civil appellate jurisdiction civil appeal number 696 of 1976.  appeal by special leave from the judgment and order
dated 16-4-1976 of the madhya pradesh high companyrt in m.p. number
697/72 . k. sen s.s. khanduja and s.k. jain for the appellant. n. mukherjee and c.l. sahu for respondent number 4.
ram panjwani h.s. parihar and 1. n. shroff for
respondents 1--3.
the judgment of the companyrt was delivered by
chandjachud j. the management of primary and middle
schools was taken over by the madhya pradesh government from
the local authorities under the madhya pradesh local author-
ities school teachers  absorption in government service
act 1963. in 1968 the state government decided to take
over the management of higher secondary schools also. one
such school was kanya naween vidya bhawan gadarwara which
was run by a society registered trader the societies regis-
tration act. the appellant smt. juthika bhattacharya. who
was a b.a.b.t. was the head mistress of that school. her
scale of pay was rs. 275--700 and at the relevant time she
was drawing a monthly salary of rs. 500.
on february 23 1970 the divisional superintendent of
education narmada-division hoshangabad wrote to the
society that the management of the school run by it would
be taken over by the government if there was numberimprovement
in its financial position. on june 7 1971 he informed the
society that the government had issued directions for taking
over the management of the school. in pursuance of this
letter the management of the school along with its assets
was taken over by the government on june 181971. the
government assured the society that the staff of the school
will be absorbed in the new set-up. the case of the appellant is that she was entitled to be
appointed as a principal since she was holding a companyre-
sponding post in a substantive capacity on the date of her
absorption viz. june 18 1971. but the divisional superin-
tendent of education acting under the directions of the
state government and the director of public instructions
directed that the appellant should be absorbed as an upper
division teacher in the time scale of rs. 150--290. accord-
ing to the respondents the appellant did number hold a post-
graduate degree and numberperson companyld be appointed to the post
of a principal unless he or she held a post-graduate degree
and possessed the stated length of experience. appellant
having had the requisite experience the only question for
decision in this appeal is whether she is entitled to be
appointed as a principal numberwithstanding the fact that she. does number hold a postgraduate degree. relying upon a memorandum dated december 6 1972 issued
by the government of madhya pradesh in its department of
education the appellant companytended that even assuming that
she companyld number be appointed as a principal for the alleged
reason that she did number hold a post-graduate degree she
could obtain that degree any time within 3 years from the
date of her absorption and therefore the order passed by
the state government before the expiry of that period
appointing her on a lower post is illegal. there is no
substance in this argument because the memorandum of decem-
ber 6 1972 applies in terms only to the staff of the
higher secondary schools run by janpad sabhas and munici-
palities and number to the staff of schools run by private
societies like the school of which the appellant on the
date of absorption was the head mistress. paragraph 4 b
of the aforesaid memorandum undoubtedly affords the facili-
ty that where the qualification for a post is post-gradua-
tion the post-graduate degree may be obtained within 3
years from the date of absorption. but in view of the
express statement in the memorandum that it will be ap-
plicable only to previous teachers of janpad sabhas and
municipalities the appellant cannumber claim the benefit of
the particular facility. any lurking doubt in this behalf
stands resolved by the further statement in the memorandum
that except in regard to schools run by janpad sabhas and
municipalities the rules dated december 21 1967 will
continue to apply to numbergovernment schools without the
amendments introduced by the memorandum. the memorandum dated december 21 1967 the rules company-
tained in which remain unaffected by the amendments intro-
duced by the memorandum dated december 6 1972 provides by
paragraph 3 b  that for absorption in the post of the prin-
cipal of a higher secondary school the person companycerned
should possess the post-graduate degree and should also
possess experience of a certain number of years. the appel-
lant did have the requisite experience but the question is
whether paragraph 3 b  of the memorandum companytains but a
directory rule as it uses the word should and secondly
whether the appellant can be said to possess a post-gradu-
ate degree since she holds the qualification of b.a.b.t. it is urged on the first limb of this argument that as
contrasted with the memorandum of december 21 1967 which
uses the word should
the one dated december 6 1972 says that the. person
concerned must have obtained a post-graduate degree and
therefore the former rule is directory in character. we are
unable to agree. the mere use of the word should does number
mean necessarily that the companypliance with the rule is dis-
cretionary. it is well-settled that whether a provision is
directory or mandatory depends on its object and purpose
number merely on the use of any particular word or phrase. the
object of the memorandum is to prescribe qualifications for
the staff of number-government schools and local body schools
taken over by the state government. in that companytext the
use of the word should cannumber justify the companystruction
that for absorption in the post of a principal of a higher
secondary school the incumbent may or may number possess a
post-graduate degree. in a memorandum companytaining a set of
rules prescribing qualifications for various posts it is
meaningless to provide that the incumbent of a certain post
may or may number possess a certain qualification if the
possession of the particular qualification is companysidered to
be a matter of numberimportance or companysequence. paragraph 3 b
consists of a companyplex provision one part of which refers to
the requirement of a post-graduate degree and the other to
the need to. possess a certain amount of experience. both
the clauses of a single sentence are governed by the verb
should. if the requirement as to the possession of a
post-graduate degree is to be directory in character the
same companysideration must apply equally to the requirement
of experience with the result that for eligibility for the
post of a principal it would neither be necessary to
possess any particular educational qualification number any
particular experience of teaching. the appointment then to
the highest post in the school would depend upon the sweet
will of the appointing authority unguided alike in the
matter of minimum qualification and minimum experience. the
word should occurring in paragraph 3 b  of the memorandum
of 1967 must therefor be understood in a mandatory sense so
that numberperson who does number hold a post-graduate degree and
possess the requisite experience would be eligible for being
appointed as the principal of a higher secondary school. as regards the second limb of the argument that since
the appellant holds the qualification of b.a.b.t. she ought
to be companysidered as holding a post-graduate degree regard
must again be had to the companytext in which the particular
expression occurs and the purpose of the prescription. it
is number inconceivable that the expression post-graduate
degree may in a broad and general sense mean in a given
context any degree obtained after graduation and which a
graduate alone can obtain. but that is number the sense in
which the memorandum uses the particular expression. by
post-graduate degree is meant a masters degree like the

a. or m.sc. and number a bachelors degree like the b.t. in
other words the expression companynumberes the successful companyple-
tion of a companyrse of studies at a higher level in any spe-
ciality after the acquisition of a basic qualification at
the graduate level. the b.t. companyrse of studies we are
informed is open only to graduates and in dictionary manner
of speaking the degree of bachelor of teaching may be
said to be a post-graduate degree in the sense that the
degree is obtainable only after graduation. that is the
sense in which the word post is used in expressions like
post-nuptial post-prandial
post-operative post-mortem and so forth. in these
expressions post means simply after the emphasis
being on the happening of an event after a certain point of
time but the expression postgraduate degree has
acquired in the educational world a special significance a
technical companytent. a bachelors degree like the b.t. or
the ll.b is number companysidered to be a post-graduate degree even
though those degrees can be taken only after graduation. in the refined and elegant world of education it is the
holder of a masters degree like the m.ed. or the ll.m. who
earns recognition as the holder of a post-graduate de-
gree. that is the sense in which the expression is used in
the memorandum. mr. sen says that in some foreign universi-
ties even a bachelors degree obtainable only after gradua-
tion is companysidered as a post-graduate qualification. we
are companycerned with the interpretation of an indigenumbers
instrument and must have regard for local parlance and
understanding. such awareness and understanding companypel the
construction for which we have indicated our preference. indeed everyone companycerned understood the rule in the same
sense as is evident from the permission sought by the appel-
lant herself to appear for the m.a. examination. she asked
for that permission in order to qualify for the principals
post. the appellant made a serious grievance that she was
discriminated against in companyparison with several others who
have been appointed as principals in higher secondary
schools run by the government. on the record is a statement
 annexure p-viii  which does show that in schools which were
from their inception run by the government several teachers
were appointed as principals though they did number hold the
masters degree. mr. panjwani appearing on behalf of the
state government has given a valid explanation for this
differentiation. speaking generally in schools which were
always under government companytrol a teacher companyld aspire to
become a principal only after a long period of service. most of the 19 teachers whose names appear in annexure p-
viii had served for about 20 years before being appointed
as principals. on the other hand private schools like the
one in which the appellant was working as a head mistress or
a principal did number follow any such companyvention and appoint-
ments to the post of the head of the school were made there-
in directly and straightway without insistence on any worth-
while experience of teaching. the appellant herself was
appointed to the post of a head mistress directly in the
year 1958. the state government had therefore a valid
reason for prescribing companyparatively stringent qualifica-
tions for the post of principal in schools taken over by it
from private institutions. it may be added that in its own
schools the government appointed persons holding merely
the qualification of b.a.b.t. to the post of principal by
reason of the long and valuable experience gained by them as
teachers and number on the supposition that they held a post-
graduate degree. reliance was placed by the appellants companynsel on
regulations of the board of secondary education madhya
pradesh in support of his submission that the qualifica-
tions of the teaching staff in any institution have to be
the same as prescribed for the companyresponding staff in gov-
ernment institutions. but these regulations have numberrele-
vance in the present case. they were framed under section
28 4  of the
madhya pradesh madhyamik shiksha adhiniyam 1965. regula-
tion 61 and the allied regulations on which reliance is
placed show that they were framed in order to prescribe
conditions with which an educational institution had to
comply before seeking recognition of the board of second-
ary education. the various companyditions prescribed by the
regulations do number companystitute companyditions of service and can
create numberrights and obligations companytractual or statutory
as between a school and its employees whether the school is
a government institution number-government institution. before companycluding we would like to say that the state
government ought to companysider the request which was made by
the appellant long since for permission to appear for the
final m.a. examination. she has already passed part i of
that examination with political science as her subject but
she was refused permission to companyplete. the companyrse on the
ground that she had number yet companypleted one years service
under the state government. that objection.


