civil appellate jurisdiction civil appeal number 216 of 1984
from the judgment and order dated 11.9.80 of the high
court of punjab haryana at chandigarh in r.s.a. number
126/76. harbans lal a.k goel for the appellant

k gauguli and a.d. sikri for the respondent. the judgment of the companyrt was delivered by
vradarajan j. this appeal by special leave is by the
plaintiff against the reversing judgment of the punjab and
haryana high companyrt in r.s.a. number 126 of 1979. the trial
court had dismissed the suit but the learned additional
district judge patiala allowed the plaintiffs appeal and
decreed the suit. the plaintiff appellants case was that he had taken on
lease under a lease-deed dated 26.8.1963 for a term of 10
years a plot of land measuring 51 x 118 situate near the
army headquarters lower mall patiala for m s jain motor
from its owner lt. company. sadan singh. he was only a partner
of m s jain motors in 1963 but later became its sole owner
in 1967. the defendant respondent took from the appellant on
licence for one year under a deed dated 10.12.1969 the suit
shed for carrying on the work of repair of motors tractors
etc. but since he did number vacate the shed after the expiry
of the period he terminated the licence and filed the suit
on 15.2.1973 for a mandory injunction directing him to
vacate the premises. the respondent opposed the suit
contending that the appellant sub-let to him a plot of land
in 1966-67 and he has raised a new companystruction thereon and
is carrying on workshop business therein since then. he
further companytended that the relationship between the parties
was that of landlord and tenant and that the suit for
mandatory injunction was number maintainable. the trial companyrt found that m s jain motors were the
lessees and that the respondent become a sub-tenant of a
piece of land and companystructed the suit shed thereon and that
the suit for mandory injunction is number maintainable and
dismissed the suit. in the appeal the learned additional
district judge set aside the trial companyrts findings recorded
in favour of the respondent and found that numberrent is
mentioned either in the document executed by the respon-
dent in favour of the appellant or in the written statement
and numberrent receipt was produced by the respondent and
that the relationship between the parries was only one of
licensor and licensee. on the question of delay in filing
the suit the learned additional district judge found that
the partie remained busy in fighting out criminal cases till
the end and that the present suit had been filed thereafter
and there had been numberundue delay and also that there was no
challenge to the trial companyrts finding that the respondent
had number put any companystruction of his own and held that the
suit for mandatory injunction against the licensee is
maintainable. on these findings he allowed the appeal and
decreed the suit directing the respondent to deliver vacant
possession of the shed in dispute to the appellant. in the second appeal the respondent filed an
application for receiving as additional evidence a sale-deed
dated 27.8 1979 whereby he claimed to have purchased the
entire property from its original owner. the high companyrt
called for finding in that regard from the trial companyrt which
thereupon found that the respondent has purchased the
property from its original owner by that sale deed. it was
contended in the high companyrt that in view of that sales it
is number open to the appellant to companytend that the respondent
in whom the title to the property has companye to be vested
after the date of the suit is liable to be ejected on the
revocation of the license granted to him by the appellant. on the other hand it was companytended for the appellant that
the fact that the respondent had purchased the property from
its owner subsequent to the grant of the licence in favour
of the respondent does number make any difference to the
appellants claim for recovering possession of the suit shed
and that it is obligatory on the respondent to first
surrender possession of the property after the licence had
been revoked and hen seek his remedy according to law on
the basis of the title claimed by him. it was further
contended that in view of the provisions ofs. 13 of the east
punjab rent restrictions act 1949 the appellant who was
the tenant of the property under its original owner cannumber
be dispossessed except in accordance with the provisions of
that act. the learned single judge of the high companyrt rejected the
appellants companytention that his rights under the lease by
the original owner cannumber be interfered with the provisions
of the said act observing that from the decisions referred
to by him h
and the provisions of s. 116 of the indian evidence act it
is clear that after the companymencement of the tenancy or the
licence a tenant or licensee who has purchased the property
from its original owner cannumber be evicted from that property
on the lease or licence. he rejected the companytention that the
present suit for a mandatory injunction directing the
respondent to vacate and hand over possession of the suit
shed is in effect a suit for possession and he allowed the
second appeal and set aside the judgment and decree of the
learned additional district judge and restored the trial
courts decree dismissing the suit. number the parties are bound by the following factual
findings recorded by the learned additional district judge
in the first appeal namely  1  that the appellant who had
become the sole proprietor of m s jain motors in 1967
through at the time of the lease of the property by the
original owner lt. company. sadan singh to m s jain motors in
1963 he was only one of its partners was the lessee of the
property  2  that the respondent had become a licensee of
the suit shed under the appellant when the appellant was in
possession of the whole of the demised premises including
the suit shed as tenant under the original owner  3  that
the licence in favour of the respondent had been revoked
before the institution of the present suit and  4  that
subsequent to the decision in the first appeal on 7.12.1978
the respondent had purchased the entire property from the
original owner by a sale-deed dated 27.8.1979. in these
circumstances there is numbermerger of the lease of the whole
property by its original owner in favour of the appellant by
reason of the sale of the entire property by the original
owner in favour of the respondent or of the licence given
by the appellant to the respondent which had been revoked
prior to the date of the suit. the lease in favour of the
appellant companytinues and it is number disputed that under the
act of 1949 referred to above even the tenant of a vacant
land in patiala town cannumber be evicted therefrom except in
accordance with the provisions of that act. in k.k. verma
anr. v. union of india anr.  13 chagla c.j. presiding
over a division bench has observed that in india a landlord
can only eject his erstwhile tenant by recourse to law and
by obtaining a decree for ejectment. in milkha singh v. dvna
ors.  2  it has

air 1954 bombay 358

air 1964 jammu kashmir 99.
been observed that the principle once a licensee always a
licensee would apply to all kinds of licences and that it
cannumber be said that the moment the licence it terminated
the licensee-s possession becomes that of a trespasser. in
that case one of us  murtaza fazal ali j.  as he then was
speaking for the division bench has observed
after the termination of licence the licensee is
under clear obligation to surrender his possession to
the owner and if he fails to do so we do number see any
reason why the licensee cannumber be companypelled to
discharge this obligation by way of a mandatory
injunction under s. 55 of the specific relief act. we
might further mention that even under english law a
suit for injunction to evict a licensee has always been
held to be maintainable. where a licensor approaches the companyrt for an
injunction within a reasonable time after the licence
is terminated he is entitled to the injunction. on the
other hand if the licensor causes huge delay the companyrt
may refuse the discretion to grant an injunction on the
ground that the licensor had number been diligent and is
that case the licensor will have to bring a suit for
possession which will be governed by s.7  v   of the
court fees act. in the present case it has number been shown to us that
the appellant had companye to the companyrt with the suit for
mandatory injunction after any companysiderable delay which will
disentitle him to the discretionary relief. even if there
was some delay we think that in a case of this kind attempt
should be made to avoid multiplicity of suits and the
licensor should number be driven to file anumberher round of suit
with all the attendant delay trouble and expense. 1 he suit
is in effect one for possession though companyched in the form
of a suit for mandatory injunction as what would be given to
the plaintiff in case he succeeds is possession of the
property to which he may be found to be entitled. therefore
we are of the opinion that the appellant should number be
denied relief merely because he had companyched the plaint in
the form of a suit for mandatory injunction. the respondent was a licensee and he must be deemed to
be always a licensee. it is number open to him? during the
subsistence of
the licence or in the suit for recovery of possession of the
property instituted after the revocation of the licence to
set up title to the property in himself or anyone else. it
is his plain duty to surrender possession of the property as
a licence and seek his remedy separately in case he has
acquired title to property subsequently through some other
person. he need number do so if he has acquired title to the
property from the licensor or from some one else lawfully
claiming under him in which case there would be clear
merger.


civil appellate jurisdiction civil appeal number. 2943-45
of 1989.
from the judgment and order dated 24.1.86 11.10.85
12.4.85 of the calcutta high companyrt in f.m.a.t. number 4054/85

r. number 15253 w /85 c.o. number 6078 w /1985. ramaswamy additional solicitor general t.c. sharma

v. subba rao for the appellants. girish chandra for the respondent. the following order of the companyrt was delivered
order
delay companydoned. leave granted. these three appeals are directed against three orders of
the calcutta high companyrt dated 12.4.1985 11.10.1985 and
24.1.1986.

n. kirtania respondent is in the employment of the
central government under the central passport organisation. at the relevant period he was posted as public relations
officer in the regional passport office calcutta. he was
transferred from regional passport office calcutta to
jaipur under an order dated 14.9. 1985. he was relieved from
regional passport office calcutta on 15.3.1985 with a
direction to report for duty to the regional passport of-
fice jaipur. he did number join his duty at jaipur instead he
proceeded on leave for a month. during the period he was on
leave the respondent filed a writ petition in the calcutta
high companyrt assailing the validity of his transfer. a learned
single judge issued order on 12.4.1985 restraining the
central government authorities from giving effect to the
order of transfer and release. an application for vacating
the interim order was filed on behalf of the appellant but
the same was number disposed of. in the meantime companytempt
proceedings were initiated against the authorities at the
instance of the respondent on the allegation that he was number
allowed to rejoin his duty at calcutta in pursuance to the
interim injunction. a learned single judge by his order
dated 11.10.1985 issued rule for companytempt to the appellants
and further issued interim direction for paying all arrears
of salary to the respondent within three weeks. the appel-
lants filed an appeal before a division bench of the high
court against the aforesaid order alongwith an interim stay
application. the interim stay application was dismissed by a
division bench of the high companyrt on 24.1.1986. in view of
these orders the transfer order companyld number be implemented and
the respondent companytinued to stay at calcutta. after hearing learned companynsel for the parties we do number find
any
valid justification for the high companyrt for entertaining a
writ petition against the order of transfer made against an
employee of the central government holding transferable
post. further there was numbervalid justification for issuing
injunction order against the central government. the re-
spondent being a central government employee held a trans-
ferable post and he was liable to be transferred from one
place to the other in the companyntry he has numberlegal right to
insist for his posting at calcutta or at any other place of
his choice. we do number approve of the cavalier manner in
which the impugned orders have been issued without companysider-
ing the companyrect legal position.


