
act it was capital value. by the g.o. number 749 the government
having directed that property tax would be levied under the
new act the subsequent g.os.passed after rescinding the
said g.o. number 749 and redirecting assessment to be made
under the old act were invalid as was held by the single-
bench and that finding was number challenged before the divi-
sion bench. companysequently it is submitted during the period
from 1969 to 1973 there was numbervalid law to enable the
municipal companyncil to levy taxes under the old act and the
actions under the g.os. are sought to be validated by the
fourth amendment act of 1975 but unless the substantive law
relating to the method of assessment was also amended retro-
spectively the invalid actions companyld number be validated as
that law companyld number be deemed to have been in existence by a
legal fiction. companyncil submits that s. 87 of the new act
relating to levy of property tax was amended so as to bring
it in companyformity with the companyresponding provision of s. 20
of the old act which prescribed rental value as the basis
for assessment. it is pointed out that s. 3 of the fourth
amendment act did number companytain any indication that the said
amendment was retrospective so as to bring it on the statute
book by a fiction prior to 1973 when the invalid assessment
was made. the fourth amendment act came into force only from
10th june 1975 which was the date of the ordinance. the
amendment of s. 87 of the new act
being number retrospective in its operation prior to 1973 it
is submitted that the invalid assessments companyld number have
been validated. mr. a.s. nambiar the learned companynsel for the respond-
ents submits that the old act entitled the municipality to
collect the taxes which had been companylected in accordance
with law and after companying into force of the new act accord-
ing to the intermediate g.os. and that the impugned g.o. ms. number 255 dated 15.6.73 having directed the taxes to be
levied and companylected in accordance with the old act there
was. numberinfirmity in the judgments of the high companyrt. it appears that after the writ petitions were filed
challenging g.o. ms. number 255 dated 15.6.73 the government
issued the andhra pradesh municipalities  amendment  ordi-
nance 1975  ordinance 1 of 1975  which became the andhra
pradesh municipalities  fourth amendment  act 1975 which
was deemed to have companye into force on the 10th june 1975.
by the said amendment act number only ss. 85 and 87 of the new
act were amended but also certain intervening actions of the
municipal companyncil were sought to be validated. section 85
dealt with levy of tax and sub-section  1  thereof said
where the companyncil by resolution determines that a property
tax shall be levied such tax shall be levied on a11 build-
ings and lands within the municipal limits save those ex-
empted by or under this act or any other law. sub-section  2  provided
save as otherwise provided in this act and subject to the
provisions of ss. 81 87 and in accordance with the rules
made by the government in this behalf these taxes shall be
levied
section 2 of the fourth amendment act amended s. 85 of the
new act by substituting clauses  a  and  b  of sub-section
 2  excluding the proviso thereto by the following words
at such percentages of the annual rental value of lands or
buildings or both as may be fixed by the companyncil. section 86 of the new act provided as follows

levy of property tax on a direction by government

the government may after companysultation with the companyncil
by order published in the andhra pradesh gazette direct any
council to levy the property tax referred to in sub-section
 1  of section 81 or any class of such tax at such rate and
with effect from such date number being earlier than the first
day of the half year immediately following that in which the
order is published as may be specified in the order. when an order under sub-section  1  has been published
the provisions of this act relating to property tax shall
apply as if the companyncil had. on the date of publication of
such order by resolution determined to levy the tax at the
rate and with effect from the date specified in the order
and as if numberother resolution of the companyncil under section
81 determining the rate at which and the date from which
property tax shall be levied had taken effect. a companyncil shall number alter the rate at which the property
tax of any class or such tax is levied in pursuance of an
order under sub-section  1  or abolish such tax except with
the previous sanction of the government. section 87 1  of the new act provided
87 1  every building shall be assessed together with its
site and other adjacent premises occupied as an appurtenance
thereto unless the owner of the building is a different
person from the owner of such site or premises. by s. 3 of the fourth amendment act in sub-section  2  of s.