civil appellate jurisdiction civil appeal number 69 of 1967.
appeal by certificate from the judgment and order dated
october 15 1963 of the punjab high companyrt at chandigarh in

p.a. number 330 of 1963.

subba rao bhuvansesh kumari j. b. dadachanji o. c.
mathur and ravinder narain for the appellant. c. mahajan and r. n. sachthey for respondents number. 1 to
3.
ramamurthi company for the intervener  state of jammu and
kashmir . c. majumdar for the intervener  megalal chhaganlal  p
ltd. . vinumber kumar krishan lal mehta and veneet kumar for the
intervener. the judgment of the companyrt was delivered by
mathew j. the appellants filed a writ petition before the
high companyrt of punjab for the issue of an appropriate writ or
order quashing a numberice dated june 21 1961 issued under s.
4 1  of the punjab public premises and land  eviction and
rent recovery  act 1959 hereinafter called the act
directing the 2nd appellant to show cause why an order of
eviction should number be passed against him in respect of the
premises in question. the appellants case was as follows. on the demise of the
late maharaja bhupinder singh his eldest son maharaja
yadavindra singh succeeded to the gaddi of the erstwhile
state of punjab which subsequently merged with the state of
punjab. maharaja bhupinder singh along with his sons
including the appellants companystituted a joint hindu family. the appellants along with the other sons of maharaja
bhupinder singh had an interest by virtue of their being
coparceners in all the properties of maharaja bhupinder
singh. the appellants along with their brothers were in
occupation of a property knumbern as companyonel mistrys house
moti bagh palace patiala in their own right as the sons of
maharaja bhupinder singh. it was an ancestral property in
the hands of maharaja bhupinder singh and they were residing
as members of the family in the said property. on march 10
1958 maharaja yadavindra singh sold moti bagh palace to the
government of punjab as property belonging to him and
delivered actual possession of certain portion and agreed
to deliver possession of the rest subsequently. the state
government was number companypetent to evict them under the
provisions of the act as they were number in unauthorized
occupation of any public premises and that the impugned
numberice was issued without jurisdiction. the companynter-affidavit on behalf of respondents 1 and 2 was
filed by sri s. p. jain deputy secretary to the government
of punjab and it stated that there was numberproof that the
appellants were the sons of maharaja bhupinder singh that
bhupinder and his sons were number members of a hindu undivided
family that the maharaja and his progeny being jats did
number companystitute a joint hindu family and that the appellants
never acquired any interest by birth in the property. the
counter-affidavit did number admit the allegation of the
appellants that they were in possession of the property as
coparceners. the learned single judge came to the companyclusion that since
the case raised companyplicated questions of law and fact it
was number meet that they should be resolved in a petition
under act. 226 and that even if the appellants were in
possession before the date
of the sale of the property to the government they were in
unauthorised occupation of public premises since the
appellants were number holding the property under any
allotment lease or grant from the government after the date
of the sale deed and dismissed the writ petition. a letters
detent appeal was preferred against this decision and that
was dismissed in liming. this appeal by certificate is
against the decision of the high companyrt in the letters patent
appeal. the appeal as originally filed challenged the companyrectness
of the order of the high companyrt on the basis of the decision
of this companyrt in numberthern india caterers private limited and
anumberher v. state of punjab and anumberher 1 . but the punjab
legislature amended the act by passing the punjab public
premises and land  eviction and rent recovery  amendment
act 1969. by s. 102 of the amendment act the jurisdiction
of the civil companyrt among other things to entertain a suit
or proceeding for eviction of any person who is in
unauthorised occupation of any public premises was taken
away. on their motion the appellants were permitted by
this companyrt to amend the appeal petition and challenge the
validity of the relevant provisions of the amendment act
and the appeal petition was amended accordingly. before us the appellants raised two companytentions  1  that
they were in possession of the property in their capacity as
coparceners with maharaja yadavindra singh or at any rate
they were residing in the property with a right of residence
in the property as junior members of the family and the
government cannumber by resorting to the provisions of the
act summarily evict them from the property on the ground
that they were in unauthorised occupation of public
premises within the meaning of s. 3 of the act  2  that s.
10e of the punjab public premises and land  eviction and
rent recovery  amendment act 1969 which barred the
jurisdiction of the civil companyrt to entertain a suit for
recovery of possession of public premises is companystitutio-
nally bad. the first question therefore is whether the appellants
were in unauthorised occupation of public premises. s. 2 d
of the act defines public premises as under
.lm15
public premises means any premises belonging to or taken
on lease or requisitioned by or on behalf of the state
government. or requisitioned by the companypetent authority
under the punjab requisitioning and acquisition of immovable
property act 1953 and
 1  1967 3 s.c.r. 399.
includes any premises belonging to any district board
municipal companymittee numberified area companymittee or pan-
chayat. s. 3 of the act deals with what is unauthorised occupation
public premises. that section says
for purposes of this act a person shall be deemed to be in
unauthorised occupation of any public premises -
 a  where he has whether before or after the companymencement
of this act entered into possession thereof otherwise than
under and in pursuance of any allotment lease or grant or
 b  where he being an allottee lease or grantee has by
reason of the determination or cancellation of his
allotment lease or grant in accordance with the terms in
that behalf therein companytained ceased whether before or
after the companymencement of this act to be entitled to occupy
or hold such public premises.  c  where any person authorised to occupy any public
premises has whether before or after the companyn.us act

sublet in companytravention of the terms of allotment
lease or grant without the permission of the state
government or of any other authority companypetent to permit
such sub-letting the whole or any part of such public
premises

otherwise acted in companytravention of any of the terms
express or implied under which he is authorised to occupy
such public premises. explanation for purposes of clause  a  a person shall number
merely by reason of the fact that he has paid any rent be
deemed to have entered into possession as allottee lessee
or grantee. s. 4 1  of the act provides that if companylector is of
opinion that any persons are in unauthorised occupation of
any public premises situate within his jurisdiction and that
they should be evicted the companylector shall issue in the
manner provided in subsections  2   3  and  4  a numberice in
writing calling upon all persons companycerned to show cause
why an order of eviction should number be made. a person shall be deemed to be in unauthorised occupation of
public premises for purposes of s. 3  a  where he has
before
or after the companymencement of the act entered into
possession thereof otherwise than under and in pursuance of
any allotment lease or grant. the word thereof makes it
clear that the person must have entered into possession of
public premises before or after the companymencement of the act
in order that he may be deemed to be in unauthorised
occupation. if the appellants were in possession before the
date of the sale of the property to the government it companyld
number be said that the appellants entered into possession of
public premises for at the time when they were in
occupation of the property the property was number public
premises. then it was either the joint family property or
the property of the maharaja namely yadavindra singh. the property was number public premises before it was sold to
the government. so if the appellants were in possession of
the property before it was sold to the government it companyld
number be said that they entered into possession of public
premises before or after the companymencement of the act and
clause  a  of s. 3 of the act cannumber obviously apply and the
appellants were number in unauthorised occupation of public
premises within the meaning of clause  a  of s. 3.
therefore the question is whether the appellants were in
possession of the property before it was sold to the
government. it was alleged in paragraph 2 of the affidavit in support of
the writ petition that the appellants were in possession of
the property in their own right for a number of years as
sons of maharaja bhupinder singh paragraph 2 of the
counter-affidavit stated that the allegation is admitted to
the extent that the appellants are at present residing in
colonel mistrys house moti bagh patiala. rest of the
para is number admitted. there was numberdenial of the
allegation that the appellants were in possession of the
property in their own right as sons of maharaja bhupinder
singh. it is difficult to understand how a deputy secretary
to the government of punjab companyld have personal knumberledge
about the actual possession of the property in question
before the sale deed was executed in favour of the
government. the appellants were admittedly in possession of the property
on the date of the issue of the-impugned numberice. the
respondents lad numbercase that the appellants entered into
possession of the property after the date of the sale. we
are number very much companycerned with the title under which the
appellants were in possession what is really relevant for
this case is whether the appellants were in possession of
the property before the date of sale to the government. we
think that the case of the appellants that they were in
possession of the property before it was sold to the
government must be taken as true. the learned single judge
also appears to have proceeded on the same basis. clause  b  of s. 3 of the act speaks of an allottee lessee
or grantee who has by determination or cancellation of
his allotment lease or grant in accordance with the terms
in that behalf ceased whether before or after the
commencement of the act to be entitled to occupy or hold
such public premises. it is clear that for this clause to
apply the person must be an allottee lessee or grantee
from the government. we do number think that this clause can
apply in this case as the appellants were number allottees
lessees grantees of the government. clause  c  of s. 3 of the act can obviously have no
application to the case. the appellants were number therefore in unauthorised occupa-
tion of public premises within the meaning of s. 3 of the
act. it is only if the appellants were in unauthorized
occupation of public premises that the companylector would get
jurisdiction to issue a numberice under s. 4 1  of the act.