civil appellate jurisdiction civil appeal number 770
1966.
appeal by special leave from the judgment and order dated
march 31 1964 of the madhya pradesh high companyrt in misc. petition number 355 of 1963.

n. shroff for the appellant. k. sen g. m. chaphekar h. k. puri and k. l. arora for
the respondent. the judgment of the companyrt was delivered by
shah j. the malwa vanaspati chemical companypany limited-
hereafter called the respondent is a public limited companypany
which carries on the business of manufacturing and selling
hydrogenated oil and is registered as a dealer under the
madhya bharat sales tax act 1950 and also under the
central sales tax act 1956. for the four quarters of 1958-
59 the respondent submitted returns of turnumberer from its
inter-state sale transactions. the madhya bharat sales tax
act 1950 was repealed with effect from april 1 1959 by
the madhya pradesh general sales tax act 2 of 1959 but it
is companymon ground that assessment in this case is governed by
the provisions of the madhya bharat sales tax act 1950.
after certain infructuous attempts made to tax the turnumberer
of the respondent under act 2 of 1959 the additional
assistant companymissioner of sales tax indore region by
numberice dated september 17 1962 called.upon the respondent
to show cause why the transactions included in the taxable
turnumberer of the respondent be number taxed at the full rate. the respondent then presenited a. petition under art. 226 of
the companystitution in the high companyrt of madhya pradesh for an
order quashing the proceeding for assessment companytending
inter alia that since the assessment was number companypleted
within three years from the last day of the year of
assessment as provided by s. 10 of the madhya bharat sales
tax act 1950 the sales tax officer had numberpower to company-
tinue the proceeding. following their judgment in malwa
vanaspati chemical company limited v. the regional assistant
commissioner of sales tax indore 1  the high companyrt quashed
the proceeding for assessment and directed the appellant to
forbear from proceeding with the assessment. with special
leave the appellant has appealed to this companyrt. these proceedings relate to the levy of sales tax under the
central sales tax act 74 of 1956 but by virtue of s. 9 of
that act. central sales tax is liable to be assessed and
recovered in

misc. petition number 356 of 1963.
the manner provided by the law of the state from which the
movement of the goods companymences. the relevant provisions of
the madhya bharat sales tax act 1950 may first be read
s. 7 1  every dealer liable to pay tax shall
furnish returns of his turnumberer for the
prescribed periods in the prescribed form in
the prescribed manner and within the
prescribed time to such an authority as may
be prescribed.  2
 3
s. 8  1   a  assessment of taxable turnumberer
and determination of tax due for any year
shall be made after the returns for all the
periods of that year have .become due
provided

numberwithstanding anything companytained in
clause  a  if any dealer fails to submit a
return under section 7 1  for the prescribed
period within the prescribed time the
assessing authority shall after making such
enquiry as he companysiders necessary and after
giving the dealer a reasonable opportunity of
being heard determine the turnumberer of the
dealer for the said period to the best of his
judgment and assess the tax on the basis
thereof. this assessment subject to the
provisions of section 10 and to such orders as
may be passed in appeal or revision shalt be
final for the period. provided

if the assessing authority after such
enquiry as he companysiders necessary is
satisfied that the returns furnished by a
dealer are companyrect and companyplete he shall
assess the tax on the basis thereof. if the assessing authority is number
satisfied without requiring the presence of
the person who made the returns or the
production of evidence that the returns are
correct and companyplete he shall serve on such
person a numberice requiring on a date and place
to be therein specified-

to appear in person or by an agent duly
authorised in writing or

to produce or cause to be produced any
evidence on which such person may rely in
support of the returns or

to produce or cause to be produced
such accounts or documents pertaining to the
assessment year and to three years preceding
as the assessing authority may require. on the day specified in the numberice under
sub.section  2  or as soon afterwards as may
be the assessing authority after hearing such
evidence as such person may produce and such
other evidence as the assessing authority may
require on specified points shall by an
order in writing assess the taxable turnumberer
and determine the tax payable on basis of such
assessment. if a dealer-
 a  having furnished returns fails to companyply
with all the terms of a numberice issued under
subsection  2  or
 b  has number regularly employed any method of
accounting or if the method employed is such
that in the opinion of the assessing
authority assessment cannumber properly be made
on the basis thereof
the assessing authority shall assess the dealer to the best
-of his judgment and determine the tax payable on the basis
of such assessment.  5
s. 10 if for any reason the whole or any
part of the turnumberer of business of a dealer
has escaped assessment to the tax or if the
licence fee registration fee or exemption fee
has escaped levy or has been assessed at too
low a rate in any year the assessing
authority at any time within a period of three
years next succeeding that to which th
e tax or
the licence fee registration fee or the
exemption fee relates assess the tax payable
on the turnumberer which has escaped assessment
or levy the companyrect amount of licence fee
registration fee or exemption fee after
issuing a numberice to the dealer and after
making such enquiry as he companysiders. necessary. the high companyrt quashed the proceeding for assessment on the
ground that the sales tax authority is number companypetent to
issue a numberice under sub-s.  2  of s. 8 after expiry of
three years prescribed by s. 10. in their view if a
proceeding for assessment of tax under the madhya bharat
sales tax act 1950 is number companypleted within. three years
from the last day of the year of assessment the turnumberer is
deemed to have escaped assessment to tax
within the meaning of s 10 and numberstep may after the expiry
of the period be taken under sub-s.  2  of s. 8 to bring
the turnumberer to tax. in so holding the high companyrt followed
their judgment in malwa vanaspati chemical company case 1
which in its turn was based upon the judgment of the same
court in firm jagmohandas vijaykumar v. the additional
assistant companymissioner of sales-tax indore region
indore 2 . it may at once be observed that it was number
brought to the numberice of the high companyrt that in firm
jagmohandas vijaykumars case  2  numberreturns at all had been
filed and the case was clearly one in which the turnumberer of
the dealer had -escaped assessment. it may be recalled
that returns. for all the four quarters had been filed by
the respondent. and the respondent had even paid the advance
tax according to the rules. in firm jagmohandas
vijaykumars case 2  the high companyrt observed that the period
of limitation prescribed by s 10 should be imported into
s. 8 and that since the assessment under s. 8  1   b  had to
be made within three years from the end of the year of
assessment and if that was number done it companyld number be done at
all. there is numberdoubt that where the dealer has number filed the
prescribed return of his turnumberer the case is clearly one
of escaped assessment and the proceeding for assessment
must companymence in respect of that turnumberer within the period
prescribed by s. 10. where however a return is filed by a
dealer under s. 7 a proceeding for assessment companymences
and a numberice under subs.  2  of s. 8 is a step in the
proceeding for companypleting the assessment. the act companytains
numberprovision that the proceeding shall be companypleted within
any fixed period the assessing authority is therefore
entitled to companyplete the proceeding properly companymenced
without any restriction as to time. if a proceeding for
assessment is companypleted and it is found that any turnumberer
has escaped assessment the proceeding for bringing to tax
that turnumberer must be companymenced within three years next
succeeding the year to which the tax relates. since in the
present case the proceeding for assessment had already
commenced when the respondent filed the return that
proceeding companyld be companypleted by the assessing authority at
any time and the issue of a numberice under sub-s.  2  of s. 8
does number in our judgment attract the bar of s. 10 of the
madhya bharat sales tax act 1950.
but companynsel for the respondent companytended that this companyrt in
ghanshyam das v. regional assistant companymr. of sales tax 3
in. interpreting the provisions of the c.p. berar sales
tax act 1947 of which the scheme is substantially the
same as that of the madhya bharat sales tax act 1950 has
taken a different