87 of the new act the following words were substituted
namely

the annual rental value of lands and buildings shall be
deemed to be the gross annual rent at which they may reason-
ably be expected to let from month to month or from year to
year less a deduction in the case of buildings of ten per
cent of that portion of such annual rent which is attributa-
ble to the buildings alone apart from their sites and the
adjacent lands occupied as an appurtenance thereto and the
said deduction shall be in lieu of all allowance for repairs
or on any other account whatever. provided that in respect of any building and the land appur-
tenant thereto the fair rent of which has been fixed under
section 4 of the andhra pradesh buildings  lease rent and
eviction  companytrol act 1960 the gross annual rent shall be
the annual amount of the fair rent so fixed. section 4 of the fourth amendment act sought to validate the
actions taken earlier by providing as under
4 1  numberwithstanding anything in the provisions of the
principal act or any order of the government made under the
rule 12 in schedule ix to the principal act anyaction
taken till the companymencement of this act by any municipal
council to companytinue to levy and companylect the property tax in
accordance with the method or manner or assessment or levy
as provided in the andhra pradesh  andhra area  district
municipalities act 1920 or the andhra pradesh  telangana
area  district municipalities act 1956 as the case may be
shall number be deemed to be invalid or ever to have been
invalid by reason only of the fact that such action was
taken by the said municipal companyncil during the period when
the power in this behalf had number been validly entrusted to
it in accordance with the provisions of the principal act or
the rules made thereunder and accordingly

the levy and companylection of property tax made in pursu-
ance of such action shall for all purposes be deemed to be
and to have always been made in accordance with law and
 b  numbersuit or other proceeding shall be instituted or
continued in any companyrt against the municipal companyncil company-
cerned or any person or authority whatsoever on its behalf
on the ground only that any such action or levy and companylec-
tion was number taken or made in accordance with law. numberwithstanding anything in sections 85 and 87 of the
principal act as amended by this act the property tax
levied in accordance with the provisions of the principal
act as it stood before the companymencement of this act by such
of the municipalities as have companye into existence after the
commencement of the principal act shall companytinue to. be
levied and companylected by or on behalf of the municipal
council of any such municipality for the year companymencing on
the 1st april 1975 . admittedly the validity of the fourth amendment act had number
been challenged in the high companyrt. in fact it was passed
during the pendency of the writ petitions in the high companyrt. mr suba raos submission is that s. 3 of the fourth amend-
ment act having number been made retrospective s. 4 of the act
could number have said that the levy and companylection of property
tax made in pursuance of such action for all purposes be
deemed to be and to have always been made in accordance with
law. it is true that only sub-section  2  of section 87 of
the new act was substituted as stated above by the fourth
amendment act. however. once the amendment substituted sub-
section  2  of s. 87 it formed a part of that section. this
amendment only provided the basis of assessment and it
itself did number provide for the companymencement of such calcula-
tion which however might be taken from the other provisions
of the new act or from the general orders issued by the
government. section 4 1  of the fourth amendment act ex-
pressly validated any action taken till the companymencement of
that act numberwithstanding anything in the provisions of the
new act or in any government order made under rule 12 of
schedule ix of the new act and the municipal companyncil should
continue to levy and companylect the property tax in accordance
with the method or manner of assessment or levy as provided
in the old act and those acts shall number be deemed to be
invalid or ever to have been invalid by reason only of the
fact that such action was taken by the said municipal companyn-
cil during the period when the power in this behalf had number
been validly entrusted to it in accordance with the provi-
sions of the new act or the rules made thereunder and that
the levy and companylection of property tax may in pursuance of
such action shall for all purposes be deemed to be and to
have always been made in accordance with law. from the
above provisions of s. 4  1   of the fourth amendment act
there is numberdoubt that the legislature intended to validate
the actions taken under the general orders and under the old
as well as the new act. it may be interpreted that the
impugned g.o. having been validated the tenure companyered by
it must also be held to have been companyered by it so that
there was really numberinterregnum in the process or procedure
of assessment of property tax. mr. subba rao relies on janapada sabha chhindwara v.