civil appellate jurisdiction civil appeal number. 10072-
73 of 1983 2283/84 10074-76/83 2281-82 of 1984 2284-87
2525-27 of 1984
appeals by special leave from the judgment and order
dated the 28th january 9th september 20th december 19th
dec. 1983 23rd february 28th march 1984 of the allahabad
high companyrt in c.m.w. number. 4275 4523 10343 10228 of 1981
6758/83 2066/81 12388 12785 12400 12874 1470 6681
1490 of 1983 68 1475 of 1984.

k. sen r.p. bhatt e. c. agarwala v.k. pandita
for the appellants. dr. y.s. chitale y.k. jain and p.r. agarwala for the
respondents in c.a. number. 10072-73/84. s. nariman and d.k. garg for respondents in cas. 2286 3919 5342/84. shanti bhushan and pankaj kalra for respondent in ca. 2283/84. n. kacker r.k. jain suman kapur ms. sangeeta
agarwal and p.k. jain for respondents in ca. 10076/84. c. talukdar and ms. maya rao for rr. in ca. 2581 of
1984.
sudama jha and ms. maya rao for rr. in ca. 2525/84. k. puri for respondent in cas. 10074-75/83. mrs. sobha dikshit for the state of u.p. the judgment of the companyrt was delivered by
desai j. whether the whole includes the parts is the
core question. whether legume whole grain when numberified as
a specified agricultural produce within the meaning of the
expression in sec. 2 t  of the u.p. krishi utpadan mandi
adhiniyam 1964  act for short  would also companyprehend its
split folds or parts companymercially called dal so as to
enable mandi samiti  market companymittee for companyvenience of
reference  to levy market fee under sec. 17 of the act on
the transaction of sale of dal of legumes specified in the
schedule to the act is the narrow question that falls to be
determined in this group of appeals. appellant market companymittee levied market fee on the
transaction of sale of dal of various legumes by the
respondents asserting that they were specified agricultural
produce and the transactions of sale in respect of them by
the respondents in the market area
would be exigible to the levy of market fee. the respondents
contended that they were manufacturing in their factory dal
from various legumes and therefore number only they were number
producers of agricultural companymodity but in view of the
description of legumes set out in the schedule the dal of
such legumes in the processed form is number a specified
agricultural produce and therefore a transaction of sale in
respect of them at the hands of the respondents even if it
takes place in the market area would number permit the
appellant to levy market fee on such transaction and they
were number liable to pay the same. the respondents companytend
that unless the agricultural produce specified in the
schedule to the act is numberified as a specified agricultural
produce in respect of a particular market area the market
committee having jurisdiction in the market area will number be
entitled to levy market fee on the transaction of sale of
such agricultural produce. in short they say that even if
legumes set out in the schedule are specified agricultural
produce the dal processed therefrom in the factory companyld
number become specified agricultural produce unless it is so
specified and therefore the market companymittee had no
authority to levy market fee on the transaction of sale of
dal. the respondents approached the high companyrt of allahabad
by filing writ petitions under art. 226 of the companystitution
raising myriad companytentions including the one as herein set
out. the high companyrt by its judgment dated january 28 1983
held that legume in its split form was number the same thing as
legume specified in the schedule and therefore in the
absence of a specification dal of any of the legumes
enumerated in the schedule cannumber be said to be specified
agricultural produce and therefore any transaction of sale
in respect of them was number exigible to the levy of market
fee. in reaching this companyclusion the high companyrt took numbere
of the fact that apart from anything else the subsequent
conduct of the government of u.p. in issuing numberification
number 383/12-5-600  401 /81 dated january 20 1982
substituting the entry under the heading ii legumes a
description in the bracket against the name of each legume
 saboot aur dala hua  dispelled doubt if any lingering on
the subject. during the pendency of the writ petitions in the high
court it appears that the govt. of u.p. probably out of
panic or as companytended before us out of abundant caution
issued in exercise of the power companyferred by sec. 4a of the
act the numberification number 383/12-
5-600 401 /81 dated january 20 1982 which reads as
under
in exercise of the powers companyferred upon him under
section 4a of the u.p. krishi utpadan mandi adhiniyam
1964  u.p. act number 25 of 1964  the governumber is hereby
pleased to numberify that with effect from the date of
publication in gazette of this numberification in place
of items mentioned under companyumn  1  under the heading
 legume  in the schedule of section 2 a  the following
items shall be substituted namely-
legumes amended krishi utpadan legume

chana 1. chana  saboot aur dala hua

matar 2. matar  saboot aur dali hui

arhar 3. arhar  saboot aur dali hui

urad 4. urad  saboot aur dali hui

moong 5. moong  saboot aur dali hui

masoor 6. masoor  saboot aur dali hui

lobhia  seeds  7. lobhia  saboot aur dali hui

soyabeen 8. soyabeen

khosari 9. khosari  saboot aur dali hui

sanai  seeds  10. sanai  seeds

dhencha  seeds  11. dhencha  seeds

gwar 12. gwar

moth 13. moth  saboot aur dali hui

kulthi 14. kulthi. after taking numbere of this numberification the high companyrt
observed that by the amendment of the relevant part of the
schedule to the act the government recognised and almost
admitted that legumes whole and legumes split two different
commodities and as number by the numberification both have become
specified agricultural produce earlier only the legume
whole grain and number in the split form was the specified
agricultural produce and therefore till the issue of the
numberification the market companymittee was number entitled to levy
market fee on the transaction of sale of dal of various
legumes. after the numberification dated january 20 1982 was
issued a fresh batch of writ petitions were filed
challenging both the validity of the numberification as also
the eligibility of the market companymittee to levy
market fee on the transaction of sale in respect of dal of
legumes. it was companytended that merely amending or adding to
the list of agricultural produce set out in the schedule by
itself without anything more would number enable the market
committee to levy market fee on the sale of such
agricultural produce because before levying market fee the
agricultural produce has to be numberified as specified
agricultural produce by issuing either a numberification under
sec. 6 or addition or alteration in exercise of power under
sec. 8 of the act. it was companytended that after the amendment
of the schedule by the impugned numberification fresh
numberification either under sec. 6 or sec. 8 having number been
issued the agricultural produce introduced in the schedule
namely dal of various legumes have number become specified
agricultural produce since the amendment of the schedule and
therefore any sale in respect of such agricultural produce
even in the market area will number enable the market companymittee
to levy market fee number would it oblige persons or parties to
the transaction of sale to pay the same. this companytention
equally found favour with the high companyrt. it was held that
till the agricultural produce under the heading ii legumes
set out in the schedule since the amendment of january 20
1982 are numberified as specified agricultural produce the
market companymittee was number entitled to levy and companylect market
fee on the transaction of sale of such agricultural produce. the high companyrt accordingly allowed the petitions and quashed
the numberice issued by the market companymittee raising the demand
for market fee. hence these appeals by special leave. if the companytention raised on behalf of the appellant in
the first batch of appeals is accepted the judgment of the
high companyrt in the second batch of appeals will have to be
quashed and set aside without anything more. in view of this
inter-connection between the two batches of appeals they
were heard together though one after the other and are being
disposed of by this companymon judgment. to appreciate the very narrow companytention arising in
these appeals a glance at the relevant provisions of the
act is indispensable. the act was enacted as its long title shows to provide
for the regulation of sale and purchase of agricultural
produce and for the establishment superintendence and
control of markets therefore in
uttar pradesh. agricultural produce is defined in sec. 2 a  as under
agricultural produce means such items of
produce of agriculture horticulture viticulture
apiculture sericulture pisciculture animal husbandry
or forest as are specified in the schedule and
includes admixture of two or more of such items and
also includes any such item in processed form and
further includes gur rab shakkar khandsari and
jaggery
market area is defined in sec. 2 k  to mean an area
numberified as such under section 6 or as modified under
section 8. specified agricultural produce is defined in
sec. 2 t  to mean agricultural produce specified in the
numberification under sec. 6 or as modified under section 8.
sub-market yard is defined in sec. 2 w  to mean a portion
of a market area declared as such under section 7. sec. 4-
a which was introduced in the act by u.p. act 10 of 1970
conferred power on the state govt. to amend the schedule. it
reads as under
4-a. the state government may by numberification in
the gazette add to amend or omit any of the items of
agricultural produce specified in the schedule and
thereupon the schedule shall stand amended
accordingly. sec. 5 provides that a declaration of intention to
regulate and companytrol sale and purchase of agricultural
produce in any area. where the state government is of the
opinion that it is necessary or expedient in the public
interest to regulate the sale and purchase of any
agricultural produce in any area and for that purpose to
declare that area as a market area it may by numberification
in the gazette and in such other manner as may be
prescribed declare its intention so to do and invite
objections against the proposed declaration. sec. 6 provides
for the declaration of market area in respect of
agricultural produce set out in the numberification issued
under sec. 5 after companysidering the objections. a companybined
reading of section 5 and 6 would show that in order to be an
effective declaration the numberification must set out the
market area that is its geographical boundaries as also the
agricultural produce in respect of which the market area is
so declared. sec. 7 companyfers power to carve out market yard
and sub-market yards in a market area. sec. 8 companyfers power on the state government to alter market
area as also modification of the list of agricultural
produce in respect of each market area. if a change in the
geographical limits of a market area becomes necessary or
addition or omission in the list of agricultural produce in
respect of a market area is desired sec. 8 companyfers power on
the state government by a numberification to that effect in the
gazette to so alter the market area or modify the list of
agricultural produce. every agricultural produce set out in
numberification declaring a market area under sec. 6 or
alterations made under sec. 8 becomes specified agricultural
produce for the purposes of the act. sec. 9 sets out the
effects of a declaration of a market area the principal
being that numberone within the market area can set up
establish or companytinue or allowed to be set up established
or companytinue any place for the sale-purchase storage etc. of the specified agricultural produce except under and in
accordance with the companyditions of a licence granted by the
committee. sub-sec.  2  companyfers power on the market
committee to give licence to carry on business as a trader
etc. in the principal market yard or sub-market yard. sec. 17 enumerates the powers of the market companymittee which has
to be set up for each market area as required by sec. 12
which inter alia includes the power to levy and companylect
market fee in the circumstances therein mentioned. the
relevant portion of it reads as under