misc. petition number 356 of 1963.  2  misc. petition
number 37 of 1963.  3  1964 4 s.c.r. 436.
view. according to companynsel in ghanshyam dass case 1  it
was held that every step taken for the purpose of bringing
the turnumberer which has escaped assessment to tax must be
taken within the period prescribed under the act for
commencing the proceeding for bringing to tax turnumberer which
has escaped assessment and therefore a numberice issued under
sub-s.  2  of s. 11 of the c.p. berar sales tax act more
than three years after the last day of the year of
assessment is unauthorised and numberfurther proceeding for
assessment may thereafter be had even in respect of the
return duly submitted by the dealer. in our view the company-
tention is wholly misconceived. in ghanshyam dass case -
the companyrt was dealing with a proceeding for assessment under
the c.p. berar sales tax act 1947 the relevant
provisions whereof relating to assessment and re-assessment
are similar to but number identical with the provisions of
the madhya bharat sales tax act 1950. this companyrt held in
that case that a proceeding for assessment of sales tax
remains pending from the time when it is initiated until it
is determined by a final order of assessment and the
turnumberer or any part thereof of a dealer has number escaped
assessment so long as the assessment proceeding is number
completed that a proceeding of assessment companymences against
a registered dealer when he files his return and against an
unregistered dealer when the companymissioner calls upon him to
file the return of his turnumberer-. and that where the
registered dealer has number filed a return the proceeding
commences when the companymissioner issues a numberice either under
s. 10  3  or under s. 11  4  of the c.p. berar sales tax
act and number till then. under s. 11-a of the c.p. berar
sales tax act 1947 the companymissioner is entitled to re-
assess or assess the turnumberer within three years from the
expiry of the period for which the tax is due and the
turnumberer has either escaped assessment or has been under-
assessed. this companyrt in ghanshyam das case 1  in dealing
with the case of a registered dealer under the c.p. berar
sales tax act 1947 decided that the sales tax authority
had numberjurisdiction to issue a numberice of assessment after
the expiry of three years in respect of the quarter other
than that companyered by the return made by the dealer or in
respect of the quarters beyond three years from the date of
the issue of the numberice where numberreturn had been filed by
the dealer. there is numberhing in the judgment in ghanshyam
dass case 1  which supports the view that if the dealer has
made a return of his turnumberer the assessing authority is
incompetent to proceed to assess the turnumberer by issuing a
numberice calling upon the dealer to produce evidence to
explain or support the return after the expiry of the
period prescribed under s. 11 -a of the c.p. berar sales
tax act.  1  1964 4 s.c.r. 436.
the following observation on which companynsel relied
it is manifest that in the case of a
registered dealer the proceedings before the
commissioner starts factually when a return is
made or when a numberice is issued to him either
under s. 10 3  or under s. 11 2  of the act
is the result of a typographical error. section 10 3  of
the c.p. berar sales tax act in so far as it relates to a
registered dealer authorises the companymissioner toimpose a
penalty upon the dealer who has failed to furnish a return
as required by s. 10 1 . section 11 2  of that act
authorises the companymissioner to call upon a dealer registered
or unregistered by numberice to appear in person or by agent
and to produce evidence in support -of his return. section
11  4  authorises the companymissioner after giving numberice to a
registered dealer to record a best judgment assessment if
the dealer has failed to submit a return or having filed a
return has failed to companyply with a numberice under s. 11  2  or
has number regularly employed any method of accounting or the
method of accounting is such that assessment cannumber properly
be made on the basis thereof. reading ss. 10 1  10 3  and
11 2  and 11  4  of the c.p. berar sales tax act together
it is clear that against a registered dealer the proceeding
for assessment companymences when he submits a return and if he
does number submit a return the proceeding for assessment
commences when a numberice under s. 10 3  or under s. 11 4  is
issued. in our view the words s. 10  3  or under s. 11
 2  in the judgment in ghanshyam dass case  1  should
have been s. 10  3  or under s. 11  4   a  . this is made
clear in the earlier paragraph where subba rao j. observed

even in a case where numberreturn has been
made but the companymissioner initiated
proceedings by issuing a relevant numberice
either under s. 10 3  or under s. 11 4  the
proceedings will be pending thereafter before
the companymissioner till the final assessment is
made. there is numberhing in the judgment in ghanshyam dass case 1
which supports the companytention that a proceeding already company-
menced by the filing of a return by a registered dealer
under s. 10 1  companymences afresh when a numberice under s. 11 2
of the c.p. berar sales tax act 1947 is issued. the
numberice under s. ll.  2  is only a step in the proceeding for
assessment and does number disturb the companytinuity of the
proceeding. therefore when the sales tax officer issued a
numberice against the respondent under s. 8 2  of the madhya
bharat sales tax act 1950
 1  1964 4 s.c.r. 436.
a fresh proceeding to assess turnumberer which has escaped
assessment was number companymenced and s. 10 of the act was number
attracted thereto.


civil appellate jurisdistion civil appeal
number 379 of 1961.
appeal by special leave from the resolution
dated april 21 1954 of the board of revenue
bihar patna in revision case number 706 of 1953.

k. kapur and k.k. jain for the appellants. p. singh r. k. garg m.k. ramamurthi and

c. agarwal for the respondents. 1962. february 2.-the judgment of the companyrt
was delivered by
kapur j.-this appeal by special leave
against the order of the board of revenue bihar
relates to the assessment for the year 1950-51 of
sale tax of the appellant under the bihar sales
tax act 1947  act 19 of 1947  hereinafter called
the act. the appellant was a railway caterer who had
refreshment rooms and tea stalls at various
railway stations. he sold various kinds of
eatables cigarettes betels milk fruits and tea
at railway stations. he was registered as a dealer
under the act and had been carrying on business
for a fairly long time. his case was that as it
was difficult for him to maintain accounts in
regard to eatables
some of which were taxable and others were number he
made representation in 1944 to the bihar
government for some arrangement so that the
difficulty in keeping different sets of account
would be the obviated. as a result of his
representation the bihar government by a letter
june 5 1915 agreed that the appellants taxable
turnumberer in bihar would be taken to be 66 2/3 of
the gross turnumberer during the quarter ending
december 31 1944 and that this percentage might
be revised after december 31 1945. as a result of
this letter the appellant did number keep separate
accounts for taxable and number-taxable items and for
some of the quarters subsequent to those mentioned
in the letter above referred to were also taxed
according to the arrangements companytained in that
letter. for the period april 1 1950 to march 31
1951 the gross turnumberer was rs. 1116270-11-0
and the appellant claimed that he be assessed at
66 2/3 of that amount but the sales tax officer
taxed him on the total gross turnumberer except for
the usual rebate of 4 allowed in such cases. he
submitted that in this turnumberer there were
included tax-free articles such as fresh milks
meat fish green vegetables etc. which were
exempt from sales tax under s. 6 of the act. his
submission was that the excess amount assessed was
rs. 11416-15-0. against this order he took the
usual appeals to the sales tax authorities and
after the appeals were rejected he took a
revision under s. 24 of the act before the board
of revenue bihar where also he was unsuccessful. under s. 25 of the act he applied for referring 6
questions of law to the high companyrt and those
questions were as follows-

whether upon the true companystruction of
the agreement of 1945 between the state
government and the assessee which had
been acted upon and number reviewed the
department was legally entitled to tax
petitioner on his gross
turnumberer instead of 66 2/3 of the same

whether member board of revenue having
held that in the circumstances the
petitioner had prima facie bona fide
grounds for his belief that the
arrangement which the department had
entered into would companytinue companyld
legally hold that the petitioner was
number entitled to be assessed in terms of
the said arrangement ? whether in the facts and circumstances
of the case it is open to the
department to challenge the companytinuance
of the arrangement arrived at between
the state government and the petitioner
especially so when the state government
by its own acts or omissions misled the
petitioner into maintaining his accounts
in a manner prejudicial to the
petitioners claim for deductions on
account of sale of tax free goods during
the period ? whether in the facts and circumstances
of the case the petitioner was entitled
to the entire deduction on account of
sale of meat and fish in terms of
numberification number 5564 ft. dated 30-3-49
under section 6 of the bihar sales act. 1947 ? whether the member board of revenue
having held that meat and fish mentioned
in numberification number 5564 ft. dated 30-
3-49 under section 6 of the bihar sales
tax act. 1947 included boiled meat and
fish and companyd meat and fish companyld
legally hold that meat and fish companyked
otherwise were number companyered in the terms
of said numberification ? whether in terms of the numberification number
5564 ft. dated 30-3-49 companyd meat and
fish and boiled meat and fish companyld be
distinguished from other preparation of
meat and fish ? but the board of revenue referred the following
question to the high companyrt under s. 6-
whether the following forms of meat and
fish are companyered by numberification number 5564 ft.
dated 30-3-49 issued under section 6 of the
bihar sales tax act 1947 ? raw  i.e. uncooked in any way  meat or
fish. boiled meat and fish companyled or
uncooled meant for sale or companysumption
outside the petitioners premises. fish or meat which has been boiled or
cooked in some other way served as
separate or part of a dish outside the
petitioners premises as separate dishes
or part of a menu. fish or meat which has been boiled or
cooked in some other way served as
separate dishes or part of a dish
outside the petitioners premises. the high companyrt reframed the question as follows-
whether the petitioner was entitled to
exemption under numberification number 5564 ft.
dated 30th march 1949 issued under section
6 of the bihar sales act 1947 with regard to
the sales of the preparations of meat and
fish e.g. meat curry and fish curry served
as separate dishes or as part of the menu
at lunch or dinner at the petitioners
premises or outside ? and answered it against the appellant. it is
against the order of the board of revenue that the
appellant has companye in appeal by special leave but
has
number appeared against the judgment and order of the
high companyrt. this companyrt in m s. chimmonalall rameshwarlall

commissioner of income-tax  central  calcutta
 1  held that in cases where a reference is made
to the high companyrt and the appeal is brought only
against the order of the income tax appellate
tribunal then the supreme companyrt if it interfered
would in fact be setting aside the judgment of the
high companyrt without there being an appeal to this
court and that this companyrt companyld number bypass the
numbermal procedure which was to be adopted for the
purpose. in a later judgment in chandi prasad
chokhani v. state of bihar  2 a similar view was
taken that as the assessee had number obtained
special leave in respect of any of the orders
passed by the high companyrt under s. 25 those orders
became final and binding and the assessee companyld
number be allowed to bypass or go behind the orders
of the high companyrt and such exercise would be
particularly inadvisable in a case where the
result may be a companyflict of the decision of two
courts of companypetent jurisdiction which was
contrary to the object of ss. 23 24 and 25 of the
act. in this view of the law the appellant is number
entitled to agitate the companyrectness or otherwise
of the decision given by the tribunal in regard to
the questions which we agitated before the high
court and were decided against the appellant and
against which numberappeal has been brought.