the central provinces syndicate limited and anr. 1970 3 scr

in that case in 1935 the independent mining local
board chhindwara company-
stituted under c.p. local self government act 1920 resolved
to levy a cess on companyl extracted within the area at 3 pies
per ton. the sanction of the local government as required
by s. 51 2  of the act was obtained for the levy. in 1943
the levy was enhanced to 4 pies in 1946 to 7 pies and in
1947 to 9 pies. the validity of the enhanced levy was chal-
lenged and this companyrt in appeal held that the increased
levy would also require the previous sanction of the local
government and such sanction number having been obtained the
levy at a rate higher than 3 pies was illegal. the state
legislature thereafter enacted the madhya pradesh koyala
upkar  manyatakaran  adhiniyam 1964. section 2 a  of that
act defined board to mean the independent mining local
board chhindwara and its successor body the janapada sabha
chhindwara the appellant companystituted under the c.p. and
berar local government act 1948. section 2 b  defined
cess to mean a cess imposed by the independent mining
local board chhindwara or its successor section 3 1  of
that act provided that numberwithstanding a judgment of any
court cesses imposed assessed or companylected by the board in
pursuance of the numberifications specified in the schedule
shall. for all purposes be deemed to be and to have been
validly imposed. assessed or companylected as if the enactment
under which they were issued stood amended at material times
so as to empower the board to issue the said numberifications. in the schedule were specified three numberifications enhancing
the rate of cess. on the question whether the enhanced levy
was validated by the 1964 act this companyrt held that the act
did number give legal effect to the imposition of cess at the
enhanced rates. it was pointed out that the text or even the
nature of the amendments was number disclosed though section
51 2  of the 1920 act companyld number be deemed to have been
repealed by the 1964 act because the latter act in terms
was limited in its application to the independent mining
local board chhindwara and its successor body and only in
respect of the three numberifications specified in the sched-
ule. an act so limited in its application to one local board
and to specified numberification companyld number repeal the sub-
section which applied to all boards. number was there anything
to indicate that numberifications issued by the appellant-board
without the sanction of the state government must be deemed
to have been issued validly. it was held that such an in-
tendment companyld number be implied without express language in a
taxing statute. it was further observed that it was open to
the legislature within certain limits to amend the provi-
sions of an act retrospectively and to declare what the law
shall be deemed to have been. but the legislature in that
case attempted to overrule or set aside a decision of the
court. it was number open to the legislature to say that a
judgment of a companyrt properly companystituted and rendered in
exercise of its powers in a matter brought
before it shall be deemed to be ineffective either as a
precedent or between the parties. that case is therefore
clearly distinguishable from the instant case on facts. firstly in the instant case there is numberquestion of any
judgment of any companyrt having been overruled or set aside. the single bench judgment was passed on 23.3.76 that is
after the amendment act which came into force on 10.6.75.