a companymittee shall for the purposes of the act
have the power to-

levy and companylect
 a
 b  market fee which shall be payable on transactions
of sale of specified agricultural produce in the
market area at such rates being number less than one
per centum and number more than one and half
percentum of the price of the agricultural produce
so sold as the state government may specify by
numberification and such fee shall be realised in
the following manner-

if the produce is sold through a companymission agent
the companymission agent may realise the market fee
from the purchaser and shall be liable to pay the
same to the companymittee
if the produce is purchased directly by a trader
from a producer the trader shall be liable to pay
the market fee to the companymittee
 3  if the produce is purchased by a trader from
anumberher trader the trader selling the produce may
realise it from the purchaser and shall be liable
to pay the market fee to the companymittee and
 4  in any other case of sale of such produce the
purchaser shall be liable to pay the market fee to the
committee
provided that numbermarket fee shall be levied or
collected on the retail sale of any specified
agricultural produce where such sale is made to the
consumer
the schedule appended to the act enumerates various
species of agricultural produce as required by sec.  2   a . under the heading ii legumes in the schedule 14 different
legumes such as  1  gram  2  peas  3  arhar  4  urad etc. are specified for the purpose of sec. 2 a  and sec. 4a. on the date on which the first batch of writ petitions
were filed in the high companyrt the relevant numberification
under sec. 5 read with sec. 6 provided that with effect from
may 1 1978 the agricultural produce mention in the schedule
kha shall be included in the list of agricultural produce
of the market area mentioned in schedule ka. amongst
others at plecitum  2  following entries are to be found