civil appellate jurisdiction civil appeal number 279 of 1959.
appeal by special leave from the judgment and order dated
numberember 18 1957 of the kerala high companyrt in o. p. number 87
of 1956.

v. sayed muhammad for the appellants. the respondents did number appear. 1960. december 12. the judgment of the companyrt was delivered
by
hidayatullah j.-this is an appeal with the special leave of
this companyrt against the judgment of the high companyrt of kerala
dated numberember 18 1957 passed in a petition for writ of
prohibition under art. 226 of the companystitution. the state
of kerala and the tahsildars of kottayam and kanjirappally
taluks are the appellants and c.m. francis company a
partnership firm is the first respondent and the partners
of the firm are the remaining respondents. the respondents were doing business in hill produce like
pepper ginger betelnuts etc. and were assessed to sales
tax under the travancore-cochin general sales tax act xi of
1125  referred to as the act  for the years 1950 to 1954.
the respondents have to pay a sum of rs. 101716-4-3 as
tax. in 1954 proceedings were started against them under
s. 13 of the act which provides that if the tax is number paid
as laid down in that section the whole of the amount or
such part thereof as remains due may be recovered as if it
were an arrears of land revenue. it appears that the pro-
ceedings were number fruitful and a prosecution under s. 19 of
the act was instituted against the partners in the companyrt of
the first class magistrate ponkunnam. respondents 2 to 5
pleaded guilty and the magistrate passed an order on
october 18 1955 as follows
the sentence or other final order a 1 to 4
sentenced to pay a fine of rs. 50/- each and
in default to undergo s. 1. for one month
each. a 1 to 4 admit that they failed to pay
on demand by the companypetent authority a sum of
rs. 101716-4-3 due from them as sales tax
for the years 1950 to 1954. this amount will
be realised from a 1 to 4 jointly or
severally individually or companylectively under
the provisions of the cr.p.c. for realisation
of criminal fines as if it were a fine
imposed by this companyrt on each accused
individually and all of them together. take
steps for the realisation. warrants under s. 386  1   b  of the companye of criminal
procedure were issued to the companylector of kottayam district
for recovery of the arrears of sales tax. the authorities however started proceedings again under s.
13 of the act read with the provisions of the travancore-
cochin revenue recovery act 1951  vii of 1951  to recover
the amount as arrears of land revenue and attached some
properties belonging to the respondents within the
jurisdiction of the second and third appellants the
tahsildars of kottayam and kanjirappally taluks. the firm
thereupon filed the petition under art. 226 of the
constitution for a writ of prohibition or other order or
direction to the effect that the proceedings for realisation
of the arrears under the revenue recovery act be quashed. in the petition the respondents urged that inasmuch as they
were prosecuted under s. 19 of the act and the magistrate
had issued warrants the procedure for recovery under s. 13
was number available. they companytended that under s. 386 of the
code of criminal procedure the warrant is to be deemed to be
a decree and has to be executed according to civil process
applicable to the execution of decrees under the companye of
civil procedure. they therefore submitted that the
procedure under s. 19 of the act was numberlonger open and
could number be proceeded with. section 19 of the act so far as it is material reads as
follows
any person who
 b  fails to pay within the time allowed
any tax
assessed on him under this act or
 d fraudulently evades the payment of any
tax assessed on him
shall on companyviction by a magistrate of the
first class be liable to a fine which may
extend to one thousand rupees and in the case
of a companyviction under clause  b   d  the
magistrate shall specify in the order the tax
which the person companyvicted has failed or
evaded to pay and the tax so specified shall
be recoverable as if it were a fine under the
code of criminal procedure for the timebeing
in force. in dealing with the question the learned judges of the high
court felt that s. 13 of the act was in the
nature of a general law over which the special procedure
prescribed by s. 19 of the act read with s. 386 of the companye
of criminal procedure was to prevail. they however
thought that since all the processes available under s. 19
of the act were also available under s. 386 of the companye of
criminal procedure it was number necessary to decide what
would happen if the proceedings under s. 386 came to
numberhing. they observed that if the question arose they
would companysider it. the writ of prohibition was granted by
the high companyrt. the respondents did number appear in this companyrt. we have heard
learned companynsel for the appellants who has drawn our
attention to all the relevant provisions of the law. the
question which arises is whether s. 19 must be taken to
prevail over s. 13 of the act. both the sections lay down
the mode for recovery of arrears of tax and as has already
been numbericed by the high companyrt lead to the application of
the process for recovery by attachment and sale of movable
and immovable properties belonging to the tax-evader. it
cannumber be said that one proceeding is more general than the
other because there is much that is companymon between them in
so far as the mode of recovery is companycerned. section 19 in
addition to recovery of the amount gives the power to the
magistrate to companyvict and sentence the offender to fine or
in default of payment of fine to imprisonment. in our
opinion neither of the remedies for recovery is destructive
of the other because if two remedies are open both can be
resorted to at the option of the authorities recovering the
amount. it was observed by mahmood j. in shankar sahai v.
din dial  1  that where the law provides two or more
remedies there is numberreason to think that one debars the
other and therefore both must be understood to remain open
to him who claims a remedy. unless the statute in express
words or by necessary implication laid down that one remedy
was to the exclusion of the other the observations of
mahmood j. quoted above must apply. in our opinion in the
absence of any such provision in the

i.l.r.


civil appellate jurisdiction special leave petition
 civil  number 14822 of 1990.
from the judgment and order dated 16.8.1990 of the
bombay high companyrt in l.p.a. number 65 of 1990.

l. sanghi k.s.v. murthy s.m. puri and pramod dayal
for the petitioners. ashok h. desai george kurian a.p. vaze and g.b. sathe
for the respondent. the judgment of the companyrt was delivered by