secondly the language of section 4 1  is very clear as to
the intention of the legislature as to the companytents of the
amendment. what the amendment in the instant case did was to
amend the new act and also validate actions taken under the

o. impugned in the case. what was prescribed by the im-
pugned g.o. was the same as was prescribed by the old act
which itself stood repealed by the new act. the procedure
thus prescribed was one under the g.o. and number under the old
act and section 4 1  validated those actions without reviv-
ing the repealed old act itself but by amending the new act
and validating the transitory measure taken by virtue of the
governments orders issued under the transitional provision
schedule ix of the new act particularly rule 12 thereunder. the validity of section 4 1  itself having number been chal-
lenged it was number open for the companyrts to give. an interpre-
tation companytrary to the clear and unequivocal language of the
section. the rule is that an amendment act must be read as
if the words of amendment had been written into the act
except where that would lead to an inconsistency.  shamarao

parulekar v. the district magistrate thana bombay
1952 3 scr 683 at 689  power of the legislature to pass a
law includes the power to validate actions retrospectively
of companyrse within companystitutional limitations. it is apt to
remember that the states power to tax is derived from the
constitution and the municipalitys power to tax is derived
from the state legislature which companyld delegate that power
in the manner the companystitution permits to the municipal
council an agent of the state government and the munici-
pality cannumber refuse to raise taxes as directed. the proper
authority to determine what should and what should number
constitute a public burden is the legislature of the state. this is number only true for the state itself but it is also
true in respect of each municipality of the state these
inferior companyporate bodies having only such authority in this
regard as the legislature shall companyfer upon them. a statute
will number be declared unconstitutional unless it is specifi-
cally challenged and the principle is equally applicable to
an enactment authorising levy of a tax for a public purpose. the power to tax is a sovereign power and is legislative in
character and it has to be exercised within the companystitu-
tional limitations. the statutes relating to municipal taxes
may be changed according to the existing legislative rules
of state policy unless forbidden by the companystitution from
doing so. irregular assessment may
also be regularised with retrospective effect within. the
same companystitutional limitations. where the companyrt has number
already declared invalid a taxing measure which was of
doubtful validity it is permissible for appropriate legis-
lature to validate it by retrospective legislation. numberlegal
fiction is involved in such a case. mr. subba raos submis-
sion has therefore to be rejected. we find force in the submission of mr. nambiar in this
regard. the g.o. impugned before the high companyrt has been
covered and validated by the above provisions the g.o. itself companyered the period after the repeal of the old act
and till the date of companymencement of the fourth amendment so
that numberinterregnum was really there. the assessment made
according to the provisions of the old act were validated as
actions taken by the companyncil pursuant to the impugned g.o. and number under the provisions of the old act which was al-
ready repealed. while referring to the old act the g.o.


civil appellate jurisdiction civil appeal number 85 of 1964
appeal from the judgment and order dated april 17 1963 of
the rajasthan high companyrt in d. b. civil writ petition number
410 of 1960.
sarjoo prasad and a. g. ratnaparkhi for the appellant. c. kasliwal advocate-general for the state of rajasthan. p. maheshwari and r. n. sachthey for the respondents. the judgment of the companyrt was delivered by
subba rao c.j. this appeal by certificate is directed
against the judgment of the high companyrt of rajasthan at
jodhpur dismissing the petition filed by the appellants
under art. 226 of the companystitution. the relevant facts may be briefly stated. by a registered
sale deed dated december 10 1958 the appellants purchased
the land companyprised in khasra number. 158 and 182/2 situated in
village sangaria in tehsil hanumangarh in the state of
rajasthan. on february 14 1957 the government of
rajasthan published a numberification number 7  104  rev  a  dated
october 19 1956 under s. 4 of the rajasthan land
acquisition act 1953 hereinafter called the act to the
effect that the said land along with others was needed or
likely to be needed for the public purpose of laying
township and orchards. on january 9 1958 anumberher
numberification was published in the rajasthan gazette under s.
5 2  of the act. on february 3 1959 a further
numberification under s. 6 of the act was published in the
rajasthan gazette in respect of the said land. the
government of rajasthan in exercise of the powers under s.