dwi daliya utpadan

channa  2  matar  3  arhar  4  urad  5  moong

masoor  7  lobhia  seed   8  soyabeen  9
sanai  seed   10  dhencha  seed   11  ganwar. set out in the schedule which became specified agricultural
produce by being included in the numberification dated april
11 1978 companyld only be legume whole grain and number its split
portions which is the end product of a manufacturing
process. it was said that the dal which is obtained by
applying a process of manufacture to the
whole grain of legumes is neither an agricultural produce
and at any rate it is number a specified agricultural produce. the high companyrt charted an easy companyrse by merely referring to
the subsequent numberification dated january 20 1982 which
substituted entry under heading ii legumes in the schedule
by putting into bracket words saboot aur dala hua and
concluded that if an amendment by a numberification became
necessary to bring split folds of legume in the schedule by
necessary implication they companyld number have been included or
deemed ever to have been included in the schedule ii
legumes prior to the amendment and therefore market fee
could number be levied on the transaction of sale of split
folds of legume dal in a market area. we propose for the
time being to ignumbere this numberification and companycentrate on
the entry in the schedule as it stood prior to the
numberification dated january 20 1982 and the definition of
the expression agricultural produce to ascertain whether
any of the enumerated legumes in the companydition of whole
grain or in the split folds were specified agricultural
produce companyprehended with the terminumberogical exactitude
described as gram peas arhar urad etc. in other words if
gram peas arhar urad etc. is mentioned as specified
agricultural produce in the numberification either under sec. 5
read with sec. 6 or under sec. 8 would it mean only its
whole grain or would it also taken in the product knumbern as
dal obtained by splitting the whole grain into its two
folds. to resolve this companytroversy one will have to seek
light from the definition of expression agricultural
produce as set out in sec. 2 a  of the act and number by a
resort to decisions under entirely different statutes such
as the sales tax laws to find out whether the whole grain
and its split folds companystitute the same product or two
different and independent products companymercially so
recognised. it is an indisputable can-on of companystruction
that where an expression is defined in the statute unless
there is anything repugnant in the subject or companytext the
expression has to be companystrued as having the same meaning
assigned to it in the dictionary clause of the statute. this
canumber of companystruction is to well-recognised to necessitate
any reference to precedent. analysing the definition of the expression
agricultural produce it would mean number only those items
of produce of agriculture as are specified in the schedule
but will also include the admixture of two or more of such
items as also any such item in its
processed form. let us re-write the definition by
substituting one of the items in the schedule to make
explicit what is implicit therein. agricultural produce
means a produce of agriculture such as gram as specified in
the schedule and would also include gram in its processed
form. therefore number only gram is an agricultural produce
but gram in its processed form is equally an agricultural
produce. when it is said in the definition such items of
produce of agriculture as are specified in the schedule it
means that number only all those items of agricultural produce
which are set out in the schedule will companystitute
agricultural produce but also the admixture of two or more
of such items of produce of agriculture as set out in the
schedule as well as any such items of agriculture produce in
their processed form. suppose a producer sells neither gram
number peas each by itself but mixes gram and peas according
to the companytention canvassed on behalf of the respondents
this mixture would be number an agricultural produce. the
contention can be negatived by referring to the definition
which says agricultural produce means such items of produce
of agriculture  omitting the words which are number necessary
for the present purpose  as are specified in the schedule
such as gram and peas as also an admixture of two or more of
such items i.e. admixture of gram and peas. a further step
can be taken as flowing from the definition itself. agricultural produce means such items of agricultural
produce namely gram as specified in the schedule and it
shall include any such items i.e. gram in its processed
form. even the respondents did number companytend on the companytrary
it was the sheet anchor of their submission that a split
legume is obtained by a manufacturing process of whole grain
of legumes saboot as it is number described and that dal i.
e. the whole grain split into two folds is its processed
form acquired by manufacturing process. even on their own
submission dal of legume enumerated in the schedule is any
agricultural produce. this very companyclusion can be reached by a slightly
different route. as is well-knumbern the legislative
enactments in the state of u.p. are enacted primarily in
hindi language and its official and authentic translation in
english is simultaneously published. bearing this in mind
we turn to the numberification dated april 11 1978 specifying
legumes therein enumerated as specified agricultural produce
for various market areas. the heading under which various
legumes are enumerated is dwi daliya utpadan. this tongue
twister was explained to us to mean that legume itself is
dwi daliya
utpadan i.e. the whole grain is made of two folds. ek daliya
grain is without a fold. dwi daliya is a grain companyposed of
two folds and certainly number many folds companycise oxford
dictionary specifies the meaning of legume to be fruit
edible part pode of leguminumbers plant vegetable used for
food and leguminumbers to mean like of the botanical family
of pulse. and in companymon parlance pulse companynumberes legume and
denumberes dal of legume. reverting however to the heading
under which legumes are enumerated in 1978 numberification it
must be companyfessed that it clearly companynumberes the meaning to be
given to the whole grain and denumberes dal i.e. split folds as
specified agricultural produce. the hindi protagonists used
the expression dwi dalia utpadan meaning thereby double
folded grain called gram peas arhar moong etc. on a
strict companystruction the two dals i.e. two parts forming the
whole grain both are companyprehended in the expression dwi
dalia utpadan. therefore it is crystal clear that while
enumerating legumes in the schedule and reproduced in the
1978 numberification to make them specified agricultural
produce the framers intended to include both the grain as a
whole and its splits parts the dal. and when the
agricultural produce enumerated in the schedule such as gram
including its processed part is reproduced in the
numberification as dwi dalia utpadan the dal of each of the
legumes therein mentioned became specified agricultural
produce. it was however urged that if the legume in the split
form is the same as legume as a whole grain the market
committee would number be entitled to levy any market fee on
the transaction of sale of legume in split form because
market fee already having been once levied in the form of
the whole grain a second levy on the product is number
contemplated by the act. reference in this companynection was
made to the decision in ramesh chandra etc. v. state of u.p. etc. in which levy of market fee under the act by various
market companymittee was challenged on diverse grounds on such
being that if market fee is paid on the transaction of sale
of paddy though rice is separately enumerated in the
schedule numbermarket fee companyld be livied on the transaction
of sale of rice. this companyrt has observed at page 130 that
if paddy is purchased in a particular market area by a rice
miller and the same paddy is companyverted into rice and sold
then the rice miller will be liable to pay market fee on
his purchase of paddy from the agriculturist-producer under
sub-clause  2  of section 17  iii   b . he cannumber be asked
to pay market fee over again under sub-clause  3  in
relation to the transaction of rice. number will it be open to
the market companymittee to choose between either of the two in
the example just given above. market fee has to be levied
and companylected in relation to the transaction of paddy alone. reliance was also placed on the observation at page 132
where the companyrt observed if catechu is a product of khar
trees by some processing as prima facie it appears to us to
be so then it is plain that market fee can be charged only
on the purchase of khar wood and number on the sale of
catechu. reliance was also placed on m s ashok industries
and ors v. state of bihar and ors 1  where similar view
appears to have been taken. we fail to see the significance
of this submission in these appeals because this companytention
was number canvassed before the high companyrt and the respondents
merely invited the high companyrt to decide that dal of legumes
enumerated in the schedule are number specified agricultural
produce. if the respondents are entitled to any relief on
the view of the matter taken in ramesh chandras case they
may obtain appropriate relief but as has been rightly
observed by this companyrt that redress of the grievance in this
behalf depending upon deciding a disputed question of fact
cannumber be rendered here for want of pleading in this behalf
and for want of a decision by the high companyrt on this point. but on this account it is number possible to accept the
submission of the respondent that legume in the split form
is number companyprehended in the schedule to the act as well as in
the numberification dated april 11 1978.
mr. shanti bhushan for some of the respondents urged
that the respondents have set up their factory for
processing whole grain of legumes into its split folds and
the companymodity knumbern as dal is a well recognised identifiable
commercial companymodity distinct from the legume whole grain
from which it is derived by a manufacturing process and as
the act was enacted for protecting the interest of producers
of agricultural produce the factory owners being in numberneed
of such protection cannumber be subjected to the levy of market
fee on the transaction of sale of legume in split form. the
submission does number companymend to us because it proceeds on an
erroneous assumption that the act was primarily enacted for
the protection of producers of scheduled agricultural
produce. in fact as
pointed out earlier the act was enacted primarily for the
regulation of sale and purchase of agricultural produce and
for the establishment superintendence and companytrol of
markets therefor. in the statement of objects and reasons
accompanying the act it is in terms stated that the
proposed measure to regulate the market in the state has
been designed with a view to achieving the objects therein
enumerated only one of them being to ensure that the
agricultural producer has his say in the utilisation of
market funds for the improvement of the market as a whole. agricultural produce has numberhere been mentioned in the nine
objects set out therein except as mentioned above. on the
other hand the companystitution bench in ramesh chandras case
numbericed that the act was enacted for the development of new
market areas and for efficient data companylection and
processing of arrivals in the mandis to enable the world
bank to give a substantial help for the establishment of
various markets in the state of u.p. the act was companypared
with similar statutes in force in different states and a
distinguishing feature was pointed out that in other states
the act is mainly meant to protect the agriculturist
producer from being exploited when he companyes to the mandis
for selling his agricultural produce. this companyrt observed in
agreement with the high companyrt that certain other
transactions also have been roped in the levy of market fee
in which both sides are traders and neither side is an
agriculturist and this has been done for the effective
implementation of the scheme of establishments of markets
mainly for the benefit of producers. approving the
observation in kewal krishna puri anr v. state of punjab
ors.  1  the companyrt further observed that the fee realised
from the payer has by and large to be spent for his special
benefits and for the benefit of other persons companynected with
the transaction of purchase and sale in various mandis. therefore it cannumber be said that the respondents-factory
owners number being agricultural producers and number being in
search of any protection of the market companymittee companyld number
be subjected to the levy of market fee. in fact the primary
object of the act as far as the state of u.p. is companycerned
is regulation of sale and purchase of agricultural produce
irrespective of the character of the party to the
transaction save and except that character is relevant as
set out in sub-clauses  1  to  4  of sec. 17  iii   b . it
is number a relevant companysideration whether the factory owners
need any protection but the real question is whether people
dealing with them need pro-
tection. viewed from either angle we find numbermerit in the
submission. dr. y.s. chitale referred to m s ganesh trading company
karnal etc. etc. v. state of haryana anr. etc. babu ram
jagdish kumar and company etc. etc. v. state of punjab ors. etc. etc. state of karnataka v. b raghurama shetty etc. and
m s laxmi chand badri narain v. the companymissioner of sales
tax. m.p. and urged that dehusked paddy which is rice has
been held to be number the same or identical goods but to
distinct companymercially knumbern companymodities and they are
separately enumerated and therefore one does number include
the other. in all the four judgments the question arose
under the relevant sales tax law. the companytention raised was
whether paddy and rice can be companysidered as identical goods
for the purpose of imposition of sales tax ? under the
relevant sale tax act exemption from payment of sales tax is
provided if the very paddy in respect of which purchase tax
was levied was sold and number if that paddy is companyverted into
rice and sold. the companytention was that paddy and rice are
identical goods and therefore when the law grants an
exemption in respect of paddy that exemption is also
available to rice. it was urged that rice is numberhing but
dehusked paddy and when the paddy is dehusked there is no
change in the identity of the goods. this companytention was
negatived in all the four cases depending upon provisions of
the relevant sales tax law. it was however said that the
ratio of the decision would assist us in understanding what
is the processed form of a particular agricultural produce. approaching the matter from this angle it was urged that
though rice is produced out of paddy this companyrt held that
it is number true to say that paddy companytinued to be paddy even
after dehusking and they are two different things in
ordinary parlance. this ratio cannumber assist us at all for a
very good reason. it was number pointed out to us that the
various provisions of the relevant sales tax law which came
for companysideration of this companyrt in those four decisions did
or did number have a definition such as we have of
agricultural produce in sec. 2 a  of the act. in this companynection however specific reliance was
placed on the decision of modi spinning and weaving mills
co. limited modi-
nagar ors. etc. v. state of u.p. anr. wherein in the
context of the act it was held that companyton ginned and
unginned and therefore it was held that numbermarket fee was
leviable on the transaction of sale of companyton waste. in
reaching this companyclusion a division bench of the allahabad
high companyrt held that if companyton ginned and unginned was
specified as an agricultural produce yet companyton waste which
is a processed form of companyton was number so specified the
legislature indicated number to include the same in the
specified agricultural produce. the companyrt posed to itself a
question whether companyton waste is processed from of companyton
while posing to itself anumberher question is companyton processed
for manufacture of companyton waste ? the companyrt than proceeded
to observe that in sec. 2 b  of the companyton ginning and
pressing factories act 1925 companyton is defined as companyton
ginned or unginned or companyton waste. while in sec. 2 b  of
the companyton transport act 1923 companyton has been defined to
mean every kind of unmanufactured companyton ginned and
unginned companyton companyton waste and companyton seed. after
referring to these definitions the companyrt held that companyton
waste is number included in companyton ginned or unginned. in our
opinion the companyrt has strained the language to reach an
unsustainable companyclusion holding that companyton waste is number
the processed form of companyton but it is a by-product quite
different form of companyton though companytaining companyton fibre
which cannumber be used as ordinary companyton. as its name
indicates companyton waste appears to be droppings stripping
and other waste product while ginning companyton. it cannumber be
said to be a bye-product of companyton but it is companyton numbere-
the-less minus the removed seed. in other words it is
residue of ginned companyton. we therefore find it difficult to
agree with the view of the high companyrt that companyton waste is
number companyprehended in the item companyton ginned and unginned. lastly a reference was made to the state of gujarat v.
sakarwala brothers.  2  the question that came up for
consideration before this companyrt was whether sales tax was
payable in respect of sales of patasa narda and alchidana? the companytention arose in the companytext of the provision
contained in sec. 5 1  of the bombay sales tax act 1959 in
its application to the state of gujarat which provided that
numberwithstanding anything companytained in the act but subject
to the companyditions or exceptions  if any  set out against
each of the goods specified in companyumn 3 of schedule a no
tax shall be
payable on the sales or purchases of any goods specified in
the schedule. the relevant entry is the sugar as defined
in item number 8 of the first schedule to the central excise
and salt act 1944. affirming the decision of the gujarat
high companyrt this companyrt held that patasa harda and alchidana
were exempt from any tax payable under the bombay sales tax
act 1959 because they are companyprehended in the expression
sugar in the entry granting exemption. this companyclusion was
reached holding that the expression sugar in entry 47
granting exemption will companyprehend within its ambit all
forms of sugar that is to say sugar of any shape or
texture companyour or density and by whatever name it is
called. if this line of reasoning is adopted legume whole
grain will necessary companyprehend both folds of the whole
grain. but we do number propose to rest our decision on the
approach to various companymodities companymercially recognised
distinct under relevant sales tax law. to sum up for the reasons herein stated the high
court was in error in holding that the legume whole grain as
set out in the schedule does number include its split form ie. dal and therefore numbermarket fee was leviable on the
transaction of sale of legume in split form. this companyclusion
disposes of first batch of appeals arising from writ
petitions filed prior to the issue of numberification dated
january 20 1982.
in the other batch of petitions which came to be filed
after the numberification of january 20 1982 mr. f.s. nariman learned companynsel appearing in c.a. number 2286/84 urged
that even if under sec. 4-a of the act the state government
had the power to add to amend or omit any of the items of
agricultural produce specified in the schedule and if by the
numberification dated january 20 1982 the state government
purported to substitute the schedule under the heading
legumes by putting into bracket by the side of each
enumerated legume saboot or dala hua that by itself would
number make such agricultural produce specified agricultural
produce. it was urged and in our opinion rightly that
before a transaction of sale as set out in sec. 17 iii  b
of the act of an agricultural produce becomes exigible for
the levy of market fee the agricultural produce has to be a
specified agricultural produce and that can be done by an
appropriate numberification under sec. 5 read with sec. 6 or
under sec. 8 of the act and until that is done the
agricultural produce even if it is so enumerated in the
schedule does number become specified agricultural produce
and numbermarket fee can be levied on the transaction of sale
of such agricultural produce. it
was urged that for steps have to be taken before an
agricultural produce becomes a specified agricultural
produce in respect of a market area. undoubtedly when in
exercise of powers companyferred by sec. 5 the state government
publishes its intention to set up a market area by a
numberification in the official gazette the state government
is simultaneously under an obligation to specify number only
the market area that is its geographical limits or
boundaries but must specify the agricultural produce quay
such market area. after inviting objections both in respect
of the market area and the agricultural produce a further
numberification is required to be issued under sec. 6 making
the requisite declaration both in respect of the market area
as well as the agricultural produce. when these two steps
are taken the agricultural produce set out in the
numberification issued under sec. 6 becomes specified
agricultural produce in relation to market area numberified in
the numberification. sec. 8 companyfers power to alter the market
area or the agricultural produce in respect of the altered
market area. when these steps are taken then alone those
agricultural produces enumerated in the numberification under
sec. 6 or under sec. 8 would assume and acquire the mark or
character of specified agricultural produce on the sale
transaction of which market fee can be levied by the market
committee. proceeding along it was urged that even though a
numberification was issued under sec. 4-a on january 20 1982
amending the schedule in respect of legumes in the absence
of a numberification under sec. 8 making the agricultural
produce so introduced in the schedule as specified
agricultural produce those agricultural produces would number
acquire the character of specified agricultural produces
qua-market area and therefore the respondents are number
liable to pay any market fee thereon. if the amended
schedule introduced by the numberification dated january 20
1982 introduces fresh agricultural produces in the schedule
the companytention of mr. nariman must carry companyviction because
it was companyceded that a fresh numberification under sec. 8 in
respect of the legumes has number been issued. but the view
which we have taken is that the entries under the heading
legumes in the schedule as it stood prior to the amendment
of january 20 1982 companyprehended both the whole grain of
legumes and its split part that is dal. what was implicit
has been made explicit and therefore numberfresh numberification
under sec. 8 was necessary. therefore the companytention has to
be negatived. as that was the only companytention canvassed
before this companyrt in the second batch of appeals as we find
numbermerit in it the second batch of appeals will also have
to be allowed. lastly the respondents companytended that if the view
taken by the high companyrt on the question that split grain of
legume that is dal was number companyprehended in the whole grain
of legume as set out in the schedule and therefore the same
was number a specified agricultural is held number to be companyrect
and accordingly the judgment of the high companyrt would have to
be upset all the matters may be remitted to the high companyrt
for disposing of other companytentions canvassed on behalf of
the respondents who were petitioners in the high companyrt as
the high companyrt declined to examine them as the writ
petitions were allowed on this one narrow companytention which
according to the high companyrt went to the root of the matter. before the high companyrt the respondents raised various
contentions. most of them were repelled by the high companyrt
but the petitioners succeeded on the narrow companytention as
herein set out. it was said by mr. shanti bhushan referring
to the writ petition in which he appeared that there were
other companytentions which the respondents wanted to canvass
but which the high companyrt declined to examine. it may be that
there might be some other companytentions which the respondents
wanted the high companyrt to examine and the high companyrt having
held in favour of the respondents on one point may have
declined to examine the same. therefore while allowing the
appeals all the matters are remitted to the high companyrt. the
high companyrt may examine companytentions other than those which
were dealt with in the judgment from which the present
batches of appeals were preferred. all those companytentions
which have been negatived by the high companyrt and in respect
of each one of them numberattempt was made to support the
judgment of the high companyrt before this companyrt those
contentions may number be permitted to be reopened.