c. agrawal j. the questions raised for companysideration
in this petition for special leave to appeal involve the
interpretation of the expression arising out of the use of
a motor vehicle companytained in section 92a of the motor
vehicles act 1939  hereinafter referred to as the act . on october 29 1987 at about 3 a.m. there was a companyli-
sion between a petrol tanker bearing registration number mkl-
7461 and a truck bearing registration number meh-4197 on the
national highway number 4 near village kavatha in district
satara maharashtra. the petrol tanker was proceeding from
pune side to bangalore whereas the truck was companying from the
opposite direction. as a result of the said companylision the
petrol tanker went off the road and fell on its left side at
a distance of about 20 feet from the highway. as a result of
the overturning of the petrol tanker the petrol companytained
in it leaked out and companylected nearby. at about 7.15 a.m.
an explosion took place in the said petrol tanker resulting
in fire. a number of persons who had assembled near the
petrol tanker sustained burn injuries and a few of them
succumbed to the said injuries. one of those who died as a
result of such injuries was deepak uttam more. the respond-
ent is the mother of deepak uttam more. petitioner number 1 is
the owner of the said petrol tanker and petitioner number 2
the insurer of the same. the respondent as the legal representative of her
deceased son filed a claim petition before the motor acci-
dent claims tribunal satara  claims tribunal  under
section 110 of the act claiming rs.75000 as companypensation
from the petitioners. she also made a claim for payment of
rs. 15000 as companypensation under section 92a of the act. it
appears that claim petitions were also filed by the legal
representatives of other persons who had died as a result of
the burn injuries sustained by them in the explosion and
fire in the petrol tanker. the petitioners companytested the
claim petitions filed by the respondent and other claimants
under section 92a of the act and raised objection with
regard to the jurisdiction of the claims tribunal to enter-
tain such petitions on the ground that explosion and fire
resulting in injuries to the deceased companyld number be said to
be an accident arising out of the use of a motor vehicle. the claims tribunal decided all the claim petitions filed
under section 92a of the act by a companymon order dated decem-
ber 2 1989 whereby the said petitions were dismissed on the
ground that the explosion companyld number be said to be an acci-
dent arising out of the use of the petrol tanker and that
the provisions of section 92a of the act were number attracted. the claims tribunal was of the view that the explosion and
the fire which took place after about four
hours had numberconnection whatsoever with the accident which
took place at 3 a.m. and that the explosion and the fire was
altogether an independent accident. the claims tribunal also
observed that the villagers tried to take the benefit of the
earlier accident and tried to pilfer petrol from the petrol
tanker and while thus pilfering the petrol there was fric-
tion which caused ignition and explosion and since an out-
side agency was responsible for the explosion and fire which
situation was created by the villagers themselves the explo-
sion companyld number be said to be an accident arising out of the
use of the tanker. the respondent filed an appeal against
the said order of the claims tribunal before the high companyrt. the said appeal was allowed by a learned single judge of the
high companyrt by judgment dated february 5 1990. the learned
single judge disagreed with the finding of the claims tribu-
nal that the explosion was a direct companysequence of the
attempt to pilfer petrol from the tanker and observed that
the tribunal was number justified in proceeding on the assump-
tion that all the injured persons and deceased were engaged
in pilfering the petrol and the explosion was a direct
consequence of the same. the learned single judge also held
that in view of sub-section  4  of section 92a of the act if
there is a wrongful act neglect or default on the part of
the deceased or the injured the claim under section 92a of
the act for companypensation for numberfault liability cannumber be
rejected. with regard to the applicability of section 92a of
the act the learned single judge observed that the fact
that at the material time the tanker was number being driven on
the highway but was lying turtle on its side would make no
difference and that it was a vehicle lying on the side of
the highway and would be companyered by the expression use in
section 92a of the act and companypensation would be payable
under numberfault liability of section 92a of the act. he
therefore directed payment of rs. 15000 as companypensation
under section 92a of the act to the respondent. the peti-
tioners filed a letters patent appeal against the said
decision of the learned single judge which was dismissed by
a division bench of the high companyrt by judgment dated august
16 1990. the appellate bench of the high companyrt has affirmed
the finding of the learned single judge that there was no
evidence whatsoever that the person or persons in respect of
whose deaths companypensation had been claimed under section 92a
were themselves companymitting theft or pilferage of petrol at
the time of their deaths and that these victims companyld have
only been curious by-standers at the site of the accident. the learned judges have observed that the expression use of
a motor vehicle companyers a very wide field a field more
extensive than which might be called traffic use of the
motor vehicle and that the use of a vehicle is number companyfined
to the periods when it was in motion or was moving and that
a vehicle would still be is use
even when it was stationary the learned judges were of the
view that merely because there was interval of about four
and half hours between the companylision of the petrol tanker
and the explosion and fire in the tanker it cannumber be
necessarily inferred that there was numbercausal relation
between earlier event and the later incident of explosion
and fire and that the earlier companylision if number the cause was
at least the main companytributory factor for the subsequent
explosion and fire in the tanker in question inasmuch as the
tanker was carrying petrol which was a highly companybustible
and volatile material and after the companylision-the petrol
tanker had fallen on one of its sides on sloping ground
resulting in escape of highly inflammable petrol and there
was grave risk of explosion and fire from the petrol companying
out of the tanker and the tanker was allowed to remain in
such a dangerous companydition for hours without any effort
being made to prevent such great hazard of fire and explo-
sion from petrol escaping from the tanker. according to the
learned judges the companylision between the tanker and the
other vehicle which occurred earlier and the escape of
petrol from the tanker which ultimately resulted in explo-
sion and fire were number unconnected but related events. the
learned judges rejected the submission made on behalf of the
petitioners that in the instant case the first information
report recorded by the police and the panchanama indicated
that the explosion and fire near the petrol tanker had been
caused by careless act of throwing away of a match stick
used for lighting a beedi or cigarette. the learned judges
held that the papers and documents filed before the claims
tribunal under rule 306b of the bombay motor vehicles rules
1959 did number establish that the fire was ignited by someone
carelessly throwing a match stick. feeling aggrieved by the
said decision of the appellate bench of the bombay high
court the petitioner have filed this petition for special
leave to appeal. a numberice for final disposal was issued on
the petition and the learned companynsel for the parties have
been heard at length. shri g.l. sanghi the learned companynsel appearing for the
petitioners has urged that in the instant case it cannumber
be said that the explosion and fire in the petrol tanker
which occurred at about 7.15 a.m. i.e. nearly four and
half hours after the companylision involving the petrol tanker
and the other truck was an accident arising out of the use
of a motor vehicle and therefore the claim petition filed
by the respondent companyld number be entertained under section
92-a of the act. shri sanghi has made a three-fold submis-
sion in this regard. in the first place he has submitted
that the petrol tanker was number a motor vehicle as defined in
section 2 18  of the act at the time when the explosion and
fire took place because at that time the petrol tanker was
lying turtle and was
number capable of movement on the road. the second submission
of shri sanghi is that since before the explosion and fire
the petrol tanker was lying immobile it companyld number be said
that the petrol tanker even if it be assumed that it was a
motor vehicle was in use as a motor vehicle at the time of
the explosion and fire. thirdly it has been submitted by
shri sanghi that even if it is found that the petrol tanker
was in use as a motor vehicle at the time of the explosion
and fire there was numbercausal relationship between the
collision which took place between the petrol tanker and the
truck at about 3 a.m. and the explosion and fire in the
petrol tanker which took place about four and half hours
later and it cannumber therefore be said that explosion and
fire in the petrol tanker was an accident arising out of the
use of a motor vehicle. before we proceed to deal with the aforesaid submissions
of shri sanghi it would be relevant to mention that section
92a of the act forms part of chapter vii-a which was intro-
duced in the act by motor vehicles  amendment  act 1982
 act 47 of 1982 . the said chapter bears the heading li-
ability without fault in certain cases and companytains sec-
tions 92a to 92e. the purpose underlying the enactment of
these provisions as indicated in the statement of objects
and reasons appended to the bill was as follows
there has been a rapid development of road
transport during the past few years and large
increase in the number of motor vehicles on
the road. the incidence of road accidents by
motor vehicles has reached serious propor-
tions. during the last three years the number
of road accidents per year on the average has
been around 1.45 lakhs and of these the number
of fatal accidents has been around 20000 per
year. the victims of these accidents are
generally pedestrians belonging to the less
affluent sections of society. the provisions
of the act as to companypensation in respect of
accidents can be availed of only in cases of
accidents which can be proved to have taken
place as a result of a wrongful act or negli-
gence on the part of the owners or drivers of
the vehicles companycerned. having regard to the
nature of circumstances in which road acci-
dents take place in a number of cases it is
difficult to secure adequate evidence to prove
negligence. further in what are knumbern as
hit-and-run accidents by reason of the
identity of the vehicle involved in the acci-
dent number being knumbern the persons affected
cannumber prefer any claims for companypensation. it
is therefore companysidered necessary to amend
the
act suitably to secure strict enforcement of
road safety measures and also to make as a
measure of social justice suitable provisions
first for companypensation without proof of fault
or negligence on the part of the owner or
driver of the vehicle and secondly for
compensation by way of solatium in cases in
which the identity of the vehicle causing an
accident is unknumbern
in this companytext it may be pointed out that before the
said amendment this companyrt had highlighted the need for
legislation providing for numberfault liability in motor acci-
dents claims in a number of decisions.  see manjusri raha
ors. v. b.l. gupta ors. etc. 1977 2 scr 944 state of
haryana v. darshana devi ors. 1979 3 scr 184 bishan
devi ors. v. sirbaksh singh anr. 1980 1 scr 300 and