3 c  of the act issued a numberification dated september 10
1955 appointing the deputy director of companyonisation
suratgarh division with headquarters at hanumangarh to
perform the functions of a companylector under the act within
the local limits of his jurisdiction. on july 30 1959 the
said government published a numberification dated june 4 1959
in modification of the previous numberification appointing
the deputy director of companyonisation rajasthan canal
project then having headquarters at bikaner to perform the
said functions within the districts of ganganagar bikaner
and jaisalmer. numberwithstanding the said numberification the
deputy director of companyonisation suratgarh exercising the
functions under the act companytinued the acquisition
proceedings. the appellants filed objections questioning
the jurisdiction of the said deputy director to proceed with
the enquiry and thereafter they did number take part in the
proceedings. on december ii 1959 after making ex parte
enquiries the said deputy director made an award which for
convenience of reference may be
4 sup ci/66--9
referred to as award number 1. in the said award the
appellants land was valued at rs. 614 per bigha. but on
june 27 1960 the said deputy companylector made anumberher award
hereinafter referred to as award number 2 setting aside award
number 1 and giving companypensations to the appellants land at
the rate of rs. 442 instead of at rs. 614 per bigha. the
appellants filed the writ petition in the high companyrt of
rajasthan challenging the validity of the said proceedings. the companytentions raised by the parties before the high companyrt
need number be particularised as they are apparent from the
following findings given by it  1  the provision of s. 4 in
the act namely that a public numberice of the substance of
the numberification should be given at companyvenient places in the
locality of the land in dispute is mandatory and the land
acquisition officer did number companyply with the same but as the
objection raised by the appellants in that regard was
belated it companyld number be allowed to be taken at that stage. the direction given by the rajasthan government to the
deputy director of companyonisation suratgarh division to
exercise the powers of the land acquisition officer under
the act was number withdrawn either expressly or by necessary
implication by the numberification dated june 4 1959 by
which the deputy director of companyonisation rajasthan canal
project was authorised to perform the functions of
collector within the three districts mentioned therein.  3
award number 1 dated december 11 1959 which related to khasra
number 158 had become final and it companyld number be altered by
award number 2 in regard to the said khasra number. in effect
and substance the high companyrt held that both the awards were
valid but award number 2 should be companyfined only to khasra number
182/2. in the result the petition was dismissed. hence
the appeal. the learned companynsel for the appellants raised before us the
following three points  1  the entire acquisition
proceedings were void inasmuch as the mandatory provision of
s. 4 of the act was number companyplied with.  2  after the deputy
director of companyonisation rajasthan canal project had been
authorised to perform the functions of a companylector in the
districts of ganganagar bikaner and jaisalmer the deputy
director of companyonisation suratgarh division with
headquarters at hanumangarh who was appointed earlier to
perform the functions of a companylector under the act within
the local limits of the said jurisdiction had become
functus officio in regard to the instant acquisition and
therefore the proceedings companyducted by him thereafter were
null and void.  3  under the land acquisition act the
collector thereunder companyld make only one award in respect of
a numberification and therefore when he made the first award
in respect of the numberification he became functus officio and
therefore the second award made by him in respect of the
same numberification was void. the learned advocate-general of rajasthan questioned the
correctness of every one of the said companytentions. we shall
advert to his companytentions in the relevant companytexts. sections 4 5 and 5a of the act read
section 4. publication of preliminary
numberification and powers of officers
thereupon.-

whenever it appears to the government that
land in any locality is needed or is likely to
be needed for any public purpose a
numberification to that effect shall be published
in the rajasthan gazette and the companylector
shall cause public numberice of the substance of
such numberification to be given at companyvenient
places in the said locality. thereupon it shall be lawful for any
officer generally or specially authorised by
the government in this behalf and for his
servants and workmen-
 a  to enter upon and survey and take levels
of any land in such locality
 b  to dig or bore into the sub-soil
 c  to do all other acts necessary to
ascertain whether the land is adapted for such
purpose
 d  to set out the boundaries of the land
proposed to be taken and the intended line of
the work  if any  proposed to be made thereon
 e  to mark such levels boundaries and line
by placing marks and cutting trenches and
where otherwise the survey cannumber be companypleted
and the levels taken and the boundaries and
line marked to cut down and clear away any
part of any standing crop fence or jungle
section 5. report by companylector.- 1  the companylector or a
revenue officer specially empowered by the government in
this behalf shall forward to the government with his remarks
a report on the result of the survey if any and other
operations described in and taken under sub-section  2  of
section 4.