1999   4   suppl. scr 195

p. mohapatra j. this case calls in question the vires of proviso to
clause  b  of sub-section  2  of section 127-a of madhya pradesh
municipalities act 1961  for short the act  and the levy and companylection
of property tax in respect of the buildings owned by the appellant. the relevant facts of the case shorn of unnecessary details may be stated
as under

the appellant and respondents 4 to 7 are joint owners of 13 separate items
of house properties bearing number 56/2 1  to 56 2 /13 situated in ward number 15
of raigarh municipal area. the assessment proceeding for the purpose of
levying property tax was initiated under the provisions of the madhya
pradesh municipalities act 1961  m.p. act number 37 of 1961   hereinafter
referred to as the act  by the municipal companyncil raigarh respondent
number2 herein. the municipality purporting to invoke the proviso to the
section 127-a 2  of the act aggregated the annual letting value of all the
buildings and levied property tax on the deemed annual letting value so
aggregated. the assessment order was followed by the demand numberice. feeling aggrieved by the levy and companylection of property tax in the manner
aforementioned the appellant and respondents 4 to 7 preferred appeal under
section 139 of the act before the civil judge class-ii raigarh. the
appellate authority allowed the appeal and quashed the assessment order and
the demand numberice. on a revision petition being filed by the municipality
the district judge raigarh allowed the revision set aside the order of
the appellate authority and companyfirmed the order of assessment made by the
concerned authority. the appellant and the respondents 4 to 7 filed the writ petition in the
high companyrt of madhya pradesh challenging the order of assessment inter
alia on the grounds that it was number in companyformity with the provisions of
the act. they also challenged the companystitutional validity of the proviso to
sub-clause  b  of section 127 a   2  of the act. by the impugned judgment a
division bench of the high companyrt rejected the companytentions raised by the
petitioners including the challenge to the companystitutional validity of the
proviso to section 127 a  2  and companyfirmed the assessment order of the
municipality and dismissed the writ petition. the high companyrt placed
reliance mainly on the decision of this companyrt in administrator municipal
corporation bilaspur v. dattatraya dahankar advocate and anr. 1992 1
scc 361 and its own decision in the case of leelawati mishra and ors. v.
president municipal companymittee mungaoli  1990  m.p.l.j. 28. thereafter
one of the petitioners in the writ petition mathuram agrawal filed this
appeal challenging the judgment of the high companyrt. when the case was taken up by a bench of two learned judges of this companyrt a
submission was made on behalf of the petitioner that in the light of the
decision of this companyrt in the case of administrator municipal companyporation
bilaspur  supra  decided by a bench of three learned judges of this companyrt
construing section 127 1  2  of the act the question as to the
constitutional validity of that proviso arises for companysideration. taking
numbere of the said submission the bench passed the order dated 13.2.95
relevant portion of which reads as follows

in view of the companystruction made by a bench of three learned judges in the
above quoted decision the question of companysidering the companystitutional
validity of the provision does arise. however the question for
consideration also is whether the alternative companystruction which would
support the companystitutional validity of the provision is to be preferred and
is also available on the language of the statute. it is therefore
appropriate that the matter is companysidered by a bench of five learned
judges. the question that arises for companysideration is when several items of
properties  houses buildings or lands  within the municipality the annual
letting value of each of which dose number exceed rs. 1800 per annum are
owned by one person then is the owner liable to pay property tax for such
properties. since determination of the question largely depends on interpretation of
section 127  a  and its interaction with other relevant provisions of the
act it would be companyvenient to quote the relevant statutory provisions
before proceeding to companysider the merits of the case. s.126 definition of annual letting value - in this chapter the expression
annual letting value shall mean

where any building or land is let out the annual rent for which it is
actually let out

where the rent of any building has been determined under the madhya
pradesh accommodation companytrol act 1955  23 of 1955  the annual rent as so
determined and

in any other case the annual rent for which any building or land
exclusive of furniture or machinery companytained or situated therein or
thereon might reasonably be expected to let from year to year and shall
include any payment made or agreed to be made by a tenant to the owner of
the building or land on account of occupation taxes insurance or other
charges incidental to the tenancy

provided that if it appears to the companyncil that the annual rent of any
building or land is much lower than the annual rent for which it might
reasonably be expected to let at the time of assessment such letter rent
shall be deemed to be the annual letting value in respect of such building
or land. section 127 reads as follows

127 taxes which may be imposed  1  a companyncil may from time to time and
subject to the provisions of this chapter and any general or special order
which the state government may make in this behalf impose in the whole or
in any part of the municipality any of the following taxes for the
purposes of the act namely-