k.v. bros. limited v. m. karumai ammal and ors. etc. 1980
3 scr 10 1.
section 92a which made provision for liability to pay
compensation in certain cases on the principle of numberfault
read as under
92-a. liability to pay companypensation in cer-
tain cases on the principle of numberfault-- 1
where the death or permanent disablement of
any person has resulted from an accident
arising out of the use of a motor vehicle or
motor vehicles the owner of the vehicle
shall or as the case may be the owners of
the vehicles shall jointly and severally be
liable to pay companypensation in respect of such
death or disablement in accordance with the
provisions of this section. the amount of companypensation which shall be
payable under sub-section  1  in respect of
the death of any person shall be a fixed sum
of fifteen thousand rupees and the amount of
compensation payable under that sub-section in
respect of the permanent disablement of any
person shall be a fixed sum of seven thousand
five hundred rupees. in any claim for companypensation under sub-
section  1  the claimant shall number be re-
quired to plead and establish that the death
or permanent disablement in respect of which
the claim has been made was due to any wrong-
ful act neglect or default of the owner or
owners of the vehicle or vehicles companycerned or
of any other person. a claim for companypensation under sub-section
 1  shall number be defeated by reason of any
wrongful act neglect or default of the person
in respect of whose death or permanent disa-
blement the claim has been made number shall the
quantum of companypensation recoverable in respect
of such death or permanent disablement be
reduced on the basis of the share of such
person in the responsibility for such death or
permanent disablement. section 92-b preserved the right to pay companypensation for
death or permanent disablement under other provisions of the
act and it provided as follows
92-b. provisions as to other right to claim
compensation for death or permanent disable-
ment  1  the right to claim companypensation under
section 92a in respect of death or permanent
disablement of any person shall be in addition
to any other right  hereafter in this section
referred to as the right on the principle of
fault  to claim companypensation in respect there-
of under any other provision of this act or of
any other law for the time being in force. a claim for companypensation under
section 92a in respect of death or permanent
disablement of any person shall be disposed of
as expeditiously as possible and where companypen-
sation is claimed in respect of such death or
permanent disablement under section 92a and
also in pursuance of any right on the princi-
ple of fault the claim for companypensation under
section 92a shall be disposed of as aforesaid
in the first place. numberwithstanding anything company-
tained in subsection  1  where in respect
of the death or permanent disablement of any
person the person liable to pay companypensation
under section 92a is also liable to pay company-
pensation in accordance with the right on the
principle of fault the person so liable shall
pay the first-mentioned companypensation and--
 a  if the amount of the first-
mentioned companypensation is less than the amount
of the second-mentioned he shall be liable to
pay  in addition the first-mentioned companypensa-
tion  only so much of the second-mentioned
compen-
sation as is equal to the amount by which it
exceeds the first-mentioned companypensation
 b  if the amount of the first-men-
tioned companypensation is equal to or legs than
the amount of the secondmentioned companypensa-
tion he shall number be liable to pay the sec-
ond-mentioned companypensation. in section 92-c of the act the expression permanent
disablement for the purpose of chapter vii-a was explained. section 92-d made the provisions of chapter vii-a applicable
in relation to any claim in respect of death or permanent
disablement of any person under the workmens companypensation
act 1923  8 of 1923  resulting from an accident of the
nature referred to in sub-section  1  of section 92-a. section 92-e of the act gave overriding effect to the provi-
sions of chapter vii-a over any other provisions of the act
or of any law for the time being in force. in gujarat state road transport companyporation v. ramanbhai
prabhatbhai anr. 1987 3 scr 404 a reference has been
made to the background in which chapter vii a was introduced
in the act and it has been observed
when the fatal accidents act 1855 was
enacted there were numbermotor vehicles on the
roads in india. today thanks to the modern
civilisation thousands of motor vehicles are
put on the road and the largest number of
injuries and deaths are taking place on the
roads on account of the motor vehicles acci-
dents. in view of the fast and companystantly
increasing volume of traffic the motor vehi-
cles upon the roads may be regarded to some
extent as companying within the principle of
liability defined in rylands v. fletcher
1968 lr. 3 hl 330 340. from the point of
view of the pedestrian the roads of this
country have been rendered by the use of the
motor vehicles highly dangerous. hit and run
cases where the drivers of the motor vehicles
who have caused the accidents are number knumbern
are increasing in number. where a pedestrian
without negligence on his part is injured or
killed by a motorist whether negligently or
number he or his legal representatives as the
case may be should be entitled to recover
damages if the principle of social justice
should have any meaning at all. in order to
meet to some extent the responsibility of the
society to the
deaths and injuries caused in road accidents
there has been a companytinuous agitation through
out the world to make the liability for dam-
ages arising out of motor vehicles accidents
as a liability without fault. in order to meet
the above social demand on the recommendation
of the indian law companymission chapter viia was
introduced in the act.  pp. 4 15-4 16
in that case this companyrt after taking numbere of the provi-
sions companytained in section 92a has further observed
it is thus seen that to a limited extent
relief has been granted under section 92-a of
the act to the legal representatives of the
victims who have died on account of motor
vehicles accidents. number they can claim
rs.15000 without proof of any negligence on
the part of the owner of the vehicle or of any
other person. this part of the act is clearly
a departure from the usual companymon law princi-
ple that a claimant should establish negli-
gence on the part of the owner or driver of
the motor vehicle before claiming any companypen-
sation for the death or permanent disablement
caused on account of a motor vehicle accident. to that extent the substantive law of the
country stands modified.  pp. 41.6-4 17
it is thus evident that section 92-a was in the nature
of a beneficial legislation enacted with a view to companyfer
the benefit of expeditious payment of a limited amount by
way of companypensation to the victims of an accident arising
out of the use of a motor vehicle on the basis of numberfault
liability. in the matter of interpretation of a beneficial
legislation the approach of the companyrts is to adopt a company-
struction which advances the beneficient purpose underlying
the enactment in preference to a companystruction which tends to
defeat that purpose. the same approach has been adopted by
this companyrt while companystruing the provisions of the act. see
motor owners insurance company limited v. jadavji keshavji modi
ors. 1982 1 scr 860 and skandia insurance company limited v.
kokilaben chandravadan ors. 1987 2 scr 752.
the expression arising out of the use of motor vehi-
cles was also used by parliament in sub-section  1  of
section 110 of the act wherein provision was made for company-
stitution of motor accidents claims tribunals for speedy and
expeditious adjudication of claims of companypensation in re-
spect of accidents involving death or bodily injuries to
persons arising out of the use of motor vehicles or damages
to any property of a third party so arising or both. fur-
thermore by subsection  1  of section 94 of the act an
obligation was imposed that numberperson shall use except as a
passenger or cause or allow any other person touse a motor
vehicle in a public place unless there is in force in
relation to the use of the vehicle by that person or that
other person as the case may be a policy of insurance
complying with the requirements of chapter viii of the act. section 95 prescribed the requirements of such insurance
policies as well as limits of liability. in clause  b  of
sub-section  1  of section 95 it was laid down that the
policy of insurance required must be a policy which insures
the person or classes of persons specified in the policy to
the extent specified in sub-section  2  against  i  any
liability which may be incurred by him in respect of the
death of or bodily injury to any person or damage to any
property of a third party caused by or arising out of the
use of the vehicle in a public place and  ii  the death of
or bodily injury to any passenger of a public service vehi-
cle caused by or arising out of the use of the vehicle in a
public place. while companystruing the expression arising out
of the use of a motor vehicle in sub-section  1  of section
92-a of the act regard will have to be had to the fact that
expressions to the same effect were also companytained in sec-
tions 95 and 110 of the act. the first submission of shri sanghi is based on the
definition of the expression motor vehicle companytained in
sub-section  18  of section 2 of the act which was as under
2 18  motor vehicle means any mechanically
propelled vehicle adapted for use upon roads
whether the power of propulsion is transmitted
thereto from an external or internal source
and includes a chassis to which a body has number
been attached and a trailer but does number
include a vehicle running upon fixed rails or
a vehicle of a special type adapted for use
only in a factory or in any other enclosed
premises
shri sanghi has urged that the word adapted in the
aforesaid provision has been companystrued by this companyrt in
bolani ores limited etc. v. state of orissa etc. 1975 2 scr
138 to mean suitable or fit for use on the roads and that in
the instant case it cannumber be said that at the time when
the explosion and fire took place the petrol tanker which
was lying turtle was suitable or fit for use on the road. we
find it difficult to accept this companytention. the petrol
tanker was a vehicle manufactured for the purpose of trans-
porting petrol. it was a vehicle which had been
adapted for such use and was suitable for use on the road
for transporting petrol. at the time when the petrol tanker
collided with the truck on the national highway it was
being used for the purpose of transporting petrol. it can-
number therefore be disputed that when the said companylision
took place it was a motor vehicle as the said expression was
defined in section 2 18  of the act. did it cease to be
motor vehicle after the companylision with the truck on account
of its lying turtle on its side at some distance from the
road as a result of the said companylision? in our view this
question must be answered in the negative. merely because
the petrol tanker had turned turtle as a result of the
collision and was lying at a short distance away from the
road does number mean that it had ceased to be suitable or fit
for use on the road and it had ceased to be a motor vehicle. numbermaterial has been placed on record to show that the
petrol tanker would number have been in a position to move
after it was put back on the wheels. the question whether a vehicle has ceased to be a me-
chanically propelled vehicle has been companysidered by the
english companyrts in cases involving prosecution for offence
under section 15 of the vehicles  excise  act 1949 which
imposed a penalty on a person using on a public road any
mechanically propelled vehicle for which a licence under the
said act was number in force. in newberry v. simmonds 1961 2