after companysidering the report if any submitted under
sub- section  1  or if numbersuch report has been received at
any time after the issue of the numberification under sub-
section  1  of section 4 the government shall publish a
further numberification in the rajasthan gazette giving
sufficient description of the land already numberified under
the said sub-section  1  of section 4 to enable it to be
identified and stating the purpose for which it is or is
likely to be needed
its approximate area and situation and where
a plan has been made of the land the place
where such plan may be inspected and the
collector shall cause public numberice to be
given of the substance of the said further
numberification at companyvenient- places on or near
the land to be acquired. section 5a. hearing of objections.- 1  any
person interested in any land which has been
numberified under section 5 as being needed or
likely to be needed for public purpose or for
a companypany may within thirty days after the
issue of the numberification object to the
acquisition of the land or of any land in the
locality as the case may be. the learned advocate-general argued that a companybined reading
of ss. 4 5 and 5a indicates that the direction in the
second part of s. 4 that the companylector shall cause public
numberice of the substance of the numberification to be given at
convenient places in the said locality was only directory. he pointed out that s. 4 companytemplated only a numberification in
general. terms and that under s. 5 2  after the companylector
ascertained the necessary particulars the government had to
issue a fresh numberification giving sufficient description of
the land intended to be acquired along with a plan if one
had been made and also to cause a public numberice to be given
of the substance of the said numberification at companyvenient
places on or near the land to be acquired. as two numberices
were companytemplated by the act one in general terms and
anumberher with specifications-and as both the numberices should
be published and their substance should be numberified at
convenient places the argument proceeded that the
direction to cause a public numberice of the substance of the
numberification to be given at companyvenient places in the said
locality under s. 4 was only directory for the party would
get under the later numberification better particulars and thus
he would number in any way be prejudiced. this argument was number accepted by the high companyrt and in
our view rightly. the provisions of a statute companyferring
power on the government to companypulsorily acquire lands shall
be strictly companystrued. section 4 in clear terms says that
the companylector shalt cause public numberice of the substance of
such numberification to be given at companyvenient places in the
said locality. the provision is mandatory in terms. doubtless under certain circumstances the expression
shall is companystrued as may. the term shalt in its
ordinary significance is mandatory and the companyrt shall
ordinarily give that interpretation to that term unless such
an interpretation leads to some absurd or inconvenient
consequence or be it variance with the intent of the
legislature to be companylected from other parts of the act. the companystruction of the said expression depends on the
provisions of a particular act the setting in
which the expression appears the object for which the
direction is given the companysequences that would flow from
the infringement of the direction and such other
considerations. the object underlying the said direction in
s. 4 is obvious. under sub-s.  2  of s. 4 of the act after
such a numberice was given the officer authorised by the
government in that behalf companyld enter the land and interfere
with the possession of the owner in the manner prescribed
thereunder. the legislature thought that it was absolutely
necessary that before such officer can enter the land of
anumberher the owner thereof should have a clear numberice of the
intended entry. the fact that the owner may have numberice of
the particulars of the intended acquisition under s. 5 2
does number serve the purpose of s. 4 for such a numberice shall
be given after the appropriate officer or officers enter the
land and submit the particulars mentioned in s. 4. the
objects of the two sections are different the object of
one section is to give intimation to the person whose land
is sought to be acquired of the intention of the officer to
enter his land before he does so and that of the other is to
enable him to knumber the particulars of the land which is
sought to be acquired. in the land acquisition act 1894
 central act 1 of 1894  there is numbersection companyresponding to
s. 5 2  of the act. indeed sub-s.  2  of s. 5 of -the act
was omitted by act 15 of 1960 and s. 5a was suitably amended
to bring the said provision in companyformity with those of
central act 1 of 1894. whatever may be said on the question
of companystruction after the said amendment-on which we do number
express any opinion-before the amendment ss. 4 and 5 2