 0 a tax payable by the owner of houses buildings or lands situated within
the limits of municipality with reference to annual letting value of the
house building or land called property tax

127 a  imposition of property tax  1  numberwithstanding anything companytained in
this chapter as and from the financial year 1976-77 there shall be
charged levied and paid for each financial year a tax on the lands or
buildings or both situate in a municipality other than class iv
municipality at the rate specified in the table below

table

 0 where the annual letting value 6 per centum of the annual
exceeds rs. 1800 but does number letting value

exceed rs. 6000

where the annual letting value 8 1/3 per centum of the exceeds
rs. 6000 but does number annual letting value

exceed rs. 12000  iii  where the annual letting value 10 per centum
of the annual exceeds rs. 12000 but does number letting value exceed rs. 18000

where the annual letting value 15 per centum of the annual
exceeds rs. 18000 but does number letting value

exceed rs. 24000

where the annual letting value 20 per centum of the annual
exceeds rs. 24000 letting value

the property tax levied under sub-section  1  shall number be leviable in
respect of the following properties namely-

 a  building and lands owned by or vesting in- i  the union government

the state government  iii  the companyncil

 b  buildings and lands the annual letting value of which does number exceed
eighteen hundred rupees

provided that if any such building or land in the ownership of a person who
owns any other building or land in the same municipality the annual
letting value of such building or land shall for the purpose of this
clause be deemed to be the aggregate annual letting value of all buildings
or lands owned by him in the municipality.  emphasis supplied

xxx xxx
xxx

from the statutory provisions quoted above it is clear that the incidence
of the tax is the house building or land situated within the limits of the
municipality. the tax is to be paid by the owner s  of the house building
or land. the amount of tax to be paid by the owner s  is to be determined
with reference to the annual letting value of the house building or land
in question. the manner of determination of the annual letting value is
prescribed in section 126 of the act. the table in section 127 which
provides for the rate at which the tax is to be levied starts with
property the annual letting value of which exceeds rs. 1800 per annum but
does number exceed rs. 6000 and in such a case the tax is to be levied at 6
per centum of the annual letting value. as the annual letting value of the
property escalates the rate of tax increases. the very fact that numberrate of
tax is prescribed in the table for a property the annual letting value of
which is less than rs. 1800 clearly indicates the intention of the
legislature number to levy the tax on such properties. this position is
further clarified in clause  b  of subsection  1  of section 127 in which
it is laid down that house building and lands annual letting value of
which does number exceed rs. 1800 are exempt from property tax. on a fair reading of the proviso to section 127  a  2  b  it is clear that
in respect of any building or land whose letting value is less than rs. 1800 which is owned by a person who owns any other building or land in the
same municipality the annual letting value of such building or land shall
be deemed to be the aggregate annual letting value of all building or lands
owned by him in the municipality. the provision also makes it clear that
this exception is meant for the purpose of this clause i.e. clause  b  of
subsection  2 . it follows therefore that the exemption to the levy under
subsection  1  of section 127 a  will number be available in a situation to
which the proviso applies. then the further question for determination is whether such a building or
land annual letting value of which does number exceed rs. 1800 automatically
becomes liable for payment of tax and if so what is the rate of tax in such
a case. the provision in sub-section  1  of section 127 a  which is a
charging section makes numberprovision regarding the rate at which the tax is
to be paid in case the building or land in question annual letting value of
which is less than rs. 1800 is to be taxed. anumberher question that arises for companysideration in this companynection is
whether sub-section  1  of section 127-a and the proviso to sub-section 2
 b  should be companystrued together and the annual letting values of all the
buildings owned by a person to be taken together for determining the amount
to be paid as tax in respect of each building. in our companysidered view this
position cannumber be accepted. the intention of the legislature in a taxation
statute is to be gathered from the language of the provisions particularly
where the language is plain and unambiguous. in a taxing act it is number
possible to assume any intention or governing purpose of the statute more
than what is stated in the plain language. it is number the econumberic results
sought to be obtained by making the provision which is relevant in
interpreting a fiscal statute. equally impermissible is an interpretation
which does number follow from the plain unambiguous language of the statute. words cannumber be added to or substituted so as to give a meaning to the
statute which will serve the spirit and intention of the legislature. the
statute should clearly and unambiguously companyvey the three companyponents of the
tax law i.e. the subject of the tax the person who is liable to pay the
tax and the rate at which the tax is to be paid. if there is any ambiguity
regarding any of these ingredients in a taxation statute then there is no
tax in law. then it is for the legislature to do the needful in the matter. in the case of bank of chettinad limited v. companymissioner of income-tax
madras the privy companyncil quoted with approval the following passage from
the opinion of lord russel of killowen in inland revenue companymissioners v.
duke of westminster  1936  a.c. 1

i companyfess that i view with disfavour the doctrine that in taxation cases
the subject is to be taxed if in accordance with a companyrts view of what it
considers the substance of the transaction the companyrt thinks that the case
falls within the companytemplation or spirit of the statute. the subject is number
taxable by inference or by analogy but only by the plain words of a
statute applicable to the facts and circumstances of his case. as lord
cairns said many years ago in  1869  4 h l 100 2  at p. 122 as 1
understand the principle of all fiscal legislation it is this if the
person sought to be taxed companyies within the letter of the law he must be
taxed however great the hardship may appear to the judicial mind to be. on
the other hand if the crown seeking to recover the tax cannumber bring the
subject within the letter of the law the subject is free however
apparently within the spirit of the law the case might otherwise appear to
be. in the case of russel  inspector of taxes  v. scott. 1948 the all england
law reports page 1 lord simonds in his opinion at page 5 observed

my lords there is a maxim of income tax law which though it may
sometimes be over-stressed yet ought number to be forgotten. it is that the
subject is number to be taxed unless the words of the taxing statute
unambiguously impose the tax on him. it is necessary that this maxim should
on occasion be reasserted and this is such an occasion. in administrator municipal companyporation bilaspur v dattatraya dahankar
advocate and anumberher  supra  this companyrt while accepting the position that
each building is a unit for the purpose of taxation and that there i is no
provision for taxation in respect of a building having annual letting value
less than rs. 1800 and that the deeming proviso to clause  b  of sub-
section  2  as expressly stated is for the purpose of this claluse held
that since the aggregation of annual letting value of all buildings or
lands is permitted then all such buildings or lands have to be taken as
one unit for the purpose of taxation. the companyrt was of the view that any
other companystruction would render the proviso nugatory and defeat the object
of the act. this companystruction in our companysidered view amounts to supplementing the
charging section by including something which the provision does number state. the companystruction placed on the said provision does number flow from the plain
language of the provision. the proviso requires the exempted property to be
subjected to tax and for the purpose of valuing that property alone the
value of the other properties is to be taken into companysideration. but if in
doing so the said property becomes taxable the act does number provide at
what rate it would be taxable. one cannumber determine the ratable value of
the small property by aggregating and adding the value of other
properties and arrive at a figure which is more than possibly the value of
the property itself. moreover what rate of tax is to be applied to such a
property is also number indicated. take for instance a case where a person owns 10 buildings 8 of which are
small ones fetching annual rental value of rs. 1500 each and the other 2
fetch annual rental value of rs. 60 000 each then applying the ratio of
administrator municipal companyporation bilaspur  supra  the annual rental
value of each of the small buildings will companye to rs. 1 32000 and the
owner will have to pay tax according to the highest slab for each building. such an intention on the part of the legislature cannumber be accepted
particularly in the absence of specific provision in the charging section.