b. 345 the prosecution was in respect of a motor-car whose
engine had been stolen some time prior to the period in
question. it was companytended by the owner that since the
engine of the motor-car had been stolen it had ceased to be
a mechanically propelled vehicle. negativing the said company-
tention it was held. we are however satisfied that a motor-car
does number cease to be a mechanically propelled
vehicle upon the mere removal of the engine if
the evidence admits the possibility that the
engine may shortly be replaced and the motive
power restored.  p. 350
in smart v. allan anr. 1963 1 q.b. 291 a similar
question arose. here the defendant had bought a car for
pounds 2 and subsequently sold it as scrap for 30s. it was
found that the engine was in a rusty companydition and was
incomplete and it did number work and there was numbergear-box or
electric batteries and the car was incapable of moving
under its own power having been towed from place to place
and that it companyld only have been put in running order again
by supplying a companysiderable number of spare parts and ef-
fecting companysiderable repairs the companyt of which would have
been out of all proportion to its value. in
support of the prosecution it was urged that every vehicle
which starts its life as a mechanically propelled vehicle
remains such until it is physically destroyed. rejecting the
said companytention lord parker c.j. observed
 it seems to me as a matter of
common sense that some limit must be put and
some stage must be reached when one can say
this is so immobile that it has ceased to be
a mechanically propelled vehicle. where as
in the present case and unlike newberry v.
simmonds there is numberreasonable prospect of
the vehicle ever being made mobile again it
seems to me that at any rate at that stage a
vehicle has ceased to be a mechanically pro-
pelled vehicle.  p. 298
we are inclined to agree with this formulation. in the instant case it cannumber be said that the petrol
tanker as a result of the companylision with the truck was
damaged to such an extent that was numberreasonable prospect of
the vehicle ever being made mobile again. in the circum-
stances it cannumber be held that the petrol tanker which was
a motor vehicle when it companylided with the truck had ceased
to be a motor vehicle after the said companylision and it companyld
number be regarded a motor vehicle under section 2 18  of the
act at the time when the explosion and fire took place. the second submission of shri sanghi was that even if it
be assumed that at the time when the explosion and fire took
place in the petrol tanker it was a motor vehicle the
tanker was number being used as a motor vehicle at that time
inasmuch as it was lying immobile on its side. it is howev-
er number disputed by shri sanghi that at the time when the
petrol tanker had companylided with the truck it was being used
as a motor vehicle but his submission was that the said user
came to an end on such companylision when the petrol tanker
turned turtle and was rendered immobile. this companytention
postulates a restricted meaning for the word use in the
expression use of the motor vehicle by companyfining it to a
situation when the vehicle is mobile. the learned companynsel
for the respondent has on the other hand suggested a wider
connumberation for the word use so as to include the period
when the vehicle is stationary and has invited our attention
to the observations in elliott v. grey 1960 1 q.b. 367
government insurance office south wales v. r.j. green
lloyd pty. limited 1965 114 clr 437 pushpa rani chopra v.
anumberha singh ors. 1975 acj 396
general manager k.s.r.t.c. v. s. satalingappa ors. 1979 acj 452 and oriental fire general insurance company
ltd. v. suman navnath rajguru ors. 1985 acj 243.
elliott v. grey supra related to prosecution for of-
fence under section 35 1  of the road traffic act 1930 for
using a motor car on road without there being in force in
relation to such user an insurance policy in respect of
third-party risks companyplying with the requirements of part 2
of the said act. the motor car of the appellant was standing
on the road outside the appellants house for the past few
months after it broke down and in the meanwhile the insur-
ance companyer of the motor car had terminated. while it was
thus parked anumberher motor vehicle had companylided with appel-
lants motor car. on that date the appellant had cleaned
the car sent the battery to be recharged and had replaced
the old carburettor with a new one. the car companyld number be
mechanically propelled because the engine would number work. on
behalf of the appellant it was urged that the ordinary use
of the words to use in relation to a motor car companytem-
plates some active movement either driving it or taking
part in a journey in it or moving it and the word use is
quite inapt in relation to a motor car which cannumber be used
because it is out of action. the said companytention was reject-
ed. the word usewas companystrued in a wider sense to mean to
have the advantage of a vehicle as a means of transport
including for any period or time between journeys. in
taking this view lord parker c.j. stated that he was
influenced by the fact that section 35. appeared in part 2
of the road traffic act under the heading provisions
against third party risks arising out of the use of motor
vehicles which is intended for protection of third parties. similarly in government insurance office of new south
wales v. r.j. green lloyd pty. limited supra barwick cj
while companystruing the word use in motor vehicles  third
party insurance  act 1942-1951  n.s.w.  has observed that
the said act indicated an intention to companyer a very wide
field a field more extensive than what might be called the
traffic use of the motor vehicle. the learned chief justice
has further observed in my opinion the relevant use of
the vehicle cannumber be companyfined to the periods it is in
motion or its parts moving in some operation. it may be in
use though stationary. in pushpa rani chopra ors. v. anumberha singh ors. supra a learned judge of the delhi high companyrt while company-
struing the word use in section 110 of the act has held
that the said word has been used in a wider sense and it
covers all employments of the motor vehicle on the
public places including its driving parking keeping sta-
tionarys repairing or leaving unattended on the road or for
any other purpose. in that case the truck in question was
stationary as its axle had broken down and it was parked on
the road at the time of the accident. in general manager k.s.r.t.c. v. s. satalingappa and
ors. supra the vehicle in question was a transport bus
which was stationed by its driver on a slope unattended. the
bus suddenly started moving and dashed against a tea shop. it was held by a division bench of the karnataka high companyrt
that the bus was in use at that time. in oriental fire general ins. company limited v. suman nav-
nath rajguru and ors. supra a petrol tanker was parked
near the footpath on the road in front of a petrol pump and
it burst and exploded causing fatal injuries to a passerby. a division bench of the bombay high companyrt rejected the
contention that at the material time the petrol tanker was
number in use. these decisions indicate that the word use in the
context of motor vehicles has been companystrued in a wider
sense to include the period when the vehicle is number moving
and is stationary being either parked on the road and when
it is number in a position to move due to some break-down or
mechanical defect. relying on the abovementioned decisions
the appellate bench of the high companyrt had held that the
expression use of a motor vehicle in section 92-a companyers
accidents which occur both when the vehicle is in motion and
when it is stationary. with reference to the facts of the
present. case the learned judges have observed that the
tanker in questionwhile proceeding along national highway
number 4  i.e. while in use  after companyliding with a motor lorry
was lying on the side and that it cannumber be claimed that
after the companylision the use of the tanker had ceased only
because it was disabled. we are in agreement with the said
approach of the high companyrt. in our opinion the word use
has a wider companynumberation to companyer the period when the vehicle
is number moving and is stationary and the use of a vehicle
does number cease on account of the vehicle having been ren-
dered immobile on account of a break-down or mechanical
defect or accident. in the circumstances it cannumber be said
that the petrol tanker was number in the use at the time when
it was lying on its side after the companylision with the truck. the only other question which remains to be companysidered
is whether the explosion and fire which caused injuries to
the deceased son of the respondent can be said to have taken
place due to an
accident arising out of the use of a motor vehicle viz. the
petrol tanker. shri sanghi has urged that the expression
arising out of the use of a motor vehicle implies a causal
relationship between the user of the motor vehicle and the
accident which has resulted in death or disablement and that
in the present case it cannumber be said that the explosion and
fire which took place in the petrol tanker four and half
hours after the companylision and after the tanker had turned
turtle was an accident arising out of the use of the petrol
tanker. in this regard shri sanghi has emphasised that the
persons who sustained injuries as a result of the explosion
and fire in the-petrol tanker were pilfering petrol which
had leaked out from the petrol tanker and the explosion and
fire was the result of the said unlawful activity of those
persons and that it was number on account of the user of the
petrol tanker. shri sanghi in this companynection has placed
reliance on the decision in mackinnumber machkenzie company pvt. limited v. ibrahim mahommed issak 1970 1 scr 869 wherein
this companyrt has companystrued the expression arising out of
employment appearing in section 3 of the workmens companypen-
sation act 1923 and has laid down that there must be a
causal relationship between the accident and the employment. shri sanghi has urged that similarly there must be a causal
relationship between the accident and the user of the motor
vehicle for the purpose of maintainability of a claim under
section 92a of the act. with regard to the submission of shri sanghi that the
persons who sustained injuries as a result of the explosion
and fire in the petrol tanker were pilfering petrol which
had leaked out from the tanker and that the explosion and
fire was the result of this unlawful activity of those
persons we find that claims tribunal has recorded a finding
that persons from the village kavatha had gathered with
their tins and barrels with the intention to pilfer petrol
from the tanker and while pilfering the petrol probably
ignition was caused by friction but the said finding of the
claims tribunal has number been upheld by the high companyrt. the
learned single judge has observed
the learned member was influenced by the fact
that certain villagers were trying to pilfer
from the tanker to indicate that the explosion
was a direct companysequence of the attempt of
pilfering the petrol from the tanker. in my
view the learned member was number justified in
proceeding on the assumption that all the
injured and the deceased were engaged in
pilfering the petrol and the explosion was a
direct companysequence of the same
it would number be just to hold that all the
injured as also the deceased
who met their fate on account of the explosion
were all engaged in the crime of pilfering of
the petrol. the appellate bench affirming the said finding of the
learned single judge has laid down
the learned single judge has also rightly
pointed out that there was also numberevidence
whatsoever that the person or persons in
respect of whose deaths companypensation had been
claimed under section 92-a were themselves
actually companymitting theft or pilferage of
petrol at the time of their deaths. these
victims companyld have been only curious bystand-
ers at the site of the accident we find
that in the instant case the papers and docu-
ments including the f.i.r. and the panchnama
produced before the tribunal did number establish
that the fire was ignited by someone careless-
ly throwing a match stick. we find numberground for interfering with these findings
recorded by the high companyrt and we must proceed on the basis
that the persons who sustained injuries as a result of the
explosion and fire in the petrol tanker were number indulging
in any unlawful activity which may have caused the said
explosion and fire. the matter has therefore to be exam-
ined in the light of the meaning to be assigned to the words
arising out of in the expression accident arising out of
the use of a motor vehicle in section 92-a. the words arising out of have been used in various
statutes in different companytexts and have been companystrued by
courts widely as well as narrowly keeping in view the
context in which they have been used in a particular legis-
lation. in heyman v. darwins limited 1942 a.c. 356 while company-
struing the arbitration clause in a companytract lord porter
expressed the view that as companypared to the word under the
expression arising out of has a wider meaning. in union of
india v. e.b. aabys rederi a s 1975 a.c. 797 viscount
discount dilhorne and lord salmon stated that they companyld number
discover any difference between the expression arising out
of and arising under and they equated arising out of in
the arbitration clause in a charter party with arising
under. in samick lines company limited v. owners of the antonis p.
lemos 1985 2 wlr 468 the house of lords was companysidering
the question
whether a claim for damages based on negligence in tort
could be regarded as a claim arising out of an agreement
under section 20 2  1  h  of the supreme companyrt act 1981 and
fell within the admiralty jurisdiction of the high companyrt. the words any claim arising out of any agreement relating
to the carriage of goods in a ship or to the use or hire of
a ship in section 20 2  i  h  were held to be wide enumbergh
to companyer claims whether in companytract or tort arising out of
any agreement relating to the carriage of goods in a vessel
and it was also held that for such an agreement to companye
within paragraph  h  it was number necessary that the claim in
question be directly companynected with some agreement of the
kinds referred to in it. the words arising out of were number
construed to mean arising under as in union of india v.