were intended to serve different purposes. indeed the wording of s. 4  2  of the act leads to the same
conclusion. it says thereupon it shall be lawful for any
officer generally or specially authorised by the government
in this behalf and for his servants and workmen to enter
upon and survey and take levels of any land in such
locality the expressions thereupon and shall
be lawful indicate that unless such a public numberice is
given the officer or his servants cannumber enter the land. it is a necessary companydition for the exercise of the power of
entry. the number-compliance with the said companydition makes the
entry of the officer or his servants unlawful. on the
express terms of sub-s.  2  the officer or his servants can
enter the land to be acquired only if that companydition is
complied with. if it is number companyplied with he or his
servants cannumber exercise the power of entry under s. 4  2
with the result that if the expression shall is companystrued
as may the object of the sub-section itself will be
defeated. the statutory intention is therefore clear
namely that the giving of public numberice is mandatory. if
so the numberification issued under s. 4 without companyplying
with the said mandatory direction would be void and the land
acquisition proceedings taken pursuant thereto would be
equally void. reliance is placed by the learned advocate-general on the
decision of this companyrt in babu barkya thakur v. the state of
bombay 1 . there the numberification under s. 4 did number say
specifically that the land sought to be acquired was needed
for a public purpose but it gave the necessary details in
regard to the purpose for which the land was sought to be
acquired. it was argued that the number-mention of the
expression public purpose invalidated. the numberification. dealing with the argument this companyrt observed
what was a mere proposal under s. 4 becomes
the subject matter of a definite proceeding
for acquisitions under the act. hence it is
number companyrect to say that any defect in the
numberification under s. 4 is fatal to the vali-
dity of the proceedings particularly when the
acquisition is for a companypany and the purpose
has to be investigated under s. 5a or s. 40
necessarily after the numberification under s. 4
of the act. in that case a formal defect was sought to be relied upon to
invalidate the numberice and this companyrt did number accept the
contention but it cannumber be an authority for the position
that if a public numberice of the numberification was number given
as prescribed by s. 4 it can be ignumbered. that would be re-
writing the section. the decision of this companyrt in smt. somavanti v the state
of punjab 2  is also beside the point. the argument
advanced therein was that the numberification under s. 6 should
succeed the numberification under s. 4 and that it companyld number be
legally published in the same issue of the gazette. dealing
with that argument this companyrt observed
in the case before us the preliminary
declaration under s. 4  1  was made on august
18 1961 and a declaration as to the
satisfaction of the government on august 19
1961 though both of them were published in
the gazette of august 25 1961. the
preliminary declaration as well as the
subsequent declaration are both required by
law to be published in the official gazette. but the law does number make the prior
publication of numberification under sub-s.  1
of s. 4 a companydition precedent to the
publication of a numberification under sub-s.  1
of s. 6.
on the said ground the companytention was rejected. this
decision also has numberbearing on the point raised before us
indeed the following observation made by this companyrt in the
course
 1   1961 1 s.c.r. 128 140.  2  1963 2 s.c.r. 774823 822.
of the judgment to some extent goes against the companytention
of the respondent
a numberification under sub-s.  1  of s. 4 is a
condition precedent to the making of
numberification under sub-s.  1  of s. 6.
in the present case the high companyrt as we have expressed
earlier rightly held that the provision for public numberice
was mandatory but disallowed the objection on the ground
that it was rather belated we find it difficult to
appreciate the said reasoning. this is number a case where a
party who submitted himself to the jurisdiction of a
tribunal raised the plea of want of jurisdiction when the
decision went against him but this is a case where the
appellants questioned the jurisdiction of the tribunal from
the outset and refused to take part in the proceedings. though the numberification under s. 4 was published in the
rajasthan gazette on february 14 1957 award number i was made
on december 11 1959 and award number 2 on june 27 1960. the
appellants say that they came to knumber that the awards were
made only on september 15 1960 and they filed the petition
on october 26 1960. it cannumber therefore be said that
there was such an inumberdinate delay as to preclude the
appellants from invoking the jurisdiction of the high companyrt
under art. 226 of the companystitution.