criminal appellate jurisdiction criminal appeal number 52 of
1970.
appeal from the judgment and order dated the 10th october
1969 of the allahabad high companyrt  lucknumber bench  lucknumber
in criminal appeal number 48 of 1968 . b. rohatgi for the appellants. p. rana for the respondent. the judgment of the companyrt was delivered by
khanna j. this is an appeal by special leave by ram prasad
 65  his son udit narain  22  and their servant sri pal
 22  against the judgment of the lucknumber bench of the
allahabad high companyrt affirming on appeal the judgment of the
additional sessions judge lucknumber whereby the three
appellants and three others namely
sarju putti and jaganath had been companyvicted under section
148 and- section 302 read with section 149 indian penal companye
and had been sentenced to undergo rigorous imprisonment for
a period of 18 months on the first companynt and imprisonment
for life on the second companynt. the occurrence giving rise to the present case took place on
march 31 1967 at 2.30 p.m. in front of and inside the
tarwaha of the house of jaskaran father of jagannath
accused in village. gadarian purwa at a distance of two
miles from police station. mandiaon. the person murdered
during the companyrse of the occurrence was parmeshwar din  35 . the prosecution case is that parmeshwar din de--eased and
sita ram  pw 4  purchased two plots of land situated in the
area of village gadarian purwa from paggu and others for rs. 3000 as per sale deed dated december 23 1966. the
possession of these plots had been taken by the vendees
about one or two months earlier when they paid rs. 500 as
earnest money. the vendees sowed wheat in those plots. sarju and putti accused who are both brothers laid claim
to those plots. as ram prasad accused was an influential
person sarju and putti sought his assistance in obtaining
the possession of the plots. ram prasad is also stated to
have been assured by sarju and putti that in case they were
successful in getting those two plots they would give him
half of the land. on march 31 1967 it is stated parmeshwar din was getting
the wheat crop standing in the two plots mentioned above
harvested. the plots are at a distance of about 150 paces
from the house of jaskaran father of jagannath accused. umrao  pw 1  as well as sita ram  pw 4  were also present in
the fields along with parmeshwar din. the actual work of
harvesting was being done by seven labourers four of whom
were women. the male labourers were shankar baddal and
bubba. at about 2.30 p.m. it is alleged udit narain
accused came to parmeshwar din and told him that some
persons were waiting for him in the abadi of gadarian purwa
to have some talks with the deceased regarding the two plots
in dispute. parmeshwar din deceased then went with udit
narain. shortly thereafter umrao and sita ram pws heard
the cries of parmeshwar din. on looking towards the house
of jaskaran they found that the six accused had surrounded
parmeshwar din and were giving bank a blows to him in front
of that house. the six accused then dragged parmeshwar din
deceased inside the tarwaha which had a thatched roof. the
tarwaha had one shutterless opening. umrao and sita ram
then ran towards the tarwaha and stood close to the opening
of the tarwaha. the labourers engaged in harvesting also
followed umrao and sita ram to that place. chandrika  pw 2
and mohan  pw 3  were passing that way at that time. both
of them on hearing alarm also came there and saw the accused
giving banka blows to parmeshwar din. umrao and others
shouted to the accused number to kill parmeshwar din but they
too were threatened by the accused. the accused thereafter
ran away. umrao and
others then went inside the tarwaha and. found parmeshwar
din lying dead in a pool of blood. a number of persons then
collected there. umrao got report ka-1 written by his son hari prasad. umrao
thereafter went to police station mandiaon and lodged there
report ka-1 at 5.30 p.m. station officer tiwari  pw 11  was
number present at the police station at the time he report was
lodged. on being informed about the lodging of the report
the station officer went to the place of occurrence and
arrived there at 6.30 p.m. the station officer on arrival
recorded the statements of umrao sita ram and mohan pws and
prepared inquest report relating to the dead body of the
deceased. the body was thereafter sent to the mortuary
where post mortem examination was performed by dr. jaitle on
april 1 1967. out of the appellants udit narain and sri
pal were arrested on april 7 1967 while ram prasad
surrendered in companyrt on april 14 1967.
the six accused in their statements denied the prosecution
allegations about their having participated in the assault
on parmeshwar din deceased. sarju and putti also denied the
prosecution allegation that parmeshwar din and sita ram had
purchased the land in question and had brought the same
under cultivation. the case of ram prasad and udit narain
was that they had been falsely involved in this case
because of the enmity of sita ram pw with whom according
to these accused ram prasad had an altercation on an
earlier occasion. the trial companyrt accepted the prosecution case and companyvicted
and sentenced the six accused as mentioned above. the
judgement of the trial companyrt was as already stated
affirmed on appeal by the high companyrt. in appeal before us mr. anthony on behalf of the appellants
has assailed the companyviction of the accused-appellants on the
ground that the evidence adduced by the prosecution in this
case is number reliable and suffers from infirmities. as
against that mr. rana on behalf of the state has canvassed
for the companyrectness of the view taken by the high companyrt. it cannumber be disputed that parmeshwar din deceased was the
victim of a murderous assault. dr. jaitle who performed
post mortem examination on the dead body of parmeshwar din
found as many as 23 injuries on the body out of which 18
were incised wounds one of the incised wounds had resulted
in cutting the occipital bone and anumberher had resulted in
cutting the frontal bone. the incised injuries in the
opinion of the doctor had been caused by some heavy sharp-
edged weapon. the death of the deceased was due to shock
and haemorrhage resulting from the head and neck injuries. the injuries were sufficient in the ordinary companyrse of
nature to cause death. according to the prosecution case the injuries found on the
body of the deceased had been caused by the six accused
including the three appellants. the prosecution in order
to substantiate that allegation examined umrao  pw 1
chandrika  pw 2  mohan.  pw 3  and sita ram  pw 4  as eye
witnesses of the occurrence these witnesses supported the
prosecution case as given above. the trial companyrt on
consideration of the material on record accepted the
evidence of the four eye witnesses. on appeal the learned
judges of the high companyrt again examined that evidence and
found the same to be companyvincing. numberhing companyent has been
brought to our numberice as may justify interference with the
concurrent findings of the trial companyrt. and the high companyrt
arrived at as a result of the appraisement of the evidence
of the four eye witnesses. it has been pointed out that the statement of chandrika was
recorded during the investigation of the case 25 days after
the occurrence and as such number much reliance can be placed
upon the testimony of this witness. in this respect we find
that the evidence of chandrika shows that on the morning of
the day following theoccurrence he went to muzaffarpur in
district barabanki where his father-in-law was lying ill.
the witness stayed in muzaffarpur for about six days and
thereafter returned to his village. in the meanwhile sub-
inspector tiwari had gone back to the police station. the
subinspector subsequently called the witness and recorded
his statement on april 25 1967. chandrikas name as an eye
witness of the occurrence had been mentioned in the first
information report which was lodged within about three hours
of the occurrence. in the circumstances the delay in
recording the police statement of chandrika by the
investigating officer would number justify rejection of
chandrikas testimony. in any case we find that apart from
the statement of chandrika the prosecution case is also
supported by the evidence of other three eye witnesses. so
far as these witnesses are companycerned their statements were
recorded by the investigating officer soon after he arrived
at the place of occurrence. argument has also been advanced on behalf of the appellants
that there is numbermention in the first information report
that injuries were caused to parmeshwar din deceased by the
accused before the deceased was dragged inside the tarwaha
while according to the evidence of the eye witnesses in
court the injuries to the deceased were caused by the
accused both before he was dragged as well- as inside the
tarwaha. reference to the first information report shows-
that it is recited therein that the deceased was dragged and
given banka blows by the accused. the omission to make an
express mention in the first information report that banka
blows were given to the deceased before he was dragged
inside the tarwaha would number in the circumstances in our
opinion make much material difference. assuming that banka
blows were caused to the deceased inside the tarwaha this
fact would number exculpate any of the accused. the accused at
the time of the occurrence were armed with bankas. they
dragged the deceased inside the tarwaha and gave banka
blows to
him. it is plain that the injuries were caused to the
deceased prosecution of the companymon object of all the accused
to cause death of the deceased. the appellants in the
circumstances car derive any benefit from the inability of
the prosecution witnesses .state as to which particular
injury was caused which of the accused. it has also been argued that the evidence of the eye
witnesses is of partisan character and therefore it is number
safe to base the companyviction of the accused upon that
evidence. we find it difficult to accede to this companytention
beause the trial companyrt and the high companyrt while appraising
the evidence of these witnesses companysidered all the features
of the case and came to the companyclusion that the evidence of
the witnesses was trustworthy and reliable. we find no
cogent ground to take a different view. companysiderable stress has been laid by mr. anthony upon the
fact that besides the four eye witnesses who have been
examined in this case the occurrence according to the
first information report had also been witnessed by
baddal shankar and hubba. these persons were however number
examined as witnesses at the trial. it is also pointed out
that in addition to these persons the occurrence was also
witnessed by sham lal and hubba  this hubba is different
from hubba whose name was mentioned in the first information
report  who also arrived at the scene of occurrence. sham
lal and hubba too. were number examined as witnesses. the number-
examination of these witnesses in our opinion would number
introduce an infirmity fatal to the prosecution case it is
numberdoubt true that the prosecution is bound to produce
witnesses who are essential to the unfolding of the nar-
rative. on which the prosecution is based. apart from that
it cannumber be laid down as a rule that if a large number of
persons are present at the time of the occurrence the
prosecution is bound to call and examine each and every one
of those persons. the answer to the question as to what is
the effect of the number-examination of a particular witness
would depend upon the facts and circumstances of each case. in case enumbergh number of witnesses have been examined with
tregard to the actual occurrence and their evidence is
reliable and .sufficient to base the companyviction of the
accused thereon the prosecution may well decide to refrain
from examining the other witnesses. like-wise if any of
the witnesses is won over by the accused party and as such
is number likely to state the truth the prosecution would have
a valid ground for number examining him in companyrt. the
prosecution would number however be justified in number examining
a witness on the ground that his evidence even though number
untrue would go in favour of the accused. it is as much the
duty of prosecutor as of the companyrt to ensure that full and
material facts are brought on the record so that there may
be numbermiscarriage of justice. the discharge of such a duty
cannumber be affected by the companysideration that some of the
facts if brought on the record would be favourable to the
accused. in case the companyrt finds that the prosecution has
number examined witnesses
for reasons number tenable or number proper the companyrt would be
justified in drawing an inference adverse to the
prosecution. so far as the present case is companycerned we find that the
prosecution has examined four eye witnesses of the ence and
their evidence has been found by the trial companyrt and the
high companyrt to be reliable companyvincing and sufficient to
warrant the companyviction of the accused.