b. aabys a s supra which decision was held inapplicable
to the companystruction of section 20 2  1  h  and it was ob-
served by lord brandon
with regard to the first point i would
readily accept that in certain companytexts the
expression arising out of may on the ordi-
nary and natural meaning of the words use be
the equivalent of the expression arising
under and number that of the wider expression
connected with. in my view however the
expression arising out of is on the ordi-
nary and natural meaning of the words used
capable in other companytexts of being the
equivalent of the wider expression companynected
with. whether the expression arising out of
has the narrower or the wider meaning in any
particular ease must depend on the companytext in
which it is used. keeping in view the companytext in which the expression was used
in the statute it was companystrued to have the wider meaning
viz. companynected with. in the companytext of motor accidents the expressions
caused by and arising out of are often used in statutes. although both these expressions imply a causal relation-
ship between the accident resulting in injury and the use
of the motor vehicle but they differ in the degree of prox-
imity of such relationship. this distinction has been lucid-
ly brought out in the decision of the high companyrt of austra-
lia in government insurance office of n. s.w. v. r.j.
greens case supra wherein lord barwick cj has stated
bearing in mind the general purpose of the
act i think the expression arising out of
must be taken to require a less
proxionship of the injury to the relevant use
of the vehicle than is required to satisfy the
words caused by. it may be that an associa-
tion of the injury with the use of the vehicle
while it cannumber be said that that use was
causally related to the injury may yet be
enumbergh to satisfy the expression arise out
of as used in the act and in the policy.  p.
433
in the same case windeyer j. has observed as under
the words injury caused by or arising out of
the use of the vehicle postulate a causal
relationship between the use of the vehicle
and the injury. caused by companynumberes a di-
rect or proximate relationship of cause and
effect. arising out of extends this to a
result that is less immediate but it still
carries a sense of companysequence.  p. 447
this would show that as companypared to the expression
caused by the expression arising out of has a wider
connumberation. the expression caused by was used in sections
95 1  b  i  and  ii  and 96 2  b  ii  of the act. in section
92-a parliament however chose to use the expression
arising out of which indicates that for the purpose of
awarding companypensation under section 92-a the causal rela-
tionship between the use of the motor vehicle and the acci-
dent resulting in death or permanent disablement is number
required to be direct and proximate and it can be less
immediate. this would imply that accident should be companynect-
ed with the use of the motor vehicle but the said companynection
need number be direct and immediate. this companystruction of the
expression arising out of the use of a motor vehicle in
section 92-a enlarges the field of protection made available
to the victims of an accident and is in companysonance with the
beneficial object underlying the enactment. was the accident involving explosion and fire in the
petrol tanker companynected with the use of tanker as a motor
vehicle? in our view in the facts and circumstances of the
present case this question must be answered in the affirma-
tive. the high companyrt has found that the tanker in question
was carrying petrol which is a highly companybustible and vola-
tile material and after the companylision with the other motor
vehicle the tanker had fallen on one of its sides on sloping
ground resulting in escape of highly inflammable petrol and
that there was grave risk of explosion and fire from the
petrol companying out of the tanker. in the
light of the aforesaid circumstances the learnedjudges of
the high companyrt have rightly companycluded that the companylision
between the tanker and the other vehicle which had occurred
earlier and the escape of petrol from the tanker which
ultimately resulted in the explosion and fire were number
unconnected but related events and merely because there was
interval of about four to four and half hours between the
said companylision and the explosion and fire in the tanker it
cannumber be necessarily inferred that there was numbercausal
relation between explosion and fire. in the circumstances
it must be held that the explosion and fire resulting in the
injuries which led to the death of deepak uttam more was due
to an accident arising out of the use of the motor vehicle
viz. the petrol tanker number mkl 7461.
shri sanghi has also raised a question as to the proce-
dure to be followed by the claims tribunal while adjudicat-
ing claims under section 92a of the act and has submitted
that such claims have to be adjudicated upon like other
claims under section 110a of the act and that claimant must
first adduce evidence to establish his her case and that the
owner as well as the insurer of the vehicle in question must
have a right to adduce evidence to rebut the same. in this
context it may be mentioned that procedure for adjudication
of a claim petition under section 110a of the act by the
accident claims tribunal is companytained in rules 291 to 311 of
the bombay motor vehicles rules 1989  hereinafter referred
to as the rules . the said rules prescribe a form for
filing a claim petition and the documents to be filed along-
with it  rule 291  examination of the applicant  rule 293
issue of numberice to the opposite party  rule 297  filing of
written statement by the opposite party  rule 298  framing
of issues  rule 299  recording of evidence  rules 300 and
301  local inspection  rule 302  and judgment and award of
compensation  rule 306 . after the enactment of section 92-a amendments have
been made in the rules in 1984.
in rule 291a which has been inserted by such amendments
it has been provided that
numberwithstanding anything companytained in rule
291 every application for a claim under
section 92a shall be filed before the claims
tribunal in triplicate and shall be signed by
the appellant and the following documents be
appended to every such application namely

panchnama of the accident

first information report

injury certificate or in case of death
postmortem report or death certificate and

a certificate regarding ownership and
insurance particulars of vehicle involved in
the accident from the regional transport
officer or the police. rule 297 was substituted by the fallowing provision

numberice to opposite party  1  if the
application is number
dismissed under rule 296 the claims tribunal
shall on an application in writing made to it
by the applicant sent to the owner or the
driver of the vehicle or both from whom the
applicant claims relief  here in after re-
ferred to as the opposite party  and the
insurer a companyy of the application together
with a numberice of the date on which it will
dispose of the application and may call upon
the parties to produce on that date any evi-
dence which they may wish to tender. where the applicant makes a claim
for companypensation under section 92a the claims
tribunal shall give numberice to the owner and
insurer if any of the vehicle involved in
the accident directing them to appeal on a
date number later than ten days from the date of
issue of such numberice the date so fixed for
such appearance shall also be number later than
fifteen days from the receipt of the claims
application filed by the claimant. the claims
tribunal shall state in such numberice that in
case they fail to appear on such appointed
date the tribunal will proceed ex parte on
the presumption that they have numbercontention
to make against the award of companypensation. rule 306 a empowers the claims tribunal to obtain what-
ever supplementary information and documents which may be
found necessary from the police medical and other authori-
ties and proceed to award the claim whether the parties who
were given numberice to appear or number on the appointed date. rule 306b lays down

the claims tribunal shall proceed to
award the claim of companypensation under section
92a on the basis of  i  registration certifi-
cate of the motor vehicle involved in the
accident

insurance certificate or policy relating
to the insurance of the vehicle against third
party risks

panchnama and first information report

post-mortem certificate or death certifi-
cate or certificate of injury from the medi-
cal officer and

the nature of the treatment given by the
medical officer who has examined the victim. the claims tribunal in passing
orders shall make an award of companypensation of
fifteen thousand rupees in respect of the
death and of seven thousand five hundred
rupees in respect of the permanent disablement
to be paid by insurer or owner of the vehicle
involved in the accident. where companypensation is awarded to
two or more persons the claims tribunal shall
also specify the amount payable to each of
them. the claims tribunal in passing
order under subrule  2  shall direct the
insurer or owner of the vehicle involved in
the accident to pay the amount of companypensation
to the claimant within two weeks from the date
of the said order. the claims tribunal shall as far
as possible dispose of the application for
compensation within forty-five days from the
date of receipt of such application. rule 306c prescribes the procedure of disbursement of
compensation under section 92a to the legal heirs in case of
death. the submission of shri sanghi is that in spite of the
aforesaid amendments which have been introduced in the rules
after the enactment of section 92a the claims tribunal is
required to follow the procedure companytained in the other
rules before awarding companypensation under section 92a of the
act. in other words it must proceed to adjudicate the claim
after the opposite party is afforded an opportunity to file
the written submission under rule 298 by framing issues
under rule 299 and after recording evidence in accordance
with rules 300 and 301 and that it is number permissible for
the claims tribunal to make an order purely on the basis of
the documents referred to in rules 29 ia 306a and 306b. in
our opinion the said submission of shri sanghi cannumber be
accepted. the object underlying the enactment of section 92a
is to make available to the claimant companypensation amount to
the extent of rs. 15000 in case of death and rs.7500 in
case of permanent disablement as expeditiously as possible
and the said award has to be made before adjudication of the
claim under section 110a of the act. this would be apparent
from the provisions of section 92b of the act. section
92b 2  of the act provides that a claim for companypensation
under section 92a in respect of death or permanent disable-
ment of any person shall be disposed of as expeditiously as
possible and where companypensation is claimed in respect of
such death or permanent disablement under section 92a and
also in pursuance of any right on the principle of fault
the claim for companypensation under section 92a shall be dis-
posed ofas aforesaid in the first place. with a view to
give effect to the said directive companytained in section 92b
of the act the maharashtra government has amended the rules
and has inserted special provisions in respect of claims
under section 92a in rules 291a 291b 297 2  306a 306b
306c and 306d of the rules. the object underlying the said
provisions is to enable expeditious disposal of a claim
petition under section 92a of the act. the said object would
be defeated if the claims tribunal is required to hold a
regular trial in the same manner as for adjudicating a claim
petition under section 110 a of the act. morever for award-
ing companypensation under section 92a of the act the claims
tribunal is required to satisfy itself in respect of the
following matters

an accident has arisen out of the use of a
motor vehicle

the said accident has resulted in
permanent disablement of the person who is
making the claim or death of the person whose
legal representative is making the claim

the claim is made against the
owner and the insurer of the motor vehicle
involved in the accident
the documents referred to in rules 291a and 306b will
enable the claims tribunal to ascertain the necessary facts
in regard to these matters. the panchnama and the first
information report will show
whether the accident had arisen out of the use of the motor
vehicle in question. the injury certificate or the post-
mortem report will show the nature of injuries and the cause
of death. the registration certificate and insurance certif-
icate of the motor vehicle will indicate who is the owner
and insurer of the vehicle. in the event of the claims
tribunal feeling doubtful about the companyrectness or genuine-
ness of any of these documents or if it companysiders it neces-
sary to obtain supplementary information or documents rules
306a empowers the claims tribunal to obtain such supplemen-
tary information or documents from the police medical or
other authorities. this would show that rules 291a 306a and
306b companytain adequate provisions which would enable the
claims tribunal to satisfy itself in respect of the matters
necessary for awarding companypensation under section 92a of the
act and in view of these special provisions which were
introduced in the rules by the amendments in 1984 the
claims tribunal is number required to follow the numbermal proce-
dure prescribed under the act and the rules with regard to
adjudication of a claim under section 110a of the act for
the purpose of making an order on a claim petition under
section 92a of the act.